1.Short
title; table of contents
(a)This Act may be cited
as the Skilled Worker Immigration and
Fairness Act
.
(b)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.
2.
(a)Exemptions to
numerical limitations
(1)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)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)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.
.
3.Employment-based
immigration
(a)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)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)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)An application filed under paragraph (1) may not be
approved until the appropriate employment-based immigrant visa becomes
available under section 203(b).
(3)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 documentThe
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)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)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.
4.H–1B visa fraud
and abuse protections
(a)Prohibition
against advertising exclusively to H–1B nonimmigrantsSection
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 employeesSection 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
processSection 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 laborSection 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)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 appropriationsThere are authorized to be appropriated such
sums as may be necessary to carry out this subsection.
(f)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
securitySection 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)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)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 issuanceSection 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).
.