[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5630 Introduced in House (IH)]







110th CONGRESS
  2d Session
                                H. R. 5630

   To modify certain requirements with respect to H-1B nonimmigrants.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 13, 2008

 Ms. Giffords introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To modify certain requirements with respect to H-1B 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 ``Innovation Employment Act''.

SEC. 2. NUMERICAL LIMITATIONS.

    Section 214(g)(1)(A)(vii) of the Immigration and Nationality Act (8 
U.S.C. 1184(g)(1)(A)(vii)) is amended to read as follows:
                    ``(vii) 130,000 in fiscal year 2008 and each 
                succeeding fiscal year, except that in fiscal years 
                2010 through 2015, if such limitation is reached in the 
                previous fiscal year, such limitation shall equal the 
                greater of 180,000 and the limitation applicable for 
                the previous fiscal year increased by 20 percent; or''.

SEC. 3. EXEMPTION FROM NUMERICAL LIMITATION FOR CERTAIN NONIMMIGRANTS.

    Section 214(g)(5) of the Immigration and Nationality Act (8 U.S.C. 
1184(g)(5)) is amended--
            (1) in subparagraph (B), by striking ``or'';
            (2) in subparagraph (C), by striking the period at the end 
        and inserting a semicolon; and
            (3) by adding at the end the following:
            ``(D) has earned a master's or higher degree from a United 
        States institution of higher education (as defined in section 
        101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)) 
        in a field of science, technology, engineering, or mathematics 
        and with respect to whom the petitioning employer requires such 
        education as a condition for the employment; or
            ``(E) has earned a master's or higher degree (or its 
        equivalent) from an institution of higher education outside of 
        the United States in a field of science, technology, 
        engineering, or mathematics and with respect to whom the 
        petitioning employer requires such education as a condition for 
        the employment, until the number of aliens who are exempted 
        from such numerical limitations under this subparagraph during 
        a fiscal year exceeds 20,000.''.

SEC. 4. H-1B EMPLOYER REQUIREMENTS.

    Section 212(n)(1) of the Immigration and Nationality Act (8 U.S.C. 
1182(n)(1)) is amended by inserting after subparagraph (G) the 
following:
            ``(H) The employer has not advertised the available jobs 
        specified in the application in an advertisement that states or 
        indicates that--
                    ``(i) the job or jobs are only available to persons 
                who are or who may become H-1B nonimmigrants; or
                    ``(ii) persons who are or who may become H-1B 
                nonimmigrants shall receive priority or a preference in 
                the hiring process.
            ``(I) If the employer employs not less than 50 employees in 
        the United States, not more than 50 percent of such employees 
        are H-1B nonimmigrants.''.

SEC. 5. H-1B GOVERNMENT AUTHORITY AND REQUIREMENTS.

    (a) Safeguards Against Fraud and Misrepresentation in Application 
Review Process.--Section 212(n)(1) of the Immigration and Nationality 
Act (8 U.S.C. 1182(n)(1)) is amended, in the matter following 
subparagraph (I) (as inserted by section 3 of this Act)--
            (1) by inserting ``and through the Department of Labor's 
        website, without charge.'' after ``D.C.'';
            (2) by inserting ``, clear indicators of fraud, 
        misrepresentation of material fact,'' after ``completeness'';
            (3) by striking or ``obviously inaccurate'' and inserting 
        ``presents clear indicators of fraud or misrepresentation of 
        material fact, or is obviously inaccurate'';
            (4) by striking ``within 7 days of'' and inserting ``not 
        later than 14 days after''; and
            (5) by adding at the end the following: ``If the 
        Secretary's review of an application identifies clear 
        indicators of fraud or misrepresentation of material fact, the 
        Secretary may conduct an investigation and hearing under 
        paragraph (2).''.
    (b) Investigations by Department of Labor.--Section 212(n)(2) of 
such Act is amended--
            (1) in subparagraph (A)--
                    (A) by striking ``12 months'' and inserting ``24 
                months''; and
                    (B) by striking ``The Secretary shall conduct'' and 
                all that follows and inserting ``Upon the receipt of 
                such a complaint, the Secretary may initiate an 
                investigation to determine if such a failure or 
                misrepresentation has occurred.'';
            (2) in subparagraph (C)(i)--
                    (A) by striking ``a condition of paragraph (1)(B), 
                (1)(E), or (1)(F)'' and inserting ``a condition under 
                subparagraph (B), (C)(i), (E), (F), (H), (I), or (J) of 
                paragraph (1)''; and
                    (B) by striking ``(1)(C)'' and inserting 
                ``(1)(C)(ii)'';
            (3) in subparagraph (G)--
                    (A) in clause (i), by striking ``if the Secretary'' 
                and all that follows and inserting ``with regard to the 
                employer's compliance with the requirements of this 
                subsection.'';
                    (B) in clause (ii), by striking ``and whose 
                identity'' and all that follows through ``failure or 
                failures.'' and inserting ``the Secretary of Labor may 
                conduct an investigation into the employer's compliance 
                with the requirements of this subsection.'';
                    (C) in clause (iii), by striking the last sentence;
                    (D) by striking clauses (iv) and (v);
                    (E) by redesignating clauses (vi), (vii), and 
                (viii) as clauses (iv), (v), and (vi), respectively;
                    (F) in clause (iv), as redesignated, by striking 
                ``meet a condition described in clause (ii), unless the 
                Secretary of Labor receives the information not later 
                than 12 months'' and inserting ``comply with the 
                requirements under this subsection, unless the 
                Secretary of Labor receives the information not later 
                than 24 months'';
                    (G) by amending clause (v), as redesignated, to 
                read as follows:
                            ``(v) The Secretary of Labor shall provide 
                        notice to an employer of the intent to conduct 
                        an investigation. The notice shall be provided 
                        in such a manner, and shall contain sufficient 
                        detail, to permit the employer to respond to 
                        the allegations before an investigation is 
                        commenced. The Secretary is not required to 
                        comply with this clause if the Secretary 
                        determines that such compliance would interfere 
                        with an effort by the Secretary to investigate 
                        or secure compliance by the employer with the 
                        requirements of this subsection. A 
                        determination by the Secretary under this 
                        clause shall not be subject to judicial 
                        review.'';
                    (H) in clause (vi), as redesignated, by striking 
                ``An investigation'' and all that follows through ``the 
                determination.'' and inserting ``If the Secretary of 
                Labor, after an investigation under clause (i) or (ii), 
                determines that a reasonable basis exists to make a 
                finding that the employer has failed to comply with the 
                requirements under this subsection, the Secretary shall 
                provide interested parties with notice of such 
                determination and an opportunity for a hearing in 
                accordance with section 556 of title 5, United States 
                Code, not later than 120 days after the date of such 
                determination.''; and
                    (I) by adding at the end the following:
                            ``(vii) If the Secretary of Labor, after a 
                        hearing, finds a reasonable basis to believe 
                        that the employer has violated the requirements 
                        under this subsection, the Secretary may impose 
                        a penalty under subparagraph (C).''; and
            (4) by striking subparagraph (H).
    (c) Information Sharing Between Department of Labor and Department 
of Homeland Security.--Section 212(n)(2) of such Act, as amended by 
this section, is further amended by inserting after subparagraph (G) 
the following:
                    ``(H) The Director of United States Citizenship and 
                Immigration Services shall provide the Secretary of 
                Labor with any information contained in the materials 
                submitted by H-1B employers as part of the adjudication 
                process that indicates that the employer is not 
                complying with H-1B visa program requirements. The 
                Secretary may initiate and conduct an investigation and 
                hearing under this paragraph after receiving 
                information of noncompliance under this 
                subparagraph.''.
    (d) Audits.--Section 212(n)(2)(A) of such Act, as amended by this 
section, is further amended by adding at the end the following: ``The 
Secretary may conduct surveys of the degree to which employers comply 
with the requirements under this subsection and may conduct annual 
compliance audits of employers that employ H-1B nonimmigrants. The 
Secretary shall conduct annual compliance audits of not less than 1 
percent of the employers that employ H-1B nonimmigrants during the 
applicable calendar year.''
    (e) Penalties.--Section 212(n)(2)(C) of such Act, as amended by 
this section, is further amended--
            (1) in clause (i)(I), by striking ``$1,000'' and inserting 
        ``$2,000'';
            (2) in clause (ii)(I), by striking ``$5,000'' and inserting 
        ``$10,000''; and
            (3) in clause (vi)(III), by striking ``$1,000'' and 
        inserting ``$2,000''.
    (f) Information Provided to H-1B Nonimmigrants Upon Visa 
Issuance.--Section 212(n) of such Act, as amended by this section, is 
further amended by inserting after paragraph (2) the following:
            ``(3)(A) Upon issuing an H-1B visa to an applicant outside 
        the United States, the issuing office shall provide the 
        applicant with--
                    ``(i) a brochure outlining the employer's 
                obligations and the employee's rights under Federal 
                law, including labor and wage protections; and
                    ``(ii) the contact information for Federal agencies 
                that can offer more information or assistance in 
                clarifying employer obligations and workers' rights.
            ``(B) Upon the issuance of an H-1B visa to an alien inside 
        the United States, the officer of the Department of Homeland 
        Security shall provide the applicant with--
                    ``(i) a brochure outlining the employer's 
                obligations and the employee's rights under Federal 
                law, including labor and wage protections; and
                    ``(ii) the contact information for Federal agencies 
                that can offer more information or assistance in 
                clarifying employer's obligations and workers' 
                rights.''.

SEC. 6. WHISTLEBLOWER PROTECTIONS.

    Section 212(n)(2)(C)(iv) of the Immigration and Nationality Act (8 
U.S.C. 1182(n)(2)(C)(iv)) is amended--
            (1) by inserting ``take, fail to take, or threaten to take 
        or fail to take, a personnel action, or'' before ``to 
        intimidate''; and
            (2) by adding at the end the following: ``An employer that 
        violates this clause shall be liable to the employees harmed by 
        such violation for lost compensation, including back pay.''.
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