S 1035 ISCommentsClose CommentsPermalink

To amend the Immigration and Nationality Act to reduce fraud and abuse in certain visa programs for aliens working temporarily in the United States.CommentsClose CommentsPermalink

March 29, 2007

Mr. DURBIN (for himself and Mr. GRASSLEY) introduced the following bill; which was read twice and referred to the Committee on the JudiciaryCommentsClose CommentsPermalink

To amend the Immigration and Nationality Act to reduce fraud and abuse in certain visa programs for aliens working temporarily in the United States.CommentsClose CommentsPermalink

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title- This Act may be cited as the `H-1B and L-1 Visa Fraud and Abuse Prevention Act of 2007'.CommentsClose CommentsPermalink





(b) Table of Contents- The table of contents for this Act is as follows:CommentsClose CommentsPermalink





Sec. 1. Short title; table of contents.CommentsClose CommentsPermalink





Sec. 2. H-1B employer requirements.CommentsClose CommentsPermalink





Sec. 3. H-1B government authority and requirements.CommentsClose CommentsPermalink





Sec. 4. L-1 visa fraud and abuse protections.CommentsClose CommentsPermalink





Sec. 5. Whistleblower protections.CommentsClose CommentsPermalink





Sec. 6. Additional Department of Labor employees.CommentsClose CommentsPermalink

SEC. 2. H-1B EMPLOYER REQUIREMENTS.

(a) Application of Nondisplacement and Good Faith Recruitment Requirements to All H-1B Employers-CommentsClose CommentsPermalink





(1) AMENDMENTS- Section 212(n) of the Immigration and Nationality Act (8 U.S.C. 1182(n)) is amended--CommentsClose CommentsPermalink





(A) in paragraph (1)--CommentsClose CommentsPermalink





(i) in subparagraph (E);CommentsClose CommentsPermalink





(I) in clause (i), by striking `(E)(i) In the case of an application described in clause (ii), the' and inserting `(E) The'; andCommentsClose CommentsPermalink





(II) by striking clause (ii);CommentsClose CommentsPermalink





(ii) in subparagraph (F), by striking `In the case of' and all that follows through `where--' and inserting the following: `The employer will not place the nonimmigrant with another employer if--'; andCommentsClose CommentsPermalink





(iii) in subparagraph (G), by striking `In the case of an application described in subparagraph (E)(ii), subject' and inserting `Subject';CommentsClose CommentsPermalink





(B) in paragraph (2)--CommentsClose CommentsPermalink





(i) in subparagraph (E), by striking `If an H-1B-dependent employer' and inserting `If an employer that employs H-1B nonimmigrants'; andCommentsClose CommentsPermalink





(ii) in subparagraph (F), by striking `The preceding sentence shall apply to an employer regardless of whether or not the employer is an H-1B-dependent employer.'; andCommentsClose CommentsPermalink





(C) by striking paragraph (3).CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(b) Nondisplacement Requirement-CommentsClose CommentsPermalink





(1) EXTENDING TIME PERIOD FOR NONDISPLACEMENT- Section 212(n) of such Act, as amended by subsection (a), is further amended--CommentsClose CommentsPermalink





(A) in paragraph (1)--CommentsClose CommentsPermalink





(i) in subparagraph (E), by striking `90 days' each place it appears and inserting `180 days';CommentsClose CommentsPermalink





(ii) in subparagraph (F)(ii), by striking `90 days' each place it appears and inserting `180 days'; andCommentsClose CommentsPermalink





(B) in paragraph (2)(C)(iii), by striking `90 days' each place it appears and inserting `180 days'.CommentsClose CommentsPermalink





(2) EFFECTIVE DATE- The amendments made by paragraph (1)--CommentsClose CommentsPermalink





(A) shall apply to applications filed on or after the date of the enactment of this Act; andCommentsClose CommentsPermalink





(B) shall not apply to displacements for periods occurring more than 90 days before such date.CommentsClose CommentsPermalink





(c) Public Listing of Available Positions-CommentsClose CommentsPermalink





(1) LISTING OF AVAILABLE POSITIONS- Section 212(n)(1)(C) of such Act is amended--CommentsClose CommentsPermalink





(A) in clause (i), by striking `(i) has provided' and inserting the following:CommentsClose CommentsPermalink





`(ii)(I) has provided';CommentsClose CommentsPermalink





(B) by redesignating clause (ii) as subclause (II); andCommentsClose CommentsPermalink





(C) by inserting before clause (ii), as redesignated, the following:CommentsClose CommentsPermalink





`(i) has advertised the job availability on the list described in paragraph (6), for at least 30 calendar days; and'.CommentsClose CommentsPermalink





(2) LIST MAINTAINED BY THE DEPARTMENT OF LABOR- Section 212(n) of such Act, as amended by this section, is further amended by adding at the end the following:CommentsClose CommentsPermalink





`(6)(A) Not later than 90 days after the date of the enactment of this paragraph, the Secretary of Labor shall establish a list of available jobs, which shall be publicly accessible without charge--CommentsClose CommentsPermalink





`(i) on a website maintained by the Department of Labor, which website shall be searchable by--CommentsClose CommentsPermalink





`(I) the name, city, State, and zip code of the employer;CommentsClose CommentsPermalink





`(II) the date on which the job is expected to begin;CommentsClose CommentsPermalink





`(III) the title and description of the job; andCommentsClose CommentsPermalink





`(IV) the State and city (or county) at which the work will be performed; andCommentsClose CommentsPermalink





`(ii) at each 1-stop center created under the Workforce Investment Act of 1998 (Public Law 105-220).CommentsClose CommentsPermalink





`(B) Each available job advertised on the list shall include--CommentsClose CommentsPermalink





`(i) the employer's full legal name;CommentsClose CommentsPermalink





`(ii) the address of the employer's principal place of business;CommentsClose CommentsPermalink





`(iii) the employer's city, State and zip code;CommentsClose CommentsPermalink





`(iv) the employer's Federal Employer Identification Number;CommentsClose CommentsPermalink





`(v) the phone number, including area code and extension, as appropriate, of the hiring official or other designated official of the employer;CommentsClose CommentsPermalink





`(vi) the e-mail address, if available, of the hiring official or other designated official of the employer;CommentsClose CommentsPermalink





`(vii) the wage rate to be paid for the position and, if the wage rate in the offer is expressed as a range, the bottom of the wage range;CommentsClose CommentsPermalink





`(viii) whether the rate of pay is expressed on an annual, monthly, biweekly, weekly, or hourly basis;CommentsClose CommentsPermalink





`(ix) a statement of the expected hours per week that the job will require;CommentsClose CommentsPermalink





`(x) the date on which the job is expected to begin;CommentsClose CommentsPermalink





`(xi) the date on which the job is expected to end, if applicable;CommentsClose CommentsPermalink





`(xii) the number of persons expected to be employed for the job;CommentsClose CommentsPermalink





`(xiii) the job title;CommentsClose CommentsPermalink





`(xiv) the job description;CommentsClose CommentsPermalink





`(xv) the city and State of the physical location at which the work will be performed; andCommentsClose CommentsPermalink





`(xvi) a description of a process by which a United States worker may submit an application to be considered for the job.CommentsClose CommentsPermalink





`(C) The Secretary of Labor may charge a nominal filing fee to employers who advertise available jobs on the list established under this paragraph to cover expenses for establishing and administering the requirements under this paragraph.CommentsClose CommentsPermalink





`(D) The Secretary may promulgate rules, after notice and a period for comment--CommentsClose CommentsPermalink





`(i) to carry out the requirements of this paragraph; andCommentsClose CommentsPermalink





`(ii) that require employers to provide other information in order to advertise available jobs on the list.'.CommentsClose CommentsPermalink





(3) EFFECTIVE DATE- Paragraph (1) shall take effect for applications filed at least 30 days after the creation of the list described in paragraph (2).CommentsClose CommentsPermalink





(d) H-1B Nonimmigrants Not Admitted for Jobs Advertised or Offered Only to H-1B Nonimmigrants- Section 212(n)(1) of such Act, as amended by this section, is further amended--CommentsClose CommentsPermalink





(1) by inserting after subparagraph (G) the following:CommentsClose CommentsPermalink





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





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





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





`(ii) The employer has not only recruited persons who are, or who may become, H-1B nonimmigrants to fill the job or jobs.'; andCommentsClose CommentsPermalink





(2) in the undesignated paragraph at the end, by striking `The employer' and inserting the following:CommentsClose CommentsPermalink





`(K) The employer'.CommentsClose CommentsPermalink





(e) Prohibition of Outplacement-CommentsClose CommentsPermalink





(1) IN GENERAL- Section 212(n) of such Act, as amended by this section, is further amended--CommentsClose CommentsPermalink





(A) in paragraph (1), by amending subparagraph (F) to read as follows:CommentsClose CommentsPermalink





`(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;' andCommentsClose CommentsPermalink





(B) in paragraph (2), by striking subparagraph (E).CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(f) Limit on Percentage of H-1B Employees- Section 212(n)(1) of such Act, as amended by this section, is further amended by inserting after subparagraph (H), as added by subsection (d)(1), the following:CommentsClose CommentsPermalink





`(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.'.CommentsClose CommentsPermalink





(g) Wage Determination-CommentsClose CommentsPermalink





(1) CHANGE IN MINIMUM WAGES- Section 212(n)(1) of such Act, as amended by this section, is further amended--CommentsClose CommentsPermalink





(A) by amending subparagraph (A) to read as follows:CommentsClose CommentsPermalink





`(A) The employer--CommentsClose CommentsPermalink





`(i) is offering and will offer, during the period of authorized employment, to aliens admitted or provided status as an H-1B nonimmigrant, wages, based on the best information available at the time the application is filed, which are not less than the highest of--CommentsClose CommentsPermalink





`(I) the locally determined prevailing wage level for the occupational classification in the area of employment;CommentsClose CommentsPermalink





`(II) the median average wage for all workers in the occupational classification in the area of employment; orCommentsClose CommentsPermalink





`(III) the median wage for skill level 2 in the occupational classification found in the most recent Occupational Employment Statistics survey; andCommentsClose CommentsPermalink





`(ii) will provide working conditions for such a nonimmigrant that will not adversely affect the working conditions of workers similarly employed.'; andCommentsClose CommentsPermalink





(B) in subparagraph (D), by inserting `the wage determination methodology used under subparagraph (A)(i),' after `shall contain'.CommentsClose CommentsPermalink





(2) PROVISION OF W-2 FORMS- Section 212(n)(1) of such Act is amended by inserting after subparagraph (I), as added by subsection (f), the following:CommentsClose CommentsPermalink





`(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 such nonimmigrants for such period.'.CommentsClose CommentsPermalink





(3) EFFECTIVE DATE- The amendments made by this subsection shall apply to applications filed on or after the date of the enactment of this Act.CommentsClose CommentsPermalink





(h) Immigration Documents- Section 204 of such Act (8 U.S.C. 1154) is amended by adding at the end the following:CommentsClose CommentsPermalink





`(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.'.CommentsClose CommentsPermalink

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

(a) Safeguards Against Fraud and Misrepresentation in Application Review Process- Section 212(n)(1)(K) of the Immigration and Nationality Act, as redesignated by section 2(d)(2), is amended--CommentsClose CommentsPermalink





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





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





(3) by striking `or obviously inaccurate' and inserting `, presents clear indicators of fraud or misrepresentation of material fact, or is obviously inaccurate';CommentsClose CommentsPermalink





(4) by striking `within 7 days of' and inserting `not later than 14 days after'; andCommentsClose CommentsPermalink





(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).CommentsClose CommentsPermalink





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





(1) in subparagraph (A)--CommentsClose CommentsPermalink





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





(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.';CommentsClose CommentsPermalink





(2) in subparagraph (C)(i)--CommentsClose CommentsPermalink





(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)'; andCommentsClose CommentsPermalink





(B) by striking `(1)(C)' and inserting `(1)(C)(ii)';CommentsClose CommentsPermalink





(3) in subparagraph (G)--CommentsClose CommentsPermalink





(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.';CommentsClose CommentsPermalink





(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.';CommentsClose CommentsPermalink





(C) in clause (iii), by striking the last sentence;CommentsClose CommentsPermalink





(D) by striking clauses (iv) and (v);CommentsClose CommentsPermalink





(E) by redesignating clauses (vi), (vii), and (viii) as clauses (iv), (v), and (vi), respectively;CommentsClose CommentsPermalink





(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';CommentsClose CommentsPermalink





(G) by amending clause (v), as redesignated, to read as follows:CommentsClose CommentsPermalink





`(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.'.CommentsClose CommentsPermalink





(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.'; andCommentsClose CommentsPermalink





(I) by adding at the end the following:CommentsClose CommentsPermalink





`(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).'; andCommentsClose CommentsPermalink





(4) by striking subparagraph (H).CommentsClose CommentsPermalink





(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:CommentsClose CommentsPermalink





`(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.'.CommentsClose CommentsPermalink





(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. The Secretary shall 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.'.CommentsClose CommentsPermalink





(e) Penalties- Section 212(n)(2)(C) of such Act, as amended by this section, is further amended--CommentsClose CommentsPermalink





(1) in clause (i)(I), by striking `$1,000' and inserting `$2,000';CommentsClose CommentsPermalink





(2) in clause (ii)(I), by striking `$5,000' and inserting `$10,000'; andCommentsClose CommentsPermalink





(3) in clause (vi)(III), by striking `$1,000' and inserting `$2,000'.CommentsClose CommentsPermalink





(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:CommentsClose CommentsPermalink





`(3)(A) Upon issuing an H-1B visa to an applicant outside the United States, the issuing office shall provide the applicant with--CommentsClose CommentsPermalink





`(i) a brochure outlining the employer's obligations and the employee's rights under Federal law, including labor and wage protections;CommentsClose CommentsPermalink





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





`(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.CommentsClose CommentsPermalink





`(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--CommentsClose CommentsPermalink





`(i) a brochure outlining the employer's obligations and the employee's rights under Federal law, including labor and wage protections;CommentsClose CommentsPermalink





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





`(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.'.CommentsClose CommentsPermalink

SEC. 4. L-1 VISA FRAUD AND ABUSE PROTECTIONS.

(a) In General- Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)) is amended--CommentsClose CommentsPermalink





(1) by striking `Attorney General' each place it appears and inserting `Secretary of Homeland Security';CommentsClose CommentsPermalink





(2) in subparagraph (E), by striking `In the case of an alien spouse admitted under section 101(a)(15)(L), who' and inserting `Except as provided in subparagraph (H), if an alien spouse admitted under section 101(a)(15)(L)'; andCommentsClose CommentsPermalink





(3) by adding at the end the following:CommentsClose CommentsPermalink





`(G)(i) If the beneficiary of a petition under this subsection is coming to the United States to open, or be employed in, a new facility, the petition may be approved for up to 12 months only if the employer operating the new facility has--CommentsClose CommentsPermalink





`(I) a business plan;CommentsClose CommentsPermalink





`(II) sufficient physical premises to carry out the proposed business activities; andCommentsClose CommentsPermalink





`(III) the financial ability to commence doing business immediately upon the approval of the petition.CommentsClose CommentsPermalink





`(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--CommentsClose CommentsPermalink





`(I) evidence that the importing employer meets the requirements of this subsection;CommentsClose CommentsPermalink





`(II) evidence that the beneficiary meets the requirements under section 101(a)(15)(L);CommentsClose CommentsPermalink





`(III) a statement summarizing the original petition;CommentsClose CommentsPermalink





`(IV) evidence that the importing employer has fully complied with the business plan submitted under clause (i)(I);CommentsClose CommentsPermalink





`(V) evidence of the truthfulness of any representations made in connection with the filing of the original petition;CommentsClose CommentsPermalink





`(VI) evidence that the importing employer, during the preceding 12 months, has been doing business at the new facility through regular, systematic, and continuous provision of goods or services, or has otherwise been taking commercially reasonable steps to establish the new facility as a commercial enterprise;CommentsClose CommentsPermalink





`(VII) a statement of the duties the beneficiary has performed at the new facility during the preceding 12 months and the duties the beneficiary will perform at the new facility during the extension period approved under this clause;CommentsClose CommentsPermalink





`(VIII) a statement describing the staffing at the new facility, including the number of employees and the types of positions held by such employees;CommentsClose CommentsPermalink





`(IX) evidence of wages paid to employees;CommentsClose CommentsPermalink





`(X) evidence of the financial status of the new facility; andCommentsClose CommentsPermalink





`(XI) any other evidence or data prescribed by the Secretary.CommentsClose CommentsPermalink





`(iii) Notwithstanding subclauses (I) through (VI) of clause (ii), and subject to the maximum period of authorized admission set forth in subparagraph (D), the Secretary of Homeland Security may approve a petition subsequently filed on behalf of the beneficiary to continue employment at the facility described in this subsection for a period beyond the initially granted 12-month period if the importing employer demonstrates that the failure to satisfy any of the requirements described in those subclauses was directly caused by extraordinary circumstances beyond the control of the importing employer.CommentsClose CommentsPermalink





`(iv) For purposes of determining the eligibility of an alien for classification under section 101(a)(15)(L), the Secretary of Homeland Security shall work cooperatively with the Secretary of State to verify a company or facility's existence in the United States and abroad.'.CommentsClose CommentsPermalink





(b) Restriction on Blanket Petitions- Section 214(c)(2)(A) of such Act is amended to read as follows:CommentsClose CommentsPermalink





`(2)(A) The Secretary of Homeland Security may not permit the use of blanket petitions to import aliens as nonimmigrants under section 101(a)(15)(L).'.CommentsClose CommentsPermalink





(c) Prohibition on Outplacement- Section 214(c)(2) of such Act, as amended by this section, is further amended by adding at the end the following:CommentsClose CommentsPermalink





`(H) An employer who imports 1 or more aliens as nonimmigrants described in section 101(a)(15)(L) shall not place, outsource, lease, or otherwise contract for the placement of an alien admitted or provided status as an L-1 nonimmigrant with another employer.'.CommentsClose CommentsPermalink





(d) Investigations and Audits by Department of Homeland Security-CommentsClose CommentsPermalink





(1) DEPARTMENT OF HOMELAND SECURITY INVESTIGATIONS- Section 214(c)(2) of such Act, as amended by this section, is further amended by adding at the end the following:CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(ii) If the Secretary of Homeland Security 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.CommentsClose CommentsPermalink





`(iii) The Secretary of Homeland Security shall establish a procedure for any person desiring to provide to the Secretary of Homeland Security 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 of Homeland Security and completed by or on behalf of the person.CommentsClose CommentsPermalink





`(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 of Homeland Security receives the information not later than 24 months after the date of the alleged failure.CommentsClose CommentsPermalink





`(v) Before commencing an investigation of an employer under clause (i) or (ii), the Secretary of Homeland Security 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.CommentsClose CommentsPermalink





`(vi) If the Secretary of Homeland Security, 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. 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.CommentsClose CommentsPermalink





`(vii) If the Secretary of Homeland Security, 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 section 214(c)(2)(J).'.CommentsClose CommentsPermalink





(2) AUDITS- Section 214(c)(2)(I) of such Act, as added by paragraph (1), is amended by adding at the end the following:CommentsClose CommentsPermalink





`(viii) The Secretary of Homeland Security may conduct surveys of the degree to which employers comply with the requirements under this section 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 nonimmigrants described in section 101(a)(15)(L) during the applicable calendar year. The Secretary shall 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 section 101(a)(15)(L).'.CommentsClose CommentsPermalink





(3) REPORTING REQUIREMENT- Section 214(c)(8) of such Act is amended by inserting `(L),' after `(H),'.CommentsClose CommentsPermalink





(e) Penalties- Section 214(c)(2) of such Act, as amended by this section, is further amended by adding at the end the following:CommentsClose CommentsPermalink





`(J)(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), (H), (I), or (K) or a misrepresentation of material fact in a petition to employ 1 or more aliens as nonimmigrants described in section 101(a)(15)(L)--CommentsClose CommentsPermalink





`(I) the Secretary of Homeland Security may impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $2,000 per violation) as the Secretary determines to be appropriate; andCommentsClose CommentsPermalink





`(II) the Secretary of Homeland Security 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.CommentsClose CommentsPermalink





`(ii) If the Secretary of Homeland Security finds, after notice and an opportunity for a hearing, a willful failure by an employer to meet a condition under subparagraph (F), (G), (H), (I), or (K) or a misrepresentation of material fact in a petition to employ 1 or more aliens as nonimmigrants described in section 101(a)(15)(L)--CommentsClose CommentsPermalink





`(I) the Secretary of Homeland Security may impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $10,000 per violation) as the Secretary determines to be appropriate; andCommentsClose CommentsPermalink





`(II) the Secretary of Homeland Security 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.CommentsClose CommentsPermalink





`(iii) If the Secretary of Homeland Security finds, after notice and an opportunity for a hearing, a willful failure by an employer to meet a condition under subparagraph (L)(i)--CommentsClose CommentsPermalink





`(I) the Secretary of Homeland Security may impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $10,000 per violation) as the Secretary determines to be appropriate; andCommentsClose CommentsPermalink





`(II) the employer shall be liable to employees harmed for lost wages and benefits.'.CommentsClose CommentsPermalink





(f) Wage Determination-CommentsClose CommentsPermalink





(1) CHANGE IN MINIMUM WAGES- Section 214(c)(2) of such Act, as amended by this section, is further amended by adding at the end the following:CommentsClose CommentsPermalink





`(K)(i) An employer that employs a nonimmigrant described in section 101(a)(15)(L) shall--CommentsClose CommentsPermalink





`(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--CommentsClose CommentsPermalink





`(aa) the locally determined prevailing wage level for the occupational classification in the area of employment;CommentsClose CommentsPermalink





`(bb) the median average wage for all workers in the occupational classification in the area of employment; orCommentsClose CommentsPermalink





`(cc) the median wage for skill level 2 in the occupational classification found in the most recent Occupational Employment Statistics survey; andCommentsClose CommentsPermalink





`(II) provide working conditions for such nonimmigrant that will not adversely affect the working conditions of workers similarly employed.CommentsClose CommentsPermalink





`(ii) If an employer, in such previous period specified by the Secretary of Homeland Security, employed 1 or more L-1 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.CommentsClose CommentsPermalink





`(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), to--CommentsClose CommentsPermalink





`(I) 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; orCommentsClose CommentsPermalink





`(II) 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--CommentsClose CommentsPermalink





`(aa) the opportunity to participate in health, life, disability, and other insurance plans;CommentsClose CommentsPermalink





`(bb) the opportunity to participate in retirement and savings plans; andCommentsClose CommentsPermalink





`(cc) cash bonuses and noncash compensation, such as stock options (whether or not based on performance).CommentsClose CommentsPermalink





`(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.'.CommentsClose CommentsPermalink





(2) EFFECTIVE DATE- The amendments made by this subsection shall apply to applications filed on or after the date of the enactment of this Act.CommentsClose CommentsPermalink

SEC. 5. WHISTLEBLOWER PROTECTIONS.

(a) 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--CommentsClose CommentsPermalink





(1) by inserting `take, fail to take, or threaten to take or fail to take, a personnel action, or' before `to intimidate'; andCommentsClose CommentsPermalink





(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.'.CommentsClose CommentsPermalink





(b) L-1 Whistleblower Protections- Section 214(c)(2) of such Act, as amended by section 4, is further amended by adding at the end the following:CommentsClose CommentsPermalink





`(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--CommentsClose CommentsPermalink





`(I) has disclosed information that the employee reasonably believes evidences a violation of this subsection, or any rule or regulation pertaining to this subsection; orCommentsClose CommentsPermalink





`(II) cooperates or seeks to cooperate with the requirements of this subsection, or any rule or regulation pertaining to this subsection.CommentsClose CommentsPermalink





`(ii) An employer that violates this subparagraph shall be liable to the employees harmed by such violation for lost wages and benefits.CommentsClose CommentsPermalink





`(iii) In this subparagraph, the term `employee' includes--CommentsClose CommentsPermalink





`(I) a current employee;CommentsClose CommentsPermalink





`(II) a former employee; andCommentsClose CommentsPermalink





`(III) an applicant for employment.'.CommentsClose CommentsPermalink

SEC. 6. 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 H-1B nonimmigrant workers.CommentsClose CommentsPermalink





(b) Authorization of Appropriations- There are authorized to be appropriated such sums as may be necessary to carry out this section.CommentsClose CommentsPermalink