H–1B reform

(a)

Adjustment of status

(1)

Nonimmigrant requirements

Section 101(a)(15)(H) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) is amended by inserting having a residence in a foreign country which he has no intention of abandoning before who is coming the first place it appears. (2)

Immigrant presumption

Section 214(b) of the Immigration and Nationality Act (8 U.S.C. 1184(b)) is amended by striking (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 section 101(a)(15)(H)(i) except subclause (b1) of such section). (3)

Special provisions for lengthy adjudications

Section 106 of American Competitiveness Act in the Twenty-first Century Act of 2000 (Public Law 106–313) is repealed. (4)

Admission of nonimmigrants

Section 214(h) of the Immigration and Nationality Act (8 U.S.C. 1184(h)) is repealed. (b)

Labor condition application

(1)

Inadmissibility

Section 212(n)(1) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)) is amended to read as follows:

(1) (A)No alien may be admitted or provided status as an H–1B nonimmigrant in an occupational classification unless the employer has filed with the Secretary of Labor, and the Secretary of Labor has approved an application that— (i)uniquely identifies the potential nonimmigrant to whom the application applies, including a photograph; (ii)specifies the occupational classification of employment; (iii)specifies the address where the nonimmigrant will be employed; (iv)specifies the wage to be paid to the nonimmigrant; (v)specifies the nationality of the nonimmigrant; (vi)includes any other information the Secretary of Labor determines is necessary; and (vii)certifies the following: (I)That the employer will pay the nonimmigrant full-time wages for the entire period of employment that are the higher of— (aa)the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question; or (bb)the wage determined by the Secretary of Labor to be at the 75th percentile for workers in the same location and occupation. (II)There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition. (III)The employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed. (IV)There is not a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment. (V)The employer, at the time of filing the application— (aa)has provided notice of the filing under this paragraph to the bargaining representative (if any) of the employer’s employees in the occupational classification and area for which aliens are sought; or (bb)if there is no such bargaining representative, has provided notice of filing in the occupational classification through such methods as physical posting in conspicuous locations at the place of employment or electronic notification to employees in the occupational classification for which an H–1B nonimmigrant is sought. (VI)The H–1B nonimmigrant has not and will not displace any United States workers either directly employed by the employer or indirectly by a third-party employer. (VII)The employer has not and will not lay off any United States workers in the same employment classification within one year of making the application. (VIII)An employer, prior to filing the application— (aa) has advertised the job on an internet website maintained by the Secretary of Labor for the purpose of such advertising; (bb)has offered the job to any United States worker who applies and is equally or better qualified for the job for which the nonimmigrant is sought; and (cc)has taken good faith steps to recruit, in the United States using procedures that meet industry-wide standards and offering compensation that is at least as great as that required to be offered to H–1B nonimmigrants under subclause (III), United States workers for the job for which the nonimmigrant or nonimmigrants is or are sought. (IX) The employer has not placed any advertisements specifically seeking to hire nonimmigrants either directly or through a third party within the past year. (X)The percentage of the employer’s employees within the United States who are nonimmigrants does not exceed 5 percent. (XI) The nonimmigrant is fully qualified to perform the occupation of intended employment, including possessing a bachelor’s degree or higher from a university determined to be equivalent to a degree from a United States university by recognized educational credential evaluation service in a field that is related to the occupation and possessing any licenses required for that occupation. The Secretary of Labor shall determine which educational credential evaluation services are recognized. (XII)The nonimmigrant has not and will not be required to pay any part of the fees or expenses for obtaining the visa. (XIII)The nonimmigrant has not and will not be required to pay for any services provided by the employer, such as housing. (XIV)The nonimmigrant has not and will not be charged any fee, bond, damages or similar for ceasing employment with the employer. (XV)The employer does not restrict employment opportunities, such as using a preferred vendor list, for either temporary or permanent employment to those supplied by or referred by specific third parties. (B)The Secretary of Labor shall review the contents of the application before approval. The Secretary of Labor shall not approve an application for an occupational classification where the unemployment rate exceeds 2 percent. (C)The Secretary of Labor shall make available to the public information received in applications, less any personal identifying information. (D)The Secretary of Labor shall establish and maintain a website for employers to post jobs prior to seeking foreign labor. (E)The application shall be valid for making a petition for a visa under section 101(a)(15)(H)(i)(b) for 90 days after approval.

(2)

Prevailing wage

Section 212(p) of the Immigration and Nationality Act (8 U.S.C. 1182(p)) is amended— (A)by striking paragraphs (1) and (4); and (B)redesignating paragraphs (2) and (3) as paragraphs (1) and (2), respectively. (3)

Occupational classification

Section 212(t)(2)(C) of the Immigration and Nationality Act (8 U.S.C. 1182(t)(2)(C)) is amended by striking all that follows after subsection and inserting a period. (c)

Enforcement

Section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)) is amended to read as follows:

(2) (A)The Secretary of Labor has the power to enforce the provisions of this paragraph, including the power to investigate, review documents submitted as part of the visa process, subpoena, and audit. (B)The Secretary of Labor shall establish a process for receiving complaints of violations of this paragraph. The Secretary may act on any such complaint received within 1 year of the alleged violation. (C)The Secretary of Labor may charge an employer that violates the terms of this paragraph. An employer charged shall have the right to request a hearing. The Secretary of Labor may sanction an employer up to $100,000 (inflation adjusted) for each violation of the terms of this paragraph. The Secretary of Labor may also ban an employer from employing H–1B nonimmigrants, both directly and indirectly through a third party, for up to 10 years. A party may appeal such a judgment of the Secretary of Labor to the court of appeals having geographic jurisdiction where the violations were found to have occurred. (D)United States workers have the right not to be displaced by nonimmigrant workers. Any United States worker who is displaced by a nonimmigrant shall have a cause of action in tort in the Federal courts against those employers causing the displacement, whether directly or indirectly.

(d)

Definitions repeal

Paragraph (3) of section 212(n) of the Immigration and Nationality Act (8 U.S.C. 1182(n)) is repealed. (e)

Displacement

Section 212(n)(4)(B) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(4)(B)) is amended by striking , and is located in the same area of employment as the other job. (f)

Lay offs

Section 212(n)(4)(D)(i)(II) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(4)(D)(i)(II)) is amended by striking (or, in the case of a placement of a worker with another employer under paragraph (1)(F), with either employer described in such paragraph) and inserting in the same area of employment. (g)

Manner of issuance

Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended— (1)in paragraph (1), by amending subparagraph (A) to read as follows:

(A)under section 101(a)(15)(H)(i)(b), may not exceed 65,000.

;

(2) in paragraph (3), by striking in the order in which petitions are filed for such visas or status and inserting , with priority given to petitions with higher salaries; (3)in paragraph (4), by striking 6 years. and inserting 2 calendar years. This duration starts with the date that is the earlier of the date of admission or date of change of status to that of a nonimmigrant under section 101(a)(15)(H)(i)(b), or 90 days after the visa is issued.; and (4)by striking paragraphs (5) through (7) and inserting the following:

(5)The number of nonimmigrants admitted under section 101(a)(15)(H)(i)(b) from any one country may not exceed 7 percent of the number allotted under paragraph (1)(A).

(h)

New employment repeal

Section 214(n) of the Immigration and Nationality Act (8 U.S.C. 1184(n)) is repealed.