[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 119 Introduced in House (IH)]







105th CONGRESS
  1st Session
                                H. R. 119

   To amend the Immigration and Nationality Act to impose additional 
             conditions on employers of H-1B nonimmigrants.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            January 7, 1997

 Mr. Conyers introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To amend the Immigration and Nationality Act to impose additional 
             conditions on employers of H-1B nonimmigrants.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Protecting American Workers Act of 
1997''.

SEC. 2. CHANGES RELATING TO H-1B NONIMMIGRANTS.

    (a) Attestations.--
            (1) Compensation level.--Section 212(n)(1)(A)(i) of the 
        Immigration and Nationality Act (8 U.S.C. 1182(n)(1)(A)(i)) is 
        amended--
                    (A) in subclause (I), by inserting ``100 percent 
                of'' before ``the actual wage level'',
                    (B) in subclause (II), by inserting ``100 percent 
                of'' before ``the prevailing wage level'', and
                    (C) by adding at the end the following: ``is 
                offering and will offer during such period the same 
                benefits and additional compensation provided to 
                similarly-employed workers by the employer, and''.
            (2) Displacement of united states workers.--Section 
        212(n)(1) of the Immigration and Nationality Act (8 U.S.C. 
        1182(n)(1)) is amended by inserting after subparagraph (D) the 
        following new subparagraph:
            ``(E)(i) The employer--
                    ``(I) has not, within the six-month period prior to 
                the filing of the application, laid off or otherwise 
                displaced any United States worker (as defined in 
                clause (ii)), including any worker obtained by 
                contract, employee leasing, temporary help agreement, 
                or other similar basis, in the occupational 
                classification which is the subject of the application 
                and in which the nonimmigrant is intended to be (or is) 
                employed; and
                    ``(II) within 90 days following the application, 
                and within 90 days before and after the filing of a 
                petition for any H-1B worker pursuant to that 
                application, will not lay off or otherwise displace any 
                United States worker in the occupational classification 
                which is the subject of the application and in which 
                the nonimmigrant is intended to be (or is) employed.
            ``(ii) For purposes of this subparagraph, the term `United 
        States worker' means--
                    ``(I) a citizen or national of the United States;
                    ``(II) an alien lawfully admitted to the United 
                States for permanent residence; and
                    ``(III) an alien authorized to be so employed by 
                this Act or by the Attorney General.
            ``(iii) For purposes of this subparagraph, the term `laid 
        off', with respect to an employee, means the employee's loss of 
        employment, other than a discharge for cause or a voluntary 
        departure or voluntary retirement.''.
            (3) Recruitment of united states workers.--Section 
        212(n)(1) of the Immigration and Nationality Act (8 U.S.C. 
        1182(n)(1)), as amended by paragraph (2), is further amended by 
        inserting after subparagraph (E) the following new 
        subparagraph:
            ``(F) The employer, prior to filing the application, 
        attempted unsuccessfully and in good faith to recruit a United 
        States worker for the employment that will be done by the alien 
        whose services are being sought, using recruitment procedures 
        that meet industry-wide standards and offering wages that are 
        at least--
                    ``(i) 100 percent of the actual wage level paid by 
                the employer to other individuals with similar 
                experience and qualifications for the specific 
                employment in question, or
                    ``(ii) 100 percent of the prevailing wage level for 
                individuals in such employment in the area of 
                employment,
        whichever is greater, based on the best information available 
        as of the date of filing the application, and offering the same 
        benefits and additional compensation provided to similarly-
        employed workers by the employer.''.
            (4) Dependence on h-1b workers.--Section 212(n)(1) of the 
        Immigration and Nationality Act (8 U.S.C. 1182(n)(1)), as 
        amended by paragraphs (2) and (3), is further amended by 
        inserting after subparagraph (F) the following new 
        subparagraph:
            ``(G)(i) Whether the employer is dependent on H-1B workers, 
        as defined in clause (ii) and in such regulations as the 
        Secretary of Labor may develop and promulgate in accordance 
        with this paragraph.
            ``(ii) For purposes of clause (i), an employer is 
        `dependent on H-1B workers' if the employer--
                    ``(I) has fewer than 41 full-time equivalent 
                employees who are employed in the United States and 
                employs four or more nonimmigrants under section 
                101(a)(15)(H)(i)(b); or
                    ``(II) has at least 41 full-time equivalent 
                employees who are employed in the United States, and 
                employs nonimmigrants described in section 
                101(a)(15)(H)(i)(b) in a number that is equal to at 
                least ten percent of the number of such full-time 
                equivalent employees.
            ``(iii) In applying this subparagraph, any group treated as 
        a single employer under subsection (b), (c), (m), or (o) of 
        section 414 of the Internal Revenue Code of 1986 shall be 
        treated as a single employer under this subparagraph. Aliens 
        with respect to whom the employer has filed such an application 
        shall be treated as employees, and counted as nonimmigrants 
        under section 101(a)(15)(H)(i)(b), under this paragraph.''.
            (5) Job contractors.--(A) Section 212(n)(1) of the 
        Immigration and Nationality Act (8 U.S.C. 1182(n)(1)), as 
        amended by paragraphs (2) through (4), is further amended by 
        inserting after subparagraph (G) the following new 
        subparagraph:
            ``(H) In the case of an employer that is a job contractor 
        (within the meaning of regulations promulgated by the Secretary 
        of Labor to carry out this subsection), the contractor will not 
        place any H-1B employee with another employer unless such other 
        employer has executed an attestation that the employer is 
        complying and will continue to comply with the requirements of 
        this paragraph in the same manner as they apply to the job 
        contractor.''.
            (B) Section 212(n)(2) of the Immigration and Nationality 
        Act (8 U.S.C. 1182(n)(2)) is amended by adding at the end the 
        following new subparagraph:
    ``(E) The provisions of this paragraph shall apply to complaints 
respecting a failure of another employer to comply with an attestation 
described in paragraph (1), that has been made as the result of the 
requirement imposed on job contractors under paragraph (1)(H), in the 
same manner that they apply to complaints of a petitioner with respect 
to a failure to comply with a condition described in paragraph (1) by 
employers generally.''.
    (b) Special Rules for Employers Dependent on H-1B Workers.--Section 
212(n) of the Immigration and Nationality Act (8 U.S.C. 1182(n)) is 
amended by adding at the end the following new paragraph:
    ``(3)(A) No alien may be admitted or provided status as a 
nonimmigrant described in section 101(a)(15)(H)(i)(b) if the employer 
who is seeking the services of such alien has attested under paragraph 
(1)(G) that the employer is dependent on H-1B workers unless the 
following conditions are met:
            ``(i) The Secretary of Labor has determined and certified 
        to the Secretary of State and the Attorney General that the 
        employer who is seeking the services of such alien is taking 
        steps described in subparagraph (C) (including having taken the 
        step described in subparagraph (D)).
            ``(ii) The alien has demonstrated to the satisfaction of 
        the Secretary of State and the Attorney General that the alien 
        has a residence abroad which he has no intention of abandoning.
    ``(B)(i) It is unlawful for a petitioning employer to require, as a 
condition of employment by such employer, or otherwise, that a payment 
to a fund described in subparagraph (D)(i), or any part of it, be made 
directly or indirectly by the alien whose services are being sought.
    ``(ii) Any person or entity which is determined, after notice and 
opportunity for an administrative hearing, to have violated clause (i) 
shall be subject to a civil penalty of $5,000 for each violation and to 
disqualification for 1 year from petitioning under section 204 or 
214(c).
    ``(iii) Any amount determined to have been paid, directly or 
indirectly, to a fund described in subparagraph (D)(i) by the alien 
whose services were sought, shall be repaid from the fund or by the 
employer, as appropriate, to such alien.
    ``(C)(i) An employer who attests under paragraph (1)(G) to 
dependence on H-1B workers shall take timely, significant, and 
effective steps (including the step described in subparagraph (D)) to 
recruit and retain sufficient United States workers in order to remove 
as quickly as reasonably possible the dependence of the employer on H-
1B workers.
    ``(ii) For purposes of clause (i), steps under clause (i) (in 
addition to the step described in subparagraph (D)) may include the 
following:
            ``(I) Operating a program of training existing employees 
        who are United States workers in the skills needed by the 
        employer, or financing (or otherwise providing for) such 
        employees' participation in such a training program elsewhere.
            ``(II) Providing career development programs and other 
        methods of facilitating United States workers in related fields 
        to acquire the skills needed by the employer.
            ``(III) Paying to employees who are United States workers 
        compensation that is equal in value to more than 105 percent of 
        what is paid to persons similarly employed in the geographic 
        area.
The steps described in this clause shall not be considered to be an 
exhaustive list of the significant steps that may be taken to meet the 
requirements of clause (i).
    ``(iii) The steps described in clause (i) shall not be considered 
effective if the employer has failed to decrease by at least 10 percent 
in each of two consecutive years the percentage of the employer's total 
number of employees in the specific employment in which the H-1B 
workers are employed which is represented by the number of H-1B 
workers.
    ``(iv) The Attorney General shall not approve petitions filed under 
section 204 or 214(c) with respect to an employer that has not, in the 
prior two years, complied with the requirements of this subparagraph 
(including subparagraph (D)).
    ``(D)(i) The step described in this subparagraph is payment of an 
amount consistent with clause (ii) by the petitioning employer into a 
private fund which is certified by the Secretary of Labor as dedicated 
to reducing the dependence of employers in the industry of which the 
petitioning employer is a part on new foreign workers and which expends 
amounts received under this subclause consistent with clause (iii).
    ``(ii) An amount is consistent with this clause if it is a percent 
of the value of the annual compensation (including wages, benefits, and 
all other compensation) to be paid to the alien whose services are 
being sought, equal to 5 percent in the first year, 7.5 percent in the 
second year, and 10 percent in the third year.
    ``(iii) Amounts are expended consistent with this clause if they 
are expended as follows:
                    ``(I) One-half of the aggregate amounts are 
                expended for awarding scholarships and fellowships to 
                students at colleges and universities in the United 
                States who are citizens or lawful permanent residents 
                of the United States majoring in, or engaging in 
                graduate study of, subjects of direct relevance to the 
                employers in the same industry as the petitioning 
                employer.
                    ``(II) One-half of the aggregate amounts are 
                expended for enabling United States workers in the 
                United States to obtain training in occupations 
                required by employers in the same industry as the 
                petitioning employer.''.
    (c) Increased Penalties for Misrepresentation.--Section 
212(n)(2)(C) of the Immigration and Nationality Act (8 U.S.C. 
1182(n)(2)(C)) is amended--
            (1) in subparagraph (C) in the matter before clause (i), by 
        striking ``(1)(C) or (1)(D)'' and inserting ``(1)(C), (1)(D), 
        (1)(E), or (1)(F) or to fulfill obligations imposed under 
        paragraph (3)(A) for employers attesting under paragraph (1)(G) 
        to dependence on H-1B workers'';
            (2) in subparagraph (C)(i), by striking ``$1,000'' and 
        inserting ``$5,000'';
            (3) by amending subparagraph (C)(ii) to read as follows:
            ``(ii) the Attorney General shall not approve petitions 
        filed with respect to that employer (or any employer who is a 
        successor in interest) under section 204 or 214(c) for aliens 
        to be employed by the employer--
                    ``(I) during a period of at least 1 year in the 
                case of the first determination of a violation or any 
                subsequent determination of a violation occurring 
                within 1 year of that first violation or any subsequent 
                determination of a nonwillful violation occurring more 
                than 1 year after the first violation;
                    ``(II) during a period of at least 5 years in the 
                case of a determination of a willful violation 
                occurring more than 1 year after the first violation; 
                and
                    ``(III) at any time in the case of a determination 
                of a willful violation occurring more than 5 years 
                after a violation described in subclause (II).''; and
            (4) in subparagraph (D), by adding at the end the 
        following: ``If a penalty under subparagraph (C) has been 
        imposed in the case of a willful violation, the Secretary shall 
        impose an additional civil monetary penalty on the employer in 
        an amount equalling twice the amount of backpay.''.
    (d) Limitation on Period of Authorized Admission.--Section 
214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)) 
is amended--
            (1) by inserting ``or section 101(a)(15)(H)(ii)(b)'' after 
        ``section 101(a)(15)(H)(i)(b)''; and
            (2) by striking ``6 years'' and inserting in lieu thereof 
        ``3 years''.
    (e) Requirement for Residence Abroad.--Section 101(a)(15)(H)(i)(b) 
of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)) 
is amended by inserting ``who has a residence in a foreign country 
which he has no intention of abandoning,'' after ``212(j)(2),''.
    (f) Effective Dates.--
            (1) Except as provided in paragraph (2), the amendments 
        made by this section shall take effect 60 days after the date 
        of the enactment of this Act.
            (2) The amendments made by subsection (c) shall apply with 
        respect to violations occurring on or after the date of 
        enactment of this Act.
                                 <all>