[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1452 Introduced in Senate (IS)]







108th CONGRESS
  1st Session
                                S. 1452

 To amend the Immigration and Nationality Act with respect to the H-1B 
 and L-1 visa programs to prevent unintended United States job losses, 
 to increase the monitoring and enforcement authority of the Secretary 
          of Labor over such programs, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                July 24 (legislative day, July 21), 2003

   Mr. Dodd 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 with respect to the H-1B 
 and L-1 visa programs to prevent unintended United States job losses, 
 to increase the monitoring and enforcement authority of the Secretary 
          of Labor over such programs, and for other purposes.

    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 ``USA Jobs Protection Act of 2003''.

SEC. 2. FINDINGS AND PURPOSE.

    (a) Findings.--Congress finds the following:
            (1) The H-1B and L-1 visa programs were established to 
        enable United States employers to hire workers with the 
        necessary skills and allow the intracompany transfer of certain 
        workers in the employ of companies with operations outside of 
        the United States.
            (2) Employers have used the H-1B and L-1 visa programs to 
        fill hundreds of thousands of positions in United States firms.
            (3) According to a General Accounting Office report, 60 
        percent of the positions being filled by workers provided under 
        the H-1B visa program are related to information technology.
            (4) The median annual salaries for information technology 
        employment was $45,000 in 1999.
            (5) In 2001, Congress specifically banned the displacement 
        of United States employees by H-1B visa holders and mandated 
        that employers pay H-1B workers prevailing United States wages.
            (6) United States unemployment in information technology 
        specialties has increased over the last 2 years making it more 
        difficult for employers to certify that they are unable to find 
        American information technology employees to fill vacancies as 
        required to gain approval of H-1B visa applications.
            (7) United States consular officers in foreign countries in 
        the past have expressed concerns that the L-1 visa program was 
        being exploited beyond the original purpose of the program by 
        allowing employers to bring in workers who subsequently are 
        employed by other companies.
            (8) It has been reported that the former Immigration and 
        Naturalization Service was reviewing the L-1 visa program to 
        assess whether companies were using the L-1 visa to circumvent 
        restrictions associated with the H-1B visa program.
            (9) The Department of Labor has had very limited authority 
        to enforce the program requirements of the H-1B visa program 
        and no legal authority to police the L-1 visa program.
            (10) Historical weaknesses in the administration of the H-
        1B program by the former Immigration and Naturalization Service 
        caused unnecessary delays in processing employer requests and 
        also made the H-1B program vulnerable to abuse.
    (b) Purpose.--The purpose of this Act is to ensure that the H-1B 
and L-1 visa programs are utilized for the purposes for which they were 
intended and not to displace American workers with lower cost foreign 
visa holders, by closing the loopholes in the programs and 
strengthening enforcement and penalties for violations of laws.

SEC. 3. L-1 NONIMMIGRANT VISAS.

    (a) Wage Requirements; Limitation on Placement of Intracompany 
Transferees; Displacement of Workers.--Section 214(c)(2) of the 
Immigration and Nationality Act (8 U.S.C. 1184(c)(2)) is amended by 
adding at the end the following:
    ``(F) No alien may be admitted or provided status as a nonimmigrant 
described in section 101(a)(15)(L) unless the importing employer has 
filed with the Secretary of Labor an application stating the following:
            ``(i) The employer will not place the nonimmigrant with 
        another employer where--
                    ``(I) the nonimmigrant performs duties in whole or 
                in part at 1 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.
            ``(ii) The employer shall make available for public 
        examination, not later than 1 working day after the date on 
        which an application under this subparagraph is filed, at the 
        employer's principal place of business or worksite, a copy of 
        each such application (and such accompanying documents as are 
        necessary). The Secretary shall compile, on a current basis, a 
        list (by employer and by occupational classification) of the 
        applications filed under this subparagraph. The Secretary shall 
        make such list available for public examination in Washington, 
        D.C. The Secretary of Labor shall review such an application 
        only for completeness and obvious inaccuracies. Unless the 
        Secretary of Labor finds that an application is incomplete or 
        obviously inaccurate, the Secretary of Labor shall certify to 
        the Secretary of Homeland Security, not later than 7 days after 
        the date of the filing of the application, that the 
        requirements of this subclause have been satisfied. The 
        application form shall include a clear statement explaining the 
        liability under this clause if an employer places a 
        nonimmigrant with another employer in violation of clause (i).
            ``(iii) The employer is offering and will offer during the 
        period of authorized employment to aliens admitted or provided 
        status as a nonimmigrant described in section 101(a)(15)(L) 
        wages that are at least--
                    ``(I) the actual wage level paid by the employer to 
                all other individuals with similar experience and 
                qualifications for the specific employment in question; 
                or
                    ``(II) the prevailing wage level for the 
                occupational classification in the area of employment;
        whichever is greater, based on the information available at the 
        time of filing the application.
            ``(iv) The employer did not displace and will not displace 
        a United States worker employed by the employer within the 
        period beginning 180 days before and ending 180 days after the 
        date of filing of any visa petition supported by the 
        application.
            ``(v) The provisions of section 212(n)(2) shall apply to a 
        failure to meet a condition of clauses (i), (iii), and (iv) and 
        subparagraph (G) in the same manner as such provisions apply to 
        a failure to meet a condition of section 212(n)(1)(F).''.
    (b) Appropriate Agencies References.--Section 214(c)(1) of the 
Immigration and Nationality Act (8 U.S.C. 1184(c)(1)) is amended by 
inserting after ``Department of Agriculture.'' the following: ``For 
purposes of this subsection with respect to nonimmigrants described in 
section 101(a)(15)(L), the term `appropriate agencies of Government' 
means the Department of Labor.''.
    (c) Restriction of Blanket Petitions.--Section 214(c)(2)(A) of the 
Immigration and Nationality Act (8 U.S.C. 1184(c)(2)(A)) is amended by 
striking ``In the case of'' and all that follows through the period and 
inserting the following: ``Not later than January 15 of each year, the 
Secretary of Homeland Security shall consult with the Secretary of 
Labor to ensure that procedures utilized in that calendar year to 
process blanket petitions shall not undermine efforts by the Department 
of Labor to enforce the provisions of this subsection and shall 
consider any recommendations that the Secretary of Labor proposes to 
such procedures to enhance compliance with the provisions of this 
subsection.''.
    (d) Action on Petitions.--Section 214(c)(2)(C) of the Immigration 
and Nationality Act (8 U.S.C. 1184(c)(2)(C)) is amended by inserting 
before the period the following: ``, unless the Secretary of Homeland 
Security, after consultation with the Secretary of Labor, determines 
that an additional period of time beyond 30 days is necessary to ensure 
the proper implementation of this subsection''.
    (e) Employment History.--Section 101(a)(15)(L) of the Immigration 
and Nationality Act (8 U.S.C. 1101(a)(15)(L)) is amended by striking 
``one year'' and inserting ``2 of the last 3 years''.
    (f) Period of Admission.--Section 214(c)(2)(D) of the Immigration 
and Nationality Act (8 U.S.C. 1184(c)(2)(D)) is amended--
            (1) in clause (i), by striking ``7 years'' and inserting 
        ``5 years''; and
            (2) in clause (ii), by striking ``5 years'' and inserting 
        ``3 years''.
    (g) Recruitment; Administrative Fee; Definitions.--Section 
214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)), 
as amended by subsection (a), is further amended by adding at the end 
the following:
    ``(G) In the case of a petition to import aliens as nonimmigrants 
in a capacity that involves specialized knowledge as described in 
section 101(a)(15)(L), the employer, prior to filing the petition, 
shall file with the Secretary of Labor an application stating that the 
employer has taken good faith steps to recruit, in the United States 
using procedures that meet industry-wide standards, United States 
workers for the job for which the nonimmigrants are sought.
    ``(H) The Secretary of Labor shall impose a fee on an employer 
filing a petition to import aliens as nonimmigrants described in 
section 101(a)(15)(L) to cover the administrative costs of processing 
the petition.
    ``(I) The Secretary of Labor may initiate an investigation of any 
employer that employs nonimmigrants described in section 101(a)(15)(L) 
if the Secretary of Labor has reasonable cause to believe that the 
employer is not in compliance with this subsection. The investigation 
may be initiated not solely for completeness and obvious inaccuracies 
by the employer in complying with this subsection.
    ``(J) In this paragraph:
            ``(i) In the case of an application with respect to 1 or 
        more nonimmigrants described in section 101(a)(15)(L) by an 
        employer, the employer is considered to `displace' a United 
        States worker from a job if the employer lays off the worker 
        from a job that is essentially the equivalent of the job for 
        which the nonimmigrant is sought. A job shall not be considered 
        to be essentially equivalent of another job unless it involves 
        essentially the same responsibilities, was held by a United 
        States worker with substantially equivalent qualifications and 
        experience, and is located in the same area of employment as 
        the other job.
            ``(ii)(I) The term `lays off', with respect to a worker--
                    ``(aa) means to cause the worker's loss of 
                employment, other than through a discharge for 
                inadequate performance, violation of workplace rules, 
                cause, voluntary departure, voluntary retirement, or 
                the expiration of a grant or contract; but
                    ``(bb) does not include any situation in which the 
                worker is offered, as an alternative to such loss of 
                employment, a similar employment opportunity with the 
                same employer at equivalent or higher compensation and 
                benefits than the position from which the employee was 
                discharged, regardless of whether or not the employee 
                accepts the offer.
            ``(II) Nothing in this clause is intended to limit an 
        employee's rights under a collective bargaining agreement or 
        other employment contract.
            ``(iii) The term `United States worker' means an employee 
        who--
                    ``(I) is a citizen or national of the United 
                States; or
                    ``(II) is an alien who is lawfully admitted for 
                permanent residence or is an immigrant otherwise 
authorized by this Act or by the Secretary of Homeland Security to be 
employed.''.
    (h) Technical and Conforming Amendment.--Section 214 of the 
Immigration and Nationality Act (8 U.S.C. 1184) is amended by striking 
``Attorney General'' each place that term appears and inserting 
``Secretary of Homeland Security''.

SEC. 4. TEMPORARY NONIMMIGRANT WORKERS.

    (a) H-1B Dependent Employers.--
            (1) In general.--Section 212(n) of the Immigration and 
        Nationality Act (8 U.S.C. 1182(n)) is amended--
                    (A) in paragraph (1)--
                            (i) in subparagraph (E)(ii), by striking 
                        ``an H-1B-dependent employer (as defined in 
                        paragraph (3))'' and inserting ``an employer 
                        that employs H-1B nonimmigrants''; and
                            (ii) in subparagraph (F), by striking 
                        ``(regardless of whether or not such other 
                        employer is an H-1B-dependent employer)''; and
                    (B) in paragraph (2)--
                            (i) in subparagraph (E), by striking ``If 
                        an H-1B-dependent employer'' and inserting ``If 
                        an employer that employs H-1B nonimmigrants''; 
                        and
                            (ii) in subparagraph (F), by striking ``The 
                        preceding sentence shall apply to an employer 
                        regardless of whether or not the employer is an 
                        H-1B-dependent employer.''.
            (2) Conforming definition amendment.--Section 212(n)(3) of 
        the Immigration and Nationality Act (8 U.S.C. 1182(n)(3)) is 
        amended--
                    (A) by striking subparagraph (A); and
                    (B) by redesignating subparagraphs (B) and (C) as 
                subparagraphs (A) and (B), respectively.
    (b) Displacement of Workers.--Section 212(n) of the Immigration and 
Nationality Act (8 U.S.C. 1182(n)) is amended--
            (1) in paragraph (1)(F), by striking ``90 days'' each place 
        that term appears and inserting ``180 days''; and
            (2) in paragraph (2)(C)(iii), by striking ``90 days'' each 
        place that term appears and inserting ``180 days''.
    (c) Enforcement Action.--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:
    ``(I) The Secretary of Labor may initiate an investigation of any 
employer that hires nonimmigrants described in section 
101(a)(15)(H)(i)(b) if the Secretary of Labor has reasonable cause to 
believe that the employer is not in compliance with this subsection. 
The investigation may be initiated not solely for completeness and 
obvious inaccuracies by the employer in complying with this 
subsection.''.
    (d) Administrative Fee.--Section 214(c)(9)(A) of the Immigration 
and Nationality Act (8 U.S.C. 1184(c)(9)(A)) is amended by striking 
``before October 1, 2003''.

SEC. 5. COMPTROLLER GENERAL INVESTIGATION.

    Not later than 1 year after the date of enactment of this Act, the 
Comptroller General of the United States shall undertake an 
investigation to determine--
            (1) how the amendments made by this Act are being 
        implemented;
            (2) the impact that the amendments made by this Act have 
        had on employers and workers in the United States; and
            (3) whether additional changes to existing law are 
        necessary--
                    (A) to prevent American workers from being 
                displaced by nonimmigrants described in subparagraphs 
                (L) and (H)(i)(b) of section 101(a)(15) of the 
                Immigration and Nationality Act (8 U.S.C. 1101(a)(15)); 
                or
                    (B) to meet the legitimate needs of United States 
                employers.
                                 <all>