S 2839 ISCommentsClose CommentsPermalink

To provide emergency relief for United States businesses and industries currently employing temporary foreign workers and for other purposes.CommentsClose CommentsPermalink

April 10, 2008

Mr. CORNYN (for himself, Mr. GREGG, Mr. LIEBERMAN, and Mr. HAGEL) introduced the following bill; which was read twice and referred to the Committee on the JudiciaryCommentsClose CommentsPermalink

To provide emergency relief for United States businesses and industries currently employing temporary foreign workers and for other purposes.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 `Global Competitiveness Act of 2008'.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. Extension of returning worker exemption to H-2B numerical limitation.CommentsClose CommentsPermalink





Sec. 3. Recapture of unused visas.CommentsClose CommentsPermalink





Sec. 4. H-1B visa availability.CommentsClose CommentsPermalink





Sec. 5. Fee for H-1B employers.CommentsClose CommentsPermalink





Sec. 6. Prohibitions on recruiting only H-1B workers and on outsourcing.CommentsClose CommentsPermalink





Sec. 7. H-1B enforcement.CommentsClose CommentsPermalink





Sec. 8. Whistleblower protections.CommentsClose CommentsPermalink





Sec. 9. Limitations on approval of L-1 petitions for start-up companies.CommentsClose CommentsPermalink





Sec. 10. Filing for early adjustment.CommentsClose CommentsPermalink





Sec. 11. Clarification of immigration fee account provisions.CommentsClose CommentsPermalink





Sec. 12. National Science Foundation scholarship program.CommentsClose CommentsPermalink





Sec. 13. Extension of E-Verify program.CommentsClose CommentsPermalink





Sec. 14. Clarification of false claims of United States nationality.CommentsClose CommentsPermalink

SEC. 2. EXTENSION OF RETURNING WORKER EXEMPTION TO H-2B NUMERICAL LIMITATION.

Subparagraph (A) of section 214(g)(9) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(9)) is amended by striking `2004, 2005, or 2006 shall not be counted toward the numerical limitation during fiscal year 2007.' and inserting `2005, 2006, 2007, or 2008 shall not be counted toward the numerical limitation during the fiscal years 2008 through 2010.'.CommentsClose CommentsPermalink

SEC. 3. RECAPTURE OF UNUSED VISAS.

(a) Recapture of Unused H-1B Visa-CommentsClose CommentsPermalink





(1) IN GENERAL- Subsection (g) of section 214 of the Immigration and Nationality Act (8 U.S.C. 1184) is amended--CommentsClose CommentsPermalink





(A) by redesignating paragraphs (10) and (11) as paragraphs (11) and (12), respectively; andCommentsClose CommentsPermalink





(B) by inserting after paragraph (9) the following:CommentsClose CommentsPermalink





`(10)(A) If the numerical limitation set out in paragraph (1)(A) for fiscal year 2009 or any subsequent fiscal year has been reached, such numerical limitation shall be supplemented in a number equal to the lesser of--CommentsClose CommentsPermalink





`(i) the cumulative total number of visas that were available in all prior fiscal years subsequent to fiscal year 1991, and not issued for each such fiscal year or any subsequent fiscal year; andCommentsClose CommentsPermalink





`(ii) 50,000.CommentsClose CommentsPermalink





`(B) The fee for a visa made available pursuant to subparagraph (A) shall be $1,500.CommentsClose CommentsPermalink





`(C) Fees collected under this paragraph shall be deposited in the Treasury in accordance with section 286(s).'.CommentsClose CommentsPermalink





(2) EFFECTIVE PERIOD-CommentsClose CommentsPermalink





(A) IN GENERAL- Except as provided in subparagraph (B), the amendments made by paragraph (1) shall be effective during the 3-year period beginning on the date of the enactment of this Act.CommentsClose CommentsPermalink





(B) ENACTMENT AFTER APRIL 1, 2009- If the date of the enactment of this Act is after April 1, 2009, the amendments made by paragraph (1) shall take effect as if enacted on April 1, 2009 and be effective during the 3-year period beginning on such date.CommentsClose CommentsPermalink





(b) Recapture of Unused Employment-Based Numbers- Subsection (d) of section 106 of the American Competitiveness in the Twenty-first Century Act of 2000 (Public Law 106-313; 8 U.S.C. 1153 note) is amended--CommentsClose CommentsPermalink





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





(A) by inserting `1994, 1996, 1997, 1998,' after `available in fiscal year';CommentsClose CommentsPermalink





(B) by striking `or 2004' and inserting `2004, or 2006'; andCommentsClose CommentsPermalink





(C) by striking `be available' and all that follows and inserting the following: `be available only to--CommentsClose CommentsPermalink





`(A) employment-based immigrants under paragraph (1), (2), (3)(A)(i), or (3)(A)(ii) of section 203(b) of the Immigration and Nationality Act (8 U.S.C. 1153(b)) and spouses and children accompanying or following to join such immigrants under section 203(d) of such Act (8 U.S.C. 1153(d)); andCommentsClose CommentsPermalink





`(B) immigrant workers who had petitions approved based on Schedule A, Group I under section 656.5 of title 20, Code of Federal Regulations, as promulgated by the Secretary of Labor, and spouses and children accompanying or following to join such immigrants under section 203(d) of such Act (8 U.S.C. 1153(d)).';CommentsClose CommentsPermalink





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





(A) in subparagraph (A), by striking `1999 through 2004' and inserting `1994, 1996, 1997, 1998, 2001 through 2004, and 2006'; andCommentsClose CommentsPermalink





(B) in subparagraph (B), by amending clause (ii) to read as follows:CommentsClose CommentsPermalink





`(ii) DISTRIBUTION OF VISAS- The total number of visas made available under paragraph (1) from unused visas from the fiscal years 1994, 1996, 1997, 1998, 2001 through 2004, and 2006 shall be distributed as follows:CommentsClose CommentsPermalink





`(I) The total number of visas made available for immigrant workers who had petitions approved based on Schedule A, Group I under section 656.5 of title 20, Code of Federal Regulations, as promulgated by the Secretary of Labor, and their spouses and children accompanying or following to join under section 203(d) of such Act (8 U.S.C. 1153(d)), shall be 61,000.CommentsClose CommentsPermalink





`(II) The visas remaining from the total made available under paragraph (1) shall be allocated to employment-based immigrants with approved petitions under paragraph (1), (2), (3)(A)(i) or (3)(A)(ii) of section 203(b) of the Immigration and Nationality Act (8 U.S.C. 1153(b)) and the spouses and children accompanying or following to join such immigrants under section 203(d) of such Act (8 U.S.C. 1153(d)).'; andCommentsClose CommentsPermalink





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





`(4) FEE FOR RECAPTURE OF UNUSED EMPLOYMENT-BASED IMMIGRANT VISAS-CommentsClose CommentsPermalink





`(A) IN GENERAL- In addition to required filing fees, the Secretary shall impose a $1,500 recapture fee upon each petitioning employer who uses a visa number recaptured under this section.CommentsClose CommentsPermalink





`(B) EXCEPTION- The fee required under paragraph (A) shall not be imposed for the use of such visas if the employer demonstrates to the Secretary that--CommentsClose CommentsPermalink





`(i) the employer is a health care facility that is located in a county or parish that received individual and public assistance pursuant to Major Disaster Declaration number 1603 or 1607; orCommentsClose CommentsPermalink





`(ii) the employer is a health care facility that has been designated as a Health Professional Shortage Area facility by the Secretary of Health and Human Services as defined in section 332 of the Public Health Service Act (42 U.S.C. 254e).CommentsClose CommentsPermalink





`(C) FEES- Fees collected under this paragraph shall be deposited in the Immigration Examinations Fee Account, section 286(m) and shall remain available until expended by the Secretary of Homeland Security.'.CommentsClose CommentsPermalink

SEC. 4. H-1B VISA AVAILABILITY.

Subsection (g) of section 214 of the Immigration and Nationality Act (8 U.S.C. 1184) is amended--CommentsClose CommentsPermalink





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





(A) in clause (vi), by striking `and' at the end;CommentsClose CommentsPermalink





(B) by redesignating clause (vii) as clause (ix); andCommentsClose CommentsPermalink





(C) by inserting after clause (vi) the following:CommentsClose CommentsPermalink





`(vii) 65,000 in each of fiscal years 2004 through 2008;CommentsClose CommentsPermalink





`(viii) 115,000 in each of fiscal years 2009 through 2011; and'; andCommentsClose CommentsPermalink





(2) in paragraph (5)(C), by striking `20,000' and inserting `30,000 for fiscal years 2009 through 2011 and 20,000 for each fiscal year after fiscal year 2011'.CommentsClose CommentsPermalink

SEC. 5. FEE FOR H-1B EMPLOYERS.

Subparagraph (B) of section 214(c)(9) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(9)) is amended by striking `$1,500' and inserting `$2,250'.CommentsClose CommentsPermalink

SEC. 6. PROHIBITIONS ON RECRUITING ONLY H-1B WORKERS AND ON OUTSOURCING.

(a) Document Requirement- Subparagraph (A) of section 212(n)(1) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)) is amended--CommentsClose CommentsPermalink





(1) in clause (i), by striking `, and' at the end and inserting a semicolon;CommentsClose CommentsPermalink





(2) in clause (ii), by striking the period at the end and inserting a semicolon and `and'; andCommentsClose CommentsPermalink





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





`(iii) will provide to the H-1B nonimmigrant a copy of the approved petition filed on behalf of such nonimmigrant under this section.'.CommentsClose CommentsPermalink





(b) Prohibition on Outsourcing- Paragraph (1) of section 212(n) of the Immigration and Nationality Act (8 U.S.C. 1182(n)) is amended by inserting after subparagraph (G) the following:CommentsClose CommentsPermalink





`(H) An alien admitted to the United States or provided status as a nonimmigrant under section 101(a)(15)(H)(i)(b) may only work at a worksite, that is in the United States, of an employer other than the petitioning employer or its affiliate, subsidiary, or parent if the alien, as part of such aliens's job responsibilities as described and approved in the labor condition application under this subsection and the H-1B petition under section 214, is required to provide a product or service of the petitioning employer at the worksite of the nonpetitioning employer. Such work is not authorized if the alien is essentially providing labor for hire for the nonpetitioning employer.'.CommentsClose CommentsPermalink





(c) Advertising Requirements- Paragraph (1) of section 212(n) of the Immigration and Nationality Act (8 U.S.C. 1182(n)), as amended by subsection (b), is further amended by inserting after subparagraph (H), as added by such subsection, the following:CommentsClose CommentsPermalink





`(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





(d) Hiring Requirements- Subsection (g) of section 214 of the Immigration and Nationality Act (8 U.S.C. 1184), as amended by section 3(a), is further amended by adding at the end the following:CommentsClose CommentsPermalink





`(13)(A)(i) An employer described in clause (ii) may file not more than 1,000 petitions total for the initial admission of an alien as a nonimmigrant under section 101(a)(15)(H)(i)(b) who are counted under subsection (g)(1)(A) in any fiscal year.CommentsClose CommentsPermalink





`(ii) An employer described in this subparagraph is an employer that employs aliens admitted as, or provided status under, section 101(a)(15)(H)(i)(b) in a number that is equal to or greater than 50 percent of the number of the total number of full-time employees.CommentsClose CommentsPermalink





`(B) An employer that employs more than 50 employees may not employ aliens provided status as nonimmigrants under section 101(a)(15)(H)(i)(b) in a number that is equal to or greater than 75 percent of the number of such full-time employees.'.CommentsClose CommentsPermalink





(e) Effective Date- The amendments made by this section shall be effective during the period beginning on the date of the enactment of this Act and ending on September 31, 2011.CommentsClose CommentsPermalink

SEC. 7. H-1B ENFORCEMENT.

(a) Safeguards Against Fraud and Misrepresentation- Paragraph (1) section 212(n) of the Immigration and Nationality Act (8 U.S.C. 1182(n)), as amended by subsections (b) and (c) of section 6, is further amended--CommentsClose CommentsPermalink





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





`(J) The employer.'; andCommentsClose CommentsPermalink





(2) in subparagraph (J), as designated by paragraph (1)--CommentsClose CommentsPermalink





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





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





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





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





(E) by adding at the end the following: `If the Secretary's review of an application identifies clear indicators of fraud or misrepresentation of material fact, the Secretary may conduct an investigation and hearing under paragraph (2).'.CommentsClose CommentsPermalink





(b) Investigations by the Secretary of Labor- Paragraph (2) of section 212(n) of the Immigration and Nationality Act (8 U.S.C. 1182(n)) 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 clause (i) of subparagraph (C)--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 substantially 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 the Secretary of Homeland Security and the Secretary of Labor- Paragraph (2) of section 212(n) of the Immigration and Nationality Act (8 U.S.C. 1182(n)), as amended by subsection (b), 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- Subparagraph (A) of section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)), as amended by subsection (b), is further amended by adding at the end `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.'CommentsClose CommentsPermalink





(e) Penalties- Subparagraph (C) of section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)) is 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- Subsection (n) of section 212 of the Immigration and Nationality Act (8 U.S.C. 1182) is amended by adding after paragraph (3) the following:CommentsClose CommentsPermalink





`(4)(A) Upon issuing an H-1B visa to an applicant outside the United States, the Secretary of State 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; andCommentsClose CommentsPermalink





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





`(B) Upon according H-1B nonimmigrant status 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; andCommentsClose CommentsPermalink





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





(g) Investigations and Audits by the Secretary of Homeland Security-CommentsClose CommentsPermalink





(1) INVESTIGATIONS AND AUDITS- Paragraph (2) of section 214(c) of the Immigration and Nationality Act (8 U.S.C. 1184(c)) is amended by adding at the end the following:CommentsClose CommentsPermalink





`(G)(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, United States Code.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 of 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 substantially failed to comply with the requirements of 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 of this subsection, the Secretary may impose a penalty under section 214(c)(2)(H).'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 L 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.'.CommentsClose CommentsPermalink





(2) REPORTING REQUIREMENT- Paragraph (8) of such section 214(c) is amended--CommentsClose CommentsPermalink





(A) by striking `Attorney General' whenever the term appears and inserting `Secretary of Homeland Security'; andCommentsClose CommentsPermalink





(B) by inserting `(L),' after `(H),'.CommentsClose CommentsPermalink





(h) Penalties- Paragraph (2) of section 214(c) of the Immigration and Nationality Act (8 U.S.C. 1184(c)), as amended by subsection (g), is further amended by adding at the end the following:CommentsClose CommentsPermalink





`(H)(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

SEC. 8. WHISTLEBLOWER PROTECTIONS.

Paragraph (2) of section 214(c) of the Immigration and Nationality Act (8 U.S.C. 1184(c)), as amended by subsections (g) and (h) of section 7, is further amended by adding at the end the following:CommentsClose CommentsPermalink





`(I)(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. 9. LIMITATIONS ON APPROVAL OF L-1 PETITIONS FOR START-UP COMPANIES.

Paragraph (2) of section 214(c) of the Immigration and Nationality Act (8 U.S.C. 1184(c)), as amended by subsections (g) and (h) of section 7 and section 8(b), is further amended--CommentsClose CommentsPermalink





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





(2) in subparagraph (E), by striking `In the case' and inserting `Except as provided in subparagraph (H), in the case'; andCommentsClose CommentsPermalink





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





`(J)(i) If the beneficiary of a petition under this subsection is coming to the United States to be employed in a new office, the petition may be approved for a period not to exceed 12 months only if the alien has not been the beneficiary of 2 or more petitions under this subparagraph within the immediately preceding 2 years and only if the employer operating the new office has--CommentsClose CommentsPermalink





`(I) an adequate 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 to the Secretary of Homeland Security--CommentsClose CommentsPermalink





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





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





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





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





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





`(VI) evidence that the importing employer, from the date of petition approval under clause (i), has been doing business at the new office through regular, systematic, and continuous provision of goods or services;CommentsClose CommentsPermalink





`(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 approved under this clause;CommentsClose CommentsPermalink





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





`(IX) evidence of wages paid to employees if the beneficiary will be employed in a managerial or executive capacity;CommentsClose CommentsPermalink





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





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





`(iii) A new office employing the beneficiary of an L-1 petition approved under this subparagraph must do business through regular, systematic, and continuous provision of goods or services for the entire period of petition approval.CommentsClose CommentsPermalink





`(iv) Notwithstanding clause (iii) or 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, in the Secretary's discretion, approve a subsequently filed petition on behalf of the beneficiary to continue employment at the office described in this subsection 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 or 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.CommentsClose CommentsPermalink





`(K)(i) The Secretary of Homeland Security may not authorize the spouse of an alien described under section 101(a)(15)(L), who is a dependent of a beneficiary under subparagraph (J), to engage in employment in the United States during the initial 12-month period described in subparagraph (J)(i).CommentsClose CommentsPermalink





`(ii) A spouse described in clause (i) may be provided employment authorization upon the approval of an extension under subparagraph (J)(ii).CommentsClose CommentsPermalink





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

SEC. 10. FILING FOR EARLY ADJUSTMENT.

(a) Adjustment of Status-CommentsClose CommentsPermalink





(1) IN GENERAL- Section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) is amended by adding at the end the following:CommentsClose CommentsPermalink





`(n) Adjustment of Status for Employment-Based Immigrants-CommentsClose CommentsPermalink





`(1) ELIGIBILITY- The Secretary of Homeland Security shall promulgate regulations to provide for the filing of an application for adjustment of status by an alien (and any eligible dependents of such alien), regardless of whether an immigrant visa is immediately available at the time the application is filed, if the alien has an approved petition under paragraph (1), (2), (3)(A)(i), or (3)(A)(ii) of section 203(b) and the priority date for processing of an immigrant visa under such paragraph (1), (2), (3)(A)(i), or 3(A)(ii) as reflected on the Department of State, Visa Bulletin for the month in which the application for adjustment of status is filed, is not more than 24 months from the date of filing.CommentsClose CommentsPermalink





`(2) VISA AVAILABILITY- An application filed pursuant to paragraph (1) may not be approved until an immigrant visa becomes available, the alien is deemed admissible, and all background checks have been completed and resolved to the satisfaction of the Secretary of Homeland Security.CommentsClose CommentsPermalink





`(3) FEES- If an application is filed pursuant to paragraph (1), the beneficiary of such application shall pay a supplemental fee of $500. Such fee may not be charged to any dependent accompanying or following to join such beneficiary.CommentsClose CommentsPermalink





`(4) FEE ADJUSTMENTS- Application fees under this subsection may be adjusted in accordance with the 3-year period of validity assigned to the employment authorization or advanced parole documents under subparagraph (A).'.CommentsClose CommentsPermalink





(b) Use of Fees-CommentsClose CommentsPermalink





(1) IN GENERAL- Section 286 of the Immigration and Nationality Act (8 U.S.C. 1356) is amended--CommentsClose CommentsPermalink





(A) in subsection (m)--CommentsClose CommentsPermalink





(i) by striking `Notwithstanding any other provisions of law,' and inserting the following:CommentsClose CommentsPermalink





`(m) Immigration Examinations Fee Account-CommentsClose CommentsPermalink





`(1) IN GENERAL- Notwithstanding any other provision of law, all fees collected under section 245(n)(3) and';CommentsClose CommentsPermalink





(ii) by striking `: Provided, however, That all' and inserting the following:CommentsClose CommentsPermalink





`(2) VIRGIN ISLANDS; GUAM- All'; andCommentsClose CommentsPermalink





(iii) by striking `: Provided further, That fees' and inserting the following:CommentsClose CommentsPermalink





`(3) COST RECOVERY- Fees.';CommentsClose CommentsPermalink





(B) by redesignating subsection (n) as paragraph (4), indenting such paragraph, as so redesignated, 2 ems from the left margin, and inserting the heading `USE OF FUNDS- ';CommentsClose CommentsPermalink





(C) in paragraph (4) of subsection (m), as redesignated by subparagraph (B)--CommentsClose CommentsPermalink





(i) by striking `All deposits' and inserting the following:CommentsClose CommentsPermalink





`(A) IN GENERAL- Except as provided under subparagraph (B), all deposits'; andCommentsClose CommentsPermalink





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





`(B) SUPPLEMENTAL FEE FOR ADJUSTMENT OF STATUS OF EMPLOYMENT-BASED IMMIGRANTS- Any amounts deposited into the Immigration Examinations Fee Account, section 286(m), that were collected under section 245(n)(3) shall remain available until expended by the Secretary of Homeland Security.';CommentsClose CommentsPermalink





(D) by redesignating subsection (o) as paragraph (5), indenting such paragraph, as so redesignated, 2 ems from the left margin, and inserting the heading `ANNUAL FINANCIAL REPORT TO CONGRESS- '; andCommentsClose CommentsPermalink





(E) by redesignating subsection (p) as paragraph (6), indenting such paragraph, as so redesignated, 2 ems from the left margin, and inserting the heading `APPLICABILITY- ';CommentsClose CommentsPermalink





(F) in paragraph (6) of subsection (m), as redesignated by subparagraph (D) by striking `subsections (m), (n), and (o) of this section' and inserting `this subsection shall';CommentsClose CommentsPermalink





(G) by redesignating sections (q) through (v) as sections (n) through (s), respectively; andCommentsClose CommentsPermalink





(H) in subsection (p), as redesignated by subparagraph (E)--CommentsClose CommentsPermalink





(i) in paragraph (2), by striking `50 percent' and inserting `40 percent';CommentsClose CommentsPermalink





(ii) in paragraph (3)--CommentsClose CommentsPermalink





(I) in the heading, by striking `LOW-INCOME';CommentsClose CommentsPermalink





(II) by striking `30 percent' and inserting `40 percent'; andCommentsClose CommentsPermalink





(III) by striking `low-income';CommentsClose CommentsPermalink





(iii) in subparagraph (A) of paragraph (4), by striking `10 percent' and inserting `5 percent';CommentsClose CommentsPermalink





(iv) in paragraph (6), by striking the first sentence; andCommentsClose CommentsPermalink





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





`(7) USE OF FEES FOR GIFTED AND TALENTED STUDENTS EDUCATION- 5 percent of the amounts deposited into the H-1B Nonimmigrant Petitioner Account shall remain available to the Secretary of Education until expended to carry out programs and projects authorized under the Jacob K. Javits Gifted and Talented Students Education Act of 2001 (20 U.S.C. 7253 et seq.).'.CommentsClose CommentsPermalink





(2) CONFORMING AMENDMENTS-CommentsClose CommentsPermalink





(A) IMMIGRATION AND NATIONALITY- The Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended--CommentsClose CommentsPermalink





(i) in section 214(c) (8 U.S.C. 1184(c))--CommentsClose CommentsPermalink





(I) in paragraphs (9)(C) and (11)(C), by striking `286(s)' and inserting `286(p)'; andCommentsClose CommentsPermalink





(II) in paragraph (12)(E), by striking `286(v)' and inserting `286(s)';CommentsClose CommentsPermalink





(ii) in section 245(i)(3) (8 U.S.C. 1255(i)(3))--CommentsClose CommentsPermalink





(I) in subparagraph (A), by striking `subsections (m), (n), and (o)' and inserting `subsection (m)'; andCommentsClose CommentsPermalink





(II) in subparagraph (B), by striking `286(r)' and inserting `286(o)'; andCommentsClose CommentsPermalink





(iii) in section 344(c) (8 U.S.C. 1455(c)), by striking `286(q)(2)' and inserting `286(n)(2)'.CommentsClose CommentsPermalink





(B) L-1 AND H-1B VISA REFORM ACT- Section 424(c)(2) of the L-1 and H-1B Visa Reform Act (8 U.S.C. 1381(2)) is amended by striking `286(v)(2)(D)' and inserting `286(s)(2)(D)'.CommentsClose CommentsPermalink





(C) AMERICAN COMPETITIVENESS AND WORKFORCE IMPROVEMENT ACT OF 1998- Section 414 of the American Competitiveness and Workforce Improvement Act of 1998 is amended--CommentsClose CommentsPermalink





(i) in subsection (c)(1) (29 U.S.C. 2916a(1)), by striking `286(s)(2)' and inserting `286(p)(2)'; andCommentsClose CommentsPermalink





(ii) in subsection (d)(4) (42 U.S.C. 1869c(4)), by striking `286(s)(3)' and inserting `286(p)(3)'.CommentsClose CommentsPermalink

SEC. 11. CLARIFICATION OF IMMIGRATION FEE ACCOUNT PROVISIONS.

Subparagraphs (B) and (C) of paragraph (2) of subsection (s) of section 286 of the Immigration and Nationality Act (8 U.S.C. 1356), as redesignated by section 10(b)(1)(G), are amended to read as follows:CommentsClose CommentsPermalink





`(B) SECRETARY OF HOMELAND SECURITY- One-third of the amounts deposited into the Fraud Prevention and Detection Account shall remain available to the Secretary of Homeland Security until expended for programs and activities to prevent and detect immigration benefit fraud, including fraud with respect to petitions under paragraph (1) or (2)(A) of section 214(c) to grant an alien nonimmigrant status described in subparagraph (H)(i), (H)(ii), or (L) of section 101(a)(15).CommentsClose CommentsPermalink





`(C) SECRETARY OF LABOR- One third of the amounts deposited into the Fraud Prevention and Detection Account shall remain available to the Secretary of Labor until expended for enforcement programs and activities described in section 212(n) and for enforcement programs and activities otherwise authorized to be conducted by the Secretary of Labor that focus on industries likely to employ nonimmigrants.'.CommentsClose CommentsPermalink

SEC. 12. NATIONAL SCIENCE FOUNDATION SCHOLARSHIP PROGRAM.

Section 414(d)(3) of the American Competitiveness and Workforce Improvement Act of 1998 (42 U.S.C. 1869c(3)) is amended by striking `$10,000' and inserting `$15,000'.CommentsClose CommentsPermalink

SEC. 13. EXTENSION OF E-VERIFY PROGRAM.

(a) Extension- Section 401(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104-208; 8 U.S.C. 1324a note) is amended by striking `at the end of the 11-year period beginning on the first day the pilot program is in effect.' and inserting `not later than December 31, 2013.'.CommentsClose CommentsPermalink





(b) Designation of E-Verify Program- Title IV of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104-208; 110 Stat. 3009-546) is amended by striking `basic pilot' each place that term appears and inserting `E-Verify'.CommentsClose CommentsPermalink

SEC. 14. CLARIFICATION OF FALSE CLAIMS OF UNITED STATES NATIONALITY.

Section 212(a)(6)(C)(ii)(I) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(C)(ii)) is amended by inserting `or national' after `citizen'.CommentsClose CommentsPermalink