[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3736 Introduced in House (IH)]







105th CONGRESS
  2d Session
                                H. R. 3736

 To amend the Immigration and Nationality Act to make changes relating 
                         to H-1B nonimmigrants.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             April 28, 1998

Mr. Smith of Texas introduced the following bill; which was referred to 
                     the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To amend the Immigration and Nationality Act to make changes relating 
                         to 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 ``Workforce Improvement and Protection 
Act of 1998''.

SEC. 2. TEMPORARY INCREASE IN SKILLED FOREIGN WORKERS.

    Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 
1184(g)) is amended--
            (1) by amending paragraph (1)(A) to read as follows:
            ``(A) under section 101(a)(15)(H)(i)(b), subject to 
        paragraph (5), may not exceed--
                    ``(i) 95,000 in fiscal year 1998;
                    ``(ii) 105,000 in fiscal year 1999; and
                    ``(iii) 115,000 in fiscal year 2000; or''; and
            (2) by adding at the end the following:
    ``(5) In each of fiscal years 1999 and 2000, the total number of 
aliens described in section 212(a)(5)(C) who may be issued visas or 
otherwise provided nonimmigrant status under section 
101(a)(15)(H)(i)(b) may not exceed 7,500.''.

SEC. 3. PROTECTION AGAINST DISPLACEMENT OF UNITED STATES WORKERS.

    (a) In General.--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:
            ``(E)(i) The employer has not laid off or otherwise 
        displaced and will not lay off or otherwise displace, within 
        the period beginning 6 months before and ending 90 days 
        following the date of filing of the application or during the 
        90 days immediately preceding and following the date of filing 
        of any visa petition supported by the application, any United 
        States worker (as defined in paragraph (3)) (including a worker 
        whose services are obtained by contract, employee leasing, 
        temporary help agreement, or other similar means) who has 
        substantially equivalent qualifications and experience in the 
        specialty occupation, and in the area of employment, for which 
        H-1B nonimmigrants are sought or in which they are employed.
            ``(ii) Except as provided in clause (iii), in the case of 
        an employer that employs an H-1B nonimmigrant, the employer 
        shall not place the nonimmigrant with another employer where--
                    ``(I) the nonimmigrant performs his or her duties 
                in whole or in part at one or more worksites owned, 
                operated, or controlled by such other employer; and
                    ``(II) there are indicia of an employment 
                relationship between the nonimmigrant and such other 
                employer.
            ``(iii) Clause (ii) shall not apply to an employer's 
        placement of an H-1B nonimmigrant with another employer if the 
        other employer has executed an attestation that it satisfies 
        and will satisfy the conditions described in clause (i) during 
        the period described in such clause.''.
    (b) Definitions.--
            (1) In general.--Section 212(n) of the Immigration and 
        Nationality Act (8 U.S.C. 1182(n)) is amended by adding at the 
        end the following:
    ``(3) For purposes of this subsection:
            ``(A) The term `H-1B nonimmigrant' means an alien admitted 
        or provided status as a nonimmigrant described in section 
        101(a)(15)(H)(i)(b).
            ``(B) The term `lay off or otherwise displace', with 
        respect to an employee--
                    ``(i) means to cause the employee's loss of 
                employment, other than through a discharge for cause, a 
                voluntary departure, or a voluntary retirement; and
                    ``(ii) does not include any situation in which 
                employment is relocated to a different geographic area 
                and the employee is offered a chance to move to the new 
                location, with wages and benefits that are not less 
                than those at the old location, but elects not to move 
                to the new location.
            ``(C) The term `United States worker' means--
                    ``(i) a citizen or national of the United States;
                    ``(ii) an alien lawfully admitted for permanent 
                residence; or
                    ``(iii) an alien authorized to be employed by this 
                Act or by the Attorney General.''.
            (2) Conforming amendments.--Section 212(n)(1) of the 
        Immigration and Nationality Act (8 U.S.C. 1182(n)(1)) is 
        amended by striking ``a nonimmigrant described in section 
        101(a)(15)(H)(i)(b)'' each place such term appears and 
        inserting ``an H-1B nonimmigrant''.

SEC. 4. RECRUITMENT OF UNITED STATES WORKERS PRIOR TO SEEKING 
              NONIMMIGRANT WORKERS.

    Section 212(n)(1) of the Immigration and Nationality Act (8 U.S.C. 
1182(n)(1)), as amended by section 3, is further amended by inserting 
after subparagraph (E) the following:
            ``(F)(i) The employer, prior to filing the application, has 
        taken, in good faith, timely and significant steps to recruit 
        and retain sufficient United States workers in the specialty 
        occupation for which H-1B nonimmigrants are sought. Such steps 
        shall have included recruitment in the United States, using 
        procedures that meet industry-wide standards and offering 
        compensation that is at least as great as that required to be 
        offered to H-1B nonimmigrants under subparagraph (A), and 
        offering employment to any qualified United States worker who 
        applies.
            ``(ii) The conditions described in clause (i) shall not 
        apply to an employer with respect to the employment of an H-1B 
        nonimmigrant who is described in subparagraph (A), (B), or (C) 
        of section 203(b)(1).''.

SEC. 5. LIMITATION ON AUTHORITY TO INITIATE COMPLAINTS AND CONDUCT 
              INVESTIGATIONS FOR NON-H-1B-DEPENDENT EMPLOYERS.

    (a) In General.--Section 212(n)(2)(A) of the Immigration and 
Nationality Act (8 U.S.C. 1182(n)(2)(A)) is amended--
            (1) in the second sentence, by striking the period at the 
        end and inserting the following: ``, except that the Secretary 
        may only file such a complaint respecting an H-1B-dependent 
        employer (as defined in paragraph (3)), and only if there 
        appears to be a violation of an attestation or a 
        misrepresentation of a material fact in an application.''; and
            (2) by inserting after the second sentence the following: 
        ``Except as provided in subparagraph (F) (relating to spot 
        investigations during probationary period), no investigation or 
        hearing shall be conducted with respect to an employer except 
        in response to a complaint filed under the previous 
        sentence.''.
    (b) Definitions.--Section 212(n)(3) of the Immigration and 
Nationality Act (8 U.S.C. 1182(n)(2)), as added by section 3, is 
amended--
            (1) by redesignating subparagraphs (A), (B), and (C) as 
        subparagraphs (B), (C), and (E), respectively;
            (2) by inserting after ``purposes of this subsection:'' the 
        following:
            ``(A) The term `H-1B-dependent employer' means an employer 
        that--
                    ``(i)(I) has fewer than 21 full-time equivalent 
                employees who are employed in the United States; and 
                (II) employs 4 or more H-1B nonimmigrants; or
                    ``(ii)(I) has at least 21 but not more than 150 
                full-time equivalent employees who are employed in the 
                United States; and (II) employs H-1B nonimmigrants in a 
                number that is equal to at least 20 percent of the 
                number of such full-time equivalent employees; or
                    ``(iii)(I) has at least 151 full-time equivalent 
                employees who are employed in the United States; and 
                (II) employs H-1B nonimmigrants in a number that is 
                equal to at least 15 percent of the number of such 
                full-time equivalent employees.
        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. Aliens employed under a petition for H-1B 
        nonimmigrants shall be treated as employees, and counted as 
        nonimmigrants under section 101(a)(15)(H)(i)(b) under this 
        subparagraph.''; and
            (3) by inserting after subparagraph (C) (as so 
        redesignated) the following:
            ``(D) The term `non-H-1B-dependent employer' means an 
        employer that is not an H-1B-dependent employer.''.

SEC. 6. INCREASED ENFORCEMENT AND PENALTIES.

    (a) In General.--Section 212(n)(2)(C) of the Immigration and 
Nationality Act (8 U.S.C. 1182(n)(2)(C)) is amended to read as follows:
    ``(C)(i) If the Secretary finds, after notice and opportunity for a 
hearing, a failure to meet a condition of paragraph (1)(B) or (1)(E), a 
substantial failure to meet a condition of paragraph (1)(C), (1)(D), or 
(1)(F), or a misrepresentation of material fact in an application--
            ``(I) the Secretary shall notify the Attorney General of 
        such finding and may, in addition, impose such other 
        administrative remedies (including civil monetary penalties in 
        an amount not to exceed $1,000 per violation) as the Secretary 
        determines to be appropriate; and
            ``(II) the Attorney General shall not approve petitions 
        filed with respect to that employer under section 204 or 214(c) 
        during a period of at least 1 year for aliens to be employed by 
        the employer.
    ``(ii) If the Secretary finds, after notice and opportunity for a 
hearing, a willful failure to meet a condition of paragraph (1) or a 
willful misrepresentation of material fact in an application--
            ``(I) the Secretary shall notify the Attorney General of 
        such finding and may, in addition, impose such other 
        administrative remedies (including civil monetary penalties in 
        an amount not to exceed $5,000 per violation) as the Secretary 
        determines to be appropriate; and
            ``(II) the Attorney General shall not approve petitions 
        filed with respect to that employer under section 204 or 214(c) 
        during a period of at least 1 year for aliens to be employed by 
        the employer.
    ``(iii) If the Secretary finds, after notice and opportunity for a 
hearing, a willful failure to meet a condition of paragraph (1) or a 
willful misrepresentation of material fact in an application, in the 
course of which failure or misrepresentation the employer also has 
failed to meet a condition of paragraph (1)(E)--
            ``(I) the Secretary shall notify the Attorney General of 
        such finding and may, in addition, impose such other 
        administrative remedies (including civil monetary penalties in 
        an amount not to exceed $25,000 per violation) as the Secretary 
        determines to be appropriate; and
            ``(II) the Attorney General shall not approve petitions 
        filed with respect to that employer under section 204 or 214(c) 
        during a period of at least 2 years for aliens to be employed 
        by the employer.''.
    (b) Placement of H-1B Nonimmigrant With Other Employer.--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:
    ``(E) Under regulations of the Secretary, the previous provisions 
of this paragraph shall apply to a failure of an other employer to 
comply with an attestation described in paragraph (1)(E)(iii) in the 
same manner as they apply to a failure to comply with a condition 
described in paragraph (1)(E)(i).''.
    (c) Spot Investigations During Probationary Period.--Section 
212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)), 
as amended by subsection (b), is further amended by adding at the end 
the following:
    ``(F) The Secretary may, on a case-by-case basis, subject an 
employer to random investigations for a period of up to 5 years, 
beginning on the date that the employer is found by the Secretary to 
have committed a willful failure to meet a condition of paragraph (1) 
or to have made a misrepresentation of material fact in an application. 
The preceding sentence shall apply to an employer regardless of whether 
the employer is an H-1B-dependent employer or a non-H-1B-dependent 
employer. The authority of the Secretary under this subparagraph shall 
not be construed to be subject to, or limited by, the requirements of 
subparagraph (A).''.

SEC. 7. EFFECTIVE DATE.

    The amendments made by this Act shall take effect on the date of 
the enactment of this Act and shall apply to applications filed with 
the Secretary of Labor on or after 30 days after the date of the 
enactment of this Act, except that the amendments made by section 2 
shall apply to applications filed with such Secretary before, on, or 
after the date of the enactment of this Act.
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