[Congressional Record Volume 144, Number 152 (Thursday, November 12, 1998)]
[Senate]
[Pages S12995-S12996]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         ADDITIONAL STATEMENTS

                                 ______
                                 

  OMNIBUS APPROPRIATIONS BILL--AMERICAN COMPETITIVENESS AND WORKFORCE 
                            IMPROVEMENT ACT

 Mr. ABRAHAM. Mr. President, during debate on final passage of 
the Omnibus Appropriations bill, in which the American Competitiveness 
and Workforce Improvement Act was included as Title IV of Subdivision 
C, I asked unanimous consent to have a number of documents printed in 
the Record. These included two documents I received from the 
Administration during the negotiations, whose inclusion I was seeking 
to help illuminate the meaning of some of the provisions of the 
legislation. One of the key points about these documents is the changes 
from the July 30 version to the September 14 version. On the copies 
that I submitted, these changes were marked by redlining markings. 
Unfortunately, however, because I submitted a copy of the only version 
I had, which was a copy of a fax, these markings appear to have had the 
effect of making the September 14 version unintelligible, resulting in 
the printing of a garbled text that also did not contain the markings 
showing the changes. Accordingly, I ask that the corrected version of 
these documents that I am now submitting appear in the final issue of 
the Record of the 105th Congress. On the copy of the September 14 
document that I am submitting, material that appeared in the July 30 
version but was deleted in the September 14 version is in black 
brackets and material that was not included in the July 30 version and 
was added in the September 14 version is printed in italic.
  The corrected version follows:

July 30, 1998--Proposed Administration Revisions to H.R. 3736 (the July 
                           29, 1998 Version)

       1. Require either a $500 fee for each position for which an 
     application is filed or a $1,000 fee for each nonimmigrant. 
     Fee to fund training provided under JTPA Title IV. In 
     addition, a small portion of these revenues should fund the 
     administration of the H-1B visa program, including the cost 
     of arbitration.
       2. Define H-1B-dependent employers as:
       a. For employers with fewer than 51 workers, that at least 
     20% of their workforce is H-1B; and
       b. For employers with more than 50 workers, that at least 
     10% of their workforce is H-1B.
       3. The recruitment and no lay-off attestations apply to: 
     (1) H-1B dependent employers; and (2) any employer who, 
     within the previous 5 years, has been found to have willfully 
     violated its obligations under this law.
       4. H-1B dependent employers attest they will not place an 
     H-1B worker with another employer, under certain employment 
     circumstances, where the other employer has displaced or 
     intends to displace a U.S. worker (as defined in paragraph 
     (4)) during the period beginning 90 days before and ending 90 
     days after the date the placement would begin.
       5. DOL would have the authority to investigate compliance 
     either: (1) pursuant to a complaint by an aggrieved party; or 
     (2) based on other credible evidence indicating possible 
     violations.
       6. Establish an arbitration process for disputes involving 
     the laying-off of any U.S. worker who was replaced by an H-1B 
     worker, even of a non-H-1B dependent employer. This 
     arbitration process would be largely similar to that laid out 
     in H.R. 3736 except that it would be administered by the 
     Secretary of Labor. The arbitrator must base his or her 
     decision on a ``preponderance of the evidence.''
       7. Reference in the bill to ``administrative remedies'' 
     includes the authority to require back pay, the hiring of an 
     individual, or reinstatement.
       8. There must be appropriate sanctions for violations of 
     ``whistleblower'' protections.
       9. Close loopholes in the attestations:
       a. Strike the provision that ``[n]othing in the 
     [recruitment attestation] shall be construed to prohibit an 
     employer from using selection standards normal or customary 
     to the type of job involved.''
       b. Clarify that job contractors can be sanctioned for 
     placing an H-1B worker with an employer who subsequently lays 
     off a U.S. worker within the 90 days following placement.
       c. Do not exempt H-1B workers with at least a master's 
     degree or the equivalent from calculations of the total 
     number of H-1B employees.
       d. Define lay-off based on termination for ``cause or 
     voluntary termination,'' but exclude cases where there has 
     been an offer of continuing employment.
       10. Consolidate the LCA approval and petition processes 
     within DOL, rather than within INS.
       11. Broaden the definition of U.S. workers to include 
     aliens authorized to be employed by this act or by the 
     Attorney General.
       12. Include a provision that prohibits unconscionable 
     contracts.
       13. Include a ``no benching'' requirement that an H-1B 
     nonimmigrant in ``non-productive status'' for reasons such as 
     training, lack of license, lack of assigned work, or other 
     such reason (not including when the employee is unavailable 
     for work) be paid for a 40 hour week or a prorated portion of 
     a 40 hour week during such time.
       14. Increase the annual cap on H-1B visas to 95,000 in FY 
     1998, 105,000 in FY 1999, and 115,000 in FY 2000. After FY 
     2000, the visa cap shall return to 65,000.
       15. Eliminate the 7500 cap on the number of non-physician 
     health care workers admitted under the H-1B program to make 
     the bill consistent with our obligations under the GATS 
     agreement.

               September 14, 1998--Administration Package

       1. Require [either] a $500 fee for each position for which 
     an application is filed or [a $1,000 fee for each 
     nonimmigrant] renewed. Fee to fund training provided under 
     JTPA Title IV. In addition, a small portion of these revenues 
     should fund the administration of the H-1B visa program, 
     including the cost of [arbitration] enforcement.
       2. Define H-1B-dependent employers as:
       a. For employers with fewer than 51 workers, that at least 
     20% of their workforce is H-1B; and
       b. For employers with more than 50 workers, that at least 
     [10%] 12% of their workforce is H-1B.
       3. The recruitment and no lay-off attestations apply to: 
     (1) H-1B dependent employers; and (2) any employer who, 
     within the previous 5 years, has been found to have willfully 
     violated its obligations under this law.
       4. H-1B dependent employers attest they will not place an 
     H-1B worker with another employer, under certain employment 
     circumstances, where the other employer has displaced or 
     intends to displace a U.S. worker (as defined in paragraph 
     (4)) during the period beginning 90 days before and ending 90 
     days after the date the placement would begin.
       5. DOL would have the authority to investigate compliance 
     either: (1) pursuant to a complaint by an aggrieved party; or 
     (2) based on other credible evidence from a source which is 
     likely to have knowledge of an employer's practices, 
     employment conditions, or compliance with the labor condition 
     application indicating possible violations.
       [6. Establish an arbitration process for disputes involving 
     the laying-off of any U.S. worker who was replaced by an H-1B 
     worker, even of a non-H-1B dependent employer. This 
     arbitration process would be largely similar to that laid out 
     in H.R. 3736 except that it would be administered by the 
     Secretary of Labor. The arbitrator must base his or her 
     decision on a ``preponderance of the evidence.''
       [7. Reference in the bill to ``administrative remedies'' 
     includes the authority to require back pay, the hiring of an 
     individual, or reinstatement.]
       8. There must be appropriate sanctions for violations of 
     ``whistleblower'' protections.
       9. Close loopholes in the attestations:
       a. Strike the provision that ``[n]othing in the 
     [recruitment attestation] shall be construed to prohibit an 
     employer from using selection standards normal or customary 
     to the type of job involved.''
       Sen. Abraham would have a colloquy or there would be report 
     language clarifying the intent of the recruitment 
     attestation.
       b. Clarify that job contractors can be sanctioned for 
     placing an H-1B worker with an employer who subsequently lays 
     off a U.S. worker within the 90 days following placement.
       c. Do not exempt H-1B workers with at least a master's 
     degree or the equivalent from calculations of the total 
     number of H-1B employees.
       d. Define lay-off based on termination for ``cause or 
     voluntary termination,'' but exclude cases where there has 
     been an offer of continuing employment.
       10. [Consolidate the] Maintain status quo with regard to 
     LCA approval and petition processes [within DOL, rather than 
     within INS.].
       11. Broaden the definition of U.S. workers to include 
     aliens authorized to be employed by this act or by the 
     Attorney General.
       12. Include a provision that prohibits unconscionable 
     contracts (with civil fines).
       13. Include a ``no benching'' requirement that an H-1B 
     nonimmigrant in ``non-productive status'' for reasons such as 
     training, lack of license, lack of assigned work, or other 
     such reason (not including when the employee is unavailable 
     for work) be paid for a 40 hour week or a prorated portion of 
     a 40 hour week during such time.
       14. Increase the annual cap on H-1B visas to 95,000 in FY 
     1998, 105,000 in FY 1999, and 115,000 in FY 2000. After FY 
     2000, the visa cap shall return to 65,000.
       15. Eliminate the 7500 cap on the number of non-physician 
     health care workers admitted under the H-1B program to make 
     the bill consistent with our obligations under the GATS 
     agreement.
       16. Three-year debarment for willful violation plus a 
     $35,000-$40,000 fine.
       In addition, we would require the prevailing wage 
     attestation be permanently changed to the following:

[[Page S12996]]



     SEC.  . DEFINITIONS.

       Section 212(n) (8 U.S.C. 1182(n)) is amended by inserting 
     after subsection(2) the following new subsection:
       ``(3) As used in this section--
       ``(A) `actual wage' means total compensation, including 
     base pay (whether expressed as an hourly rate or a salary), 
     equity, and health, life, disability, and other insurance 
     plans, and retirement and savings plans provided to regular 
     employees. If the employer offers a benefit plan which 
     enables employees to choose among options, then the 
     employer's plan shall be deemed to be acceptable provided the 
     same plan and options are offered to all employees in the 
     occupational classification in which the nonimigrant is 
     intended to be (or is) employed.
       ``(B) `prevailing wage' means total compensation, including 
     the rate of pay as determined based on the best information 
     available as of the time of filing the application (whether 
     expressed as an hourly rate or a salary), equity, and health, 
     life, disability, and other insurance plans, and retirement 
     and savings plans provided to regular employees. If the 
     employer offers a benefit plan which enables employees to 
     choose among options, then the employer's plan shall be 
     deemed to be acceptable provided the same plan and options 
     are offered to all employees in the occupational 
     classification in which the nonimmigrant is intended to be 
     (or is) employed.''

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