[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3736 Reported in House (RH)]
Union Calendar No. 368
105th CONGRESS
2d Session
H. R. 3736
[Report No. 105-657]
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
July 29, 1998
Additional sponsors: Mr. Thornberry, Mr. Campbell, and Mr. Spratt
July 29, 1998
Reported with an amendment, committed to the Committee of the Whole
House on the State of the Union, and ordered to be printed
[Strike out all after the enacting clause and insert the part printed
in italic]
[For text of introduced bill, see copy of bill as introduced on April
28, 1998]
_______________________________________________________________________
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; TEMPORARY
REDUCTION IN H-2B NONIMMIGRANTS.
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;
``(iii) 115,000 in fiscal year 2000; and
``(iv) 65,000 in fiscal year 2001 and any
subsequent fiscal year; or'';
(2) by amending paragraph (1)(B) to read as follows:
``(B) under section 101(a)(15)(H)(ii)(b) may not exceed--
``(i) 36,000 in fiscal year 1998;
``(ii) 26,000 in fiscal year 1999;
``(iii) 16,000 in fiscal year 2000; and
``(iv) 66,000 in fiscal year 2001 and any
subsequent fiscal year.'';
(3) in paragraph (4), by striking ``years.'' and inserting
``years, except that, with respect to each such nonimmigrant
issued a visa or otherwise provided nonimmigrant status in each
of fiscal years 1998, 1999, and 2000 in excess of 65,000 (per
fiscal year), the period of authorized admission as such a
nonimmigrant may not exceed 4 years.''; and
(4) by adding at the end the following:
``(5) The total number of aliens described in section 212(a)(5)(C)
who may be issued visas or otherwise provided nonimmigrant status
during any fiscal year (beginning with fiscal year 1999) under section
101(a)(15)(H)(i)(b) may not exceed 5,000.''.
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) Except as provided in clause (iv), 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.
``(iv) This subparagraph shall not apply to an application
filed by an employer that is an institution of higher education
(as defined in section 1201(a) of the Higher Education Act of
1965), or a related or affiliated nonprofit entity, if the
application relates solely to aliens who--
``(I) the employer seeks to employ--
``(aa) as a researcher on a project for
which not less than 50 percent of the funding
is provided, for a limited period of time,
through a grant or contract with an entity
other than the employer; or
``(bb) as a professor or instructor under a
contract that expires after a limited period of
time; and
``(II) have attained a master's or higher degree
(or its equivalent) in a specialty the specific
knowledge of which is required for the intended
employment.''.
(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 United States worker who applies and
has the same qualifications as, or better qualifications than,
any of the H-1B nonimmigrants sought.
``(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), a
willful misrepresentation of material fact in an application, or a
violation of clause (iv)--
``(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.
``(iv) It is a violation of this clause for an employer who has
filed an application under this subsection to intimidate, threaten,
restrain, coerce, blacklist, discharge, or in any other manner
discriminate against an employee (which term, for purposes of this
clause, includes a former employee and an applicant for employment)
because the employee has disclosed information to the employer, or to
any other person, that the employee reasonably believes evidences a
violation of this subsection, or any rule or regulation pertaining to
this subsection, or because the employee cooperates or seeks to
cooperate in an investigation or other proceeding concerning the
employer's compliance with the requirements of this subsection or any
rule or regulation pertaining to this subsection.''.
(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. PROHIBITION ON IMPOSITION BY IMPORTING EMPLOYERS OF EMPLOYMENT
CONTRACT PROVISIONS VIOLATING PUBLIC POLICY.
Section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C.
1182(n)(2)), as amended by section (6), is further amended by adding at
the end the following:
``(G) If the Secretary finds, after notice and opportunity for a
hearing, that an employer who has submitted an application under
paragraph (1) has requested or required an alien admitted or provided
status as a nonimmigrant pursuant to the application, as a condition of
the employment, to execute a contract containing a provision that would
be considered void as against public policy in the State of intended
employment--
``(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 by the employer under section 214(c) during a period of
not more than 10 years for H-1B nonimmigrants to be employed by
the employer.''.
SEC. 8. IMPROVING COUNT OF H-1B AND H-2B NONIMMIGRANTS.
(a) Ensuring Accurate Count.--The Attorney General shall take such
steps as are necessary to maintain an accurate count of the number of
aliens subject to the numerical limitations of section 214(g)(1) of the
Immigration and Nationality Act who are issued visas or otherwise
provided nonimmigrant status.
(b) Revision of Petition Forms.--The Attorney General shall take
such steps as are necessary to revise the forms used for petitions for
visas or nonimmigrant status under clause (i)(b) or (ii)(b) of section
101(a)(15)(H) of the Immigration and Nationality Act so as to ensure
that the forms provide the Attorney General with sufficient information
to permit the Attorney General accurately to count the number of aliens
subject to the numerical limitations of section 214(g)(1) of such Act
who are issued visas or otherwise provided nonimmigrant status.
(c) Reports.--Beginning with fiscal year 1999, the Attorney General
shall provide to the Congress not less than 4 times per year a report
on--
(1) the numbers of individuals who were issued visas or
otherwise provided nonimmigrant status during the preceding 3-
month period under section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act;
(2) the numbers of individuals who were issued visas or
otherwise provided nonimmigrant status during the preceding 3-
month period under section 101(a)(15)(H)(ii)(b) of such Act;
and
(3) the countries of origin and occupations of, educational
levels attained by, and total compensation (including the value
of all wages, salary, bonuses, stock, stock options, and any
other similar forms of remuneration) paid to, individuals
issued visas or provided nonimmigrant status under such
sections during such period.
SEC. 9. GAO STUDY AND REPORT ON AGE DISCRIMINATION IN THE INFORMATION
TECHNOLOGY FIELD.
(a) Study.--The Comptroller General of the United States shall
conduct a study assessing age discrimination in the information
technology field. The study shall consider the following:
(1) The prevalence of age discrimination in the information
technology workplace.
(2) The extent to which there is a difference, based on
age, in promotion and advancement; working hours;
telecommuting; salary; and stock options, bonuses, or other
benefits.
(3) The relationship between rates of advancement,
promotion, and compensation to experience, skill level,
education, and age.
(4) Differences in skill level on the basis of age.
(b) Report.--Not later than October 1, 2000, the Comptroller
General of the United States shall submit to the Committees on the
Judiciary of the United States House of Representatives and the Senate
a report containing the results of the study described in subsection
(a). The report shall include any recommendations of the Comptroller
General concerning age discrimination in the information technology
field.
SEC. 10. GAO LABOR MARKET STUDY AND REPORT.
(a) Study.--The Comptroller General of the United States shall
conduct a labor market study. The study shall investigate and analyze
the following:
(1) The overall shortage of available workers in the high-
technology, rapid-growth industries.
(2) The multiplier effect growth of high-technology
industry on low-technology employment.
(3) The relative achievement rates of United States and
foreign students in secondary school in a variety of subjects,
including math, science, computer science, English, and
history.
(4) The relative performance, by subject area, of United
States and foreign students in postsecondary and graduate
schools as compared to secondary schools.
(5) The labor market need for workers with information
technology skills and the extent of the deficit of such workers
to fill high-technology jobs during the 10-year period
beginning on the date of the enactment of this Act.
(6) Future training and education needs of companies in the
high-technology sector.
(7) Future training and education needs of United States
students to ensure that their skills at various levels match
the needs of the high-technology and information technology
sectors.
(8) An analysis of which particular skill sets are in
demand.
(9) The needs of the high-technology sector for foreign
workers with specific skills.
(10) The potential benefits of postsecondary educational
institutions, employers, and the United States economy from the
entry of skilled professionals in the fields of engineering and
science.
(11) The effect on the high-technology labor market of the
downsizing of the defense sector, the increase in productivity
in the computer industry, and the deployment of workers
dedicated to the Year 2000 Project.
(b) Report.--Not later than October 1, 2000, the Comptroller
General of the United States shall submit to the Committees on the
Judiciary of the United States House of Representatives and the Senate
a report containing the results of the study described in subsection
(a).
SEC. 11. 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.
Union Calendar No. 368
105th CONGRESS
2d Session
H. R. 3736
[Report No. 105-657]
_______________________________________________________________________
A BILL
To amend the Immigration and Nationality Act to make changes relating
to H-1B nonimmigrants.
_______________________________________________________________________
July 29, 1998
Reported with an amendment, committed to the Committee of the Whole
House on the State of the Union, and ordered to be printed