[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 1918 Introduced in Senate (IS)]








109th CONGRESS
  1st Session
                                S. 1918

To amend the Immigration and Nationality Act to address the demand for 
                            foreign workers.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 25, 2005

   Mr. Hagel 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 address the demand for 
                            foreign workers.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Strengthening 
America's Workforce Act of 2005''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
                    TITLE I--WILLING WORKER PROGRAM

Sec. 101. Willing workers.
Sec. 102. Recruitment of United States workers.
Sec. 103. Admission of willing workers.
Sec. 104. Worker protections.
Sec. 105. Notification of employee rights.
Sec. 106. Portability.
Sec. 107. Spouses and children of willing workers.
Sec. 108. Petitions by employer groups and unions.
Sec. 109. Processing time for petitions.
Sec. 110. Terms of admission.
Sec. 111. Number of visas issued.
Sec. 112. Immigration Study Commission.
Sec. 113. Change of status.
Sec. 114. Adjustment of status to lawful permanent resident.
Sec. 115. Grounds of inadmissibility.
Sec. 116. Petition fees.
Sec. 117. Definitions.
Sec. 118. Collective bargaining agreements.
Sec. 119. Report on wage determination.
Sec. 120. Ineligibility for certain nonimmigrant status.
Sec. 121. Investigations by Department of Homeland Security during 
                            labor disputes.
Sec. 122. Protection of witnesses.
Sec. 123. Document fraud.
  TITLE II--NONIMMIGRANT VISAS FOR HIGHLY EDUCATED AND SKILLED WORKERS

Sec. 201. Exemption of nonimmigrants with advanced degrees from 
                            numerical limits.
Sec. 202. Aliens not subject to numerical limitations on employment-
                            based immigrants.
             TITLE III--FOREIGN STUDENT WORK AUTHORIZATION

Sec. 301. Off campus work authorization for foreign students.

                    TITLE I--WILLING WORKER PROGRAM

SEC. 101. WILLING WORKERS.

    (a) H-2B Workers.--Section 101(a)(15)(H)(ii)(b) of the Immigration 
and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(b)) is amended--
            (1) by inserting ``subject to section 212(v),'' before 
        ``having a residence''; and
            (2) by striking ``temporary service or labor'' and 
        inserting ``short-term service or labor, lasting not more than 
        9 months''.
    (b) H-2C Workers.--Section 101(a)(15)(H)(ii)(b) of the Immigration 
and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(b)) is amended by 
striking ``profession; or'' and inserting ``profession, or (c) subject 
to section 212(v), who is coming temporarily to the United States to 
perform labor or services, other than those occupation classifications 
covered under the provisions of clause (i)(b), (ii)(a), or (ii)(b) of 
this subparagraph or subparagraph (L), (O), or (P), for a United States 
employer, if United States workers qualified to perform such labor or 
service cannot be identified; or''.

SEC. 102. RECRUITMENT OF UNITED STATES WORKERS.

    Section 212 of the Immigration and Nationality Act (8 U.S.C. 1182) 
is amended--
            (1) by redesignating subsection (t) (as added by section 
        1(b)(2) of Public Law 108-449 (118 Stat. 3470)) as subsection 
        (u); and
            (2) by adding at the end the following:
    ``(v)(1) An employer that seeks to employ an alien described in 
clause (ii)(b) or (ii)(c) of section 101(a)(15)(H) shall, with respect 
to an alien described in such clause (ii)(b), 14 days prior to filing 
an application under paragraph (3), and with respect to an alien 
described in such clause (ii)(c), 30 days prior to filing an 
application under paragraph (3), take the following steps to recruit 
United States workers for the position for which the nonimmigrant 
worker is sought:
            ``(A) Submit a copy of the job opportunity, including a 
        description of the wages and other terms and conditions of 
        employment, to the United States Employment Services within the 
        Department of Labor (ES), which shall provide the employers 
        with an acknowledgment of receipt of the documentation provided 
        to the ES in accordance with this subparagraph.
            ``(B) Authorize the ES to post the job opportunity on 
        `America's Job Bank' and local job banks, and with unemployment 
        agencies and other labor referral and recruitment sources 
        pertinent to the job in question.
            ``(C) Authorize the ES to notify the central office of the 
        State Federation of Labor in the State in which the job is 
        located.
            ``(D) Post the availability of the job opportunity for 
        which the employer is seeking a worker in conspicuous locations 
        at the place of employment for all employees to see.
            ``(E) Advertise, with respect to an alien described in such 
        clause (ii)(b), for at least 3 consecutive days, and for an 
        alien described in such clause (ii)(c), for at least 10 
        consecutive days, the availability of the job opportunity for 
        which the employer is seeking a worker in a publication with 
        the highest circulation in the labor market that is likely to 
        be patronized by a potential worker.
            ``(F) Based on recommendations by the local job service, 
        advertise the availability of the job opportunity in 
        professional, trade, or ethnic publications that are likely to 
        be patronized by a potential worker.
    ``(2) An employer that seeks to employ an alien described in clause 
(ii)(b) or (ii)(c) of section 101(a)(15)(H) shall--
            ``(A) have offered the job to any United States worker who 
        applies and is qualified for the job for which the nonimmigrant 
        worker is sought and who is available at the time of need; and
            ``(B) be required to maintain, for at least 1 year after 
        the employment relationship is terminated, documentation of 
        recruitment efforts and responses received prior to the filing 
        of the employer's application with the Secretary of Labor, 
        including resumes, applications, and, if applicable, tests of 
        United States workers who applied and were not hired for the 
        job the employer seeks to fill with a nonimmigrant worker.''.

SEC. 103. ADMISSION OF WILLING WORKERS.

    (a) Application to the Secretary of Labor.--Section 212(v) of the 
Immigration and Nationality Act (8 U.S.C. 1182(v)), as added by section 
102, is amended by adding after paragraph (2) the following:
    ``(3) An employer that seeks to fill a position with an alien 
described in clause (ii)(b) or (ii)(c) of section 101(a)(15)(H), shall 
file with the Secretary of Labor an application attesting that--
            ``(A) the employer is offering and will offer during the 
        period of authorized employment to aliens admitted or provided 
        status as a nonimmigrant described in clause (ii)(b) or (ii)(c) 
        of section 101(a)(15)(H), 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, 
                taking into account experience and skill levels of 
                employees, which level may be determined through 
                private, independent wage surveys,
whichever is greater, based on the best information available at the 
time of the filing of the application, and for purposes of clause (ii) 
the prevailing wage level shall be, if the job opportunity is covered 
by a collective bargaining agreement between a union and the employer, 
the wage rate set forth in the collective bargaining agreement, or if 
the job opportunity is not covered by a collective bargaining agreement 
between a union and the employer, and it is in an occupation that is 
covered by a wage determination under a provision of subchapter IV of 
chapter 31 of title 40, United States Code, the appropriate statutory 
wage determination;
            ``(B) the employer will offer the same wages, benefits, and 
        working conditions for such nonimmigrant as those provided to 
        United States workers similarly employed in the same occupation 
        and the same place of employment;
            ``(C) there is not a strike, lockout, or labor dispute in 
        the occupational classification at the place of employment 
        (including any concerted activity to which section 7 of the 
        National Labor Relations Act (29 U.S.C. 157) applies);
            ``(D) the employer will abide by all applicable laws and 
        regulations relating to the right of workers to join or 
        organize a union;
            ``(E) the employer has provided notice of the filing of the 
        application to the bargaining representative, if any, of the 
        employer's employees in the occupational classification at the 
        place of employment or, if there is no such bargaining 
        representative, has posted notice of the filing in conspicuous 
        locations at the place of employment for all employees to see 
        for not less than 10 business days for an alien described in 
        clause (ii)(b) of section 101(a)(15)(H) and for not less than 
        25 business days for an alien described in clause (ii)(c) of 
        such section;
            ``(F) the employer (including its officers, 
        representatives, agents, or attorneys) has not required the 
        applicant to pay any fee or charge for preparing the 
        application and submitting it to the Secretary of Labor, the 
        Secretary of Homeland Security, or the Secretary of State;
            ``(G) the requirements for the job opportunity represent 
        the employer's actual minimum requirements for that job and the 
        employer will not hire nonimmigrant workers with less training 
        or experience;
            ``(H) the employer, within the 60 days prior to the filing 
        of the application and the 60 days following the filing, has 
        not laid off, and will not lay-off, any United States worker 
        employed by the employer in any similar position at the place 
        of employment;
            ``(I) the employer, prior to the filing of the application, 
        has complied with the recruitment requirements in accordance 
        with paragraph (1); and
            ``(J) no job offer may impose on United States workers any 
        restrictions or obligations that will not be imposed by an 
        employer on a nonimmigrant worker described in clause (ii)(b) 
        or (ii)(c) of section 101(a)(15)(H).''.
    (b) Accompanied by Job Offer.--Section 212(v) of the Immigration 
and Nationality Act (8 U.S.C. 1182(v)), as amended by subsection (a), 
is further amended by adding after paragraph (3) the following:
    ``(4) Each application filed under paragraph (3) shall be 
accompanied by--
            ``(A) a copy of the job offer describing the wages and 
        other terms and conditions of employment;
            ``(B) a statement of the minimum education, training, 
        experience, and requirements for the job opportunity in 
        question;
            ``(C) copies of the documentation submitted to the United 
        States Employment Services within the Department of Labor to 
        recruit United States workers in accordance with paragraph (1);
            ``(D) copies of the advertisements to recruit United States 
        workers placed in publications in accordance with paragraph 
        (1); and
            ``(E) a copy of the acknowledgment of receipt provided to 
        the employer by the ES in accordance with paragraph (1)(A).''.
    (c) Incomplete Applications; Retention of Application; Filing of 
Petition.--Section 212(v) of the Immigration and Nationality Act (8 
U.S.C. 1182(v)), as amended by subsection (b), is further amended by 
adding after paragraph (4) the following:
    ``(5) The Secretary of Labor shall review the application and 
requisite documents filed in accordance with paragraphs (3) and (4) for 
completeness and accuracy, and if deficiencies are found, the Secretary 
of Labor shall notify the employer and provide the employer with an 
opportunity to address such deficiencies.
    ``(6) A copy of the application and requisite documents filed with 
the Secretary of Labor in accordance with paragraphs (3) and (4) shall 
be retained by the employer in a public access file at the employer's 
headquarters or principal place of employment of the alien for the 
duration of the employment relationship and for 1 year after the 
termination of that employment relationship.
    ``(7) Upon the approval of an application by the Secretary of 
Labor, an employer who seeks to employ an alien described in clause 
(ii)(b) or (ii)(c) of section 101(a)(15)(H) shall file a petition as 
required under section 214(c)(1) with the Bureau of Citizenship and 
Immigration Services within the Department of Homeland Security.
    ``(8) Upon finalization of the visa processing, the Secretary of 
Homeland Security shall issue each alien who obtains legal status under 
clause (ii)(b) or (ii)(c) of section 101(a)(15)(H) with a counterfeit-
resistant visa and a document of authorization, both of which meet all 
the requirements established by the Secretary of Homeland Security for 
travel documents and reflects the benefits and status set forth in this 
subsection.''.

SEC. 104. WORKER PROTECTIONS.

    Section 212(v) of the Immigration and Nationality Act (8 U.S.C. 
1182(v)), as amended by section 103, is further amended by adding after 
paragraph (8) the following:
    ``(9)(A) Nothing in this subsection shall be construed to limit the 
rights of an employee under a collective bargaining agreement or other 
employment contract.
    ``(B) An alien admitted or otherwise provided status under clause 
(ii)(b) or (ii)(c) of section 101(a)(15)(H) shall not be denied any 
right or any remedy under Federal, State, or local labor or employment 
law that is applicable to a United States worker employed in a similar 
position with the employer because of the status of the alien as a 
nonimmigrant worker.
    ``(C) It shall be unlawful for an employer who has filed a petition 
for a nonimmigrant worker described in clause (ii)(b) or (ii)(c) of 
section 101(a)(15)(H) to intimidate, threaten, restrain, coerce, 
blacklist, discharge, or in any other manner discriminate against an 
employee (including a former employee) because the employee--
            ``(i) 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
            ``(ii) because the employee cooperates or seeks to 
        cooperate in a government investigation or other proceeding 
        concerning the employer's compliance with the requirements of 
        this subsection or any rule or regulation pertaining to this 
        subsection.
    ``(D) The Secretary of Labor and the Secretary of Homeland Security 
shall establish a process under which a nonimmigrant worker described 
in clause (ii)(b) or (ii)(c) of section 101(a)(15)(H) who files a 
complaint regarding a violation of this subsection, or any other rule 
or regulation pertaining to this subsection 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 that nonimmigrant 
classification.''.

SEC. 105. NOTIFICATION OF EMPLOYEE RIGHTS.

    Section 214(c), of the Immigration and Nationality Act (8 U.S.C. 
1184(c)) is amended by adding at the end the following:
            ``(13) An employer that employs an alien described in 
        clause (ii)(b) or (ii)(c) of section 101(a)(15)(H) shall 
        provide such alien with the same notification of the alien's 
        rights and remedies under Federal, State, and local laws that 
        the employer is required to provide to United States workers 
        and, upon request of the United States worker, make available 
        to United States employees a copy of the attested application 
        submitted by the employer regarding that alien to the Secretary 
        of Labor and the application by the employer regarding that 
        alien submitted to the Secretary of Homeland Security.''.

SEC. 106. PORTABILITY.

    Section 212(v) of the Immigration and Nationality Act (8 U.S.C. 
1182(v)), as amended by section 104, is further amended by adding after 
paragraph (9) the following:
    ``(10)(A) Except as provided in subparagraph (C), any alien 
admitted or otherwise provided status as a nonimmigrant described in 
section 101(a)(15)(H)(ii)(c) may change employers only after the alien 
has been employed by the petitioning employer for at least 3 months 
from the date of admission or the date such status was otherwise 
acquired.
    ``(B) Except as provided in subparagraph (C), any alien admitted or 
otherwise provided status as a nonimmigrant described in section 
101(a)(15)(H)(ii)(b) shall be prohibited from changing employers after 
the alien has been employed by the petitioning employer.
    ``(C) The 3-month employment requirement in subparagraph (A) may be 
waived (without loss of status during the period of the waiver) for a 
nonimmigrant described in section 101(a)(15)(H)(ii)(c) and the 
employment requirement in subparagraph (B) may be waived (without loss 
of status during the period of the waiver) for a nonimmigrant described 
in section 101(a)(15)(H)(ii)(b) in circumstances where--
            ``(i) the alien began and continued the employment in good 
        faith but the employer violated a term or condition of 
        sponsorship of the alien under this Act or violated any other 
        law or regulation relating to the employment of the alien; or
            ``(ii) the personal circumstances of the alien changed so 
        as to require a change of employer, including family, medical, 
        or humanitarian reasons, a disability, or other factor 
        rendering the alien unable to perform the job.
    ``(D) If a waiver under subparagraph (C) is sought, the application 
shall be accompanied by such evidence to warrant the approval of such 
waiver.
    ``(E) A nonimmigrant alien admitted or otherwise provided status as 
a nonimmigrant described in clause (ii)(b) or (ii)(c) of section 
101(a)(15)(H) may accept new employment with a new employer upon the 
filing by the new employer of a new application on behalf of such alien 
as provided under paragraph (3). Employment authorization shall 
continue until the new petition is adjudicated. If the new petition is 
denied, the alien's right to work as established by this subsection 
shall cease. The alien's right to work, if any, established by any 
other provision of law, shall not be affected by the denial of such new 
application.''.

SEC. 107. SPOUSES AND CHILDREN OF WILLING WORKERS.

    Section 212(v) of the Immigration and Nationality Act (8 U.S.C. 
1182(v)), as amended by section 106, is further amended by adding after 
paragraph (10) the following:
    ``(11) A spouse or child of a nonimmigrant worker described in 
clause (ii)(b) or (ii)(c) of section 101(a)(15)(H) shall be eligible 
for derivative status by accompanying or following to join the 
alien.''.

SEC. 108. PETITIONS BY EMPLOYER GROUPS AND UNIONS.

    Section 214(c)(1) of the Immigration and Nationality Act (8 U.S.C. 
1184(c)(1)) is amended--
            (1) by inserting after the first sentence the following: 
        ``In the case of an alien or aliens described in clause (ii)(b) 
        or (ii)(c) of section 101(a)(15)(H), the petition may be filed 
        by an associated or affiliated group of employers that have 
        multiple openings for similar employment on behalf of the 
        individual employers or by a union or union consortium. The 
        petition, if approved, will be valid for employment in the 
        described positions for the member employers, the union, or 
        union consortium, provided the employing entity has complied 
        with all applicable recruitment requirements and paid the 
        requisite petition fees.''; and
            (2) by adding at the end the following: ``Nothing in this 
        paragraph shall be construed to permit a recruiting entity or 
        job shop to petition for an alien described in clause (ii)(b) 
        or (ii)(c) of section 101(a)(15)(H).''.

SEC. 109. PROCESSING TIME FOR PETITIONS.

    Section 214(c) of the Immigration and Nationality Act (8 U.S.C. 
1184(c)), as amended by section 105, is further amended by adding at 
the end the following:
    ``(14) The Secretary of Labor shall review the application filed 
under section 212(v)(3) for completeness and accuracy and issue a 
determination with regard to the application not later than 21 days 
after the date on which the application was filed.
    ``(15) The Secretary of Homeland Security shall establish a process 
for reviewing and completing adjudications upon petitions filed under 
this subsection with respect to nonimmigrant workers described in 
clause (ii)(b) or (ii)(c) of section 101(a)(15)(H) and derivative 
applications associated with these petitions, not later than 60 days 
after the completed petition has been filed.''.

SEC. 110. TERMS OF ADMISSION.

    Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 
1184(g)) is amended by adding at the end the following:
    ``(9) In the case of a nonimmigrant described in section 
101(a)(15)(H)(ii)(b), the initial period of authorized admission shall 
be for not more than 9 months from the date of application for 
admission in such status in any 1-year period. No nonimmigrant 
described in such section may be admitted for a total period that 
exceeds 36 months in a 4-year period.
    ``(10) In the case of a nonimmigrant described in section 
101(a)(15)(H)(ii)(c), the initial period of authorized admission shall 
be for not more than 2 years. The employer may petition for extensions 
of such status for an additional period of not more than 2 years. No 
nonimmigrant described in such section shall be admitted for a total 
period that exceeds 4 years.
    ``(11)(A) The limitations described in paragraphs (9) and (10) with 
respect to the duration of authorized stay shall not apply to any 
nonimmigrant alien previously issued a visa or otherwise provided 
nonimmigrant status under section 101(a)(15)(H)(ii)(c) on whose behalf 
a petition has been filed under section 204(b) to accord the alien 
immigrant status under section 203(b), or an application for adjustment 
of status has been filed under section 245 to accord the alien status 
under section 203(b), if 365 days or more have elapsed since--
            ``(i) the filing of a labor certification application on 
        behalf of the alien (if such certification is required for the 
        alien to obtain status under section 203(b)); or
            ``(ii) the filing of the petition under section 204(a).
    ``(B) The Secretary of Homeland Security shall extend the stay of 
an alien who qualifies for an exemption under subparagraph (A) in 1-
year increments until such time as a final decision is made--
            ``(i) to deny the application described in subparagraph 
        (A)(i), or, in a case in which such application is granted, to 
        deny a petition described in subparagraph (A)(ii) filed on 
        behalf of the alien pursuant to such grant;
            ``(ii) to deny the petition described in subparagraph 
        (A)(ii); or
            ``(iii) to grant or deny the alien's application for an 
        immigrant visa or for adjustment of status to that of an alien 
        lawfully admitted for permanent residence.
    ``(C) An alien who was granted Deferred Mandatory Departure status 
under section 245C may qualify for an exemption under subparagraph 
(A).''.

SEC. 111. NUMBER OF VISAS ISSUED.

    Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 
1184(g)) is amended--
            (1) in paragraph (1), by amending subparagraph (B) to read 
        as follows:
                    ``(B)(i) under section 101(a)(15)(H)(ii)(b) may not 
                exceed 100,000 in each fiscal year following the fiscal 
                year in which the final regulations implementing the 
                amendments made by the Strengthening America's 
                Workforce Act of 2005 are published; and
                    ``(ii) under section 101(a)(15)(H)(ii)(c) may not 
                exceed 250,000 in each fiscal year following the fiscal 
                year in which the final regulations implementing the 
                amendments made by the Strengthening America's 
                Workforce Act of 2005 are published.''; and
            (2) in paragraph (2), by striking ``of paragraph (1) 
        shall'' and inserting the following: ``under paragraph (1)--
                    ``(A) shall not apply to aliens previously granted 
                Mandatory Deferred Departure under section 245C; and
                    ``(B) shall''.

SEC. 112. IMMIGRATION STUDY COMMISSION.

    (a) Establishment.--On the date that is 3 years after the date of 
enactment of this Act, there shall be established a commission, to be 
known as the Immigration Study Commission (referred to in this section 
as the ``Commission'') to review the impact of this Act on the national 
security of the United States, the national economy, and families, and 
to make recommendations to Congress.
    (b) Membership.--
            (1) In general.--The Commission shall be composed of 12 
        members, of which--
                    (A) 3 members shall be appointed by the majority 
                leader of the Senate;
                    (B) 3 members shall be appointed by the minority 
                leader of the Senate;
                    (C) 3 members shall be appointed by the Speaker of 
                the House of Representatives; and
                    (D) 3 members shall be appointed by the minority 
                leader of the House of Representatives.
            (2) Qualifications.--The Commission members shall represent 
        the public and private sectors and have expertise in areas that 
        would best inform the work of the Commission, including 
        national security experts, economists, sociologists, worker 
        representatives, business representatives, and immigration 
        lawyers.
            (3) Chairperson.--The chairperson of the Commission shall 
        be a Commission member agreed upon by the majority and minority 
        leaders of the Senate, and the Speaker and the minority leader 
        of the House of Representatives.
            (4) Compensation and expenses.--The members of the 
        Commission shall not receive compensation for the performance 
        of services for the Commission, but shall be allowed travel 
        expenses, including per diem in lieu of subsistence, at rates 
        authorized for employees of agencies under subchapter I of 
        chapter 57 of title 5, United States Code, while away from 
        their homes or regular places of business in the performance of 
        services for the Commission.
            (5) Terms.--Each member shall be appointed for the life of 
        the Commission. Any vacancy shall be filled by whomever 
        initially appointed the member of that seat.
    (c) Administrative Provisions.--
            (1) Location.--The Commission shall be located in a 
        facility maintained by the Bureau of Citizenship and 
        Immigration Services.
            (2) Detail of government employees.--Any Federal Government 
        employee may be detailed to the Commission without 
        reimbursement, and such detail shall be without interruption or 
        loss of civil service status or privilege.
            (3) Information from federal agencies.--The Commission may 
        secure directly from any Federal department or agency such 
        information as the Commission considers necessary to carry out 
        the provisions of this section. Upon request of the Commission, 
        the head of such department or agency shall furnish such 
        information to the Commission.
            (4) Hearings.--The Commission may hold such hearings, sit 
        and act at such times and places, take such testimony, and 
        receive such evidence as the Commission considers advisable to 
        carry out the objectives of this section, except that, to the 
        extent possible, the Commission shall use existing data and 
        research.
            (5) Postal services.--The Commission may use the United 
        States mails in the same manner and under the same conditions 
        as other departments and agencies of the Federal Government.
    (d) Report.--Not later than 1 year after all of the members are 
appointed to the Commission, the Commission shall submit to Congress a 
preliminary report that summarizes the directions of the Commission and 
initial recommendations. Not later than 2 years after the Commission 
members are appointed, the Commission shall submit to Congress a report 
that summarizes the findings of the Commission and make such 
recommendations as are consistent with this Act.
    (e) Authorization of Appropriations.--There are authorized to be 
appropriated to the Bureau of Citizenship and Immigration Services such 
sums as may be necessary to carry out this section.

SEC. 113. CHANGE OF STATUS.

    Section 212(v) of the Immigration and Nationality Act (8 U.S.C. 
1182(v)), as amended by section 107, is further amended by adding after 
paragraph (11) the following:
    ``(12)(A) An alien admitted as a nonimmigrant or otherwise provided 
status under clause (ii)(b) or (ii)(c) of section 101(a)(15)(H) shall 
be eligible to obtain a change of status to another immigrant or 
nonimmigrant classification for which the alien may be eligible.
    ``(B) An alien subject to Mandatory Deferred Departure under 
section 245C may not adjust to an immigrant classification under this 
section until after the earlier of--
            ``(i) the consideration of all applications filed under 
        section 201, 202, or 203 before the date of enactment of this 
        paragraph; or
            ``(ii) 8 years after the date of enactment of this 
        paragraph.
    ``(C) An alien may not adjust to an immigrant classification under 
this section until after the earlier of--
            ``(i) the consideration of all applications filed under 
        section 201, 202, or 203 before the date of enactment of this 
        paragraph; or
            ``(ii) 8 years after such date of enactment.''.

SEC. 114. ADJUSTMENT OF STATUS TO LAWFUL PERMANENT RESIDENT.

    (a) Employment-Based Immigrant Visas.--Section 212(v) of the 
Immigration and Nationality Act (8 U.S.C. 1182(v)), as amended by 
section 113, is further amended by adding after paragraph (12) the 
following:
    ``(13)(A) Nonimmigrant aliens admitted or otherwise provided status 
under clause (ii)(b) or (ii)(c) of section 101(a)(15)(H) shall be 
eligible for an employment-based immigrant visa pursuant to section 
203(b)(3) and adjustment of status pursuant to section 245.
    ``(B) Pursuant to subparagraph (A), for purposes of adjustment of 
status under section 245(a) or issuance of an immigrant visa under 
section 203(b)(3), employment-based immigrant visas shall be made 
available, without regard to any numerical limitation imposed by 
section 201 or 202, to an alien having nonimmigrant status described in 
clause (ii)(b) or (ii)(c) of section 101(a)(15)(H) upon the filing of a 
petition for such a visa by--
            ``(i) the employer or any collective bargaining agent of 
        the alien; or
            ``(ii) the alien, provided the alien has been employed 
        under such nonimmigrant status for at least 3 years.
    ``(C) The spouse or child of an alien granted status under clause 
(ii)(b) or (ii)(c) of section 101(a)(15)(H) shall be eligible as a 
derivative beneficiary for an immigrant visa and adjustment of 
status.''.
    (b) Dual Intent.--Section 214(h) of the Immigration and Nationality 
Act (8 U.S.C. 1184(h)) is amended by inserting ``(H)(ii)(b), 
(H)(ii)(c),'' after ``(H)(i)(b) or (c),''.

SEC. 115. GROUNDS OF INADMISSIBILITY.

    Section 212(v) of the Immigration and Nationality Act (8 U.S.C. 
1182(v)), as amended by section 114(a), is further amended by adding 
after paragraph (13) the following:
    ``(14) In determining the admissibility of an alien under clause 
(ii)(b) or (ii)(c) of section 101(a)(15)(H), violations of grounds of 
inadmissibility described in paragraphs (5), (6)(A), (6)(B), (6)(C), 
(6)(G), (7), (9), and (10)(B) of section 212(a) committed prior to the 
application under such section, or the approval of a change of status 
to a classification under such section shall not apply if the violation 
was committed before the date of introduction of the Strengthening 
America's Workforce Act of 2005.''.

SEC. 116. PETITION FEES.

    Section 212(v) of the Immigration and Nationality Act (8 U.S.C. 
1182(v)), as amended by section 115, is further amended by adding after 
paragraph (14) the following:
    ``(15)(A) An employer filing a petition for an alien described in 
section 101(a)(15)(H)(ii)(c) shall be required to pay a filing fee for 
each alien, based on the cost of carrying out the processing duties 
under this subsection, and a secondary fee of--
            ``(i) $250, in the case of an employer employing 25 
        employees or less;
            ``(ii) $500, in the case of an employer employing between 
        26 and 150 employees;
            ``(iii) $750, in the case of an employer employing between 
        151 and 500 employees; or
            ``(iv) $1,000, in the case of an employer employing more 
        than 500 employees.
    ``(B) An employer filing a petition for an alien described in 
section 101(a)(15)(H)(ii)(b) shall be required to pay a filing fee for 
each alien, based on the costs of carrying out the processing duties 
under this subsection, and a secondary fee of--
            ``(i) $125, in the case of an employer employing 25 
        employees or less;
            ``(ii) $250, in the case of an employer employing between 
        26 and 150 employees;
            ``(iii) $375, in the case of an employer employing between 
        151 and 500 employees; or
            ``(iv) $500, in the case of an employer employing more than 
        500 employees.
    ``(C) The fees collected under this paragraph shall be deposited 
into accounts within the Department of Homeland Security, the 
Department of Labor, and the Department of State, and allocated such 
that--
            ``(i) 15 percent of the amounts received shall be made 
        available to the Department of Homeland Security until expended 
        to carry out the requirements related to processing petitions 
        filed by employers for aliens described in clause (ii)(b) or 
        (ii)(c) of section 101(a)(15)(H);
            ``(ii) 20 percent of the amounts received shall be made 
        available to the Department of Labor until expended to--
                    ``(I) carry out the requirements related to 
                processing attestations filed by employers for aliens 
                described in clause (ii)(b) or (ii)(c) of section 
                101(a)(15)(H); and
                    ``(II) increase the funds available to the United 
                States Employment Services to assist State employment 
                service agencies in responding to employers and 
                employees contacting such agencies as a result of 
                paragraph (1);
            ``(iii) 15 percent of the amounts received shall be made 
        available to the Department of State until expended to carry 
        out the requirements related to processing applications for 
        visas by aliens under clause (ii)(b) or (ii)(c) of section 
        101(a)(15)(H);
            ``(iv) 5 percent of the amounts received shall be made 
        available for the performance of functions under section 
        212(t)(9)(F) as the Secretary of Labor and the Special Counsel 
        of the Office of the Special Counsel for Immigration-Related 
        Unfair Employment Practices within the Department of Justice 
        may agree;
            ``(v) 30 percent of the amounts received shall be made 
        available to the Department of Homeland Security for 
        implementation of border security measures; and
            ``(vi) 15 percent of the amounts received shall be made 
        available to the Department of Homeland Security for the 
        employment eligibility confirmation program described in 
        section 403(a) of the Illegal Immigration Reform and Immigrant 
        Responsibility Act of 1996 (8 U.S.C. 1324a note).''

SEC. 117. DEFINITIONS.

    Section 212(v) of the Immigration and Nationality Act (8 U.S.C. 
1182(v)), as amended by section 116, is further amended by adding after 
paragraph (16) the following:
    ``(16) In this subsection:
            ``(A) The term `employer' means any person or entity that 
        employs workers in labor or services that are not agricultural, 
        and shall not include recruiting entities or job shops.
            ``(B) The term `job opportunity' means a job opening for 
        temporary full-time or part-time employment at a place in the 
        United States to which United States workers can be referred.
            ``(C)(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, 
                contract impossibility, termination of the position or 
                company, temporary layoffs due to weather, markets, or 
                other temporary conditions; but
                    ``(II) 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 subparagraph is intended to limit an 
        employee's rights under a collective bargaining agreement or 
        other employment contract.
            ``(D) The term `United States worker' means any worker, 
        whether a United States citizen or national, a lawfully 
        admitted permanent resident alien, or any other alien, who is 
        authorized to work in the job opportunity within the United 
        States, except an alien admitted or otherwise provided status 
        under clause (ii)(b) or (ii)(c) of section 101(a)(15)(H).''.

SEC. 118. COLLECTIVE BARGAINING AGREEMENTS.

    Notwithstanding any other provision of law, the fact that an 
individual holds a visa as a nonimmigrant worker described in clause 
(ii)(b) or (ii)(c) of section 101(a)(15)(H) of the Immigration and 
Nationality Act (8 U.S.C. 1101(a)(15)(H)) shall not render that 
individual ineligible to qualify as an employee under the National 
Labor Relations Act (29 U.S.C. 151 et seq.) or to be protected under 
section 7 of that Act (29 U.S.C. 157).

SEC. 119. REPORT ON WAGE DETERMINATION.

    Not later than 2 years after the date of enactment of this Act, the 
Bureau of Labor Statistics shall prepare and transmit to the Committees 
on Health, Education, Labor, and Pensions and the Judiciary of the 
Senate and the Committees on Education and the Workforce and the 
Judiciary of the House of Representatives, a report that addresses--
            (1) whether the employment of workers described in clause 
        (ii)(b) or (ii)(c) of section 101(a)(15)(H) of the Immigration 
        and Nationality Act (8 U.S.C. 1101(a)(15)(H)) in the United 
        States workforce has impacted United States worker wages;
            (2) whether any changes should be made for a future wage 
        system, based on factors that include an examination of the 
        Occupational Employment System survey, its calculation of wage 
        data based on skill and experience levels and difference among 
        types of employers, including for profit, nonprofit, 
        government, and nongovernment;
            (3) whether use of private, independent wage surveys would 
        provide accurate and reliable criteria to determine wage rates; 
        and
            (4) any other recommendations that are warranted.

SEC. 120. INELIGIBILITY FOR CERTAIN NONIMMIGRANT STATUS.

    (a) Bar to Future Visas for Condition Violations.--Any alien who 
has status pursuant to section 245B of the Immigration and Nationality 
Act, as added by title III, or clause (ii)(b) or (ii)(c) of section 
101(a)(15)(H) of the Immigration and Nationality Act (8 U.S.C. 
1101(a)(15)(H)), shall not be eligible in the future for such 
nonimmigrant status if the alien materially violates any term or 
condition of such status.
    (b) Aliens Unlawfully Present.--Any alien who enters the United 
States after the date of enactment of this Act without being admitted 
or paroled shall be ineligible for nonimmigrant status under clause 
(ii)(b) or (ii)(c) of section 101(a)(15)(H) of the Immigration and 
Nationality Act (8 U.S.C. 1101(a)(15)(H)).

SEC. 121. INVESTIGATIONS BY DEPARTMENT OF HOMELAND SECURITY DURING 
              LABOR DISPUTES.

    (a) In General.--When information is received by the Department of 
Homeland Security concerning the employment of undocumented or 
unauthorized aliens, consideration should be given to whether the 
information is being provided to interfere with the rights of employees 
to--
            (1) form, join, or assist labor organizations or to 
        exercise their rights not to do so;
            (2) be paid minimum wages and overtime;
            (3) have safe work places;
            (4) receive compensation for work related injuries;
            (5) be free from discrimination based on race, gender, age, 
        national origin, religion, or handicap; or
            (6) retaliate against employees for seeking to vindicate 
        those rights.
    (b) Determination of Labor Dispute.--Whenever information received 
from any source creates a suspicion that an immigration enforcement 
action might involve the Department of Homeland Security in a labor 
dispute, a reasonable attempt should be made by Department of Homeland 
Security enforcement officers to determine whether a labor dispute is 
in progress. The information officer at the regional office of the 
National Labor Relations Board can supply status information on unfair 
labor practice charges or union election or decertification petitions 
that are pending involving most private sector, non-agricultural 
employers. Wage and hour information can be obtained from the Wage and 
Hour Division of the Department of Labor or the State labor department.
    (c) Relevant Questions for Informant.--In order to protect the 
Department of Homeland Security from unknowingly becoming involved in a 
labor dispute, persons who provide information to the Department of 
Homeland Security about the employer or employees involved in the 
dispute should be asked--
            (1) their names;
            (2) whether there is a labor dispute in progress at the 
        work site;
            (3) whether the person is or was employed at the work site 
        in question (or by a union representing workers at the work 
        site);
            (4) if applicable, whether the person is or was employed in 
        a supervisory or managerial capacity or is related to anyone 
        who is;
            (5) how the person came to know that the subjects lacked 
        legal authorization to work, as well as the source and 
        reliability of the information concerning the subject's status;
            (6) whether the person had or is having a dispute with the 
        employer or the subjects of the information; and
            (7) if the subjects of the information have raised 
        complaints or grievances about hours, working conditions, 
        discriminatory practices, or union representation or actions, 
        or whether the subjects have filed workers' compensation 
        claims.
    (d) BICE Review.--There is no prohibition for enforcing the 
Immigration and Nationality Act (8 U.S.C. 1101 et seq.), even when 
there may be a labor dispute in progress, however, where it appears 
that information may have been provided in order to interfere with or 
to retaliate against employees for exercising their rights, no action 
should be taken on this information without review and approval by the 
Bureau of Immigration and Customs Enforcement.
    (e) Enforcement Action.--When enforcement action is taken by the 
Department of Homeland Security and the Department determines that 
there is a labor dispute in progress, or that information was provided 
to the Department of Homeland Security to retaliate against employees 
for exercising their employment rights, the lead immigration officer in 
charge of the Department of Homeland Security enforcement team at the 
work site must ensure, to the extent possible, that any aliens who are 
arrested or detained and are necessary for the prosecution of any 
violations are not removed from the country without notifying the 
appropriate law enforcement agency that has jurisdiction over the 
violations.
    (f) Interviews.--Any arrangements for aliens to be held or 
interviewed by investigators or attorneys for the Department of Labor, 
the State labor department, the National Labor Relations Board, or any 
other agencies or entities that enforce labor or employment laws will 
be determined on a case-by-case basis.

SEC. 122. PROTECTION OF WITNESSES.

    Chapter 8 of title II of the Immigration and Nationality Act (8 
U.S.C. 1321 et seq.) is amended by adding after section 280 the 
following:

                           ``stay of removal

    ``Sec. 280A. (a) An alien against whom removal proceedings have 
been initiated pursuant to chapter 4, who has filed a workplace claim 
or who is a material witness in any pending or anticipated proceeding 
involving a workplace claim, shall be entitled to a stay of removal and 
to an employment authorized endorsement unless the Department of Labor 
established by a preponderance of the evidence in proceedings before 
the immigration judge presiding over that alien's removal hearing--
            ``(1) that--
                    ``(A) the Department of Homeland Security initiated 
                the alien's removal proceeding for wholly independent 
                reasons and not in any respect based on, or as a result 
                of, any information provided to or obtained by the 
                Department of Homeland Security from the alien's 
                employer, from any outside source, including any 
                anonymous source, or as a result of the filing or 
                prosecution of the workplace claim; and
                    ``(B) the workplace claim was filed with a bad-
                faith intent to delay or avoid the alien's removal; or
            ``(2) that the alien has engaged in criminal conduct or is 
        a threat to the national security of the United States.
    ``(b) Any stay of removal or work authorization issued pursuant to 
subsection (a) shall remain valid and in effect at least during the 
pendency of the proceedings concerning such workplace claim. The 
Secretary of Homeland Security shall extend such relief for a period of 
not longer than 3 additional years upon determining that--
            ``(1) such relief would enable the alien asserting the 
        workplace claim to be made whole;
            ``(2) the deterrent goals of any statute underlying the 
        workplace claim would thereby be served; or
            ``(3) such extension would otherwise further the interests 
        of justice.
    ``(c) In this section--
            ``(1) the term `workplace claim' shall include any claim, 
        charge, complaint, or grievance filed with or submitted to the 
        employer, a Federal or State agency or court, or an arbitrator, 
        to challenge an employer's alleged civil or criminal violation 
        of any legal or administrative rule or requirement affecting 
        the terms or conditions of its workers' employment or the 
        hiring or firing of its workers; and
            ``(2) the term `material witness' means an individual who 
        presents an affidavit from an attorney prosecuting or defending 
        the workplace claim or from the presiding officer overseeing 
        the workplace claim attesting that, to the best of the 
        affiant's knowledge and belief, reasonable cause exists to 
        believe that the testimony of the individual will be crucial to 
        the outcome of the workplace claim.

     ``confidentiality of immigration information obtained during 
                       administrative proceedings

    ``Sec. 280B. (a) No officer or employee, including any former 
officer or employee, of any Federal or State administrative agency with 
jurisdiction over any employer's workplace shall disclose to the 
Department of Homeland Security, or cause to be published in a manner 
that discloses to the Department of Homeland Security, any information 
concerning the immigration status of any worker obtained by that 
officer or employee in connection with the official duties of that 
officer or employee, and the Department of Homeland Security shall not, 
in any enforcement action or removal proceeding, use or rely upon, in 
whole or in part, any information so obtained.
    ``(b) Any person who knowingly uses, publishes, or permits 
information to be used in violation of subsection (a) shall be fined 
not more than $10,000.''.

SEC. 123. DOCUMENT FRAUD.

    Section 274C(d)(3) of the Immigration and Nationality Act (8 U.S.C. 
1324c(d)(3)) is amended by inserting before ``In applying this 
subsection'' the following: ``The civil penalties set forth in 
subparagraphs (A) and (B) shall be tripled in the case of any 
commercial enterprise that commits any violation of subsection (a) 
principally for commercial advantage or financial gain.''.

  TITLE II--NONIMMIGRANT VISAS FOR HIGHLY EDUCATED AND SKILLED WORKERS

SEC. 201. EXEMPTION OF NONIMMIGRANTS WITH ADVANCED DEGREES FROM 
              NUMERICAL LIMITS.

    Section 214(g)(5) of the Immigration and Nationality Act (8 U.S.C. 
1184(g)(5)) is amended--
            (1) by redesignating subparagraphs (A) and (B) as clauses 
        (i) and (ii), respectively; and
            (2) by striking ``who is employed'' and inserting the 
        following: ``who--
                    ``(A) has earned an advanced degree in science, 
                technology, engineering, or math from an accredited 
                university in the United States; or
                    ``(B) is employed''.

SEC. 202. ALIENS NOT SUBJECT TO NUMERICAL LIMITATIONS ON EMPLOYMENT-
              BASED IMMIGRANTS.

    (a) In General.--Section 201(b)(1) of the Immigration and 
Nationality Act (8 U.S.C. 1151(b)(1)) is amended by adding at the end 
the following:
            ``(F) Aliens who have earned an advanced degree in science, 
        technology, engineering, or math and have been working in a 
        related field in the United States under a nonimmigrant visa 
        during the 3-year period preceding their application for an 
        immigrant visa under section 203(b).
            ``(G) Aliens described in subparagraph (A) or (B) of 
        section 203(b)(1)(A) or who have received a national interest 
        waiver under section 203(b)(2)(B).
            ``(H) The immediate relatives of an alien who is admitted 
        as an employment-based immigrant under section 203(b).''.
    (b) Applicability.--The amendments made by subsection (a) shall 
apply to any visa application pending on the date of enactment of this 
Act and any visa application filed on or after such date of enactment.

             TITLE III--FOREIGN STUDENT WORK AUTHORIZATION

SEC. 301. OFF CAMPUS WORK AUTHORIZATION FOR FOREIGN STUDENTS.

    (a) In General.--Aliens admitted as nonimmigrant students described 
in section 101(a)(15)(F) of the Immigration and Nationality Act (8 
U.S.C. 1101(a)(15)(F)) may be employed in an off-campus position 
unrelated to the alien's field of study if--
            (1) the alien has enrolled full time at the educational 
        institution and is maintaining good academic standing;
            (2) the employer provides the educational institution and 
        the Secretary of Labor with an attestation that the employer--
                    (A) has spent at least 21 days recruiting United 
                States citizens to fill the position; and
                    (B) will pay the alien and other similarly situated 
                workers at a rate equal to not less than the greater 
                of--
                            (i) the actual wage level for the 
                        occupation at the place of employment; or
                            (ii) the prevailing wage level for the 
                        occupation in the area of employment; and
            (3) the alien will not be employed more than--
                    (A) 20 hours per week during the academic term; or
                    (B) 40 hours per week during vacation periods and 
                between academic terms.
    (b) Disqualification.--If the Secretary of Labor determines that an 
employer has provided an attestation under subsection (a)(2) that is 
materially false or has failed to pay wages in accordance with the 
attestation, the employer, after notice and opportunity for a hearing, 
shall be disqualified from employing an alien student under this 
section.
                                 <all>