[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