II 110th CONGRESS 1st Session S. 1351 IN THE SENATE OF THE UNITED STATES May 10, 2007 Mr. Gregg 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 improve the competitiveness of the United States in the global economy and to protect against potential visa fraud and abuse.

1.

Short title

This Act may be cited as the H–1B Visa Program Modernization Act of 2007.

2.

Market-based limits for H–1B visas

Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended— (1)in paragraph (1)— (A)in the matter preceding subparagraph (A), by striking (beginning with fiscal year 1992); and (B)in subparagraph (A)— (i)in clause (vi) by striking and; (ii)in clause (vii), by striking each succeeding fiscal year; or and inserting each of fiscal years 2004, 2005, 2006, and 2007;; and (iii)by adding after clause (vii) the following: (viii)150,000 for fiscal year 2008; and (ix)the number calculated under paragraph (9) for each fiscal year after fiscal year 2008; or ; (2)by redesignating paragraphs (9), (10), and (11) as paragraphs (10), (11), and (12), respectively; and (3)by inserting after paragraph (8) the following: (9)If the numerical limitation in paragraph (1)(A)— (A)is reached during the previous fiscal year, the numerical limitation under paragraph (1)(A)(ix) for the subsequent fiscal year shall be equal to 120 percent of the numerical limitation of the previous fiscal year; or (B)is not reached during the previous fiscal year, the numerical limitation under paragraph (1)(A)(ix) for the subsequent fiscal year shall be equal to the numerical limitation of the previous fiscal year. .

3.

H–1B visa program improvements

(a)

Safeguards against fraud and misrepresentation in application review process

Section 212(n)(1)(G) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)(G)) is amended— (1)by inserting , clear indicators of fraud or misrepresentation of material fact, after completeness; (2)by striking or obviously inaccurate and inserting , presents clear indicators of fraud or misrepresentation of material fact, or is obviously inaccurate; and (3)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)

H–1B nonimmigrants not admitted for jobs advertised or offered only to H–1B nonimmigrants

Section 212(n)(1) of such Act, as amended by this section, is further amended by inserting after subparagraph (G) the following: (H)(i)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. (ii)The employer has not only recruited persons who are, or who may become, H–1B nonimmigrants to fill the job or jobs. . (c)

Limit on percentage of H–1B employees

Section 212(n)(1) of such Act, as amended by this section, is further amended by inserting after subparagraph (H), as added by subsection (b), the following: (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. . (d)

Penalties

Section 212(n)(2)(C) of such Act is 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. (e)

Investigations by Department of Labor

Section 212(n)(2) of such Act, as amended by this section, is further amended— (1)in subparagraph (A), by striking 12 months and inserting 24 months; and (2)in subparagraph (G)— (A)in clause (i), by striking the second sentence; (B)in clause (iii), by striking the last sentence; (C)by striking clauses (iv) and (v); (D)by redesignating clauses (vi), (vii), and (viii) as clauses (iv), (v), and (vi), respectively; (E)in clause (iv), as redesignated— (i)by striking clause (viii) and inserting clause (vi); and (ii)by striking 12 months and inserting 24 months; and (F)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). . (f)

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— (1)by redesignating subparagraph (I) as subparagraph (J); and (2)by inserting after subparagraph (H) the following: (I)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. . (g)

Information provided to H–1B nonimmigrants upon visa issuance

(1)

In general

Section 212(n) of such Act, as amended by this section, is further amended— (A)by redesignating paragraphs (3) and (4) as paragraphs (4) and (5), respectively; and (B)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; (ii)the contact information for Federal agencies that can offer more information or assistance in clarifying employer obligations and workers' rights; and (iii)a copy of the employer's H–1B application for the position that the H–1B nonimmigrant has been issued the visa to fill. (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; (ii)the contact information for Federal agencies that can offer more information or assistance in clarifying employer's obligations and workers' rights; and (iii)a copy of the employer's H–1B application for the position that the H–1B nonimmigrant has been issued the visa to fill. . (2)

Conforming amendments

Section 212(n) of such Act, as amended by this section, is further amended— (A)in paragraph (1)(E)— (i)in clause (i), by striking (4) and inserting (5); and (ii)in clause (ii)— (I)by striking (3) and inserting (4); and (II)by striking (5) and inserting (6); and (B)in paragraph (2)— (i)in subparagraph (A), by striking (5)(A) and inserting (6)(A); and (ii)in subparagraph (F), by striking (5) and inserting (6). (h)

Effective date

The amendments made by subsections (b) and (c) shall only apply to applications filed after the date of enactment of this Act.