[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 865 Introduced in House (IH)]

<DOC>






117th CONGRESS
  1st Session
                                H. R. 865

 To amend the Immigration and Nationality Act to improve the H-1B visa 
 program, to repeal the diversity visa lottery program, and for other 
                               purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            February 5, 2021

Mr. Brooks (for himself, Mr. Gaetz, and Mr. Gooden of Texas) introduced 
    the following bill; which was referred to the Committee on the 
Judiciary, and in addition to the Committee on Education and Labor, for 
a period to be subsequently determined by the Speaker, in each case for 
consideration of such provisions as fall within the jurisdiction of the 
                          committee concerned

_______________________________________________________________________

                                 A BILL


 
 To amend the Immigration and Nationality Act to improve the H-1B visa 
 program, to repeal the diversity visa lottery program, and for other 
                               purposes.

    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 ``American Jobs 
First Act of 2021''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
                       TITLE I--H-1B VISA PROGRAM

Sec. 101. Amendments to the Immigration and Nationality Act.
                  TITLE II--NEW H-1B VISA REQUIREMENTS

Sec. 201. Bar on nondisparagement and nondisclosure agreements.
Sec. 202. United States Federal court jurisdiction over civil actions 
                            pertaining to misuse of the H-1B visa 
                            program.
                 TITLE III--REPEAL OF OTHER PROVISIONS

Sec. 301. Repeal of the diversity visa lottery.

                       TITLE I--H-1B VISA PROGRAM

SEC. 101. AMENDMENTS TO THE IMMIGRATION AND NATIONALITY ACT.

    (a) Inadmissible Aliens.--Section 212(n) of the Immigration and 
Nationality Act (8 U.S.C. 1182(n)) is amended to read as follows:
    ``(n) Labor Condition Application.--
            ``(1) In general.--An alien may not be admitted or provided 
        status as an H-1B nonimmigrant in an occupational 
        classification unless the petitioner employer has filed with 
        the Secretary of Labor an application stating the following:
                    ``(A) The petitioner employer--
                            ``(i) is offering an annual wage to the H-
                        1B nonimmigrant that is the greater of--
                                    ``(I) the annual wage that was paid 
                                to the United States citizen or lawful 
                                permanent resident employee who did 
                                identical or similar work during the 2 
                                years before the petitioner employer 
                                filed such application; or
                                    ``(II) $110,000, if offered not 
                                later than 1 year after the date of the 
                                enactment of the American Jobs First 
                                Act of 2021, which amount shall be 
                                annually adjusted for inflation by July 
                                1 of each year;
                            ``(ii) will not require an H-1B 
                        nonimmigrant to pay a penalty for ceasing 
                        employment with the petitioner employer before 
                        the date agreed to by the H-1B nonimmigrant and 
                        the petitioner employer;
                            ``(iii) will not--
                                    ``(I) require an alien who is the 
                                subject of a petition filed under 
                                paragraph (1) of section 214(c), for 
                                which a fee is imposed under paragraph 
                                (9) of such section, to reimburse, or 
                                otherwise to compensate, the petitioner 
                                employer for part or all of the cost of 
                                such fee;
                                    ``(II) accept reimbursement or 
                                compensation for the fee described in 
                                subclause (I) from an H-1B 
                                nonimmigrant, even if such 
                                reimbursement or compensation is 
                                alleged to have been voluntarily given 
                                by the H-1B nonimmigrant;
                                    ``(III) deduct such amounts from an 
                                H-1B nonimmigrant's pay before 
                                disbursal to such H-1B nonimmigrant for 
                                the purpose of covering the cost of 
                                such fee; or
                                    ``(IV) require an H-1B nonimmigrant 
                                to pay any other amounts or fees for 
                                housing, vehicle use or rental, 
                                equipment use or rental, or other goods 
                                or services, unless the requirement of 
                                the payment of such amounts or fees is 
                                identical to the payments that are 
                                required by United States citizen or 
                                lawful permanent resident employees; 
                                and
                            ``(iv) will--
                                    ``(I) after the employer has filed 
                                an application under this subsection 
                                and placed an H-1B nonimmigrant 
                                designated as a full-time employee on 
                                the petition filed under section 
                                214(c)(1) and the nonimmigrant has 
                                entered into employment with the 
                                petitioner employer (in nonproductive 
                                status due to a decision by the 
                                petitioner employer, based on factors 
                                such as lack of work or due to the 
                                nonimmigrant's lack of a permit or 
                                license), pay the nonimmigrant full-
                                time wages in accordance with paragraph 
                                (1)(A) for all such nonproductive time;
                                    ``(II) after the employer has filed 
                                an application under this subsection 
                                and placed an H-1B nonimmigrant 
                                designated as a part-time employee on 
                                the petition filed under section 
                                214(c)(1) and the nonimmigrant has 
                                entered into employment with the 
                                petitioner employer (in nonproductive 
                                status under circumstances described in 
                                subclause (I)), pay the nonimmigrant 
                                for such hours as are designated on 
                                such petition in accordance with the 
                                rate of pay identified on such 
                                petition; and
                                    ``(III) after the employer has 
                                filed an application under this 
                                subsection, offer to an H-1B 
                                nonimmigrant, during the nonimmigrant's 
                                period of authorized employment, on the 
                                same basis, and in accordance with the 
                                same criteria, as the employer offers 
                                to United States citizens or lawful 
                                permanent residents, benefits and 
                                eligibility for benefits, including--
                                            ``(aa) the opportunity to 
                                        participate in health, life, 
                                        disability, and other insurance 
                                        plans;
                                            ``(bb) the opportunity to 
                                        participate in retirement and 
                                        savings plans; and
                                            ``(cc) cash bonuses and 
                                        noncash compensation, such as 
                                        stock options (whether or not 
                                        such compensation is based on 
                                        performance).
                    ``(B) With respect to workplace conditions--
                            ``(i) there has not been an employee-
                        initiated strike at any point during the 2-year 
                        period ending on the date on which the 
                        petitioner employer files the visa application 
                        that sought redress for salary, wage, or 
                        benefit concerns;
                            ``(ii) there has not been a petitioner 
                        employer-initiated lockout at any point during 
                        the 2-year period ending on the date on which 
                        the petitioner employer filed such visa 
                        application; and
                            ``(iii) no employee in the same or 
                        substantially similar occupational 
                        classification for which the employer seeks H-
                        1B nonimmigrants, has been displaced, 
                        furloughed, terminated without cause, or 
                        otherwise involuntarily separated without cause 
                        in any way at any point during the 2-year 
                        period ending on the date on which the 
                        petitioner employer filed such visa 
                        application.
                    ``(C) The petitioner employer, at the time a visa 
                application is filed--
                            ``(i) has provided notice of the filing 
                        under this paragraph to the bargaining 
                        representative of its employees in the 
                        occupational classification and area for which 
                        aliens are sought; or
                            ``(ii) if such employees do not have a 
                        bargaining representative, has provided notice 
                        of filing in the occupational classification 
                        through methods such as--
                                    ``(I) physical posting in 
                                conspicuous locations at the place of 
                                employment; or
                                    ``(II) electronic notification to 
                                employees in the occupational 
                                classification for which H-1B 
                                nonimmigrants are sought.
                    ``(D) The application contains--
                            ``(i) the specific dollar value of the 
                        required wage, in accordance with subparagraph 
                        (A);
                            ``(ii) the specific number of nonimmigrant 
                        employees sought; and
                            ``(iii) the occupational classification in 
                        which the nonimmigrant employees will be 
                        employed.
                    ``(E)(i) The petitioner employer--
                            ``(I) will not replace a United States 
                        citizen or lawful permanent resident with one 
                        or more nonimmigrants;
                            ``(II) will not contract with any third 
                        party to provide a nonimmigrant to replace any 
                        United States citizen or lawful permanent 
                        resident; and
                            ``(III) has not displaced, furloughed, 
                        terminated without cause, or otherwise 
                        involuntarily separated, and will not displace, 
                        furlough, terminate without cause, or otherwise 
                        involuntarily separate a United States citizen 
                        or lawful permanent resident employed by the 
                        petitioner employer during the 4-year period 
                        beginning on the date that is 2 years before 
                        the date on which the petitioner employer filed 
                        any visa petition supported by the application.
                    ``(ii) The 4-year period referred to in clause 
                (i)(III) does not include any period of on-site, 
                remote, teleconference-based, computer-based, or other 
                virtual training of nonimmigrants by or with employees 
                of the petitioner employer.
                    ``(F) The petitioner employer will not place an H-
                1B nonimmigrant employee with another employer (unless 
                the petitioner employer, after diligent inquiry of the 
                other employer, has no knowledge that, during the 4-
                year period beginning 2 years before the date on which 
                the employee was placed with the other employer, the 
                other employer has displaced or intends to displace a 
                United States citizen or lawful permanent resident 
                employed by the other employer) if--
                            ``(i) the employee performs duties, in 
                        whole or in part, at one or more worksites 
                        owned, operated, or controlled by such other 
                        employer; and
                            ``(ii) there are indicia of an employment 
                        relationship between the nonimmigrant and such 
                        other employer.
                    ``(G) The petitioner employer, before filing an 
                application under this paragraph--
                            ``(i) has documented specific steps to 
                        recruit potential employees who are United 
                        States citizens or lawful permanent residents 
                        using mainstream and industry-focused media and 
                        online advertising campaigns, and offering 
                        wages that are at least as high as the wage 
                        requirements established for nonimmigrants in 
                        subparagraph (A), in order to recruit such 
                        citizens and residents for the job or jobs for 
                        which the nonimmigrant or nonimmigrants is or 
                        are sought;
                            ``(ii) has offered the job to any United 
                        States citizen or lawful permanent resident who 
                        applies and possesses the same or better 
                        qualifications for such jobs;
                            ``(iii) despite the efforts specified in 
                        clauses (i) and (ii), has been unable to hire 
                        United States citizens or lawful permanent 
                        residents for any of such available jobs;
                            ``(iv) has not intimidated, threatened, 
                        restrained, coerced, blacklisted, discharged, 
                        or in any other manner discriminated against an 
                        employee (including former employees and 
                        applicants for employment) because the 
                        employee--
                                    ``(I) has disclosed information to 
                                the petitioner employer, or to any 
                                other person or entity, that the 
                                employee reasonably believes evidences 
                                a violation of this subsection, or any 
                                rule or regulation pertaining to this 
                                subsection; or
                                    ``(II) cooperated, or sought to 
                                cooperate, in an investigation or other 
                                proceeding concerning the petitioner 
                                employer's compliance or noncompliance 
                                with the requirements under this 
                                subsection or any rule or regulation 
                                pertaining to this subsection; and
                            ``(v) has executed a sworn affidavit or 
                        other court-recognized statement that--
                                    ``(I) swears or affirms the truth 
                                of the information regarding such 
                                recruiting efforts; and
                                    ``(II) acknowledges that false 
                                statements made in such statement will 
                                subject the affiant to criminal 
                                prosecution under section 1621 of title 
                                18, United States Code.
            ``(2) Notification and transparency requirements.--
                    ``(A) In general.--The petitioner employer shall 
                make available for examination its materials relating 
                to its application to the Secretary of Labor in 
                accordance with paragraph (1).
                    ``(B) Internal and external publication of 
                application materials.--
                            ``(i) Electronic publication.--Not later 
                        than 1 business day after the date on which an 
                        application is filed in accordance with 
                        paragraph (1), the petitioner employer shall--
                                    ``(I) electronically mail a copy of 
                                such application and necessary 
                                accompanying documentation to all 
                                employees at all business locations and 
                                worksites to ensure employer-wide 
                                employee awareness of the application; 
                                and
                                    ``(II) post an electronic copy of 
                                the application and such accompanying 
                                documentation as are necessary on a 
                                publicly accessible website to ensure 
                                public awareness of the application.
                            ``(ii) Physical posting.--Not later than 5 
                        business days after the date on which an 
                        application is filed in accordance with 
                        paragraph (1), the petitioner employer shall 
                        post copies of such application and necessary 
                        accompanying documentation in prominent places 
                        at all of its business locations and worksites 
                        to ensure that all of its employees are aware 
                        of the application.
                    ``(C) Failure to provide complete internal and 
                external publication of application materials.--If the 
                Secretary of Labor receives proof that a petitioner 
                employer has failed to meet the publication 
                requirements under subparagraph (B) of any application 
                that is filed in accordance with paragraph (1), the 
                Secretary shall--
                            ``(i) deny such application; and
                            ``(ii) prevent such petitioner employer 
                        from filing another such application during the 
                        2-year period beginning on such date of denial.
                    ``(D) Secretary of labor application transparency 
                obligations.--The Secretary of Labor shall--
                            ``(i) compile and publish on the Department 
                        of Labor website, on an ongoing basis--
                                    ``(I) the name of the petitioner 
                                employer that has filed an application 
                                under this subsection;
                                    ``(II) the date on which each such 
                                petitioner employer filed such 
                                application;
                                    ``(III) the number of H-1B visas 
                                that have been requested in such 
                                application;
                                    ``(IV) the sworn affidavit or other 
                                court-recognized statement required 
                                under paragraph (1)(G)(v); and
                                    ``(V) the name of the employee or 
                                employees who signed or executed the 
                                sworn affidavit or other court-
                                recognized statement referred to in 
                                subclause (IV);
                            ``(ii) not later than July 1 of each year, 
                        publish the information described in clause (i) 
                        for the preceding calendar year in the Federal 
                        Register; and
                            ``(iii) not later than July 1 of each year, 
                        submit a report to the Committee on the 
                        Judiciary of the Senate and the Committee on 
                        the Judiciary of the House of Representatives 
                        that contains--
                                    ``(I) the information described in 
                                clause (i);
                                    ``(II) information about any 
                                petitioner employers whose applications 
                                were denied under subparagraph (C);
                                    ``(III) information about any 
                                ongoing investigations of petitioner 
                                employers for potential or determined 
                                violations of use of the H-1B visa 
                                program;
                                    ``(IV) any referrals of potential 
                                violations of section 1621 of title 18, 
                                United States Code, to the Attorney 
                                General, as required under paragraph 
                                (3)(D)(i);
                                    ``(V) any assessments of civil 
                                penalties of petitioner employers, as 
                                required under clauses (ii) and (iii) 
                                of paragraph (3)(D); and
                                    ``(VI) any additional information 
                                that the Secretary of Labor believes 
                                may be relevant to future congressional 
                                evaluation of the H-1B visa program.
            ``(3) H-1B application investigations.--
                    ``(A) In general.--The Secretary of Labor shall 
                establish a process for the receipt, investigation, and 
                disposition of complaints respecting--
                            ``(i) a petitioner employer's failure to 
                        meet a condition specified in an application 
                        submitted under paragraph (1); and
                            ``(ii) a petitioner employer's 
                        misrepresentation of material facts in such an 
                        application.
                    ``(B) Investigation procedures.--
                            ``(i) In general.--The Secretary of Labor 
                        may conduct an investigation of any complaint 
                        alleged against a petitioner employer--
                                    ``(I) based on the independent 
                                judgment of the Secretary;
                                    ``(II) in response to a referral or 
                                complaint from the head of another 
                                Federal agency; or
                                    ``(III) through any other method 
                                that, in the Secretary's discretion, 
                                shows cause for such an investigation.
                            ``(ii) Complainants.--A complaint may be 
                        filed by any aggrieved party, including--
                                    ``(I) any United States citizen or 
                                lawful permanent resident who believes 
                                his or her job has been eliminated or 
                                could potentially be eliminated as the 
                                result of the petitioner employer 
                                hiring or seeking to hire a foreign 
                                national pursuant to a nonimmigrant 
                                visa;
                                    ``(II) any trade association or 
                                union that represents any person 
                                described in subclause (I); and
                                    ``(III) any foreign national hired 
                                for work in the United States pursuant 
                                to a nonimmigrant visa who believes he 
                                or she is subject to potentially 
                                unlawful workplace conditions or 
                                requirements.
                            ``(iii) Process for foreign national 
                        complainants.--The Secretary of Labor and the 
                        Secretary of Homeland Security shall devise a 
                        process under which an H-1B nonimmigrant who 
                        files a complaint regarding a violation under 
                        this subsection and is otherwise eligible to 
                        remain and work in the United States may be 
                        allowed to seek other appropriate employment in 
                        the United States for a period not to exceed 
                        the maximum period of stay authorized for such 
                        nonimmigrant classification.
                            ``(iv) Program pause for initiation of 
                        investigation.--In any situation in which the 
                        Secretary of Labor commences an investigation 
                        of a petitioner employer under this paragraph, 
                        the Secretary of Labor may--
                                    ``(I) cease processing any 
                                application that is submitted under 
                                this subsection and filed by such 
                                petitioner employer until the 
                                conclusion of such investigation; and
                                    ``(II) suspend such petitioner 
                                employer's usage of currently issued H-
                                1B nonimmigrant visas, until the 
                                conclusion of such investigation.
                    ``(C) Initiation of investigation.--Not later than 
                30 days after the date on which a complaint is filed 
                with the Department of Labor under this paragraph, the 
                Secretary of Labor--
                            ``(i) shall determine whether a reasonable 
                        basis exists to make a finding under 
                        subparagraph (D);
                            ``(ii) not later than 30 days after the 
                        date of such determination, shall provide for 
                        notice of such determination to the interested 
                        parties and an opportunity for a hearing on 
                        such determination, in accordance with section 
                        556 of title 5, United States Code;
                            ``(iii) if such a hearing is requested and 
                        held, shall make a finding concerning the 
                        matter not later than 30 days after the date of 
                        such hearing; and
                            ``(iv) in the case of similar complaints 
                        respecting the same petitioner employer, may 
                        consolidate the hearings under this 
                        subparagraph on such complaints.
                    ``(D) Penalties.--
                            ``(i) Finding of possible criminal 
                        violation.--If the Secretary of Labor, after 
                        notice and opportunity for a hearing under 
                        subparagraph (C), finds that a petitioner 
                        employer made one or more false statements in a 
                        sworn affidavit or similar court-recognized 
                        statement, the Secretary shall refer such 
                        petitioner employer to the Attorney General for 
                        criminal prosecution.
                            ``(ii) Finding of material failure without 
                        displacement.--If the Secretary of Labor, after 
                        notice and opportunity for a hearing under 
                        subparagraph (C), finds that a petitioner 
                        employer materially failed to meet a condition 
                        required under paragraph (1), the Secretary 
                        may--
                                    ``(I) impose a fine against the 
                                petitioner employer that is not less 
                                than $50,000 and not greater than 
                                $100,000 per violation, which shall be 
                                deposited into the general fund of the 
                                Treasury;
                                    ``(II) immediately revoke all 
                                issued H-1B visas currently being used 
                                by the petitioner employer; and
                                    ``(III) prohibit the petitioner 
                                employer from applying for additional 
                                H-1B visas for a period of not less 
                                than 5 years and not more than 10 
                                years.
                            ``(iii) Finding of material failure with 
                        displacement.--If the Secretary of Labor, after 
                        notice and opportunity for a hearing under 
                        subparagraph (C), finds that a petitioner 
                        employer materially failed to meet a condition 
                        under paragraph (1), and, in the course of, or 
                        as a result of, such material failure, the 
                        petitioner employer displaced a United States 
                        citizen or lawful permanent resident employed 
                        by the petitioner employer during the period 
                        beginning 2 years before the date on which any 
                        visa petition supported by the application was 
                        filed and ending 2 years after such date, the 
                        Secretary shall--
                                    ``(I) impose a fine against the 
                                petitioner employer that is not less 
                                than $100,000 and not greater than 
                                $500,000 per violation, which shall be 
                                deposited into the general fund of the 
                                Treasury;
                                    ``(II) immediately revoke all 
                                issued H-1B visas currently being used 
                                by the petitioner employer;
                                    ``(III) permanently bar the 
                                petitioner employer from applying for 
                                additional H-1B visas; and
                                    ``(IV) require the petitioner 
                                employer to provide retroactive 
                                compensation for any displaced United 
                                States citizen or lawful permanent 
                                resident employee.
                    ``(E) Scope of investigative authority.--
                            ``(i) In general.--The Secretary of Labor 
                        may initiate an investigation of any petitioner 
                        employer that employs nonimmigrants described 
                        in section 101(a)(15)(H)(i)(b) if the Secretary 
                        of Labor has reasonable cause to believe that 
                        the petitioner employer is not in compliance 
                        with this subsection.
                            ``(ii) Certification.--The Secretary of 
                        Labor (or the acting Secretary in case of the 
                        absence or disability) shall personally certify 
                        that reasonable cause exists to initiate an 
                        investigation under this subparagraph. The 
                        investigation may be initiated for reasons 
                        other than completeness and obvious 
                        inaccuracies by the petitioner employer in 
                        complying with this subsection.
                            ``(iii) Use of information.--If the 
                        Secretary of Labor receives specific credible 
                        information from a source who is likely to have 
                        knowledge of a petitioner employer's practices 
                        or employment conditions, or a petitioner 
                        employer's compliance with the petitioner 
                        employer's labor condition application under 
                        paragraph (1), and whose identity is known to 
                        the Secretary of Labor, and such information 
                        provides reasonable cause to believe that the 
                        petitioner employer has committed a willful 
                        failure to meet a condition under subparagraph 
                        (A), (B), (C), (E), (F), or (G)(i), has engaged 
                        in a pattern or practice of failures to meet 
                        such a condition, or has committed a 
                        substantial failure to meet such a condition 
                        that affects multiple employees, the Secretary 
                        of Labor may--
                                    ``(I) conduct an investigation into 
                                the alleged failure or failures; and
                                    ``(II) withhold the identity of the 
                                source from the petitioner employer, 
                                which shall not be subject to 
                                disclosure under section 552 of title 
                                5, United States Code.
                            ``(iv) Procedure.--The Secretary of Labor 
                        shall establish a procedure for any person 
                        desiring to provide information described in 
                        clause (iii) that may be used, in whole or in 
                        part, as the basis for the commencement of an 
                        investigation described in such clause, to 
                        provide such information in writing on a form 
                        developed and provided by the Secretary and 
                        completed by or on behalf of the person. Such 
                        person may not be an officer or employee of the 
                        Department of Labor unless the information 
                        satisfies the requirement under clause (v)(II), 
                        although an officer or employee of the 
                        Department of Labor may complete the form on 
                        behalf of the person.
                            ``(v) Information sources.--Any 
                        investigation initiated or approved by the 
                        Secretary of Labor under this subparagraph 
                        shall be based on information that--
                                    ``(I) satisfies the requirements 
                                under clause (iii); and
                                    ``(II)(aa) originates from a source 
                                other than an officer or employee of 
                                the Department of Labor; or
                                    ``(bb) was lawfully obtained by the 
                                Secretary of Labor in the course of 
                                lawfully conducting another Department 
                                of Labor investigation.
                            ``(vi) Clarification.--The receipt of 
                        information by the Secretary of Labor that was 
                        submitted by a petitioner employer to the 
                        Secretary of Homeland Security or the Secretary 
                        of Labor for purposes of securing the 
                        employment of a nonimmigrant described in 
                        section 101(a)(15)(H)(i)(b) shall not be 
                        considered a receipt of information under 
                        clause (iii).
                            ``(vii) Deadline.--An investigation 
                        described in clause (iii) (or a hearing 
                        described in clause (ix) based on such 
                        investigation) may not be conducted with 
                        respect to information about a failure to meet 
                        a condition described in clause (iii) unless 
                        the Secretary of Labor receives the information 
                        not later than 1 year after the date of the 
                        alleged failure.
                            ``(viii) Notice.--
                                    ``(I) In general.--Before 
                                initiating an investigation of a 
                                petitioner employer under this 
                                subparagraph, the Secretary of Labor 
                                shall provide notice of the intent to 
                                conduct such an investigation to such 
                                employer in such a manner, and 
                                containing sufficient information, to 
                                permit the petitioner employer to 
                                respond to the allegations before the 
                                investigation is commenced.
                                    ``(II) Exception.--The Secretary of 
                                Labor is not required to comply with 
                                subclause (I) if the Secretary 
                                determines that such compliance would 
                                interfere with an effort by the 
                                Secretary to secure compliance by the 
                                petitioner employer with the 
                                requirements under this subsection. 
                                There shall be no judicial review of a 
                                determination by the Secretary of Labor 
                                under this clause.
                            ``(ix) Timing.--An investigation under this 
                        subparagraph may be conducted for a period of 
                        up to 60 days. Not later than 120 days after 
                        the Secretary of Labor determines, through an 
                        investigation under this subparagraph, that a 
                        reasonable basis exists to determine that the 
                        petitioner employer has committed a willful 
                        failure to meet a condition under subparagraph 
                        (A), (B), (C), (E), (F), or (G)(i) of paragraph 
                        (1), has engaged in a pattern or practice of 
                        failures to meet such a condition, or has 
                        committed a substantial failure to meet such a 
                        condition that affects multiple employees, the 
                        Secretary shall provide for notice of such 
                        determination to the interested parties and an 
                        opportunity for a hearing in accordance with 
                        section 556 of title 5, United States Code. If 
                        such a hearing is requested, the Secretary of 
                        Labor shall make a finding concerning the 
                        matter not later than 120 days after the date 
                        of the hearing.
                    ``(F) Compliance.--
                            ``(i) Good faith attempt.--Except as 
                        provided in clauses (ii) and (iii), a person or 
                        entity is considered to have complied with the 
                        requirements under this subsection, 
                        notwithstanding a technical or procedural 
                        failure to meet such requirements, if there was 
                        a good faith attempt to comply with the 
                        requirements.
                            ``(ii) Exceptions.--Clause (i) shall not 
                        apply if--
                                    ``(I) the Department of Labor (or 
                                another enforcement agency) has 
                                explained to the person or entity the 
                                basis for the failure;
                                    ``(II) the person or entity has 
                                been provided a period of not less than 
                                10 business days after the date of the 
                                explanation to correct the failure; and
                                    ``(III) the person or entity has 
                                not corrected the failure voluntarily 
                                within the period described in 
                                subclause (II).
                            ``(iii) Penalty avoidance.--A person or 
                        entity shall not be assessed fines or other 
                        penalties for a violation of the prevailing 
                        wage requirements under paragraph (1)(A) if the 
                        person or entity establishes that the manner in 
                        which the prevailing wage was calculated was 
                        consistent with recognized industry standards 
                        and practices.
                            ``(iv) Exceptions.--Clauses (i) and (iii) 
                        shall not apply to a person or entity that has 
                        engaged in, or is engaging in, a pattern or 
                        practice of willful violations of this 
                        subsection.
            ``(4) Savings provision.--Nothing in this subsection may be 
        construed to supersede or preempt any other enforcement-related 
        authority under this title, including section 274B, or under 
        any other Act.''.
    (b) Admission of Nonimmigrants.--Section 214 of the Immigration and 
Nationality Act (8 U.S.C. 1184) is amended--
            (1) by striking ``Attorney General'' each place such term 
        appears and inserting ``Secretary of Homeland Security'';
            (2) by amending subsection (b) to read as follows:
    ``(b) Presumption of Status; Written Waiver.--
            ``(1) In general.--Every alien (other than a nonimmigrant 
        described in subparagraph (L) or (V) of section 101(a)(15) and 
        other than a nonimmigrant described in any provision of 
        subparagraph (H) of such section except subclause (b1) of such 
        subparagraph) shall be presumed to be an immigrant until the 
        alien establishes to the satisfaction of the consular officer, 
        at the time of application for a visa, and the immigration 
        officers, at the time of application for admission, that he or 
        she is entitled to a nonimmigrant status under section 
        101(a)(15).
            ``(2) Restrictions.--An alien who is an officer or employee 
        of any foreign government or of any international organization 
        entitled to enjoy privileges, exemptions, and immunities under 
        the International Organizations Immunities Act (22 U.S.C. 288 
        et seq.), and an alien who is the attendant, servant, employee, 
        or member of the immediate family of any such alien shall not 
        be entitled to apply for or receive an immigrant visa, or to 
        enter the United States as an immigrant unless the alien 
        executes a written waiver in the same form and substance as is 
        prescribed under section 247(b).''; and
            (3) in subsection (c)--
                    (A) by striking paragraph (2);
                    (B) in paragraph (9)--
                            (i) in subparagraph (A), by striking 
                        ``(excluding'' and all that follows through 
                        ``organization) filing before'' and inserting 
                        ``filing''; and
                            (ii) in subparagraph (B), by striking 
                        ``$1,500'' and inserting ``$10,000'';
                    (C) by striking paragraph (10);
                    (D) in paragraph (11)(A), by striking ``or the 
                Secretary of State, as appropriate,''; and
                    (E) in paragraph (12)(C), by striking ``$500'' and 
                inserting ``$2,000''.
    (c) Employment Authorization.--Section 274A(h) of the Immigration 
and Nationality Act (8 U.S.C. 1324a) is amended by adding at the end 
the following:
            ``(4) Employment authorization for aliens no longer engaged 
        in full-time study in the united states.--Notwithstanding any 
        other provision of law, no alien present in the United States 
        as a nonimmigrant under section 101(a)(15)(F)(i) may be 
        provided employment authorization in the United States pursuant 
        to the Optional Practical Training Program, or any such 
        successor program, without an express Act of Congress 
        authorizing such a program.''.
    (d) Clerical Amendment.--Section 212 of the Immigration and 
Nationality Act (8 U.S.C. 1182) is amended by redesignating subsection 
(t), as added by section 1(b)(2)(B) of Public Law 108-449, as 
subsection (u).

                  TITLE II--NEW H-1B VISA REQUIREMENTS

SEC. 201. BAR ON NONDISPARAGEMENT AND NONDISCLOSURE AGREEMENTS.

    (a) In General.--A petitioner employer may not require a United 
States citizen or lawful permanent resident employee of such petitioner 
employer to sign any nondisparagement or nondisclosure agreement, 
regardless of its characterization or label, that conditions receipt of 
any financial or nonfinancial benefit from the petitioner employer upon 
the nondisclosure of such petitioner employer's potential misuse of the 
H-1B visa program.
    (b) Patent or Trademark Affirmative Defense in Litigation.--
Notwithstanding subsection (a), a petitioner employer, as a defense in 
litigation, may affirmatively assert that an agreement described in 
subsection (a) was necessary to prevent the disclosure of any highly 
technical information that might be related to a pending patent or 
trademark application.

SEC. 202. UNITED STATES FEDERAL COURT JURISDICTION OVER CIVIL ACTIONS 
              PERTAINING TO MISUSE OF THE H-1B VISA PROGRAM.

    (a) In General.--Notwithstanding any other provision of law--
            (1) each United States district court shall have 
        jurisdiction to address civil actions by any person claiming 
        misuse of the H-1B visa program;
            (2) each United States court of appeals shall have 
        jurisdiction to address appeals of civil actions by any person 
        claiming misuse of the H-1B visa program for cases originating 
        within a United States district court within that circuit; and
            (3) the Supreme Court of the United States shall have 
        jurisdiction to address appeals of civil actions by any person 
        claiming misuse of the H-1B visa program for cases originating 
        from any United States court of appeals.
    (b) No Exhaustion Requirement.--Notwithstanding any other provision 
of law, a person shall have standing to pursue a civil action claiming 
misuse of the H-1B visa program, in accordance with subsection (a), 
regardless of whether such person has exhausted all administrative 
remedies in connection with such claims.
    (c) Rule of Construction.--Nothing in this section may be construed 
to affect or change any of the other jurisdictional, procedural, or 
administrative rules under title 28, United States Code, other than the 
specific establishment of jurisdiction of Federal courts, as provided 
in subsection (a).

                 TITLE III--REPEAL OF OTHER PROVISIONS

SEC. 301. REPEAL OF THE DIVERSITY VISA LOTTERY.

    Title II of the Immigration and Nationality Act (8 U.S.C. 1151 et 
seq.) is amended--
            (1) in section 201(a)--
                    (A) in paragraph (1), by adding ``and'' at the end;
                    (B) in paragraph (2), by striking ``; and'' and 
                inserting a period; and
                    (C) by striking paragraph (3);
            (2) in section 203--
                    (A) by striking subsection (c); and
                    (B) in subsection (e)--
                            (i) by striking paragraph (2); and
                            (ii) by redesignating paragraph (3) as 
                        paragraph (2); and
            (3) in section 204(a)(1), by striking subparagraph (I).
                                 <all>