[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 1723 Introduced in Senate (IS)]







105th CONGRESS
  2d Session
                                S. 1723

   To amend the Immigration and Nationality Act to assist the United 
States to remain competitive by increasing the access of United States 
firms and institutions of higher education to skilled personnel and by 
expanding educational and training opportunities for American students 
                              and workers.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 6, 1998

  Mr. Abraham (for himself, Mr. Hatch, Mr. McCain, Mr. DeWine and Mr. 
   Specter) introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To amend the Immigration and Nationality Act to assist the United 
States to remain competitive by increasing the access of United States 
firms and institutions of higher education to skilled personnel and by 
expanding educational and training opportunities for American students 
                              and workers.

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

SECTION 1. SHORT TITLE; REFERENCES IN ACT.

    (a) Short Title.--This Act may be cited as the ``American 
Competitiveness Act''.
    (b) References in Act.--Except as otherwise specifically provided 
in this Act, whenever in this Act an amendment or repeal is expressed 
as an amendment to or a repeal of a provision, the reference shall be 
deemed to be made to the Immigration and Nationality Act (8 U.S.C. 1101 
et seq.).

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) American companies today are engaged in fierce 
        competition in global markets.
            (2) Companies across America are faced with severe high 
        skill labor shortages that threaten their competitiveness.
            (3) The National Software Alliance, a consortium of 
        concerned government, industry, and academic leaders that 
        includes the United States Army, Navy, and Air Force, has 
        concluded that ``The supply of computer science graduates is 
        far short of the number needed by industry.''. The Alliance 
        concludes that the current severe understaffing could lead to 
        inflation and lower productivity.
            (4) The Department of Labor projects that the United States 
        economy will produce more than 130,000 information technology 
        jobs in each of the next 10 years, for a total of more than 
        1,300,000.
            (5) Between 1986 and 1995, the number of bachelor's degrees 
        awarded in computer science declined by 42 percent. Therefore, 
        any short-term increases in enrollment may only return the 
        United States to the 1986 level of graduates and take several 
        years to produce these additional graduates.
            (6) A study conducted by Virginia Tech for the Information 
        Technology Association of America estimates that there are more 
        than 340,000 unfilled positions for highly skilled information 
        technology workers in American companies.
            (7) The Hudson Institute estimates that the unaddressed 
        shortage of skilled workers throughout the United States 
        economy will result in a 5-percent drop in the growth rate of 
        GDP. That translates into approximately $200,000,000,000 in 
        lost output, nearly $1,000 for every American.
            (8) It is necessary to deal with the current situation with 
        both short-term and long-term measures.
            (9) In fiscal year 1997, United States companies and 
        universities reached the cap of 65,000 on H-1B temporary visas 
        a month before the end of the fiscal year. In fiscal year 1998 
        the cap is expected to be reached as early as May if Congress 
        takes no action. And it will be hit earlier each year until 
        backlogs develop of such a magnitude as to prevent United 
        States companies and researchers from having any timely access 
        to skilled foreign-born professionals.
            (10) It is vital that more American young people be 
        encouraged and equipped to enter technical fields, such as 
        mathematics, engineering, and computer science.
            (11) If American companies cannot find home-grown talent, 
        and if they cannot bring talent to this country, a large number 
        are likely to move key operations overseas, sending those and 
        related American jobs with them.
            (12) Inaction in these areas will carry significant 
        consequences for the future of American competitiveness around 
        the world and will seriously undermine efforts to create and 
        keep jobs in the United States.

SEC. 3. INCREASED ACCESS TO SKILLED PERSONNEL FOR UNITED STATES 
              COMPANIES AND UNIVERSITIES.

    (a) Establishment of H1-C Nonimmigrant Category.--
            (1) In general.--Section 101(a)(15)(H)(i) (8 U.S.C. 
        1101(a)(15)(H)(i)) is amended--
                    (A) by inserting ``and other than services 
                described in clause (c)'' after ``subparagraph (O) or 
                (P)''; and
                    (B) by inserting after ``section 212(n)(1)'' the 
                following: ``, or (c) who is coming temporarily to the 
                United States to perform labor as a health care worker, 
                other than a physician, if the alien qualifies for the 
                exemption from the grounds of inadmissibility described 
                in section 212(a)(5)(C)''.
            (2) Transition rule.--Any petition filed prior to the date 
        of enactment of this Act, for issuance of a visa under section 
        101(a)(15)(H)(i)(b) of the Immigration and Nationality Act on 
        behalf of an alien described in the amendment made by paragraph 
        (1)(B) shall, on and after that date, be treated as a petition 
        filed under section 101(a)(15)(H)(i)(c) of that Act, as added 
        by paragraph (1).
    (b) Annual Ceilings for H1-B and H1-C Workers.--
            (1) Amendment of the INA.--Section 214(g)(1) (8 U.S.C. 
        1184(g)(1)) is amended to read as follows:
    ``(g)(1) The total number of aliens who may be issued visas or 
otherwise provided nonimmigrant status during any fiscal year--
            ``(A) under section 101(a)(15)(H)(i)(b)--
                    ``(i) for each of fiscal years 1992 through 1997, 
                may not exceed 65,000,
                    ``(ii) for fiscal year 1998, may not exceed 2 times 
                the number of aliens issued visas or otherwise provided 
                nonimmigrant status between October 1, 1997, and March 
                31, 1998,
                    ``(iii) for fiscal year 1999, may not exceed the 
                number determined for fiscal year 1998 under such 
                section, minus 10,000, plus the number of unused visas 
                under subparagraph (B) for the fiscal year preceding 
                the applicable fiscal year, and
                    ``(iv) for fiscal year 2000 and each applicable 
                fiscal year thereafter, may not exceed the number 
                determined for fiscal year 1998 under such section, 
                minus 10,000, plus the number of unused visas under 
                subparagraph (B) for the fiscal year preceding the 
                applicable fiscal year, plus the number of unused visas 
                under subparagraph (C) for the fiscal year preceding 
                the applicable fiscal year;
            ``(B) under section 101(a)(15)(H)(ii)(b), beginning with 
        fiscal year 1992, may not exceed 66,000; or
            ``(C) under section 101(a)(15)(H)(i)(c), beginning with 
        fiscal year 1999, may not exceed 10,000.
For purposes of determining the ceiling under subparagraph (A) (iii) 
and (iv), not more than 25,000 of the unused visas under subparagraph 
(B) may be taken into account for any fiscal year.''.
            (2) Transition procedures.--Any visa issued or nonimmigrant 
        status otherwise accorded to any alien under clause (i)(b) or 
        (ii)(b) of section 101(a)(15)(H) of the Immigration and 
        Nationality Act pursuant to a petition filed during fiscal year 
        1998 but approved on or after October 1, 1998, shall be counted 
        against the applicable ceiling in section 214(g)(1) of that Act 
        for fiscal year 1998 (as amended by paragraph (1) of this 
        subsection), except that, in the case where counting the visa 
        or the other granting of status would cause the applicable 
        ceiling for fiscal year 1998 to be exceeded, the visa or grant 
        of status shall be counted against the applicable ceiling for 
        fiscal year 1999.

SEC. 4. EDUCATION AND TRAINING IN SCIENCE AND TECHNOLOGY.

    (a) Degrees in Mathematics, Computer Science, and Engineering.--
Subpart 4 of part A of title IV of the Higher Education Act of 1965 (20 
U.S.C. 1070c et seq.) is amended--
            (1) in section 415A(b)(1) (20 U.S.C. 1070c(b)(1))--
                    (A) by striking ``$105,000,000 for fiscal year 
                1993'' and inserting ``$155,000,000 for fiscal year 
                1999''; and
                    (B) by inserting ``, of which the amount in excess 
                of $25,000,000 for each fiscal year that does not 
                exceed $50,000,000 shall be available to carry out 
                section 415F for the fiscal year'' before the period; 
                and
            (2) by adding at the end the following:

``SEC. 415F. DEGREES IN MATHEMATICS, COMPUTER SCIENCE, AND ENGINEERING.

    ``(a) Allotments and Grants.--From amounts made available to carry 
out this section under section 415A(b)(1) for a fiscal year, the 
Secretary shall make allotments to States to enable the States to pay 
not more than 50 percent of the amount of grants awarded to low-income 
students in the States.
    ``(b) Use of Grants.--Grants awarded under this section shall be 
used by the students for attendance on a full-time basis at an 
institution of higher education in a program of study leading to an 
associate, baccalaureate or graduate degree in mathematics, computer 
science, or engineering.
    ``(c) Comparability.--The Secretary shall make allotments and 
grants shall be awarded under this section in the same manner, and 
under the same terms and conditions, as--
            ``(1) the Secretary makes allotments and grants are awarded 
        under this subpart (other than this section); and
            ``(2) are not inconsistent with this section.''.
    (b) Data Bank; Training.--
            (1) In general.--The Secretary of Labor shall--
                    (A) establish or improve a data bank on the 
                Internet that facilitates--
                            (i) job searches by individuals seeking 
                        employment in the field of technology; and
                            (ii) the matching of individuals possessing 
                        technology credentials with employment in the 
                        field of technology; and
                    (B) provide training in information technology to 
                unemployed individuals who are seeking employment.
            (2) Authorization of appropriations.--There are authorized 
        to be appropriated for fiscal year 1999 and each of the 4 
        succeeding fiscal years--
                    (A) $8,000,000 to carry out paragraph (1)(A); and
                    (B) $10,000,000 to carry out paragraph (1)(B).

SEC. 5. INCREASED ENFORCEMENT PENALTIES AND IMPROVED OPERATIONS.

    (a) Increased Penalties for Violations of H1-B or H1-C Program.--
Section 212(n)(2)(C) (8 U.S.C. 1182(n)(2)(C)) is amended--
            (1) by striking ``a failure to meet'' and all that follows 
        through ``an application--'' and inserting ``a willful failure 
        to meet a condition in paragraph (1) or a willful 
        misrepresentation of a material fact in an application--''; and
            (2) in clause (i), by striking ``$1,000'' and inserting 
        ``$5,000''.
    (b) Spot Inspections During Probationary Period.--Section 212(n)(2) 
(8 U.S.C. 1182(n)(2)) is amended--
            (1) by redesignating subparagraph (D) as subparagraph (E); 
        and
            (2) by inserting after subparagraph (C) the following:
    ``(D) The Secretary of Labor may, on a case-by-case basis, subject 
an employer to random inspections for a period of up to five years 
beginning on the date that such employer is found by the Secretary of 
Labor to have engaged in a willful failure to meet a condition of 
subparagraph (A), or a misrepresentation of material fact in an 
application.''.
    (c) Expedited Reviews and Decisions.--Section 214(c)(2)(C) (8 
U.S.C. 1184(c)(2)(C)) is amended by inserting ``or section 
101(a)(15)(H)(i)(b)'' after ``section 101(a)(15)(L)''.
    (d) Determinations on Labor Condition Applications To Be Made by 
Attorney General.--
            (1) In general.--Section 101(a)(15)(H)(i)(b) (8 U.S.C. 
        1101(a)(15)(H)(i)(b)) is amended by striking ``with respect to 
        whom'' and all that follows through ``with the Secretary'' and 
        inserting ``with respect to whom the Attorney General 
        determines that the intending employer has filed with the 
        Attorney General''.
            (2) Conforming amendments.--Section 212(n) (8 U.S.C. 
        1182(n)(1)) is amended--
                    (A) in paragraph (1)--
                            (i) in the first sentence, by striking 
                        ``Secretary of Labor'' and inserting ``Attorney 
                        General'';
                            (ii) in the sixth and eighth sentences, by 
                        inserting ``of Labor'' after ``Secretary'' each 
                        place it appears;
                            (iii) in the ninth sentence, by striking 
                        ``Secretary of Labor'' and inserting ``Attorney 
                        General'';
                            (iv) by amending the tenth sentence to read 
                        as follows: ``Unless the Attorney General finds 
                        that the application is incomplete or obviously 
                        inaccurate, the Attorney General shall provide 
                        the certification described in section 
                        101(a)(15)(H)(i)(b) and adjudicate the 
                        nonimmigrant visa petition.''; and
                            (v) by inserting in full measure margin 
                        after subparagraph (D) the following new 
                        sentence: ``Such application shall be filed 
                        with the employer's petition for a nonimmigrant 
                        visa for the alien, and the Attorney General 
                        shall transmit a copy of such application to 
                        the Secretary of Labor.''; and
                    (B) in the first sentence of paragraph (2)(A), by 
                striking ``Secretary'' and inserting ``Secretary of 
                Labor''.
    (e) Prevailing Wage Considerations.--Section 101(a) (8 U.S.C. 
1101(a)) is amended by adding at the end the following:
    ``(50) The term `prevailing wage' means the following:
            ``(A) If the job opportunity is subject to a wage 
        determination in the area under the Act of March 3, 1931 
        (commonly known as the Davis-Bacon Act (40 U.S.C. 276a et 
        seq.)), or the Service Contract Act of 1965 (41 U.S.C. 351 et 
        seq.), the prevailing wage shall be the rate required under 
        such Acts.
            ``(B) If the job opportunity is not covered by a prevailing 
        wage determined under the Acts referred to in subparagraph (A), 
        the prevailing wage shall be--
                    ``(i) the rate of wages to be determined, to the 
                extent feasible, by adding the wage paid to workers 
                similarly employed in the area of intended employment 
                and dividing the total by the number of such workers, 
                except that the wage set forth in the application shall 
                be considered as meeting the prevailing wage standard 
                if it is within 5 percent of the average rate of wages; 
                or
                    ``(ii) if the job opportunity is covered by a 
                collective bargaining agreement, the wage rate set 
                forth in the agreement shall be considered as not 
                adversely affecting the wages of United States workers 
                similarly employed and shall be considered the 
                `prevailing wage'.
            ``(C) A prevailing wage determination made pursuant to this 
        section shall not permit an employer to pay a wage lower than 
        that required under any other Federal, State, or local law.
            ``(D) For purposes of this section:
                    ``(i) The term `similarly employed' means having 
                substantially comparable jobs in the occupational 
                category in the area of intended employment, except 
                that, if no such workers are employed by employers 
                other than the employer applicant in the area of 
                intended employment, the term `similarly employed' 
                means--
                            ``(I) having jobs requiring a substantially 
                        similar level of skills within the area of 
                        intended employment; or
                            ``(II) if there are no substantially 
                        comparable jobs in the area of intended 
                        employment, having substantially comparable 
                        jobs with employers outside of the area of 
                        intended employment.
                    ``(ii) The term `substantially comparable jobs' 
                means jobs with substantially comparable employers, 
                taking into account size, profit or nonprofit 
                classification, start-up or mature business operations, 
                the specific industry, public or private sector, status 
                as an academic institution, or other defining 
                characteristics which the employer can demonstrate 
                result in a distinct wage scale from the industry at 
                large.
                    ``(iii) The term `similarly employed' shall be 
                construed to require separate average rates of wage 
                taking into account such factors as years of 
                experience, academic degree, educational institution 
                attended, grade point average, publications or other 
                distinctions, personal traits deemed essential to job 
                performance, specialized training or skills, 
                competitive market factors, or any other factors 
                typically considered by employers within the industry.
                    ``(iv) Employers may use either government or 
                nongovernment published surveys, including industry, 
                region, or statewide wage surveys, to determine the 
                prevailing wage, which shall be considered correct and 
                valid where the employer has maintained a copy of the 
                survey information.''.
    (f) Posting Requirement.--Section 212(n)(1)(C)(ii) (8 U.S.C. 
1182(n)(1)(C)(ii)) is amended to read as follows:
                    ``(ii) if there is no such bargaining 
                representative, has provided notice of filing to the 
                employer's employees in the occupational classification 
                through such methods as physical posting in a 
                conspicuous location at the employer's place of 
                business, or electronic posting through an internal job 
                bank, or electronic notification available to employees 
                in the occupational classification.''.

SEC. 6. ANNUAL REPORTS ON H1-B VISAS.

    Section 212(n) (8 U.S.C. 1182(n)) is amended by adding at the end 
the following:
            ``(3) Using data from petitions for visas issued under 
        section 101(a)(15)(H)(i)(b), the Attorney General shall 
        annually submit the following reports to Congress:
                    ``(A) Quarterly reports on the numbers of aliens 
                who were provided nonimmigrant status under section 
                101(a)(15)(H)(i)(b) during the previous quarter and who 
                were subject to the numerical ceiling for the fiscal 
                year established under section 214(g)(1).
                    ``(B) Annual reports on the occupations and 
                compensation of aliens provided nonimmigrant status 
                under such section during the previous fiscal year.''.

SEC. 7. LIMITATION ON PER COUNTRY CEILING WITH RESPECT TO EMPLOYMENT-
              BASED IMMIGRANTS.

    (a) Special Rules.--Section 202(a) (8 U.S.C. 1152(a)) is amended by 
adding at the end the following new paragraph:
            ``(5) Rules for employment-based immigrants.--
                    ``(A) Employment-based immigrants not subject to 
                per country limitation if additional visas available.--
                If the total number of visas available under paragraph 
                (1), (2), (3), (4), or (5) of section 203(b) for a 
                calendar quarter exceeds the number of qualified 
                immigrants who may otherwise be issued such visas, the 
                visas made available under that paragraph shall be 
                issued without regard to the numerical limitation under 
                paragraph (2) of this subsection during the remainder 
                of the calendar quarter.
                    ``(B) Limiting fall across for certain countries 
                subject to subsection (e).--In the case of a foreign 
                state or dependent area to which subsection (e) 
                applies, if the total number of visas issued under 
                section 203(b) exceeds the maximum number of visas that 
                may be made available to immigrants of the state or 
                area under section 203(b) consistent with subsection 
                (e) (determined without regard to this paragraph), in 
                applying subsection (e) all visas shall be deemed to 
                have been required for the classes of aliens specified 
                in section 203(b).''.
    (b) Conforming Amendments.--
            (1) Section 202(a)(2) (8 U.S.C. 1152(a)(2)) is amended by 
        striking ``paragraphs (3) and (4)'' and inserting ``paragraphs 
        (3), (4), and (5)''.
            (2) Section 202(e)(3) (8 U.S.C. 1152(e)(3)) is amended by 
        striking ``the proportion of the visa numbers'' and inserting 
        ``except as provided in subsection (a)(5), the proportion of 
        the visa numbers''.
    (c) One-Time Protection Under Per Country Ceiling.--Notwithstanding 
section 214(g)(4) of the Immigration and Nationality Act, any alien 
who--
            (1) as of the date of enactment of this Act is a 
        nonimmigrant described in section 101(a)(15)(H)(i) of that Act;
            (2) is the beneficiary of a petition filed under section 
        204(a) for a preference status under paragraph (1), (2), or (3) 
        of section 203(b); and
            (3) would be subject to the per country limitations 
        applicable to immigrants under those paragraphs but for this 
        subsection,
may apply for and the Attorney General may grant an extension of such 
nonimmigrant status until the alien's application for adjustment of 
status has been processed and a decision made thereon.

SEC. 8. ACADEMIC HONORARIA.

    Section 212 (8 U.S.C. 1182) is amended by adding at the end the 
following new subsection:
    ``(p) Any alien admitted under section 101(a)(15)(B) may accept an 
honorarium payment and associated incidental expenses for a usual 
academic activity or activities, as defined by the Attorney General in 
consultation with the Secretary of Education, if such payment is 
offered by an institution of higher education (as defined in section 
1201(a) of the Higher Education Act of 1965) or other nonprofit entity 
and is made for services conducted for the benefit of that institution 
or entity.''.
                                 <all>