[Congressional Record Volume 155, Number 60 (Thursday, April 23, 2009)]
[Senate]
[Pages S4689-S4693]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DURBIN (for himself and Mr. Grassley):
  S. 887. A bill to amend the Immigration and Nationality Act to reform 
and reduce fraud and abuse in certain visa programs for aliens working 
temporarily in the United States and for other purposes; to the 
Committee on the Judiciary.
  Mr. DURBIN. Mr. President, 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. 887

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

     SECTION 1. SHORT TITLE.

       (a) Short Title.--This Act may be cited as the ``H-1B and 
     L-1 Visa Reform Act of 2009''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title.

             TITLE I--H-1B VISA FRAUD AND ABUSE PROTECTIONS

           Subtitle A--H-1B Employer Application Requirements

Sec. 101. Modification of application requirements.
Sec. 102. New application requirements.
Sec. 103. Application review requirements.

 Subtitle B--Investigation and Disposition of Complaints Against H-1B 
                               Employers

Sec. 111. General modification of procedures for investigation and 
              disposition.
Sec. 112. Investigation, working conditions, and penalties.
Sec. 113. Waiver requirements.
Sec. 114. Initiation of investigations.
Sec. 115. Information sharing.
Sec. 116. Conforming amendment.

                     Subtitle C--Other Protections

Sec. 121. Posting available positions through the Department of Labor.
Sec. 122. H-1B government authority and requirements.
Sec. 123. Requirements for information for H-1B and L-1 nonimmigrants.
Sec. 124. Additional Department of Labor employees.
Sec. 125. Technical correction.
Sec. 126. Application.

             TITLE II--L-1 VISA FRAUD AND ABUSE PROTECTIONS

Sec. 201. Prohibition on outplacement of L-1 nonimmigrants.
Sec. 202. L-1 employer petition requirements for employment at new 
              offices.
Sec. 203. Cooperation with Secretary of State.
Sec. 204. Investigation and disposition of complaints against L-1 
              employers.
Sec. 205. Wage rate and working conditions for L-1 nonimmigrant.

[[Page S4690]]

Sec. 206. Penalties.
Sec. 207. Prohibition on retaliation against L-1 nonimmigrants.
Sec. 208. Reports on L-1 nonimmigrants.
Sec. 209. Technical amendments.
Sec. 210. Application.
Sec. 211. Report on L-1 blanket petition process.

             TITLE I--H-1B VISA FRAUD AND ABUSE PROTECTIONS

           Subtitle A--H-1B Employer Application Requirements

     SEC. 101. MODIFICATION OF APPLICATION REQUIREMENTS.

       (a) General Application Requirements.--Subparagraph (A) of 
     section 212(n)(1) of the Immigration and Nationality Act (8 
     U.S.C. 1182(n)(1)) is amended to read as follows:
       ``(A) The employer--
       ``(i) is offering and will offer to H-1B nonimmigrants, 
     during the period of authorized employment for each H-1B 
     nonimmigrant, wages that are determined based on the best 
     information available at the time the application is filed 
     and which are not less than the highest of--
       ``(I) the locally determined prevailing wage level for the 
     occupational classification in the area of employment;
       ``(II) the median average wage for all workers in the 
     occupational classification in the area of employment; and
       ``(III) the median wage for skill level 2 in the 
     occupational classification found in the most recent 
     Occupational Employment Statistics survey; and
       ``(ii) will provide working conditions for such H-1B 
     nonimmigrant that will not adversely affect the working 
     conditions of other workers similarly employed.''.
       (b) Internet Posting Requirement.--Subparagraph (C) of such 
     section 212(n)(1) is amended--
       (1) by redesignating clause (ii) as subclause (II);
       (2) by striking ``(i) has provided'' and inserting the 
     following:
       ``(ii)(I) has provided''; and
       (3) by inserting before clause (ii), as redesignated by 
     paragraph (2) of this subsection, the following:
       ``(i) has posted on the Internet website described in 
     paragraph (3), for at least 30 calendar days, a detailed 
     description of each position for which a nonimmigrant is 
     sought that includes a description of--
       ``(I) the wages and other terms and conditions of 
     employment;
       ``(II) the minimum education, training, experience, and 
     other requirements for the position; and
       ``(III) the process for applying for the position; and''.
       (c) Wage Determination Information.--Subparagraph (D) of 
     such section 212(n)(1) is amended by inserting ``the wage 
     determination methodology used under subparagraph (A)(i),'' 
     after ``shall contain''.
       (d) Application of Requirements to All Employers.--
       (1) Nondisplacement.--Subparagraph (E) of such section 
     212(n)(1) is amended--
       (A) in clause (i)--
       (i) by striking ``90 days'' both places it appears and 
     inserting ``180 days''; and
       (ii) by striking ``(i) In the case of an application 
     described in clause (ii), the'' and inserting ``The''; and
       (B) by striking clause (ii).
       (2) Recruitment.--Subparagraph (G)(i) of such section 
     212(n)(1) is amended by striking ``In the case of an 
     application described in subparagraph (E)(ii), subject'' and 
     inserting ``Subject''.
       (e) Requirement for Waiver.--Subparagraph (F) of such 
     section 212(n)(1) is amended to read as follows:
       ``(F) The employer shall not place, outsource, lease, or 
     otherwise contract for the services or placement of H-1B 
     nonimmigrants with another employer unless the employer of 
     the alien has been granted a waiver under paragraph 
     (2)(E).''.

     SEC. 102. NEW APPLICATION REQUIREMENTS.

       Section 212(n)(1) of the Immigration and Nationality Act (8 
     U.S.C. 1182(n)(1)) is amended by inserting after clause (ii) 
     of subparagraph (G) the following:
       ``(H)(i) The employer has not advertised any available 
     position specified in the application in an advertisement 
     that states or indicates that--
       ``(I) such position is only available to an individual who 
     is or will be an H-1B nonimmigrant; or
       ``(II) an individual who is or will be an H-1B nonimmigrant 
     shall receive priority or a preference in the hiring process 
     for such position.
       ``(ii) The employer has not solely recruited individuals 
     who are or who will be H-1B nonimmigrants to fill such 
     position.
       ``(I) If the employer employs 50 or more employees in the 
     United States, the sum of the number of such employees who 
     are H-1B nonimmigrants plus the number of such employees who 
     are nonimmigrants described in section 101(a)(15)(L) may not 
     exceed 50 percent of the total number of employees.
       ``(J) If the employer, in such previous period as the 
     Secretary shall specify, employed 1 or more H-1B 
     nonimmigrants, the employer shall submit to the Secretary the 
     Internal Revenue Service Form W-2 Wage and Tax Statement 
     filed by the employer with respect to the H-1B nonimmigrants 
     for such period.''.

     SEC. 103. APPLICATION REVIEW REQUIREMENTS.

       (a) Technical Amendment.--Section 212(n)(1) of the 
     Immigration and Nationality Act (8 U.S.C. 1182(n)(1)), as 
     amended by section 102, is further amended in the 
     undesignated paragraph at the end, by striking ``The 
     employer'' and inserting the following:
       ``(K) The employer.''.
       (b) Application Review Requirements.--Subparagraph (K) of 
     such section 212(n)(1), as designated by subsection (a), is 
     amended--
       (1) by inserting ``and through the Department of Labor's 
     website, without charge.'' after ``D.C.'';
       (2) by striking ``only for completeness'' and inserting 
     ``for completeness and clear indicators of fraud or 
     misrepresentation of material fact,'';
       (3) by striking ``or obviously inaccurate'' and inserting 
     ``, presents clear indicators of fraud or misrepresentation 
     of material fact, or is obviously inaccurate'';
       (4) by striking ``within 7 days of'' and inserting ``not 
     later than 14 days after''; and
       (5) 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 in 
     accordance with paragraph (2).''.

 Subtitle B--Investigation and Disposition of Complaints Against H-1B 
                               Employers

     SEC. 111. GENERAL MODIFICATION OF PROCEDURES FOR 
                   INVESTIGATION AND DISPOSITION.

       Subparagraph (A) of section 212(n)(2) of the Immigration 
     and Nationality Act (8 U.S.C. 1182(n)(2)) is amended--
       (1) by striking ``(A) Subject'' and inserting ``(A)(i) 
     Subject'';
       (2) by striking ``12 months'' and inserting ``24 months'';
       (3) by striking the last sentence; and
       (4) by adding at the end the following:
       ``(ii)(I) Upon the receipt of such a complaint, the 
     Secretary may initiate an investigation to determine if such 
     a failure or misrepresentation has occurred.
       ``(II) The Secretary may conduct surveys of the degree to 
     which employers comply with the requirements of this 
     subsection and may conduct annual compliance audits of 
     employers that employ H-1B nonimmigrants.
       ``(III) The Secretary shall--
       ``(aa) conduct annual compliance audits of not less than 1 
     percent of the employers that employ H-1B nonimmigrants 
     during the applicable calendar year;
       ``(bb) 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; and
       ``(cc) make available to the public an executive summary or 
     report describing the general findings of the audits carried 
     out pursuant to this subclause.''.

     SEC. 112. INVESTIGATION, WORKING CONDITIONS, AND PENALTIES.

       Subparagraph (C) of section 212(n)(2) of the Immigration 
     and Nationality Act (8 U.S.C. 1182(n)(2)) is amended--
       (1) in clause (i)--
       (A) in the matter preceding subclause (I)--
       (i) by striking ``a condition of paragraph (1)(B), (1)(E), 
     or (1)(F)'' and inserting ``a condition under subparagraph 
     (A), (B), (C)(i), (E), (F), (G)(i)(I), (H), (I), or (J) of 
     paragraph (1)''; and
       (ii) by striking ``(1)(C)'' and inserting ``(1)(C)(ii)''; 
     and
       (B) in subclause (I)--
       (i) by striking ``$1,000'' and inserting ``$2,000''; and
       (ii) by striking ``and'' at the end;
       (C) in subclause (II), by striking the period at the end 
     and inserting a semicolon and ``and'';
       (D) by adding at the end the following:
       ``(III) an employer that violates such subparagraph (A) 
     shall be liable to the employees harmed by such violations 
     for lost wages and benefits.''; and
       (2) in clause (ii)
       (A) in subclause (I)--
       (i) by striking ``may'' and inserting ``shall''; and
       (ii) by striking ``$5,000'' and inserting ``$10,000''; and
       (B) in subclause (II), by striking the period at the end 
     and inserting a semicolon and ``and'';
       (C) by adding at the end the following:
       ``(III) an employer that violates such subparagraph (A) 
     shall be liable to the employees harmed by such violations 
     for lost wages and benefits.''; and
       (3) in clause (iii)--
       (A) in the matter preceding subclause (I), by striking ``90 
     days'' both places it appears and inserting ``180 days'';
       (B) in subclause (I)--
       (i) by striking ``may'' and inserting ``shall''; and
       (ii) by striking ``and'' at the end;
       (C) in subclause (II), by striking the period at the end 
     and inserting a semicolon and ``and''; and
       (D) by adding at the end the following:
       ``(III) an employer that violates subparagraph (A) of such 
     paragraph shall be liable to the employees harmed by such 
     violations for lost wages and benefits.'';
       (4) in clause (iv)--
       (A) by inserting ``to take, fail to take, or threaten to 
     take or fail to take, a personnel action, or'' before ``to 
     intimidate'';
       (B) by inserting ``(I)'' after ``(iv)''; and
       (C) by adding at the end the following:
       ``(II) An employer that violates this clause shall be 
     liable to the employees harmed by such violation for lost 
     wages and benefits.''; and
       (5) in clause (vi)--
       (A) by amending subclause (I) to read as follows:

[[Page S4691]]

       ``(I) It is a violation of this clause for an employer who 
     has filed an application under this subsection--
       ``(aa) to require an H-1B nonimmigrant to pay a penalty for 
     ceasing employment with the employer prior to a date agreed 
     to by the nonimmigrant and the employer (the Secretary shall 
     determine whether a required payment is a penalty, and not 
     liquidated damages, pursuant to relevant State law); and
       ``(bb) to fail to 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 workers, 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 based on performance).''; and
       (B) in subclause (III), by striking ``$1,000'' and 
     inserting ``$2,000''.

     SEC. 113. WAIVER REQUIREMENTS.

       (a) In General.--Subparagraph (E) of section 212(n)(2) of 
     the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)) is 
     amended to read as follows:
       ``(E)(i) The Secretary of Labor may waive the prohibition 
     in paragraph (1)(F) if the Secretary determines that the 
     employer seeking the waiver has established that--
       ``(I) the employer with whom the H-1B nonimmigrant would be 
     placed has not displaced, and does not intend to displace, a 
     United States worker employed by the employer within the 
     period beginning 180 days before and ending 180 days after 
     the date of the placement of the nonimmigrant with the 
     employer;
       ``(II) the H-1B nonimmigrant will not be controlled and 
     supervised principally by the employer with whom the H-1B 
     nonimmigrant would be placed; and
       ``(III) the placement of the H-1B nonimmigrant is not 
     essentially an arrangement to provide labor for hire for the 
     employer with whom the H-1B nonimmigrant will be placed.
       ``(ii) The Secretary shall grant or deny a waiver under 
     this subparagraph not later than 7 days after the Secretary 
     receives the application for such waiver.''.
       (b) Requirement for Rules.--
       (1) Rules for waivers.--The Secretary of Labor shall 
     promulgate rules, after notice and a period for comment, for 
     an employer to apply for a waiver under subparagraph (E) of 
     section 212(n)(2) of such Act, as amended by subsection (a).
       (2) Requirement for publication.--The Secretary of Labor 
     shall submit to Congress and publish in the Federal Register 
     and other appropriate media a notice of the date that rules 
     required by paragraph (1) are published.

     SEC. 114. INITIATION OF INVESTIGATIONS.

       Subparagraph (G) of section 212(n)(2) of the Immigration 
     and Nationality Act (8 U.S.C. 1182(n)(2)) is amended--
       (1) 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.'';
       (2) 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.'';
       (3) in clause (iii), by striking the last sentence;
       (4) by striking clauses (iv) and (v);
       (5) by redesignating clauses (vi), (vii), and (viii) as 
     clauses (iv), (v), and (vi), respectively;
       (6) in clause (iv), as so redesignated, by striking ``meet 
     a condition described in clause (ii), unless the Secretary of 
     Labor receives the information not later than 12 months'' and 
     inserting ``comply with the requirements under this 
     subsection, unless the Secretary of Labor receives the 
     information not later than 24 months'';
       (7) by amending clause (v), as so 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.'';
       (8) in clause (vi), as so 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
       (9) 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 
     the requirements under this subsection, the Secretary shall 
     impose a penalty under subparagraph (C).''.

     SEC. 115. INFORMATION SHARING.

       Subparagraph (H) of section 212(n)(2) of the Immigration 
     and Nationality Act (8 U.S.C. 1182(n)(2)) is amended to read 
     as follows:
       ``(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 
     employers of H-1B nonimmigrants as part of the adjudication 
     process that indicates that the employer is not complying 
     with visa program requirements for H-1B nonimmigrants. The 
     Secretary may initiate and conduct an investigation and 
     hearing under this paragraph after receiving information of 
     noncompliance under this subparagraph.''.

     SEC. 116. CONFORMING AMENDMENT.

       Subparagraph (F) of section 212(n)(2) of the Immigration 
     and Nationality Act (8 U.S.C. 1182) is amended by striking 
     ``The preceding sentence shall apply to an employer 
     regardless of whether or not the employer is an H-1B-
     dependent employer.''.

                     Subtitle C--Other Protections

     SEC. 121. POSTING AVAILABLE POSITIONS THROUGH THE DEPARTMENT 
                   OF LABOR.

       (a) Department of Labor Website.--Paragraph (3) of section 
     212(n) of the Immigration and Nationality Act (8 U.S.C. 
     1182(n)) is amended to read as follows:
       ``(3)(A) Not later than 90 days after the date of the 
     enactment of the H-1B and L-1 Visa Reform Act of 2009, the 
     Secretary of Labor shall establish a searchable Internet 
     website for posting positions as required by paragraph 
     (1)(C). Such website shall be available to the public without 
     charge.
       ``(B) The Secretary may work with private companies or 
     nonprofit organizations to develop and operate the Internet 
     website described in subparagraph (A).
       ``(C) The Secretary may promulgate rules, after notice and 
     a period for comment, to carry out the requirements of this 
     paragraph.''.
       (b) Requirement for Publication.--The Secretary of Labor 
     shall submit to Congress and publish in the Federal Register 
     and other appropriate media a notice of the date that the 
     Internet website required by paragraph (3) of section 212(n) 
     of such Act, as amended by subsection (a), will be 
     operational.
       (c) Application.--The amendments made by subsection (a) 
     shall apply to an application filed on or after the date that 
     is 30 days after the date described in subsection (b).

     SEC. 122. H-1B GOVERNMENT AUTHORITY AND REQUIREMENTS.

       (a) Immigration Documents.--Section 204 of the Immigration 
     and Nationality Act (8 U.S.C. 1154) is amended by adding at 
     the end the following:
       ``(l) Employer To Provide Immigration Paperwork Exchanged 
     With Federal Agencies.--Not later than 21 business days after 
     receiving a written request from a former, current, or future 
     employee or beneficiary, an employer shall provide such 
     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 or department that is related to an 
     immigrant or nonimmigrant petition filed by the employer for 
     such employee or beneficiary.''.
       (b) Report on Job Classification and Wage Determinations.--
     Not later than 1 year after the date of the enactment of this 
     Act, the Comptroller General of the United States shall 
     prepare a report analyzing the accuracy and effectiveness of 
     the Secretary of Labor's current job classification and wage 
     determination system. The report shall--
       (1) specifically address whether the systems in place 
     accurately reflect the complexity of current job types as 
     well as geographic wage differences; and
       (2) make recommendations concerning necessary updates and 
     modifications.

     SEC. 123. REQUIREMENTS FOR INFORMATION FOR H-1B AND L-1 
                   NONIMMIGRANTS.

       Section 214 of the Immigration and Nationality Act (8 
     U.S.C. 1184) is amended by adding at the end the following:
       ``(s) Requirements for Information for H-1B and L-1 
     Nonimmigrants.--
       ``(1) In General.--Upon issuing a visa to an applicant for 
     nonimmigrant status pursuant to subparagraph (H)(i)(b) or (L) 
     of section 101(a)(15) who is outside the United States, the 
     issuing office shall provide the applicant with--
       ``(A) a brochure outlining the obligations of the 
     applicant's employer and the rights of the applicant with 
     regard to employment under Federal law, including labor and 
     wage protections;
       ``(B) the contact information for appropriate Federal 
     agencies or departments that offer additional information or 
     assistance in clarifying such obligations and rights; and
       ``(C) a copy of the application submitted for the 
     nonimmigrant under section 212(n) or the petition submitted 
     for the nonimmigrant under subsection (c)(2)(A), as 
     appropriate.
       ``(2) Upon the issuance of a visa to an applicant referred 
     to in paragraph (1) who is inside the United States, the 
     issuing officer of the Department of Homeland Security shall 
     provide the applicant with the material described in clauses 
     (i), (ii), and (iii) of subparagraph (A).''.

[[Page S4692]]

     SEC. 124. ADDITIONAL DEPARTMENT OF LABOR EMPLOYEES.

       (a) In General.--The Secretary of Labor is authorized to 
     hire 200 additional employees to administer, oversee, 
     investigate, and enforce programs involving nonimmigrant 
     employees described in section 101(a)(15)(H)(i)(B).
       (b) Authorization of Appropriations.--There are authorized 
     to be appropriated such sums as may be necessary to carry out 
     this section.

     SEC. 125. TECHNICAL CORRECTION.

       Section 212 of the Immigration and Nationality Act is 
     amended by redesignating the second subsection (t), as added 
     by section 1(b)(2)(B) of the Act entitled ``An Act to amend 
     and extend the Irish Peace Process Cultural and Training 
     Program Act of 1998'' (Public Law 108-449 (118 Stat. 3470)), 
     as subsection (u).

     SEC. 126. APPLICATION.

       Except as specifically otherwise provided, the amendments 
     made by this title shall apply to applications filed on or 
     after the date of the enactment of this Act.

             TITLE II--L-1 VISA FRAUD AND ABUSE PROTECTIONS

     SEC. 201. PROHIBITION ON OUTPLACEMENT OF L-1 NONIMMIGRANTS.

       (a) In General.--Subparagraph (F) of section 214(c)(2) of 
     the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)) is 
     amended to read as follows:
       ``(F)(i) Unless an employer receives a waiver under clause 
     (ii), an employer may not employ an alien, for a cumulative 
     period of more than 1 year, who--
       ``(I) will serve in a capacity involving specialized 
     knowledge with respect to an employer for purposes of section 
     101(a)(15)(L); and
       ``(II) will be stationed primarily at the worksite of an 
     employer other than the petitioning employer or its 
     affiliate, subsidiary, or parent, including pursuant to an 
     outsourcing, leasing, or other contracting agreement.''
       ``(ii) The Secretary of Homeland Security may grant a 
     waiver of the requirements of clause (i) for an employer if 
     the Secretary determines that the employer has established 
     that--
       ``(I) the employer with whom the alien referred to in 
     clause (i) would be placed has not displaced and does not 
     intend to displace a United States worker employed by the 
     employer within the period beginning 180 days after the date 
     of the placement of such alien with the employer;
       ``(II) such alien will not be controlled and supervised 
     principally by the employer with whom the nonimmigrant would 
     be placed; and
       ``(III) the placement of the nonimmigrant is not 
     essentially an arrangement to provide labor for hire for an 
     unaffiliated employer with whom the nonimmigrant will be 
     placed, rather than a placement in connection with the 
     provision or a product or service for which specialized 
     knowledge specific to the petitioning employer is necessary.
       ``(iii) The Secretary shall grant or deny a waiver under 
     clause (ii) not later than 7 days after the date that the 
     Secretary receives the application for the waiver.''.
       (b) Regulations.--The Secretary of Homeland Security shall 
     promulgate rules, after notice and a period for comment, for 
     an employer to apply for a waiver under subparagraph (F)(ii) 
     of section 214(c)(2), as added by subsection (a).

     SEC. 202. L-1 EMPLOYER PETITION REQUIREMENTS FOR EMPLOYMENT 
                   AT NEW OFFICES.

       Section 214(c)(2) of the Immigration and Nationality Act (8 
     U.S.C. 1184(c)(2)) is amended by adding at the end the 
     following:
       ``(G)(i) If the beneficiary of a petition under this 
     paragraph is coming to the United States to open, or be 
     employed in, a new office, the petition may be approved for 
     up to 12 months only if--
       ``(I) the alien has not been the beneficiary of 2 or more 
     petitions under this subparagraph during the immediately 
     preceding 2 years; and
       ``(II) the employer operating the new office has--
       ``(aa) an adequate business plan;
       ``(bb) sufficient physical premises to carry out the 
     proposed business activities; and
       ``(cc) the financial ability to commence doing business 
     immediately upon the approval of the petition.
       ``(ii) An extension of the approval period under clause (i) 
     may not be granted until the importing employer submits an 
     application to the Secretary of Homeland Security that 
     contains--
       ``(I) evidence that the importing employer meets the 
     requirements of this subsection;
       ``(II) evidence that the beneficiary of the petition is 
     eligible for nonimmigrant status under section 101(a)(15)(L);
       ``(III) a statement summarizing the original petition;
       ``(IV) evidence that the importing employer has fully 
     complied with the business plan submitted under clause 
     (i)(I);
       ``(V) evidence of the truthfulness of any representations 
     made in connection with the filing of the original petition;
       ``(VI) evidence that the importing employer, for the entire 
     period beginning on the date on which the petition was 
     approved under clause (i), has been doing business at the new 
     office through regular, systematic, and continuous provision 
     of goods and services;
       ``(VII) a statement of the duties the beneficiary has 
     performed at the new office during the approval period under 
     clause (i) and the duties the beneficiary will perform at the 
     new office during the extension period granted under this 
     clause;
       ``(VIII) a statement describing the staffing at the new 
     office, including the number of employees and the types of 
     positions held by such employees;
       ``(IX) evidence of wages paid to employees;
       ``(X) evidence of the financial status of the new office; 
     and
       ``(XI) any other evidence or data prescribed by the 
     Secretary.
       ``(iii) A new office employing the beneficiary of an L-1 
     petition approved under this paragraph shall do business only 
     through regular, systematic, and continuous provision of 
     goods and services for the entire period for which the 
     petition is sought.
       ``(iv) Notwithstanding clause (ii), and subject to the 
     maximum period of authorized admission set forth in 
     subparagraph (D), the Secretary of Homeland Security, in the 
     Secretary's discretion, may approve a subsequently filed 
     petition on behalf of the beneficiary to continue employment 
     at the office described in this subparagraph for a period 
     beyond the initially granted 12-month period if the importing 
     employer has been doing business at the new office through 
     regular, systematic, and continuous provision of goods and 
     services for the 6 months immediately preceding the date of 
     extension petition filing and demonstrates that the failure 
     to satisfy any of the requirements described in those 
     subclauses was directly caused by extraordinary 
     circumstances, as determined by the Secretary in the 
     Secretary's discretion.''.

     SEC. 203. COOPERATION WITH SECRETARY OF STATE.

       Section 214(c)(2) of the Immigration and Nationality Act (8 
     U.S.C. 1184(c)(2)), as amended by section 202, is further 
     amended by adding at the end the following:
       ``(H) For purposes of approving petitions under this 
     paragraph, the Secretary of Homeland Security shall work 
     cooperatively with the Secretary of State to verify the 
     existence or continued existence of a company or office in 
     the United States or in a foreign country.''.

     SEC. 204. INVESTIGATION AND DISPOSITION OF COMPLAINTS AGAINST 
                   L-1 EMPLOYERS.

       Section 214(c)(2) of the Immigration and Nationality Act (8 
     U.S.C. 1184(c)(2)), as amended by sections 202 and 203, is 
     further amended by adding at the end the following:
       ``(I)(i) The Secretary of Homeland Security may initiate an 
     investigation of any employer that employs nonimmigrants 
     described in section 101(a)(15)(L) with regard to the 
     employer's compliance with the requirements of this 
     subsection.
       ``(ii) If the Secretary receives specific credible 
     information from a source who is likely to have knowledge of 
     an employer's practices, employment conditions, or compliance 
     with the requirements under this subsection, the Secretary 
     may conduct an investigation into the employer's compliance 
     with the requirements of this subsection. The Secretary may 
     withhold the identity of the source from the employer, and 
     the source's identity shall not be subject to disclosure 
     under section 552 of title 5, United States Code.
       ``(iii) The Secretary shall establish a procedure for any 
     person desiring to provide to the Secretary information 
     described in clause (ii) that may be used, in whole or in 
     part, as the basis for the commencement of an investigation 
     described in such clause, to provide the information in 
     writing on a form developed and provided by the Secretary and 
     completed by or on behalf of the person.
       ``(iv) No investigation described in clause (ii) (or 
     hearing described in clause (vi) based on such investigation) 
     may be conducted with respect to information about a failure 
     to comply with the requirements under this subsection, unless 
     the Secretary receives the information not later than 24 
     months after the date of the alleged failure.
       ``(v) Before commencing an investigation of an employer 
     under clause (i) or (ii), the Secretary shall provide notice 
     to the employer of the intent to conduct such 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 to do so would interfere with an 
     effort by the Secretary to investigate or secure compliance 
     by the employer with the requirements of this subsection. 
     There shall be no judicial review of a determination by the 
     Secretary under this clause.
       ``(vi) If the Secretary, 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 the 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. If such a 
     hearing is requested, the Secretary shall make a finding 
     concerning the matter by not later than 120 days after the 
     date of the hearing.
       ``(vii) If the Secretary, after a hearing, finds a 
     reasonable basis to believe that the employer has violated 
     the requirements under this subsection, the Secretary shall 
     impose a penalty under subparagraph (L).
       ``(viii)(I) The Secretary may conduct surveys of the degree 
     to which employers comply with the requirements under this 
     section.

[[Page S4693]]

       ``(II) The Secretary shall--
       ``(aa) conduct annual compliance audits of not less than 1 
     percent of the employers that employ nonimmigrants described 
     in section 101(a)(15)(L) during the applicable fiscal year;
       ``(bb) 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 nonimmigrants 
     described in 101(a)(15)(L); and
       ``(cc) make available to the public an executive summary or 
     report describing the general findings of the audits carried 
     out pursuant to this subclause.''.

     SEC. 205. WAGE RATE AND WORKING CONDITIONS FOR L-1 
                   NONIMMIGRANT.

       (a) In General.--Section 214(c)(2) of the Immigration and 
     Nationality Act (8 U.S.C. 1184(c)(2)), as amended by section 
     202, 203, and 204, is further amended by adding at the end 
     the following:
       ``(J)(i) An employer that employs a nonimmigrant described 
     in section 101(a)(15)(L) for a cumulative period of time in 
     excess of 1 year shall--
       ``(I) offer such nonimmigrant, during the period of 
     authorized employment, wages, based on the best information 
     available at the time the application is filed, which are not 
     less than the highest of--
       ``(aa) the locally determined prevailing wage level for the 
     occupational classification in the area of employment;
       ``(bb) the median average wage for all workers in the 
     occupational classification in the area of employment; and
       ``(cc) the median wage for skill level 2 in the 
     occupational classification found in the most recent 
     Occupational Employment Statistics survey; and
       ``(II) provide working conditions for such nonimmigrant 
     that will not adversely affect the working conditions of 
     workers similarly employed.
       ``(ii) If an employer, in such previous period specified by 
     the Secretary of Homeland Security, employed 1 or more such 
     nonimmigrants, the employer shall provide to the Secretary of 
     Homeland Security the Internal Revenue Service Form W-2 Wage 
     and Tax Statement filed by the employer with respect to such 
     nonimmigrants for such period.
       ``(iii) It is a failure to meet a condition under this 
     subparagraph for an employer who has filed a petition to 
     import 1 or more aliens as nonimmigrants described in section 
     101(a)(15)(L)--
       ``(I) to require such a nonimmigrant to pay a penalty for 
     ceasing employment with the employer before a date mutually 
     agreed to by the nonimmigrant and the employer; or
       ``(II) to fail to offer to such a 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 workers, 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 based on performance).
       ``(iv) The Secretary of Homeland Security shall determine 
     whether a required payment under clause (iii)(I) is a penalty 
     (and not liquidated damages) pursuant to relevant State 
     law.''.
       (b) Regulations.--The Secretary of Homeland Security shall 
     promulgate rules, after notice and a period of comment, to 
     implement the requirements of subparagraph (J) of section 
     214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 
     1184(c)(2)), as added by subsection (a). In promulgating 
     these rules, the Secretary shall take into consideration any 
     special circumstances relating to intracompany transfers.

     SEC. 206. PENALTIES.

       Section 214(c)(2) of the Immigration and Nationality Act (8 
     U.S.C. 1184(c)(2)), as amended by sections 202, 203, 204, and 
     205, is further amended by adding at the end the following:
       ``(K)(i) If the Secretary of Homeland Security finds, after 
     notice and an opportunity for a hearing, a failure by an 
     employer to meet a condition under subparagraph (F), (G), 
     (J), or (L) or a misrepresentation of material fact in a 
     petition to employ 1 or more aliens as nonimmigrants 
     described in section 101(a)(15)(L)--
       ``(I) the Secretary shall impose such administrative 
     remedies (including civil monetary penalties in an amount not 
     to exceed $2,000 per violation) as the Secretary determines 
     to be appropriate;
       ``(II) the Secretary may not, during a period of at least 1 
     year, approve a petition for that employer to employ 1 or 
     more aliens as such nonimmigrants; and
       ``(III) in the case of a violation of subparagraph (J) or 
     (L), the employer shall be liable to the employees harmed by 
     such violation for lost wages and benefits.
       ``(ii) If the Secretary finds, after notice and an 
     opportunity for a hearing, a willful failure by an employer 
     to meet a condition under subparagraph (F), (G), (J). or (L) 
     or a willful misrepresentation of material fact in a petition 
     to employ 1 or more aliens as nonimmigrants described in 
     section 101(a)(15)(L)--
       ``(I) the Secretary shall impose such administrative 
     remedies (including civil monetary penalties in an amount not 
     to exceed $10,000 per violation) as the Secretary determines 
     to be appropriate;
       ``(II) the Secretary may not, during a period of at least 2 
     years, approve a petition filed for that employer to employ 1 
     or more aliens as such nonimmigrants; and
       ``(III) in the case of a violation of subparagraph (J) or 
     (L), the employer shall be liable to the employees harmed by 
     such violation for lost wages and benefits.''.

     SEC. 207. PROHIBITION ON RETALIATION AGAINST L-1 
                   NONIMMIGRANTS.

       Section 214(c)(2) of the Immigration and Nationality Act (8 
     U.S.C. 1184(c)(2)), as amended by section 202, 203, 204, 205, 
     and 206, is further amended by adding at the end the 
     following:
       ``(L)(i) It is a violation of this subparagraph for an 
     employer who has filed a petition to import 1 or more aliens 
     as nonimmigrants described in section 101(a)(15)(L) to take, 
     fail to take, or threaten to take or fail to take, a 
     personnel action, or to intimidate, threaten, restrain, 
     coerce, blacklist, discharge, or discriminate in any other 
     manner against an employee because the employee--
       ``(I) has disclosed information that the employee 
     reasonably believes evidences a violation of this subsection, 
     or any rule or regulation pertaining to this subsection; or
       ``(II) cooperates or seeks to cooperate with the 
     requirements of this subsection, or any rule or regulation 
     pertaining to this subsection.
       ``(ii) In this subparagraph, the term `employee' includes--
       ``(I) a current employee;
       ``(II) a former employee; and
       ``(III) an applicant for employment.''.

     SEC. 208. REPORTS ON L-1 NONIMMIGRANTS.

       Section 214(c)(8) of the Immigration and Nationality Act (8 
     U.S.C. 1184(c)(8)) is amended by inserting ``(L),'' after 
     ``(H),''.

     SEC. 209. TECHNICAL AMENDMENTS.

       Section 214(c)(2) of the Immigration and Nationality Act (8 
     U.S.C. 1184(c)(2)) is amended by striking ``Attorney 
     General'' each place it appears and inserting ``Secretary of 
     Homeland Security''.

     SEC. 210. APPLICATION.

       The amendments made by sections 201 through 207 shall apply 
     to applications filed on or after the date of the enactment 
     of this Act.

     SEC. 211. REPORT ON L-1 BLANKET PETITION PROCESS.

       (a) Requirement for Report.--Not later than 6 months after 
     the date of the enactment of this Act, the Inspector General 
     of the Department of Homeland Security shall submit to the 
     appropriate committees of Congress a report regarding the use 
     of blanket petitions under section 214(c)(2)(A) of the 
     Immigration and Nationality Act (8 U.S.C. 1184(c)(2)(A)). 
     Such report shall assess the efficiency and reliability of 
     the process for reviewing such blanket petitions, including 
     whether the process includes adequate safeguards against 
     fraud and abuse.
       (b) Appropriate Committees of Congress.--In this section 
     the term ``appropriate committees of Congress'' means--
       (1) the Committee on Homeland Security and Governmental 
     Affairs of the Senate;
       (2) the Committee on the Judiciary of the Senate;
       (3) the Committee on Homeland Security of the House of 
     Representatives; and
       (4) the Committee on the Judiciary of the House of 
     Representatives.
                                 ______