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HR 5630 IH

To modify certain requirements with respect to H-1B nonimmigrants.

March 13, 2008

Ms. GIFFORDS introduced the following bill; which was referred to the Committee on the Judiciary

To modify certain requirements with respect to H-1B nonimmigrants.

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 `Innovation Employment Act'.

SEC. 2. NUMERICAL LIMITATIONS.

Section 214(g)(1)(A)(vii) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(1)(A)(vii)) is amended to read as follows:

`(vii) 130,000 in fiscal year 2008 and each succeeding fiscal year, except that in fiscal years 2010 through 2015, if such limitation is reached in the previous fiscal year, such limitation shall equal the greater of 180,000 and the limitation applicable for the previous fiscal year increased by 20 percent; or'.

SEC. 3. EXEMPTION FROM NUMERICAL LIMITATION FOR CERTAIN NONIMMIGRANTS.

Section 214(g)(5) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(5)) is amended--

(1) in subparagraph (B), by striking `or';

(2) in subparagraph (C), by striking the period at the end and inserting a semicolon; and

(3) by adding at the end the following:

`(D) has earned a master's or higher degree from a United States institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)) in a field of science, technology, engineering, or mathematics and with respect to whom the petitioning employer requires such education as a condition for the employment; or

`(E) has earned a master's or higher degree (or its equivalent) from an institution of higher education outside of the United States in a field of science, technology, engineering, or mathematics and with respect to whom the petitioning employer requires such education as a condition for the employment, until the number of aliens who are exempted from such numerical limitations under this subparagraph during a fiscal year exceeds 20,000.'.

SEC. 4. H-1B EMPLOYER 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) the following:

`(H) The employer has not advertised the available jobs specified in the application in an advertisement that states or indicates that--

`(i) the job or jobs are only available to persons who are or who may become H-1B nonimmigrants; or

`(ii) persons who are or who may become H-1B nonimmigrants shall receive priority or a preference in the hiring process.

`(I) If the employer employs not less than 50 employees in the United States, not more than 50 percent of such employees are H-1B nonimmigrants.'.

SEC. 5. 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)(1)) is amended, in the matter following subparagraph (I) (as inserted by section 3 of this Act)--

(1) by inserting `and through the Department of Labor's website, without charge.' after `D.C.';

(2) by inserting `, clear indicators of fraud, misrepresentation of material fact,' after `completeness';

(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 under paragraph (2).'.

(b) Investigations by Department of Labor- Section 212(n)(2) of such Act is amended--

(1) in subparagraph (A)--

(A) by striking `12 months' and inserting `24 months'; and

(B) 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) in clause (iv), as 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';

(G) 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.';

(H) 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

(I) 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 may impose a penalty under subparagraph (C).'; 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-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. The Secretary shall conduct annual compliance audits of not less than 1 percent of the employers that employ H-1B nonimmigrants during the applicable calendar year.'

(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; and

`(ii) the contact information for Federal agencies that can offer more information or assistance in clarifying employer obligations and workers' rights.

`(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; and

`(ii) the contact information for Federal agencies that can offer more information or assistance in clarifying employer's obligations and workers' rights.'.

SEC. 6. 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 compensation, including back pay.'.