[Congressional Record Volume 153, Number 84 (Tuesday, May 22, 2007)]
[Senate]
[Pages S6464-S6466]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Ms. COLLINS:
  S. 31. A bill to amend the Immigration and Nationality Act to reduce 
fraud in certain visa programs for aliens working temporarily in the 
United States; to the Committee on the Judiciary.
  Ms. COLLINS. Mr. President, I rise to introduce the H-1B Visa Fraud 
Prevention Act of 2007.
  Many American businesses rely on the H-1B visa program. When 
employers can demonstrate that there are too few U.S. workers to fill 
particular positions with defined education and skills standards, the 
program allows temporary, non-immigrant workers to fill vacancies in 
engineering, sciences, medicine, health, and other specialties.
  The program is of considerable benefit to our economy. Unfortunately, 
there has been a long history of some unscrupulous employers attempting 
to abuse the H-1B program. Last fall, the Portland Press Herald 
newspaper in Maine printed a three-part series resulting from its in-
depth investigation of H-1B abuses.
  The newspaper found evidence of shell companies filing applications 
for H-1B visas in Maine, but no evidence of H-1B visa holders actually 
working for those businesses in Maine. One company rented office space 
in Portland for a year and submitted at least 160 H-1B and green-card 
applications on behalf of foreign workers, but the building manager 
never saw anyone there, and was asked to forward all mail to an address 
in New Jersey.
  This legislation will help detect and prevent the kind of fraud 
identified by the Portland Press Herald.
  Before I describe the details of my legislation, I want to 
acknowledge the

[[Page S6465]]

leadership of Senators Grassley, Durbin, Gregg, Hagel, and Lieberman on 
this issue. They have also drafted bills aimed at reforming the H-1B 
visa issuance process as well as expanding the number of H-1B visas. My 
hope is that we can join forces to craft an amendment to the 
immigration bill that will curb the fraud afflicting this program.
  Specifically, my legislation is targeted at detecting employers who 
do not have legitimate business operations that require H-1B workers 
and who intend only to transfer the H-1B workers they receive to 
another employer. This bill prohibits employers from contracting their 
H-1B workers to an employer in a different State.

  The Portland Press Herald's investigation showed that some employers 
may have filed for H-1B workers in Maine in order to take advantage of 
a lower prevailing wage, then transferred those employees to States 
where a higher prevailing wage would have been required on the H-1B 
application.
  The legislation I am proposing would remove onerous restrictions on 
the Department of Labor's ability to investigate suspected fraud. It 
would allow the Department to investigate applications that have clear 
indicators of fraud or misrepresentation, instead of merely checking 
for completeness and obvious inaccuracies, as current law provides.
  It also would expand the types of information that can be used to 
investigate fraudulent activity and eliminate a requirement that the 
Secretary of the Department of Labor personally approve each 
investigation. In addition, to further deter companies from filing 
fraudulent applications, the legislation would double the current 
monetary penalties.
  Preventing H-1B fraud and abuse also requires that the Department of 
Labor work more closely with the Department of Homeland Security's U.S. 
Citizenship and Immigration Services, or USCIS, which is the agency 
that ultimately approves an H-1B visa application. To that end, this 
legislation requires the Director of USCIS to share with Labor 
information it receives from employers who file H-1B visa applications 
that may indicate noncompliance with the H-1B visa program.
  USCIS has taken first steps to detect fraud in other types of visas. 
For example, last July USCIS completed an assessment of religious-
worker benefit fraud that showed fraud in one-third of the cases 
surveyed. From these surveys, USCIS developed known indicators of fraud 
for religious-worker visas that it can now compare against incoming 
applications.
  USCIS began a similar assessment of benefit fraud for H-1B visas 
nearly a year ago. It is not yet completed, despite repeated inquiries 
by my staff on its status. This legislation requires completion of the 
H-1B fraud assessment within 30 days, so that USCIS can begin using 
this valuable tool to uncover fraud in other H-1B applications.
  This legislation fills gaps in our ability to ensure that H-1B visas 
are granted and used in the manner Congress intended. I urge my 
colleagues to support this proposal as we consider immigration-reform 
legislation.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 31

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``H-1B Visa Fraud Prevention 
     Act of 2007''.

     SEC. 2. H-1B EMPLOYER REQUIREMENTS.

       (a) Prohibition of Outplacement.--
       (1) In general.--Section 212(n) of the Immigration and 
     Nationality Act (8 U.S.C. 1182(n)) is amended--
       (A) in paragraph (1), by amending subparagraph (F) to read 
     as follows:
       ``(F) The employer shall not place, outsource, lease, or 
     otherwise contract for the placement of an alien admitted or 
     provided status as an H-1B nonimmigrant with another employer 
     if the worksite of the receiving employer is located in a 
     different State;'' and
       (B) in paragraph (2), by striking subparagraph (E).
       (2) Effective date.--The amendments made by paragraph (1) 
     shall apply to applications filed on or after the date of the 
     enactment of this Act.
       (b) Immigration Documents.--Section 204 of such Act (8 
     U.S.C. 1154) is amended by adding at the end the following:
       ``(l) Employer To Share All Immigration Paperwork Exchanged 
     With Federal Agencies.--Not later than 10 working days after 
     receiving a written request from a former, current, or future 
     employee or beneficiary, an employer shall provide the 
     employee or beneficiary with the original (or a certified 
     copy of the original) of all petitions, notices, and other 
     written communication exchanged between the employer and the 
     Department of Labor, the Department of Homeland Security, or 
     any other Federal agency that is related to an immigrant or 
     nonimmigrant petition filed by the employer for the employee 
     or beneficiary.''.

     SEC. 3. H-1B GOVERNMENT AUTHORITY AND REQUIREMENTS.

       (a) Safeguards Against Fraud and Misrepresentation in 
     Application Review Process.--Section 212(n)(1) of the 
     Immigration and Nationality Act (8 U.S.C. 1182(n)) is 
     amended--
       (1) in the undesignated paragraph at the end, by striking 
     ``The employer'' and inserting the following:
       ``(H) The employer''; and
       (2) in subparagraph (H), as designated by paragraph (1) of 
     this subsection--
       (A) by inserting ``and through the Department of Labor's 
     website, without charge.'' after ``D.C.'';
       (B) by inserting ``, clear indicators of fraud, 
     misrepresentation of material fact,'' after ``completeness'';
       (C) by striking ``or obviously inaccurate'' and inserting 
     ``, presents clear indicators of fraud or misrepresentation 
     of material fact, or is obviously inaccurate'';
       (D) by striking ``within 7 days of'' and inserting ``not 
     later than 14 days after''; and
       (E) 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).''.
       (b) Investigations by Department of Labor.--Section 
     212(n)(2) of such Act is amended--
       (1) in subparagraph (A), by striking ``The Secretary shall 
     conduct'' and all that follows and inserting ``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)(i), (E), (F), (H), (I), or (J) of paragraph (1)''; 
     and
       (B) by striking ``(1)(C)'' and inserting ``(1)(C)(ii)'';
       (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 of 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 of 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) 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 or secure 
     compliance by the employer with the requirements of this 
     subsection. A determination by the Secretary under this 
     clause shall not be subject to judicial review.'';
       (G) 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
       (H) by adding at the end the following:
       ``(vii) The Secretary of Labor may impose a penalty under 
     subparagraph (C) if the Secretary, after a hearing, finds a 
     reasonable basis to believe that--
       ``(I) the employer has violated the requirements under this 
     subsection; and
       ``(II) the violation was not made in good faith.''; and
       (4) by striking subparagraph (H).
       (c) 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 (G) the following:
       ``(H) The Director of United States Citizenship and 
     Immigration Services shall provide the Secretary of Labor 
     with any information contained in the materials submitted by 
     H-

[[Page S6466]]

     1B employers as part of the adjudication process that 
     indicates that the employer is not complying with H-1B visa 
     program requirements. The Secretary may initiate and conduct 
     an investigation and hearing under this paragraph after 
     receiving information of noncompliance under this 
     subparagraph.''.
       (d) 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 of the degree 
     to which employers comply with the requirements under this 
     subsection and may conduct annual compliance audits of 
     employers that employ H-1B nonimmigrants.''.
       (e) 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''.
       (f) Information Provided to H-1B Nonimmigrants Upon Visa 
     Issuance.--Section 212(n) of such Act, as amended by this 
     section, is further amended by inserting after paragraph (2) 
     the following:
       ``(3)(A) Upon issuing an H-1B visa to an applicant outside 
     the United States, the issuing office 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;
       ``(ii) the contact information for Federal agencies that 
     can offer more information or assistance in clarifying 
     employer obligations and workers' rights; and
       ``(iii) a copy of the employer's H-1B application for the 
     position that the H-1B nonimmigrant has been issued the visa 
     to fill.
       ``(B) Upon the issuance of an H-1B visa to an alien inside 
     the United States, the officer of the Department of Homeland 
     Security 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;
       ``(ii) the contact information for Federal agencies that 
     can offer more information or assistance in clarifying 
     employer's obligations and workers' rights; and
       ``(iii) a copy of the employer's H-1B application for the 
     position that the H-1B nonimmigrant has been issued the visa 
     to fill.''.

     SEC. 4. H-1B WHISTLEBLOWER PROTECTIONS.

       Section 212(n)(2)(C)(iv) of the Immigration and Nationality 
     Act (8 U.S.C. 1182(n)(2)(C)(iv)) is amended--
       (1) by inserting ``take, fail to take, or threaten to take 
     or fail to take, a personnel action, or'' before ``to 
     intimidate''; and
       (2) by adding at the end the following: ``An employer that 
     violates this clause shall be liable to the employees harmed 
     by such violation for lost wages and benefits.''.

     SEC. 5. FRAUD ASSESSMENT.

       Not later than 30 days after the date of the enactment of 
     this Act, the Director of United States Citizenship and 
     Immigration Services shall submit to Congress a fraud risk 
     assessment of the H-1B visa program.
                                 ______