[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3381 Introduced in House (IH)]







109th CONGRESS
  1st Session
                                H. R. 3381

   To amend the Immigration and Nationality Act with respect to the 
        admission of L-1 intra-company transferee nonimmigrants.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 21, 2005

Ms. DeLauro (for herself, Mr. McGovern, Mr. Lantos, Ms. Schakowsky, Ms. 
  Woolsey, Mr. DeFazio, Mr. Rohrabacher, Mr. Pastor, Mr. Sanders, Mr. 
    Larson of Connecticut, and Mr. Moore of Kansas) introduced the 
  following bill; which was referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To amend the Immigration and Nationality Act with respect to the 
        admission of L-1 intra-company transferee 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 ``L-1 Nonimmigrant Reform Act''.

SEC. 2. REVISION OF L-1 NONIMMIGRANT PROGRAM.

    (a) In General.--Section 214 of the Immigration and Nationality Act 
(8 U.S.C. 1184) is amended--
            (1) by redesignating the second subsection (p) as 
        subsection (s); and
            (2) by adding at the end the following new subsection:
    ``(t)(1) No alien may be admitted or provided status as an L-1 
nonimmigrant in an occupational classification unless the employer has 
filed with the Secretary of Labor an application stating the following:
            ``(A) The employer--
                    ``(i) is offering and will offer during the period 
                of authorized employment to aliens admitted or provided 
                status as an L-1 nonimmigrant wages that are at least--
                            ``(I) the locally determined prevailing 
                        wage level for the occupational classification 
                        in the area of employment,
                            ``(II) the median average wage for all 
                        workers in the occupational classification in 
                        the area of employment, or
                            ``(III) the median wage for skill level two 
                        in the occupational classification found in the 
                        most recent Occupation Employment Statistics 
                        survey,
                whichever is greatest, based on the best information 
                available as of the time of filing the application, and
                    ``(ii) will provide working conditions for such a 
                nonimmigrant that will not adversely affect the working 
                conditions of workers similarly employed.
        The wage determination methodology used under clause (i) shall 
        be submitted with the application.
            ``(B) There is not a strike or lockout in the course of a 
        labor dispute in the occupational classification at the place 
        of employment.
            ``(C) The employer, at the time of filing the application--
                    ``(i) has provided notice of the filing under this 
                paragraph to the bargaining representative (if any) of 
                the employer's employees in the occupational 
                classification and area for which aliens are sought, or
                    ``(ii) if there is no such bargaining 
                representative, has provided notice of filing in the 
                occupational classification through such methods as 
                physical posting in conspicuous locations at the place 
                of employment or electronic notification to employees 
                in the occupational classification for which L-1 
                nonimmigrants are sought.
            ``(D) The application shall contain a specification of the 
        occupational classification in which the worker will be 
        employed and wage rate and conditions under which the worker 
        will be employed.
            ``(E) The employer did not displace and will not displace a 
        United States worker (as defined in paragraph (4)) 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.
The employer shall make available for public examination, within one 
working day after the date on which an application under this paragraph 
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 subsection. Such list shall include the wage rate, number of 
aliens sought, their country of origin, period of intended employment, 
and date of need. The Secretary shall make such list available for 
public examination in Washington, D.C.
    ``(2)(A) Subject to paragraph (5)(A), the Secretary shall establish 
a process for the receipt, investigation, and disposition of complaints 
respecting a petitioner's failure to meet a condition specified in an 
application submitted under paragraph (1) or a petitioner's 
misrepresentation of material facts in such an application. Complaints 
may be filed by any aggrieved person or organization (including 
bargaining representatives). No investigation or hearing shall be 
conducted on a complaint concerning such a failure or misrepresentation 
unless the complaint was filed not later than 12 months after the date 
of the failure or misrepresentation, respectively. The Secretary shall 
conduct an investigation under this paragraph if there is reasonable 
cause to believe that such a failure or misrepresentation has occurred. 
In addition, the Secretary may conduct surveys of the level of 
compliance by employers with the provisions and requirements of this 
subsection and may conduct annual compliance audits in the case of 
employers that employ L-1 nonimmigrants.
    ``(B) Under such process, the Secretary shall provide, within 30 
days after the date such a complaint is filed, for a determination as 
to whether or not a reasonable basis exists to make a finding described 
in subparagraph (C). If the Secretary determines that such a reasonable 
basis exists, the Secretary shall provide for notice of such 
determination to the interested parties and an opportunity for a 
hearing on the complaint, in accordance with section 556 of title 5, 
United States Code, within 60 days after the date of the determination. 
If such a hearing is requested, the Secretary shall make a finding 
concerning the matter by not later than 60 days after the date of the 
hearing. In the case of similar complaints respecting the same 
applicant, the Secretary may consolidate the hearings under this 
subparagraph on such complaints.
    ``(C)(i) If the Secretary finds, after notice and opportunity for a 
hearing, a failure to meet a condition of paragraph (1)(B), (1)(E), or 
(1)(F), a substantial failure to meet a condition of paragraph (1)(C), 
(1)(D), or (1)(G)(i)(I), or a misrepresentation of material fact in an 
application--
            ``(I) the Secretary shall notify the Secretary of Homeland 
        Security 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 Secretary of Homeland Security 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 Secretary of Homeland 
        Security 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 Secretary of Homeland Security 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.
    ``(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 displaced 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--
            ``(I) the Secretary shall notify the Secretary of Homeland 
        Security of such finding and may, in addition, impose such 
        other administrative remedies (including civil monetary 
        penalties in an amount not to exceed $35,000 per violation) as 
        the Secretary determines to be appropriate; and
            ``(II) the Secretary of Homeland Security shall not approve 
        petitions filed with respect to that employer under section 204 
        or 214(c) during a period of at least 3 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.
    ``(v) The Secretary of Labor and the Secretary of Homeland Security 
shall devise a process under which an L-1 nonimmigrant who files a 
complaint regarding a violation of clause (iv) and is otherwise 
eligible to remain and work in the United States may be allowed to seek 
other appropriate employment in the United States for a period not to 
exceed the maximum period of stay authorized for such nonimmigrant 
classification.
    ``(vi)(I) It is a violation of this clause for an employer who has 
filed an application under this subsection to require an L-1 
nonimmigrant to pay a penalty for ceasing employment with the employer 
prior to a date agreed to by the nonimmigrant and the employer. The 
Secretary shall determine whether a required payment is a penalty (and 
not liquidated damages) pursuant to relevant State law.
    ``(II) It is a violation of this clause for an employer who has 
filed an application under this subsection to require an alien who is 
the subject of a petition filed under section 214(c)(1), for which a 
fee is imposed under section 214(c)(9), to reimburse, or otherwise 
compensate, the employer for part or all of the cost of such fee. It is 
a violation of this clause for such an employer otherwise to accept 
such reimbursement or compensation from such an alien.
    ``(III) If the Secretary finds, after notice and opportunity for a 
hearing, that an employer has committed a violation of this clause, the 
Secretary may impose a civil monetary penalty of $1,000 for each such 
violation (or $5,000 in the case of a second such violation by an 
employer or $10,000 for any subsequent such violation by the employer) 
and issue an administrative order requiring the return to the 
nonimmigrant of any amount paid in violation of this clause, or, if the 
nonimmigrant cannot be located, requiring payment of any such amount to 
the general fund of the Treasury.
    ``(vii)(I) It is a failure to meet a condition of paragraph (1)(A) 
for an employer, who has filed an application under this subsection and 
who places an L-1 nonimmigrant designated as a full-time employee on 
the petition filed under section 214(c)(1) by the employer with respect 
to the nonimmigrant, after the nonimmigrant has entered into employment 
with the employer, in nonproductive or part-time status due to a 
decision by the employer (based on factors such as lack of work), or 
due to the nonimmigrant's lack of a permit or license, to fail to pay 
the nonimmigrant full-time wages in accordance with paragraph (1)(A) 
for all such nonproductive time.
    ``(II) In the case of an L-1 nonimmigrant who has not yet entered 
into employment with an employer who has had approved an application 
under this subsection, and a petition under section 214(c)(1), with 
respect to the nonimmigrant, the provisions of subclauses (I) and (II) 
shall apply to the employer beginning 30 days after the date the 
nonimmigrant first is admitted into the United States pursuant to the 
petition, or 60 days after the date the nonimmigrant becomes eligible 
to work for the employer (in the case of a nonimmigrant who is present 
in the United States on the date of the approval of the petition).
    ``(III) This clause does not apply to a failure to pay wages to an 
L-1 nonimmigrant for nonproductive time due to non-work-related 
factors, such as the voluntary request of the nonimmigrant for an 
absence or circumstances rendering the nonimmigrant unable to work.
    ``(IV) This clause shall not be construed as prohibiting an 
employer that is a school or other educational institution from 
applying to an L-1 nonimmigrant an established salary practice of the 
employer, under which the employer pays to L-1 nonimmigrants and United 
States workers in the same occupational classification an annual salary 
in disbursements over fewer than 12 months, if--
            ``(aa) the nonimmigrant agrees to the compressed annual 
        salary payments prior to the commencement of the employment; 
        and
            ``(bb) the application of the salary practice to the 
        nonimmigrant does not otherwise cause the nonimmigrant to 
        violate any condition of the nonimmigrant's authorization under 
        this Act to remain in the United States.
    ``(V) This clause shall not be construed as superseding clause 
(viii).
    ``(viii) It is a failure to meet a condition of paragraph (1)(A) 
for an employer who has filed an application under this subsection to 
fail to offer to an L-1 nonimmigrant, during the nonimmigrant's period 
of authorized employment, benefits and eligibility for benefits 
(including the opportunity to participate in health, life, disability, 
and other insurance plans; the opportunity to participate in retirement 
and savings plans; and cash bonuses and noncash compensation, such as 
stock options (whether or not based on performance)) on the same basis, 
and in accordance with the same criteria, as the employer offers to 
United States workers.
    ``(D)(i) If the Secretary finds, after notice and opportunity for a 
hearing, that an employer has willfully not paid wages at the wage 
level specified under the application and required under paragraph (1), 
the Secretary shall order the employer to provide for payment of such 
amounts of double back pay as may be required to comply with the 
requirements of paragraph (1), whether or not a penalty under 
subparagraph (C) has been imposed.
    ``(ii) If the Secretary finds, after notice and opportunity for a 
hearing, that an employer willfully lays off a worker in violation of 
the terms of the application and this section, the Secretary shall 
order the employer to provide for payment of such amounts of double 
back pay for the workers so laid off.
    ``(E) 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 (on or after the date of the enactment of the L-1 
Nonimmigrant Reform Act) when the employer is found by the Secretary to 
have committed a willful failure to meet a condition of paragraph (1) 
(or has been found under paragraph (5) to have committed a willful 
failure to meet the condition of paragraph (1)(F)(i)(II)) or to have 
made a willful misrepresentation of material fact in an application. 
The authority of the Secretary under this subparagraph shall not be 
construed to be subject to, or limited by, the requirements of 
subparagraph (A).
    ``(F)(i) If the Secretary receives specific credible information 
from a source, who is likely to have knowledge of an employer's 
practices or employment conditions, or an employer's compliance with 
the employer's labor condition application under paragraph (1), and 
whose identity is known to the Secretary, and such information provides 
reasonable cause to believe that the employer has committed a willful 
failure to meet a condition of paragraph (1)(A), (1)(B), (1)(E), or 
(1)(F)(i)(I), has engaged in a pattern or practice of failures to meet 
such a condition, or has committed a substantial failure to meet such a 
condition that affects multiple employees, the Secretary may conduct a 
30-day investigation into the alleged failure or failures. The 
Secretary (or the Acting Secretary in the case of the Secretary's 
absence or disability) shall personally certify that the requirements 
for conducting such an investigation have been met and shall approve 
commencement of the investigation. The Secretary may withhold the 
identity of the source from the employer, and the source's identity 
shall not be subject to disclosure under section 552 of title 5, United 
States Code.
    ``(ii) The Secretary shall establish a procedure for any person, 
desiring to provide to the Secretary information described in clause 
(i) that may be used, in whole or in part, as the basis for 
commencement of an investigation described in such clause, to provide 
the information in writing on a form developed and provided by the 
Secretary and completed by or on behalf of the person.
    ``(iii) Any investigation initiated or approved by the Secretary 
under clause (i) shall be based on information that satisfies the 
requirements of such clause.
    ``(iv) No investigation described in clause (i) (or hearing 
described in clause (vi)) may be conducted with respect to information 
about a failure to meet a condition described in clause (i), unless the 
Secretary receives the information not later than 12 months after the 
date of the alleged failure.
    ``(v) The Secretary shall provide notice to an employer with 
respect to whom the Secretary has received information described in 
clause (i), prior to the commencement of an investigation under such 
clause, of the receipt of the information and of the potential for an 
investigation.
    ``(vi) If the Secretary determines under this subparagraph that a 
reasonable basis exists to make a finding that a failure described in 
clause (i) has occurred, the Secretary shall provide for notice of such 
determination to the interested parties and an opportunity for a 
hearing, in accordance with section 556 of title 5, United States Code, 
within 60 days after the date of the determination. If such a hearing 
is requested, the Secretary shall make a finding concerning the matter 
by not later than 60 days after the date of the hearing.
    ``(G) The Secretary of Homeland Security and the Secretary of Labor 
shall jointly submit to Congress an annual report on the use of L-1 
workers. Such report shall include the following:
            ``(i) Information on violations of conditions of entry of 
        such workers by their employers, including information on 
        complaints of such violations and their disposition, the 
        imposition of civil penalties and disbarments, back pay awards, 
        and other remedies obtained.
            ``(ii) Information on the list compiled under paragraph (1) 
        on applications under this subsection.
    ``(H) Nothing in this subsection shall be construed as superseding 
or preempting any other enforcement-related authority under this Act 
(such as the authorities under section 274B), or any other Act.
    ``(3) For purposes of this subsection:
            ``(A) The term `area of employment' means the area within 
        normal commuting distance of the worksite or physical location 
        where the work of the L-1 nonimmigrant is or will be performed. 
        If such worksite or location is within a Metropolitan 
        Statistical Area, any place within such area is deemed to be 
        within the area of employment.
            ``(B) In the case of an application with respect to one or 
        more L-1 nonimmigrants 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 or 
        nonimmigrants is or are 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.
            ``(C) The term `L-1 nonimmigrant' means an alien admitted 
        or provided status as a principal nonimmigrant described in 
        section 101(a)(15)(L)(i).
            ``(D)(i) The term `lays off', with respect to a worker--
                    ``(I) 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 (other than a 
                temporary employment contract entered into in order to 
                evade a condition described in subparagraph (E) of 
                paragraph (1));
                    ``(II) includes a significant change or diminution 
                of duties of employment; but
                    ``(III) does not include any situation in which the 
                worker is offered, as an alternative to such loss of 
                employment, a similar employment opportunity with no 
                significant change or diminution of duties 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 subparagraph is intended to limit an 
        employee's rights under a collective bargaining agreement or 
        other employment contract.
            ``(E) 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, is admitted as a refugee under 
                section 207, is granted asylum under section 208, or is 
                an immigrant otherwise authorized, by this Act or by 
                the Secretary of Homeland Security, to be employed.
    ``(4)(A) This paragraph shall apply instead of subparagraphs (A) 
through (E) of paragraph (2) in the case of a violation described in 
subparagraph (B), but shall not be construed to limit or affect the 
authority of the Secretary or the Secretary of Homeland Security with 
respect to any other violation.
    ``(B) The Secretary of Homeland Security shall establish a process 
for the receipt, initial review, and disposition in accordance with 
this paragraph of complaints respecting an employer's failure to meet 
the condition of paragraph (1)(F)(i)(II) or a petitioner's 
misrepresentation of material facts with respect to such condition. 
Complaints may be filed by an aggrieved individual who has submitted a 
resume or otherwise applied in a reasonable manner for the job that is 
the subject of the condition. No proceeding shall be conducted under 
this paragraph on a complaint concerning such a failure or 
misrepresentation unless the Secretary of Homeland Security determines 
that the complaint was filed not later than 12 months after the date of 
the failure or misrepresentation, respectively.''.
    (b) Liability for Costs of Return.--Section 214(c)(5)(A) of such 
Act (8 U.S.C. 1184(c)(5)(A)) is amended by inserting ``or 
101(a)(15)(L)'' after ``101(a)(15)(H)(ii)(b)''.
    (c) Application of Fee.--
            (1) Imposition of fee.--Section 214(c)(9) of such Act (8 
        U.S.C. 1184(c)(9)) is amended by adding at the end the 
        following new subparagraph:
    ``(D) The previous provisions of this paragraph shall apply to a 
nonimmigrant status described in section 101(a)(15)(L) in the same 
manner as it applies to a nonimigrant status described in section 
101(a)(15)(H)(i), except that fees so collected shall be deposited in 
the Treasury in accordance with section 286(v).''.
            (2) Deposit and use of fees.--Section 286 of such Act (8 
        U.S.C. 1356) is amended--
                    (A) in subsection (s)(1), by inserting ``(other 
                than under subparagraph (D) thereof)'' after 
                ``214(c)(9)''; and
                    (B) by adding at the end the following new 
                subsection:
    ``(v) L-1B Nonimmigrant Petitioner Account.--
            ``(1) In general.--There is established in the general fund 
        of the Treasury a separate account, which shall be known as the 
        `L-1 Nonimmigrant Petitioner Account'. Notwithstanding any 
        other section of this title, there shall be deposited as 
        offsetting receipts into the account all fees collected under 
        section 214(c)(9)(D).
            ``(2) Use of fees for data processing.--30 percent of 
        amounts deposited into the L-1 Nonimmigrant Petitioner Account 
        shall remain available to the Bureau of Citizenship and 
        Immigration Services in the Department of Homeland Security for 
        processing and data collection.
            ``(3) Use of fees for labor enforcement.--40 percent of 
        amounts deposited into the L-1 Nonimmigrant Petitioner Account 
        shall remain available to the Secretary of Labor for 
        enforcement activities.
            ``(4) Use of fees for training and education of united 
        states workers.--30 percent of amounts deposited into the L-1 
        Nonimmigrant Petitioner Account shall remain available to the 
        Secretary of Labor for training and education of United States 
        workers.''.
    (d) Application of Annual Cap.--Section 214 of such Act (8 U.S.C. 
1184) is amended by adding at the end the following new subsection:
    ``(q)(1) The total number of aliens who may be issued visas or 
otherwise provided nonimmigrant status during any fiscal year 
(beginning with fiscal year 2004) under section 101(a)(15)(L, may not 
exceed 35,000.
    ``(2) The numerical limitations of paragraph (1) shall only apply 
to principal aliens and not to the spouses or children of such aliens.
    ``(3) In the case of a nonimmigrant described in section 
101(a)(15)(H)(i)(b), the period of authorized admission as such a 
nonimmigrant may not exceed 3 years.
    ``(4) The numerical limitations contained in paragraph (1)(A) shall 
not apply to any nonimmigrant alien issued a visa or otherwise provided 
status under section 101(a)(15)(L) who is employed (or has received an 
offer of employment) at--
            ``(A) an institution of higher education (as defined in 
        section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 
        1001(a))), or a related or affiliated nonprofit entity; or
            ``(B) a nonprofit research organization or a governmental 
        research organization.''.
    (e) Corporate Restructuring.--Section 214(c)(10) of such Act (8 
U.S.C. 1184(c)(10)) is amended by inserting ``or L-1 petition'' after 
``H-1B petition''.
    (f) Striking Out Blanket Visas.--Section 214(c)(2) of such Act (8 
U.S.C. 1184(c)(2)) is amended by amending subparagraph (A) to read as 
follows:
    ``(2)(A) The Secretary of Homeland Security shall not permit the 
use of blanket petitions to import aliens as nonimmigrants under 
section 101(a)(15)(L).''.
    (g) Qualifications.--Section 214(c)(2)(B) of such Act (8 U.S.C. 
1184(c)(2)(B)) is amended by striking the period at the end and 
inserting the following: ``and has attained a bachelor's or higher 
degress in the area of special knowledge. For purposes of this 
subparagraph, the term `bachelor's degree (or higher degree)' includes 
a foreign degree that is a recognized foreign equivalent of a 
bachelor's degree (or higher degree). In the case of an alien obtaining 
a foreign degree, any determination with respect to the equivalence of 
that degree to a degree obtained in the United States shall be made by 
the Secretary of State. In carrying out the preceding sentence, the 
Secretary of State shall verify the authenticity of any foreign 
educational credential proffered by an alien.''.
    (h) Prior Employment Requirement.--Section 101(a)(15)(L) of such 
Act (8 U.S.C. 1101(a)(15)(L)) is amended--
            (1) by striking ``within 3 years'' and inserting ``during 2 
        of the past 3 years''; and
            (2) by striking ``has been employed continuously for one 
        year by a firm or corporation'' and inserting ``has been 
        employed continuously on a full-time basis for 2 years by the 
        firm or corporation''.
    (i) Effective Date.--Except as otherwise provided, the amendments 
made by this section shall apply to applications for nonimmigrant 
status filed on or after the first day of the first fiscal year 
beginning after the date of the enactment of this Act.
                                 <all>