II 109th CONGRESS 1st Session S. 352 IN THE SENATE OF THE UNITED STATES February 10, 2005 Ms. Mikulski (for herself, Mr. Gregg, Mr. Leahy, Mr. Warner, Mr. Chafee, Mr. Thomas, Mr. Levin, Mr. Salazar, Mr. Allen, Mr. Kennedy, Mr. Jeffords, Ms. Collins, Mr. Sarbanes, Ms. Snowe, Mr. Dorgan, Mr. Reed, Mr. Dayton, and Mr. Kerry) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To revise certain requirements for H–2B employers and require submission of information regarding H–2B nonimmigrants, and for other purposes.

1.

Short title

This Act may be cited as the Save Our Small and Seasonal Businesses Act of 2005.

2.

Numerical limitations on h–2b workers

(a)

In general

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) An alien counted toward the numerical limitations of paragraph (1)(B) during any one of the 3 fiscal years prior to the submission of a petition for a nonimmigrant worker described in section 101(a)(15)(H)(ii)(b) may not be counted toward such limitation for the fiscal year in which the petition is approved. . (b)

Effective date

(1)

In general

The amendment in subsection (a) shall take effect as if enacted on October 1, 2004, and shall expire on October 1, 2006. (2)

Implementation

Not later than the date of enactment of this Act, the Secretary of Homeland Security shall begin accepting and processing petitions filed on behalf of aliens described in section 101(a)(15)(H)(ii)(b), in a manner consistent with this Act and the amendments made by this Act.

3.

Fraud prevention and detection fee

(a)

Imposition of fee

Section 214(c) of the Immigration and Nationality Act (8 U.S.C. 1184(c)), as amended by section 426(a) of division J of the Consolidated Appropriations Act, 2005 (Public Law 108–447), is amended by adding at the end the following: (13) (A) In addition to any other fees authorized by law, the Secretary of Homeland Security shall impose a fraud prevention and detection fee on an employer filing a petition under paragraph (1) for nonimmigrant workers described in section 101(a)(15)(H)(ii)(b). (B) The amount of the fee imposed under subparagraph (A) shall be $150. . (b)

Use of fees

(1)

Fraud prevention and detection account

Subsection (v) of section 286 of the Immigration and Nationality Act (8 U.S.C. 1356), as added by section 426(b) of division J of the Consolidated Appropriations Act, 2005 (Public Law 108–447), is amended— (A)in paragraphs (1), (2)(A), (2)(B), (2)(C), and (2)(D) by striking “H1–B and L” each place it appears; (B)in paragraph (1), as amended by subparagraph (A), by striking section 214(c)(12) and inserting paragraph (12) or (13) of section 214(c); (C)in paragraphs (2)(A)(i) and (2)(B), as amended by subparagraph (A), by striking (H)(i) each place it appears and inserting (H)(i), (H)(ii), ; and (D) in paragraph (2)(D), as amended by subparagraph (A), by inserting before the period at the end or for programs and activities to prevent and detect fraud with respect to petitions under paragraph (1) or (2)(A) of section 214(c) to grant an alien nonimmigrant status described in section 101(a)(15)(H)(ii). (2)

Conforming amendment

The heading of such subsection 286 is amended by striking H1–B and L. (c)

Effective date

The amendments made by subsections (a) and (b) shall take effect on October 1, 2005.

4.

Sanctions

(a)

In General

Section 214(c) of the Immigration and Nationality Act (8 U.S.C. 1184(c)), as amended by section 3, is further amended by adding at the end the following: (14) (A) If the Secretary of Homeland Security finds, after notice and an opportunity for a hearing, a substantial failure to meet any of the conditions of the petition to admit or otherwise provide status to a nonimmigrant worker under section 101(a)(15)(H)(ii)(b) or a willful misrepresentation of a material fact in such petition— (i) the Secretary of Homeland Security may, in addition to any other remedy authorized by law, impose such administrative remedies (including civil monetary penalties in an amount not to exceed $10,000 per violation) as the Secretary of Homeland Security determines to be appropriate; and (ii) the Secretary of Homeland Security may deny petitions filed with respect to that employer under section 204 or paragraph (1) of this subsection during a period of at least 1 year but not more than 5 years for aliens to be employed by the employer. (B) The Secretary of Homeland Security may delegate to the Secretary of Labor, with the agreement of the Secretary of Labor, any of the authority given to the Secretary of Homeland Security under subparagraph (A)(i). (C) In determining the level of penalties to be assessed under subparagraph (A), the highest penalties shall be reserved for willful failures to meet any of the conditions of the petition that involve harm to United States workers. (D) In this paragraph, the term substantial failure means the willful failure to comply with the requirements of this section that constitutes a significant deviation from the terms and conditions of a petition. . (b)

Effective Date

The amendment made by subsection (a) shall take effect on October 1, 2005.

5.

Allocation of h–2b visas during a fiscal year

Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)), as amended by section 2, is further amended by adding at the end the following new paragraph: (10)The numerical limitations of paragraph (1)(B) shall be allocated for a fiscal year so that the total number of aliens who enter the United States pursuant to a visa or other provision of nonimmigrant status under section 101(a)(15)(H)(ii)(b) during the first 6 months of such fiscal year is not more than 33,000. .

6.

Submission to congress of information regarding h–2b nonimmigrants

Section 416 of the American Competitiveness and Workforce Improvement Act of 1998 (title IV of division C of Public Law 105–277; 8 U.S.C. 1184 note) is amended— (1) by striking Attorney General each place that term appears and inserting Secretary of Homeland Security; and (2) by adding at the end the following new subsection: (d)

Provision of information

(1)

Quarterly notification

Beginning not later than March 1, 2006, the Secretary of Homeland Security shall notify, on a quarterly basis, the Committee on the Judiciary of the Senate and the Committee on the Judiciary of House of Representatives of the number of aliens who during the preceding 1-year period— (A) were issued visas or otherwise provided nonimmigrant status under section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(b)); or (B) had such a visa or such status expire or be revoked or otherwise terminated. (2)

Annual submission

Beginning in fiscal year 2007, the Secretary of Homeland Security shall submit, on an annual basis, to the Committees on the Judiciary of the House of Representatives and the Senate— (A) information on the countries of origin of, occupations of, and compensation paid to aliens who were issued visas or otherwise provided nonimmigrant status under section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(b)) during the previous fiscal year; (B) the number of aliens who had such a visa or such status expire or be revoked or otherwise terminated during each month of such fiscal year; and (C) the number of aliens who were provided nonimmigrant status under such section during both such fiscal year and the preceding fiscal year. (3)

Information maintained by State

If the Secretary of Homeland Security determines that information maintained by the Secretary of State is required to make a submission described in paragraph (1) or (2), the Secretary of State shall provide such information to the Secretary of Homeland Security upon request. .