Short title; table of contents

(a)

Short title

This Act may be cited as the

Defend the American Dream Act of 2005

. (b)

Table of contents

The table of contents of this Act is as follows:

Sec. 1. Short title; table of contents

Sec. 2. Wage determination

Sec. 3. Good faith recruitment requirement

Sec. 4. Notice requirement

Sec. 5. Reduction of period of authorized admission as H–1B nonimmigrant

Sec. 6. Removal of exemption from H–1B numerical limitation for certain aliens

Sec. 7. Requirement of a degree from certain institutions for H–1B specialty occupation nonimmigrants

Sec. 8. Tripling H–1B nonimmigrant petitioner fee

Sec. 9. Labor enforcement

Sec. 10. Private right of action

Sec. 11. Application of nondisplacement requirement to all H–1B employers

Wage determination

(a)

Change in minimum wages

Section 212(n)(1)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)(A)) is amended to read as follows:

(A)The employer— (i)is offering and will offer during the period of authorized employment to aliens admitted or provided status as an H–1B 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 Occupational Employment Statistics survey;

whichever is greatest, based on the best information available as of the time of filing of the application; and

(ii)will provide working conditions for such 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)

Provision of W–2 forms

Section 212(n)(1) of such Act (8 U.S.C. 1182(n)(1)) is amended by inserting after subparagraph (G) the following new subparagraph:

(H)If the employer employed, in such previous period as the Secretary shall specify, one or more H–1B nonimmigrants, the application shall be accompanied by the Internal Revenue Service Form W–2 Wage and Tax Statement filed by the employer with respect to such nonimmigrants for such period.

(c)

Effective date

The amendments made by this section shall apply to applications filed on or after the date of the enactment of this Act.

Good faith recruitment requirement

(a)

Extending time period for no displacement

Section 212(n) of the Immigration and Nationality Act (8 U.S.C. 1182(n)) is amended— (1)in paragraph (1)(E)(i), by striking 90 days and inserting 180 days each place it appears; and (2)in paragraph (2)(C)(iii), in the matter before subclause (I), by striking 90 days and inserting 180 days each place it appears. (b)

Requiring active recruitment

Section 212(n)(1)(G)(i)(I) of such Act (8 U.S.C. 1182(n)(1)(G)(i)(I)) is amended by inserting actively before recruit. (c)

Prohibition of outplacement

Section 212(n) of such Act (8 U.S.C. 1182(n)) is amended— (1)by amending subparagraph (F) of paragraph (1) to read as follows:

(F)The employer shall not place, out-source, lease, or otherwise contract for the placement of an alien admitted or provided status as an H–1B nonimmigrant with another employer, regardless of whether or not such other employer is an H–1B-dependent employer.

; and

(2) by striking subparagraph (E) of paragraph (2). (d)

Effective date

The amendments made by this section shall apply to applications filed on or after the date of the enactment of this Act, except that the amendments made by subsection (a) shall not apply to displacements for periods occurring more than 90 days before such date.

Notice requirement

(a)

In general

Section 212(n) of the Immigration and Nationality Act (8 U.S.C. 1182(n)) is further amended— (1)in paragraph (1), in the matter preceding subparagraph (A), by inserting and the employer certifies that the prior notice requirement of paragraph (6) has been met with respect to the application; and (2)by adding at the end the following new paragraph:

(6)For purposes of paragraph (1), the prior notice requirement of this paragraph, with respect to an application of an employer, is that employer has made copies of the application (or, a summary of essential information derived from such application, including the number of H–1B nonimmigrants being sought, their occupational classifications, the wages offered, the period of intended employment, the locations at which they will be employed, and a statement that a copy of the application is available for public inspection in conspicuous locations at the employer’s principal place of business and at worksites where H–1B nonimmigrants will be employed) accessible for examination by affected United States and foreign workers at least 30 days in advance of the filing of the application with the Secretary of Labor through— (A)posting of such application (or summary) in conspicuous locations at worksites where H–1B nonimmigrants will be employed; (B)electronic notification to employees in the occupational classifications for which H–1B nnimmigrants are being sought; and (C)provision of a copy of the application to each H–1B nonimmigrant on whose behalf the application is being filed.

(b)

Effective date

The amendments made by subsection (a) shall apply to applications filed more than 30 days after the date of the enactment of this Act.

Reduction of period of authorized admission as H–1B nonimmigrant

(a)

In general

Section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)) is amended by striking 6 years and inserting 3 years. (b)

Effective date

The amendment made by subsection (a) shall apply with respect to the period of authorized admission of an alien as an H–1B nonimmigrant under section 101(a)(15)(H)(i)(B) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(B)) that begins on or after the date of the enactment of this Act.

Removal of exemption from H–1B numerical limitation for certain aliens

(a)

In general

Section 214(g)(5) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(5)) is amended— (1)in subparagraph (A), by adding or after the semicolon; (2)in subparagraph (B), by striking ; or and inserting a period; and (3)by striking subparagraph (C). (b)

Effective date

The amendments made by subsection (a) shall apply to the issuance of a visa (or other provision of status) under section 101(a)(15)(H)(i)(B) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(B)) on or after the first day of the first fiscal year beginning after the date of the enactment of this Act.

Requirement of a degree from certain institutions for H–1B specialty occupation nonimmigrants

(a)

In general

Section 214(i)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(i)(2)) is amended— (1)in subparagraph (A), by adding or at the end; (2)in subparagraph (B), by inserting , from a bona fide educational institution in the United States or from an educational institution that is at least equivalent to such an institution in the United States, after paragraph (1)(B); (3) in subparagraph (B), by striking , or and inserting a period; and (4)by striking subparagraph (C). (b)

Effective date

The amendments made by subsection (a) shall apply to applications filed on or after the date of the enactment of this Act.

Tripling H–1B nonimmigrant petitioner fee

(a)

In general

Section 214(c)(9)(B) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(9)(B)) is amended by striking $1,500 and inserting $4,500. (b)

Technical amendment

Section 214(c)(9)(A) of such Act (8 U.S.C. 1184(c)(9)(A)) is amended, in the matter preceding clause (i), by striking before. (c)

Effective date

The amendment made by subsection (a) shall apply to petitions filed on or after the date of the enactment of this Act.

Labor enforcement

(a)

Centralization of administrative and enforcement functions

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 new subparagraph:

(J)The Secretary shall be responsible under this paragraph for investigations of wage complaints, as well as investigations of allegations of fraud in the filing of applications under this subsection.

(b)

Audits

Section 212(n)(2)(A) of such Act (8 U.S.C. 1182(n)(2)(A)) is amended by adding at the end the following: 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 H–1B nonimmigrants. In the case of an employer that employs H–1B nonimmigrants that represent 15 percent or more of the total number of individuals employed by the employer, the Secretary shall conduct annual compliance audits of such employer..

10.

Private right of action

(a)

In general

Section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)), as amended by section 8(a), is further amended by adding at the end the following new subparagraph:

(K)In addition to any other remedies available under this paragraph, a person who is harmed by a violation by an employer of a requirement of this subsection may bring a civil action against the employer in any court of competent jurisdiction for damages or other appropriate relief.

(b)

Effective date

The amendment made by subsection (a) shall apply to violations occurring on or after the date of the enactment of this Act.

11.

Application of nondisplacement requirement to all H–1B employers

(a)

In general

Section 212(n)(1)(E)(ii) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)(E)(ii)) is amended by striking an H–1B dependent employer (as defined in paragraph (3)) and inserting an employer that employs H–1B non-immigrants. (b)

Effective date

The amendments made by this section shall apply to applications filed on or after the date of the enactment of this Act.