[Congressional Record Volume 165, Number 149 (Tuesday, September 17, 2019)]
[Senate]
[Pages S5542-S5545]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           TEXT OF AMENDMENTS

  SA 939. Mr. LEE submitted an amendment intended to be proposed by him 
to the bill H.R. 1044, to amend the Immigration and Nationality Act to 
eliminate the per-country numerical limitation for employment-based 
immigrants, to increase the per-country

[[Page S5543]]

numerical limitation for family-sponsored immigrants, and for other 
purposes; which was referred to the Committee on the Judiciary; as 
follows:

       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Fairness for High-Skilled 
     Immigrants Act of 2019''.

     SEC. 2. NUMERICAL LIMITATION TO ANY SINGLE FOREIGN STATE.

       (a) In General.--Section 202(a)(2) of the Immigration and 
     Nationality Act (8 U.S.C. 1152(a)(2)) is amended to read as 
     follows:
       ``(2) Per country levels for family-sponsored immigrants.--
     Subject to paragraphs (3) and (4), the total number of 
     immigrant visas made available to natives of any single 
     foreign state or dependent area under section 203(a) in any 
     fiscal year may not exceed 15 percent (in the case of a 
     single foreign state) or 2 percent (in the case of a 
     dependent area) of the total number of such visas made 
     available under such section in that fiscal year.''.
       (b) Conforming Amendments.--Section 202 of such Act (8 
     U.S.C. 1152) is amended--
       (1) in subsection (a)--
       (A) in paragraph (3), by striking ``both subsections (a) 
     and (b) of section 203'' and inserting ``section 203(a)''; 
     and
       (B) by striking paragraph (5); and
       (2) by amending subsection (e) to read as follows:
       ``(e) Special Rules for Countries at Ceiling.--If the total 
     number of immigrant visas made available under section 203(a) 
     to natives of any single foreign state or dependent area will 
     exceed the numerical limitation specified in subsection 
     (a)(2) in any fiscal year, immigrant visas shall be allotted 
     to such natives under section 203(a) (to the extent 
     practicable and otherwise consistent with this section and 
     section 203) in a manner so that, except as provided in 
     subsection (a)(4), the proportion of the visas made available 
     under each of paragraphs (1) through (4) of section 203(a) is 
     equal to the ratio of the total visas made available under 
     the respective paragraph to the total visas made available 
     under section 203(a).''.
       (c) Country-specific Offset.--Section 2 of the Chinese 
     Student Protection Act of 1992 (8 U.S.C. 1255 note) is 
     amended--
       (1) in subsection (a), by striking ``(as defined in 
     subsection (e))'';
       (2) by striking subsection (d); and
       (3) by redesignating subsection (e) as subsection (d).
       (d) Effective Date.--The amendments made by this section 
     shall take effect as if enacted on September 30, 2019, and 
     shall apply to fiscal year 2020 and each subsequent fiscal 
     year.
       (e) Transition Rules for Employment-based Immigrants.--
       (1) In general.--Subject to paragraphs (2) through (5), and 
     notwithstanding title II of the Immigration and Nationality 
     Act (8 U.S.C. 1151 et seq.), the following rules shall apply:
       (A) For fiscal year 2020, 15 percent of the immigrant visas 
     made available under each of paragraphs (2) and (3) of 
     section 203(b) of such Act (8 U.S.C. 1153(b)) shall be 
     allotted to immigrants who are natives of a foreign state or 
     dependent area that is not one of the two states with the 
     largest aggregate numbers of natives obtaining immigrant 
     visas under such paragraphs.
       (B) For fiscal year 2021, 10 percent of the immigrant visas 
     made available under each of such paragraphs shall be 
     allotted to immigrants who are natives of a foreign state or 
     dependent area that is not one of the two states with the 
     largest aggregate numbers of natives obtaining immigrant 
     visas under such paragraphs.
       (C) For fiscal year 2022, 10 percent of the immigrant visas 
     made available under each of such paragraphs shall be 
     allotted to immigrants who are natives of a foreign state or 
     dependent area that is not one of the two states with the 
     largest aggregate numbers of natives obtaining immigrant 
     visas under such paragraphs.
       (2) Per-country levels.--
       (A) Reserved visas.--The number of visas reserved under 
     each of subparagraphs (A) through (C) of paragraph (1) made 
     available to natives of any single foreign state or dependent 
     area in the appropriate fiscal year may not exceed 25 percent 
     (in the case of a single foreign state) or 2 percent (in the 
     case of a dependent area) of the total number of such visas.
       (B) Unreserved visas.--Not more than 85 percent of the 
     immigrant visas made available under each of paragraphs (2) 
     and (3) of section 203(b) of the Immigration and Nationality 
     Act (8 U.S.C. 1153(b)) and not reserved under paragraph (1), 
     for each of the fiscal years 2020, 2021, and 2022, may be 
     allotted to immigrants who are natives of any single foreign 
     state.
       (3) Special rule to prevent unused visas.--If, with respect 
     to fiscal year 2020, 2021, or 2022, the application of 
     paragraphs (1) and (2) would prevent the total number of 
     immigrant visas made available under paragraph (2) or (3) of 
     section 203(b) of the Immigration and Nationality Act (8 
     U.S.C. 1153(b)) from being issued, such visas may be issued 
     during the remainder of such fiscal year without regard to 
     paragraphs (1) and (2).
       (4) Transition rule for currently approved beneficiaries.--
       (A) In general.--Notwithstanding section 202 of the 
     Immigration and Nationality Act, as amended by this Act, 
     immigrant visas under section 203(b) of the Immigration and 
     Nationality Act (8 U.S.C. 1153(b)) shall be allocated such 
     that no alien described in subparagraph (B) receives a visa 
     later than the alien otherwise would have received said visa 
     had this Act not been enacted.
       (B) Alien described.--An alien is described in this 
     subparagraph if the alien is the beneficiary of a petition 
     for an immigrant visa under section 203(b) of the Immigration 
     and Nationality Act (8 U.S.C. 1153(b)) that was approved 
     prior to the date of enactment of this Act.
       (5) Rules for chargeability.--Section 202(b) of such Act (8 
     U.S.C. 1152(b)) shall apply in determining the foreign state 
     to which an alien is chargeable for purposes of this 
     subsection.
       (6) Shortage occupations.--
       (A) In general.--For each of fiscal years 2020 through 
     2028, not fewer than 5,000 of the immigrant visas made 
     available under paragraph (3) of section 203(b) of the 
     Immigration and Nationality Act (8 U.S.C. 1153(b)) shall be 
     allotted to immigrants who are--
       (i) described in section 656.5(a) of title 20, Code of 
     Federal Regulations (or a successor regulation); and
       (ii) seeking admission to the United States to work in an 
     occupation described in that section.
       (B) Fiscal years 2020, 2021, and 2022.--The visas allotted 
     under this paragraph for fiscal years 2020, 2021, and 2022 
     shall be allotted in addition to the visas allotted for such 
     fiscal years under paragraph (1).

     SEC. 3. POSTING AVAILABLE POSITIONS THROUGH THE DEPARTMENT OF 
                   LABOR.

       (a) Department of Labor Website.--Section 212(n)(6) of the 
     Immigration and Nationality Act (8 U.S.C. 1182(n)(6)) is 
     amended to read as follows:
       ``(6) For purposes of complying with paragraph (1)(C)--
       ``(A) Not later than 180 days after the date of the 
     enactment of the Fairness for High-Skilled Immigrants Act of 
     2019, the Secretary of Labor shall establish a searchable 
     internet website for posting positions in accordance with 
     paragraph (1)(C) that is available to the public without 
     charge, except that the Secretary may delay the launch of 
     such website for a single period identified by the Secretary 
     by notice in the Federal Register that shall not exceed 30 
     days.
       ``(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 shall promulgate rules, after notice 
     and a period for comment, to carry out this paragraph.''.
       (b) Publication Requirement.--The Secretary of Labor shall 
     submit to Congress, and publish in the Federal Register and 
     in other appropriate media, a notice of the date on which the 
     Internet website required under section 212(n)(6) of the 
     Immigration and Nationality Act, as established by subsection 
     (a), will be operational.
       (c) Application.--The amendment made by subsection (a) 
     shall apply to any application filed on or after the date 
     that is 90 days after the date described in subsection (b).
       (d) Internet Posting Requirement.--Section 212(n)(1)(C) of 
     such Act 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), the following:
       ``(i) except in the case of an employer filing a petition 
     on behalf of an H-1B nonimmigrant who has already been 
     counted against the numerical limitations and is not eligible 
     for a full 6-year period, as described in section 214(g)(7), 
     or on behalf of an H-1B nonimmigrant authorized to accept 
     employment under section 214(n), has posted on the internet 
     website described in paragraph (6), for at least 30 calendar 
     days, a description of each position for which a nonimmigrant 
     is sought, that includes--

       ``(I) the occupational classification, and if different the 
     employer's job title for the position, in which the 
     nonimmigrant(s) will be employed;
       ``(II) the education, training, or experience 
     qualifications for the position;
       ``(III) the salary or wage range and employee benefits 
     offered;
       ``(IV) the location(s) at which the nonimmigrant(s) will be 
     employed; and
       ``(V) the process for applying for a position; and''.

     SEC. 4. H-1B EMPLOYER APPLICATION REQUIREMENTS.

       (a) Wage Determination Information.--Section 212(n)(1)(D) 
     of the Immigration and Nationality Act (8 U.S.C. 
     1182(n)(1)(D)) is amended by inserting ``the prevailing wage 
     determination methodology used under subparagraph 
     (A)(i)(II),'' after ``shall contain''.
       (b) 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 subparagraph (G)(ii) the 
     following:
       ``(H)(i) The employer, or a person or entity acting on the 
     employer's behalf, 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.

[[Page S5544]]

       ``(ii) The employer has not primarily recruited individuals 
     who are or who will be H-1B nonimmigrants to fill such 
     position.
       ``(I) If the employer, in a previous period specified by 
     the Secretary, employed one or more H-1B nonimmigrants, the 
     employer shall submit to the Secretary the Internal Revenue 
     Service Form W-2 Wage and Tax Statements filed by the 
     employer with respect to the H-1B nonimmigrants for such 
     period.''.
       (c) Labor Condition Application Fee.--Section 212(n) of the 
     Immigration and Nationality Act (8 U.S.C. 1182(n)) is amended 
     by adding at the end the following:
       ``(6)(A) The Secretary of Labor shall promulgate a 
     regulation that requires applicants under this subsection to 
     pay an administrative fee to cover the average paperwork 
     processing costs and other administrative costs.
       ``(B)(i) Fees collected under this paragraph shall be 
     deposited as offsetting receipts within the general fund of 
     the Treasury in a separate account, which shall be known as 
     the `H-1B Administration, Oversight, Investigation, and 
     Enforcement Account' and shall remain available until 
     expended.
       ``(ii) The Secretary of the Treasury shall refund amounts 
     in such account to the Secretary of Labor for salaries and 
     related expenses associated with the administration, 
     oversight, investigation, and enforcement of the H-1B 
     nonimmigrant visa program.''.
       (d) Elimination of B-1 in Lieu of H-1.--Section 214(g) of 
     the Immigration and Nationality Act (8 U.S.C. 1184(g)) is 
     amended by adding at the end the following:
       ``(12)(A) Unless otherwise authorized by law, an alien 
     normally classifiable under section 101(a)(15)(H)(i) who 
     seeks admission to the United States to provide services in a 
     specialty occupation described in paragraph (1) or (3) of 
     subsection (i) may not be issued a visa or admitted under 
     section 101(a)(15)(B) for such purpose.
       ``(B) Nothing in this paragraph may be construed to 
     authorize the admission of an alien under section 
     101(a)(15)(B) who is coming to the United States for the 
     purpose of performing skilled or unskilled labor if such 
     admission is not otherwise authorized by law.''.

     SEC. 5. INVESTIGATION AND DISPOSITION OF COMPLAINTS AGAINST 
                   H-1B EMPLOYERS.

       (a) Investigation, Working Conditions, and Penalties.--
     Section 212(n)(2)(C) of the Immigration and Nationality Act 
     (8 U.S.C. 1182(n)(2)(C)) is amended by striking clause (iv) 
     and inserting the following:
       ``(iv)(I) An employer that has filed an application under 
     this subsection violates this clause by taking, failing to 
     take, or threatening to take or fail to take a personnel 
     action, or intimidating, threatening, restraining, coercing, 
     blacklisting, discharging, or discriminating in any other 
     manner against an employee because the employee--
       ``(aa) disclosed information that the employee reasonably 
     believes evidences a violation of this subsection or any rule 
     or regulation pertaining to this subsection; or
       ``(bb) cooperated or sought to cooperate with the 
     requirements under this subsection or any rule or regulation 
     pertaining to this subsection.
       ``(II) An employer that violates this clause shall be 
     liable to the employee harmed by such violation for lost 
     wages and benefits.
       ``(III) In this clause, the term `employee' includes--
       ``(aa) a current employee;
       ``(bb) a former employee; and
       ``(cc) an applicant for employment.''.
       (b) Information Sharing.--Section 212(n)(2)(H) of the 
     Immigration and Nationality Act (8 U.S.C. 1182(n)(2)(H)) is 
     amended to read as follows:
       ``(H)(i) The Director of U.S. 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 petition adjudication 
     process that indicates that the employer is not complying 
     with visa program requirements for H-1B nonimmigrants.
       ``(ii) The Secretary may initiate and conduct an 
     investigation and hearing under this paragraph after 
     receiving information of noncompliance under this 
     subparagraph.''.

     SEC. 6. LABOR CONDITION APPLICATIONS.

       (a) Application Review Requirements.--Section 212(n)(1) of 
     the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)) is 
     amended, in the undesignated matter following subparagraph 
     (I), as added by section 4(b)--
       (1) in the fourth sentence, by inserting ``, and through 
     the internet website of the Department of Labor, without 
     charge.'' after ``Washington, D.C.'';
       (2) in the fifth sentence, by striking ``only for 
     completeness'' and inserting ``for completeness, clear 
     indicators of fraud or misrepresentation of material fact,'';
       (3) in the sixth sentence, by striking ``or obviously 
     inaccurate'' and inserting ``, presents clear indicators of 
     fraud or misrepresentation of material fact, or is obviously 
     inaccurate''; and
       (4) 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).''.
       (b) Ensuring Prevailing Wages Are for Area of Employment 
     and Actual Wages Are for Similarly Employed.--Section 
     212(n)(1)(A) of the Immigration and Nationality Act (8 U.S.C. 
     1182(n)(1)(A)) is amended--
       (1) in clause (i), in the undesignated matter following 
     subclause (II), by striking ``and'' at the end;
       (2) in clause (ii), by striking the period at the end and 
     inserting ``, and''; and
       (3) by adding at the end the following:
       ``(iii) will ensure that--

       ``(I) the actual wages or range identified in clause (i) 
     relate solely to employees having substantially the same 
     duties and responsibilities as the H-1B nonimmigrant in the 
     geographical area of intended employment, considering 
     experience, qualifications, education, job responsibility and 
     function, specialized knowledge, and other legitimate 
     business factors, except in a geographical area there are no 
     such employees, and
       ``(II) the prevailing wages identified in clause (ii) 
     reflect the best available information for the geographical 
     area within normal commuting distance of the actual address 
     of employment at which the H-1B nonimmigrant is or will be 
     employed.''.

       (c) Procedures for Investigation and Disposition.--Section 
     212(n)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 
     1182(n)(2)(A)) is amended--
       (1) by striking ``(2)(A) Subject'' and inserting 
     ``(2)(A)(i) Subject'';
       (2) by striking the fourth sentence; and
       (3) by adding at the end the following:
       ``(ii)(I) Upon receipt of a complaint under clause (i), the 
     Secretary may initiate an investigation to determine whether 
     such a failure or misrepresentation has occurred.
       ``(II) The Secretary may conduct--
       ``(aa) surveys of the degree to which employers comply with 
     the requirements under this subsection; and
       ``(bb) subject to subclause (IV), annual compliance audits 
     of any employer that employs H-1B nonimmigrants during the 
     applicable calendar year.
       ``(III) Subject to subclause (IV), the Secretary shall--
       ``(aa) conduct annual compliance audits of each employer 
     that employs more than 100 full-time equivalent employees who 
     are employed in the United States if more than 15 percent of 
     such full-time employees are H-1B nonimmigrants; and
       ``(bb) make available to the public an executive summary or 
     report describing the general findings of the audits 
     conducted under this subclause.
       ``(IV) In the case of an employer subject to an annual 
     compliance audit in which there was no finding of a willful 
     failure to meet a condition under subparagraph (C)(ii), no 
     further annual compliance audit shall be conducted with 
     respect to such employer for a period of not less than 4 
     years, absent evidence of misrepresentation or fraud.''.
       (d) Penalties for Violations.--Section 212(n)(2)(C) of the 
     Immigration and Nationality Act (8 U.S.C. 1182(n)(2)(C)) is 
     amended -
       (1) in clause (i)--
       (A) in the matter preceding subclause (I), by striking ``a 
     condition of paragraph (1)(B), (1)(E), or (1)(F)'' and 
     inserting ``a condition of paragraph (1)(B), (1)(E), (1)(F), 
     (1)(H), or 1(I)''; and
       (B) in subclause (I), by striking ``$1,000'' and inserting 
     ``$3,000'';
       (2) in clause (ii)(I), by striking ``$5,000'' and inserting 
     ``$15,000'';
       (3) in clause (iii)(I), by striking ``$35,000'' and 
     inserting ``$100,000''; and
       (4) in clause (vi)(III), by striking ``$1,000'' and 
     inserting ``$3,000''.
       (e) Initiation of Investigations.--Section 212(n)(2)(G) of 
     the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)(G)) 
     is amended--
       (1) in clause (i), by striking ``In the case of an 
     investigation'' in the second sentence and all that follows 
     through the period at the end of the clause;
       (2) in clause (ii), in the first sentence, 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 under this subsection.'';
       (3) in clause (iii), by striking the second 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--
       (A) by striking``clause (viii)'' and inserting ``clause 
     (vi)''; and
       (B) by striking ``meet a condition described in clause 
     (ii)'' and inserting ``comply with the requirements under 
     this subsection'';
       (7) by amending clause (v), as so redesignated, to read as 
     follows:
       ``(v)(I) The Secretary of Labor shall provide notice to an 
     employer of the intent to conduct an investigation under 
     clause (i) or (ii).
       ``(II) 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.
       ``(III) 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.
       ``(IV) 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'' in the first sentence and all that follows 
     through ``the determination.'' in the second sentence and 
     inserting ``If the Secretary of Labor, after an investigation 
     under clause (i) or (ii), determines that a reasonable basis 
     exists to make

[[Page S5545]]

     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 60 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 
     that the employer has violated a requirement under this 
     subsection, the Secretary may impose a penalty pursuant to 
     subparagraph (C).''.

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