[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 1397 Introduced in Senate (IS)]







110th CONGRESS
  1st Session
                                S. 1397

To increase the allocation of visas for certain highly skilled workers 
   and to reduce fraud and abuse in certain visa programs for aliens 
               working temporarily in the United States.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 15, 2007

Mr. Lieberman (for himself, Mr. Hagel, Ms. Cantwell, and Mr. Voinovich) 
introduced the following bill; which was read twice and referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To increase the allocation of visas for certain highly skilled workers 
   and to reduce fraud and abuse in certain visa programs for aliens 
               working temporarily in the United States.

    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 ``Skilled Worker 
Immigration and Fairness Act''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. H-1B visas.
Sec. 3. Employment-based immigration.
Sec. 4. H-1B visa fraud and abuse protections.

SEC. 2. H-1B VISAS.

    (a) Exemptions to Numerical Limitations.--
            (1) In general.--Section 214(g)(5) of the Immigration and 
        Nationality Act (8 U.S.C. 1184(g)(5)) is amended--
                    (A) in subparagraph (C), by striking ``until the 
                number of aliens who are exempted from such numerical 
                limitation during such year exceeds 20,000.'' and 
                inserting ``or has been awarded a medical specialty 
                certification based on post-doctoral training and 
                experience in the United States; or''; and
                    (B) by adding at the end the following:
                    ``(D) has earned a masters or higher degree in 
                science, technology, engineering, or mathematics from 
                an institution of higher education outside of the 
                United States.''.
            (2) Applicability.--The amendments made by paragraph (1) 
        shall apply to--
                    (A) any petition or visa application pending on the 
                date of the enactment of this Act; and
                    (B) any petition or visa application filed on or 
                after such date.
    (b) Market-Based Visa Limits.--Section 214(g) of such Act (8 U.S.C. 
1184(g)), as amended by subsection (a), is further amended--
            (1) in paragraph (1)--
                    (A) in the matter preceding subparagraph (A), by 
                striking ``(beginning with fiscal year 1992)''; and
                    (B) in subparagraph (A), by striking clauses (i) 
                through (vii) and inserting the following:
                    ``(i) 115,000 in fiscal year 2007; and
                    ``(ii) in fiscal year 2008, and in each subsequent 
                fiscal year, the greater of--
                            ``(I) 115,000; or
                            ``(II) the number calculated under 
                        paragraph (9);'';
            (2) in paragraph (8)--
                    (A) in subparagraph (B), by striking clause (iv); 
                and
                    (B) by striking subparagraph (D);
            (3) by redesignating paragraphs (9), (10), and (11) as 
        paragraphs (10), (11), and (12), respectively; and
            (4) by inserting after paragraph (8) the following:
    ``(9) If the numerical limitation under paragraph (1)(A)--
            ``(A) is reached during a given fiscal year, the numerical 
        limitation under paragraph (1)(A) for the subsequent fiscal 
        year shall be equal to the lesser of--
                    ``(i) 120 percent of the numerical limitation for 
                the given fiscal year; or
                    ``(ii) 180,000; and
            ``(B) is not reached during a given fiscal year, the 
        numerical limitation under paragraph (1)(A) for the subsequent 
        fiscal year shall be equal to the numerical limitation for the 
        given fiscal year.''.

SEC. 3. EMPLOYMENT-BASED IMMIGRATION.

    (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 a master's or higher degree 
        from an accredited university in the United States.
            ``(G) Aliens who--
                    ``(i) have earned an advanced degree in science, 
                technology, engineering, or mathematics; and
                    ``(ii) 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).
            ``(H) Aliens who--
                    ``(i) are described in subparagraph (A) or (B) of 
                section 203(b)(1); or
                    ``(ii) have received a national interest waiver 
                under section 203(b)(2)(B).
            ``(I) The immediate relatives of an alien who is admitted 
        as an employment-based immigrant under section 203(b).''.
    (b) Adjustment of Status for Employment-Based Immigrants.--
            (1) In general.--Section 245 of the Immigration and 
        Nationality Act (8 U.S.C. 1255) is amended by adding at the end 
        the following:
    ``(n) Adjustment of Status to Employment-Based Immigrant.--
            ``(1) Eligibility.--An alien, and any eligible dependents 
        of such alien, may file an application for adjustment of status 
        with the Secretary of Homeland Security, whether or not an 
        employment-based immigrant visa is immediately available at the 
        time the application is filed, if--
                    ``(A) a petition filed under subparagraph (E) or 
                (F) of section 204(a)(1) on behalf of the alien has 
                been approved; or
                    ``(B) in the discretion of the Secretary, the 
                adjudication of such petition is pending.
            ``(2) Visa availability.--An application filed under 
        paragraph (1) may not be approved until the appropriate 
        employment-based immigrant visa becomes available under section 
        203(b).
            ``(3) Fees.--If an employment-based immigrant visa is not 
        available on the date on which an application is filed under 
        paragraph (1), a supplemental fee of $500 shall be paid on 
        behalf of the beneficiary of such application. Such fee may not 
        be charged with respect to any dependent accompanying or 
        following to join such beneficiary.
    ``(o) Extension of Employment Authorization and Advanced Parole 
Document.--The Secretary of Homeland Security--
            ``(1) shall issue a 3-year employment authorization and 3-
        year advanced parole document to any beneficiary of an 
        application for adjustment of status if a petition has been 
        filed or is pending under subparagraph (E) or (F) of section 
        204(a)(1); and
            ``(2) may adjust fees assessed under this section in 
        accordance to the 3-year period of validity assigned to the 
        employment authorization or advanced parole documents issued 
        under subparagraph (1).''.
            (2) Use of fees.--Section 286 of such Act (8 U.S.C. 1356) 
        is amended--
                    (A) in subsection (m), by striking ``provisions of 
                law, all adjudication fees'' and inserting ``provision 
                of law, all adjudication fees and the fees collected 
                under section 245(n)(3)''; and
                    (B) in subsection (n)--
                            (i) by striking ``All deposits'' and 
                        inserting the following: ``(1) Except as 
                        provided in paragraph (2), all deposits''; and
                            (ii) by adding at the end the following:
    ``(2) All deposits in the Immigration Examinations Fee Account that 
were originally collected under section 245(n)(3) shall be used to 
clear security background check delays.''.
    (c) Applicability.--The amendments made by subsections (a) and (b) 
shall apply to any visa application--
            (1) pending on the date of the enactment of this Act; or
            (2) filed on or after such date.

SEC. 4. H-1B VISA FRAUD AND ABUSE PROTECTIONS.

    (a) Prohibition Against Advertising Exclusively to H-1B 
Nonimmigrants.--Section 212(n)(1) of the Immigration and Nationality 
Act (8 U.S.C. 1182(n)(1)) is amended--
            (1) by redesignating subparagraph (G) as subparagraph (H);
            (2) by inserting after subparagraph (H), as redesignated, 
        the following:
            ``(I) The employer has not advertised the available jobs 
        specified in the application in an advertisement that states or 
        indicates that--
                    ``(i) the jobs are only available to persons who 
                are, or may become, H-1B nonimmigrants; or
                    ``(ii) persons will receive priority or preference 
                in the hiring process because they are, or may become, 
                H-1B nonimmigrants.''; and
            (3) in the undesignated paragraph at the end, by striking 
        ``The employer'' and inserting the following:
            ``(K) The employer''.
    (b) 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 (I), as added by subsection (a)(1), the following:
            ``(J) If the employer employs 50 or more employees in the 
        United States, not more than 50 percent of such employees are 
        H-1B nonimmigrants.''.
    (c) Safeguards Against Fraud and Misrepresentation in Application 
Review Process.--Section 212(n)(1)(K) of such Act, as designated by 
subsection (a)(2), is amended--
            (1) by inserting ``, clear indicators of fraud, 
        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).''.
    (d) Investigations by Department of Labor.--Section 212(n)(2) of 
such Act is amended--
            (1) in subparagraph (A), by striking ``12 months'' and all 
        that follows and inserting ``24 months after the date of the 
        failure or misrepresentation, respectively. 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), (E), (F), (H), (I), or (J) of 
                paragraph (1)''; and
                    (B) by striking ``paragraph (1)(C), (1)(D), or 
                (1)(G)(i)(I)'' and inserting ``subparagraph (C), (D) or 
                (G)(i)(I) of paragraph (1)'';
            (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 under 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 under 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'' and all that follows and inserting 
                ``comply with the requirements under this subsection, 
                unless the Secretary of Labor receives the information 
                not later than 24 months after the date of the alleged 
                failure.'';
                    (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 the employer or secure the 
employer's compliance with this subsection. A determination by the 
Secretary under this clause is not 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 a 
requirement under this subsection, the Secretary may impose a penalty 
under subparagraph (C).'';
            (4) by redesignating subparagraph (I) as subparagraph (J).
    (e) Additional Department of Labor Employees.--
            (1) In general.--The Secretary of Labor is authorized to 
        hire 200 additional employees to administer, oversee, 
        investigate, and enforce programs involving H-1B nonimmigrant 
        workers.
            (2) Authorization of appropriations.--There are authorized 
        to be appropriated such sums as may be necessary to carry out 
        this subsection.
    (f) Schedule of Fees.--Section 214(c)(12)(C) of the Immigration and 
Nationality Act (8 U.S.C. 1184(c)(12)(C)) is amended by striking 
``$500'' and inserting ``$1,000''.
    (g) 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 (H) 
the following:
    ``(I) If any information contained in the materials submitted by 
employers of H-1B nonimmigrants as part of the adjudication process 
indicates that the employer is not complying with the requirements 
under this subsection, the Director of United States Citizenship and 
Immigration Services shall provide such information to the Secretary of 
Labor. The Secretary may initiate and conduct an investigation and 
hearing under this paragraph after receiving such information.''.
    (h) 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 regarding the degree to which employers 
comply with the requirements under this subsection and may conduct 
annual compliance audits of employers of H-1B nonimmigrants. The 
Secretary shall conduct annual compliance audits of not less than 1 
percent of the employers of H-1B nonimmigrants during the applicable 
calendar year. The Secretary shall conduct annual compliance audits of 
each employer with more than 100 employees who work in the United 
States if more than 15 percent of such employees are H-1B 
nonimmigrants.''.
    (i) 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''.
    (j) Information Provided to H-1B Nonimmigrants Upon Visa 
Issuance.--Section 212(n) of such Act, as amended by this section, is 
further amended by adding at the end the following:
    ``(6)(A) Upon providing H-1B nonimmigrant status to an alien in the 
United States, the office processing the petition for such status 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 issuing an H-1B nonimmigrant visa to an alien outside 
the United States, the officer of the Department of State shall provide 
the applicant with the items described in clauses (i) and (ii) of 
subparagraph (A).''.
                                 <all>