Title II — L–1 visa fraud and abuse protections

S. 3770 · 116th Congress · May 19, 2020 · Lineage

II L–1 visa fraud and abuse protections

Sec. 201 Prohibition on replacement of United States workers and restricting outplacement of L–1 nonimmigrants

(a)

Restriction on outplacement of L–1 workers— Section 214(c)(2)(F) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)(F)) is amended to read as follows:

“(F)

“(i) Unless an employer receives a waiver under clause (ii), an employer may not employ an alien, for a cumulative period exceeding 1 year, who—

“(I) will serve in a capacity involving specialized knowledge with respect to an employer for purposes of section 101(a)(15)(L); and

“(II) will be stationed primarily at the worksite of an employer other than the petitioning employer or its affiliate, subsidiary, or parent, including pursuant to an outsourcing, leasing, or other contracting agreement.

“(ii) The Secretary of Labor may grant a waiver of the requirements under clause (i) if the Secretary determines that the employer requesting such waiver has established that—

“(I) the employer with which the alien referred to in clause (i) would be placed—

“(aa) will not at any time replace a United States worker with 1 or more nonimmigrants described in section 101(a)(15)(L); and

“(bb) has not displaced and does not intend to displace a United States worker employed by the employer within the period beginning 180 days before the date of the placement of such alien with the employer and ending 180 days after such date (not including any period of on-site or virtual training of nonimmigrants described in section 101(a)(15)(L) by employees of the employer);

“(II) such alien will be principally controlled and supervised by the petitioning employer; and

“(III) the placement of the nonimmigrant is not essentially an arrangement to provide labor for hire for an unaffiliated employer with which the nonimmigrant will be placed, rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.

“(iii) The Secretary shall grant or deny a waiver under clause (ii) not later than seven days after the date on which the Secretary receives the application for the waiver.”

(b)

Prohibition on replacement of United States workers— Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)) is amended by adding at the end the following:

“(G)

“(i) An employer importing an alien as a nonimmigrant under section 101(a)(15)(L)—

“(I) may not at any time replace a United States worker (as defined in section 212(n)(4)(E)) with 1 or more such nonimmigrants; and

“(II) may not displace a United States worker (as defined in section 212(n)(4)(E)) employed by the employer during the period beginning 180 days before and ending 180 days after the date of the placement of such a nonimmigrant with the employer.

“(ii) The 180-day period referenced in clause (i)(II) may not include any period of on-site or virtual training of nonimmigrants described in clause (i) by employees of the employer.”

(c)

Rulemaking— The Secretary of Homeland Security, after notice and a period for comment, shall promulgate rules for an employer to apply for a waiver under section 214(c)(2)(F)(ii), as added by subsection (a).

Sec. 202 L–1 employer petition requirements for employment at new offices

Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)), as amended by section 201, is further amended by adding at the end the following:

“(H)

“(i) If the beneficiary of a petition under this paragraph is coming to the United States to open, or to be employed in, a new office, the petition may be approved for up to 12 months only if—

“(I) the alien has not been the beneficiary of 2 or more petitions under this subparagraph during the immediately preceding 2 years; and

“(II) the employer operating the new office has—

“(aa) an adequate business plan;

“(bb) sufficient physical premises to carry out the proposed business activities; and

“(cc) the financial ability to commence doing business immediately upon the approval of the petition.

“(ii) An extension of the approval period under clause (i) may not be granted until the importing employer submits an application to the Secretary of Homeland Security that contains—

“(I) evidence that the importing employer meets the requirements of this subsection;

“(II) evidence that the beneficiary of the petition is eligible for nonimmigrant status under section 101(a)(15)(L);

“(III) a statement summarizing the original petition;

“(IV) evidence that the importing employer has fully complied with the business plan submitted under clause (i)(I);

“(V) evidence of the truthfulness of any representations made in connection with the filing of the original petition;

“(VI) evidence that the importing employer, for the entire period beginning on the date on which the petition was approved under clause (i), has been doing business at the new office through regular, systematic, and continuous provision of goods and services;

“(VII) a statement of the duties the beneficiary has performed at the new office during the approval period under clause (i) and the duties the beneficiary will perform at the new office during the extension period granted under this clause;

“(VIII) a statement describing the staffing at the new office, including the number of employees and the types of positions held by such employees;

“(IX) evidence of wages paid to employees;

“(X) evidence of the financial status of the new office; and

“(XI) any other evidence or data prescribed by the Secretary.

“(iii) A new office employing the beneficiary of an L–1 petition approved under this paragraph shall do business only through regular, systematic, and continuous provision of goods and services for the entire period for which the petition is sought.

“(iv) Notwithstanding clause (ii), and subject to the maximum period of authorized admission set forth in subparagraph (D), the Secretary of Homeland Security, in the Secretary’s discretion, may approve a subsequently filed petition on behalf of the beneficiary to continue employment at the office described in this subparagraph for a period beyond the initially granted 12-month period if the importing employer has been doing business at the new office through regular, systematic, and continuous provision of goods and services for the 6 months immediately preceding the date of extension petition filing and demonstrates that the failure to satisfy any of the requirements described in those subclauses was directly caused by extraordinary circumstances, as determined by the Secretary in the Secretary’s discretion.”

Sec. 203 Cooperation with Secretary of State

Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)), as amended by sections 201 and 202, is further amended by adding at the end the following:

“(I) The Secretary of Homeland Security shall work cooperatively with the Secretary of State to verify the existence or continued existence of a company or office in the United States or in a foreign country for purposes of approving petitions under this paragraph.”

Sec. 204 Investigation and disposition of complaints against L–1 employers

Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)), as amended by sections 201 through 203, is further amended by adding at the end the following:

“(J)

“(i) The Secretary of Homeland Security may initiate an investigation of any employer that employs nonimmigrants described in section 101(a)(15)(L) with regard to the employer’s compliance with the requirements under this subsection.

“(ii) If the Secretary receives specific credible information from a source who is likely to have knowledge of an employer’s practices, employment conditions, or compliance with the requirements under this subsection, the Secretary may conduct an investigation into the employer’s compliance with the requirements of this subsection. The Secretary may withhold the identity of the source from the employer, and the source’s identity shall not be subject to disclosure under section 552 of title 5, United States Code.

“(iii) The Secretary shall establish a procedure for any person desiring to provide to the Secretary information described in clause (ii) that may be used, in whole or in part, as the basis for the commencement of an investigation described in such clause, to provide the information in writing on a form developed and provided by the Secretary and completed by or on behalf of the person.

“(iv) No investigation described in clause (ii) (or hearing described in clause (vi) based on such investigation) may be conducted with respect to information about a failure to comply with the requirements under this subsection, unless the Secretary receives the information not later than 24 months after the date of the alleged failure.

“(v) Before commencing an investigation of an employer under clause (i) or (ii), the Secretary shall provide notice to the employer of the intent to conduct such investigation. The notice shall be provided in such a manner, and shall contain sufficient detail, to permit the employer to respond to the allegations before an investigation is commenced. The Secretary is not required to comply with this clause if the Secretary determines that to do so would interfere with an effort by the Secretary to investigate or secure compliance by the employer with the requirements of this subsection. There shall be no judicial review of a determination by the Secretary under this clause.

“(vi) If the Secretary, after an investigation under clause (i) or (ii), determines that a reasonable basis exists to make a finding that the employer has failed to comply with the requirements under this subsection, the Secretary shall provide the interested parties with notice of such determination and an opportunity for a hearing in accordance with section 556 of title 5, United States Code, not later than 120 days after the date of such determination. If such a hearing is requested, the Secretary shall make a finding concerning the matter by not later than 120 days after the date of the hearing.

“(vii) If the Secretary, after a hearing, finds a reasonable basis to believe that the employer has violated the requirements under this subsection, the Secretary shall impose a penalty under subparagraph (K).

“(viii)

“(I) The Secretary may conduct surveys of the degree to which employers comply with the requirements under this section.

“(II) The Secretary shall—

“(aa) conduct annual compliance audits of not less than 1 percent of the employers that employ nonimmigrants described in section 101(a)(15)(L) during the applicable fiscal year;

“(bb) conduct annual compliance audits of each employer with more than 100 employees who work in the United States if more than 15 percent of such employees are nonimmigrants described in section 101(a)(15)(L); and

“(cc) make available to the public an executive summary or report describing the general findings of the audits carried out pursuant to this subclause.

“(ix) The Secretary is authorized to take other such actions, including issuing subpoenas and seeking appropriate injunctive relief and specific performance of contractual obligations, as may be necessary to assure employer compliance with the terms and conditions under this paragraph. The rights and remedies provided to nonimmigrants described in section 101(a)(15)(L) under this paragraph are in addition to, and not in lieu of, any other contractual or statutory rights and remedies of such nonimmigrants, and are not intended to alter or affect such rights and remedies.”

Sec. 205 Wage rate and working conditions for L–1 nonimmigrants

(a)

In general— Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)), as amended by sections 201 through 204, is further amended by adding at the end the following:

“(K)

“(i) An employer that employs a nonimmigrant described in section 101(a)(15)(L) for a cumulative period of time in excess of 1 year shall—

“(I) offer such nonimmigrant, during the period of authorized employment, wages, based on the best information available at the time the application is filed, which are not less than the highest of—

“(aa) the locally determined prevailing wage level for the occupational classification in the area of employment;

“(bb) the median wage for all workers in the occupational classification in the area of employment; and

“(cc) the median wage for skill level 2 in the occupational classification found in the most recent Occupational Employment Statistics survey; and

“(II) provide working conditions for such nonimmigrant that will not adversely affect the working conditions of workers similarly employed by the employer or by an employer with which such nonimmigrant is placed pursuant to a waiver under subparagraph (F)(ii).

“(ii) If an employer, in such previous period specified by the Secretary of Homeland Security, employed 1 or more such nonimmigrants, the employer shall provide to the Secretary of Homeland Security the Internal Revenue Service Form W–2 Wage and Tax Statement filed by the employer with respect to such nonimmigrants for such period.

“(iii) It is a failure to meet a condition under this subparagraph for an employer who has filed a petition to import 1 or more aliens as nonimmigrants described in section 101(a)(15)(L)—

“(I) to require such a nonimmigrant to pay a penalty or liquidated damages for ceasing employment with the employer before a date mutually agreed to by the nonimmigrant and the employer; or

“(II) to fail to offer to such a nonimmigrant, during the nonimmigrant’s period of authorized employment, on the same basis, and in accordance with the same criteria, as the employer offers to United States workers, benefits and eligibility for benefits, including—

“(aa) the opportunity to participate in health, life, disability, and other insurance plans;

“(bb) the opportunity to participate in retirement and savings plans; and

“(cc) cash bonuses and noncash compensation, such as stock options (whether or not based on performance).”

(b)

Rulemaking— The Secretary of Homeland Security, after notice and a period of comment and taking into consideration any special circumstances relating to intracompany transfers, shall promulgate rules to implement the requirements under section 214(c)(2)(K) of the Immigration and Nationality Act, as added by subsection (a).

Sec. 206 Penalties

Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)), as amended by sections 201 through 205, is further amended by adding at the end the following:

“(L)

“(i) If the Secretary of Homeland Security determines, after notice and an opportunity for a hearing, that an employer failed to meet a condition under subparagraph (F), (G), (K), or (M), or misrepresented a material fact in a petition to employ 1 or more aliens as nonimmigrants described in section 101(a)(15)(L)—

“(I) the Secretary shall impose such administrative remedies (including civil monetary penalties in an amount not to exceed $5,000 per violation) as the Secretary determines to be appropriate;

“(II) the Secretary may not, during a period of at least 1 year, approve a petition for that employer to employ 1 or more aliens as such nonimmigrants; and

“(III) in the case of a violation of subparagraph (K) or (M), the employer shall be liable to the employees harmed by such violation for lost wages and benefits.

“(ii) If the Secretary finds, after notice and an opportunity for a hearing, a willful failure by an employer to meet a condition under subparagraph (F), (G), (K), or (M) or a willful misrepresentation of material fact in a petition to employ 1 or more aliens as nonimmigrants described in section 101(a)(15)(L)—

“(I) the Secretary shall impose such administrative remedies (including civil monetary penalties in an amount not to exceed $25,000 per violation) as the Secretary determines to be appropriate;

“(II) the Secretary may not, during a period of at least 2 years, approve a petition filed for that employer to employ 1 or more aliens as such nonimmigrants; and

“(III) in the case of a violation of subparagraph (K) or (M), the employer shall be liable to the employees harmed by such violation for lost wages and benefits.”

Sec. 207 Prohibition on retaliation against L–1 nonimmigrants

Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)), as amended by sections 201 through 206, is further amended by adding at the end the following:

“(M)

“(i) An employer that has filed a petition to import 1 or more aliens as nonimmigrants described in section 101(a)(15)(L) violates this subparagraph by taking, failing to take, or threatening to take or fail to take, a personnel action, or intimidating, threatening, restraining, coercing, blacklisting, discharging, or discriminating in any other manner against an employee because the employee—

“(I) has disclosed information that the employee reasonably believes evidences a violation of this subsection, or any rule or regulation pertaining to this subsection; or

“(II) cooperates or seeks to cooperate with the requirements under this subsection, or any rule or regulation pertaining to this subsection.

“(ii) In this subparagraph, the term employee includes—

“(I) a current employee;

“(II) a former employee; and

“(III) an applicant for employment.”

Sec. 208 Adjudication by Department of Homeland Security of petitions under blanket petition

(a)

In general— Section 214(c)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)(A)) is amended to read as follows:

“(A) The Secretary of Homeland Security shall establish a procedure under which an importing employer that meets the requirements established by the Secretary may file a blanket petition to authorize aliens to enter the United States as nonimmigrants described in section 101(a)(15)(L) instead of filing individual petitions under paragraph (1) on behalf of such aliens. Such procedure shall permit—

“(i) the expedited processing by the Secretary of State of visas for admission of aliens covered under such blanket petitions; and

“(ii) the expedited adjudication by the Secretary of Homeland Security of individual petitions covered under such blanket petitions.”

(b)

Effective date— The amendment made by subsection (a) shall apply to petitions filed on or after the date of the enactment of this Act.

Sec. 209 Reports on employment-based nonimmigrants

(a)

In general— Section 214(c)(8) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(8)) is amended to read as follows—

“(8) The Secretary of Homeland Security or Secretary of State, as appropriate, shall submit an annual report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that describes, with respect to petitions under subsection (e) and each subcategory of subparagraphs (H), (L), (O), (P), and (Q) of section 101(a)(15)—

“(A) the number of such petitions (or applications for admission, in the case of applications by Canadian nationals seeking admission under subsection (e) or section 101(a)(15)(L)) which have been filed;

“(B) the number of such petitions which have been approved and the number of workers (by occupation) included in such approved petitions;

“(C) the number of such petitions which have been denied and the number of workers (by occupation) requested in such denied petitions;

“(D) the number of such petitions which have been withdrawn;

“(E) the number of such petitions which are awaiting final action;

“(F) the number of aliens in the United States under each subcategory under section 101(a)(15)(H); and

“(G) the number of aliens in the United States under each subcategory under section 101(a)(15)(L).”

(b)

Nonimmigrant characteristics report— Section 416(c) of the American Competitiveness and Workforce Improvement Act of 1998 (8 U.S.C. 1184 note) is amended—

(1)

by amending paragraph (2) to read as follows:

“(2) Annual H–1B nonimmigrant characteristics report—The Secretary of Homeland Security shall submit an annual report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that contains—

“(A) for the previous fiscal year—

“(i) information on the countries of origin of, occupations of, educational levels attained by, and compensation paid to, aliens who were issued visas or provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b));

“(ii) a list of all employers who petitioned for H–1B workers, the number of such petitions filed and approved for each such employer, the occupational classifications for the approved positions, and the number of H–1B nonimmigrants for whom each such employer filed an employment-based immigrant petition pursuant to section 204(a)(1)(F) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(F)); and

“(iii) the number of employment-based immigrant petitions filed pursuant to such section 204(a)(1)(F) on behalf of H–1B nonimmigrants;

“(B) a list of all employers for whom more than 15 percent of their United States workforce is H–1B or L–1 nonimmigrants;

“(C) a list of all employers for whom more than 50 percent of their United States workforce is H–1B or L–1 nonimmigrants;

“(D) a gender breakdown by occupation and by country of origin of H–1B nonimmigrants;

“(E) a list of all employers who have been granted a waiver under section 214(n)(2)(E) of the Immigration and Nationality Act (8 U.S.C. 1184(n)(2)(E)); and

“(F) the number of H–1B nonimmigrants categorized by their highest level of education and whether such education was obtained in the United States or in a foreign country.”

(2)

by redesignating paragraph (3) as paragraph (5);

(3)

by inserting after paragraph (2) the following:

“(3) Annual L–1 nonimmigrant characteristics report—The Secretary of Homeland Security shall submit an annual report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that contains—

“(A) for the previous fiscal year—

“(i) information on the countries of origin of, occupations of, educational levels attained by, and compensation paid to, aliens who were issued visas or provided nonimmigrant status under section 101(a)(15)(L) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(L));

“(ii) a list of all employers who petitioned for L–1 workers, the number of such petitions filed and approved for each such employer, the occupational classifications for the approved positions, and the number of L–1 nonimmigrants for whom each such employer filed an employment-based immigrant petition pursuant to section 204(a)(1)(F) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(F)); and

“(iii) the number of employment-based immigrant petitions filed pursuant to such section 204(a)(1)(F) on behalf of L–1 nonimmigrants;

“(B) a gender breakdown by occupation and by country of L–1 nonimmigrants;

“(C) a list of all employers who have been granted a waiver under section 214(c)(2)(F)(ii) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)(F)(ii));

“(D) the number of L–1 nonimmigrants categorized by their highest level of education and whether such education was obtained in the United States or in a foreign country;

“(E) the number of applications that have been filed for each subcategory of nonimmigrant described under section 101(a)(15)(L) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(L)), based on an approved blanket petition under section 214(c)(2)(A) of such Act; and

“(F) the number of applications that have been approved for each subcategory of nonimmigrant described under such section 101(a)(15)(L), based on an approved blanket petition under such section 214(c)(2)(A).

“(4) Annual H–1B employer survey—The Secretary of Labor shall—

“(A) conduct an annual survey of employers hiring foreign nationals under the H–1B visa program; and

“(B) issue an annual report that—

“(i) describes the methods employers are using to meet the requirement under section 212(n)(1)(G)(i) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)(G)(i)) of taking good faith steps to recruit United States workers for the occupational classification for which the nonimmigrants are sought, using procedures that meet industry-wide standards;

“(ii) describes the best practices for recruiting among employers; and

“(iii) contains recommendations on which recruiting steps employers can take to maximize the likelihood of hiring American workers.”

(4)

in paragraph (5), as redesignated, by striking “paragraph (2)” and inserting “paragraphs (2) and (3)”.

Sec. 210 Specialized knowledge

Section 214(c)(2)(B) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)(B)) is amended to read as follows:

“(B)

“(i) For purposes of section 101(a)(15)(L), the term specialized knowledge—

“(I) means knowledge possessed by an individual whose advanced level of expertise and proprietary knowledge of the employer’s product, service, research, equipment, techniques, management, or other interests of the employer are not readily available in the United States labor market;

“(II) is clearly different from those held by others employed in the same or similar occupations; and

“(III) does not apply to persons who have general knowledge or expertise which enables them merely to produce a product or provide a service.

“(ii)

“(I) The ownership of patented products or copyrighted works by a petitioner under section 101(a)(15)(L) does not establish that a particular employee has specialized knowledge. In order to meet the definition under clause (i), the beneficiary shall be a key person with knowledge that is critical for performance of the job duties and is protected from disclosure through patent, copyright, or company policy.

“(II) Different procedures are not proprietary knowledge within this context unless the entire system and philosophy behind the procedures are clearly different from those of other firms, they are relatively complex, and they are protected from disclosure to competition.”

Sec. 211 Technical amendments

Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)) is amended by striking “Attorney General” each place such term appears and inserting “Secretary of Homeland Security”.

Sec. 212 Application

Except as otherwise specifically provided, the amendments made by this title shall apply to petitions and applications filed on or after the date of the enactment of this Act.