S 887 ISCommentsClose CommentsPermalink

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

April 23, 2009CommentsClose CommentsPermalink

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 reform and reduce fraud and abuse in certain visa programs for aliens working temporarily in the United States, 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.

(a) Short Title- This Act may be cited as the ‘H-1B and L-1 Visa Reform Act of 2009’.CommentsClose CommentsPermalink





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





Sec. 1. Short title.CommentsClose CommentsPermalink

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

Subtitle A--H-1B Employer Application Requirements

Sec. 101. Modification of application requirements.CommentsClose CommentsPermalink





Sec. 102. New application requirements.CommentsClose CommentsPermalink





Sec. 103. Application review requirements.CommentsClose CommentsPermalink

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

Sec. 111. General modification of procedures for investigation and disposition.CommentsClose CommentsPermalink





Sec. 112. Investigation, working conditions, and penalties.CommentsClose CommentsPermalink





Sec. 113. Waiver requirements.CommentsClose CommentsPermalink





Sec. 114. Initiation of investigations.CommentsClose CommentsPermalink





Sec. 115. Information sharing.CommentsClose CommentsPermalink





Sec. 116. Conforming amendment.CommentsClose CommentsPermalink

Subtitle C--Other Protections

Sec. 121. Posting available positions through the Department of Labor.CommentsClose CommentsPermalink





Sec. 122. H-1B government authority and requirements.CommentsClose CommentsPermalink





Sec. 123. Requirements for information for H-1B and L-1 nonimmigrants.CommentsClose CommentsPermalink





Sec. 124. Additional Department of Labor employees.CommentsClose CommentsPermalink





Sec. 125. Technical correction.CommentsClose CommentsPermalink





Sec. 126. Application.CommentsClose CommentsPermalink

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

Sec. 201. Prohibition on outplacement of L-1 nonimmigrants.CommentsClose CommentsPermalink





Sec. 202. L-1 employer petition requirements for employment at new offices.CommentsClose CommentsPermalink





Sec. 203. Cooperation with Secretary of State.CommentsClose CommentsPermalink





Sec. 204. Investigation and disposition of complaints against L-1 employers.CommentsClose CommentsPermalink





Sec. 205. Wage rate and working conditions for L-1 nonimmigrant.CommentsClose CommentsPermalink





Sec. 206. Penalties.CommentsClose CommentsPermalink





Sec. 207. Prohibition on retaliation against L-1 nonimmigrants.CommentsClose CommentsPermalink





Sec. 208. Reports on L-1 nonimmigrants.CommentsClose CommentsPermalink





Sec. 209. Technical amendments.CommentsClose CommentsPermalink





Sec. 210. Application.CommentsClose CommentsPermalink





Sec. 211. Report on L-1 blanket petition process.CommentsClose CommentsPermalink

TITLE I--H-1B VISA FRAUD AND ABUSE PROTECTIONSCommentsClose CommentsPermalink

Subtitle A--H-1B Employer Application RequirementsCommentsClose CommentsPermalink

SEC. 101. MODIFICATION OF APPLICATION REQUIREMENTS.

(a) General Application Requirements- Subparagraph (A) of section 212(n)(1) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)) is amended to read as follows:CommentsClose CommentsPermalink





‘(A) The employer--CommentsClose CommentsPermalink





‘(i) is offering and will offer to H-1B nonimmigrants, during the period of authorized employment for each H-1B nonimmigrant, wages that are determined based on the best information available at the time the application is filed and which are not less than the highest of--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; andCommentsClose 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 H-1B nonimmigrant that will not adversely affect the working conditions of other workers similarly employed.’.CommentsClose CommentsPermalink





(b) Internet Posting Requirement- Subparagraph (C) of such section 212(n)(1) is amended--CommentsClose CommentsPermalink





(1) by redesignating clause (ii) as subclause (II);CommentsClose CommentsPermalink





(2) by striking ‘(i) has provided’ and inserting the following:CommentsClose CommentsPermalink





‘(ii)(I) has provided’; andCommentsClose CommentsPermalink





(3) by inserting before clause (ii), as redesignated by paragraph (2) of this subsection, the following:CommentsClose CommentsPermalink





‘(i) has posted on the Internet website described in paragraph (3), for at least 30 calendar days, a detailed description of each position for which a nonimmigrant is sought that includes a description of--CommentsClose CommentsPermalink





‘(I) the wages and other terms and conditions of employment;CommentsClose CommentsPermalink





‘(II) the minimum education, training, experience, and other requirements for the position; andCommentsClose CommentsPermalink





‘(III) the process for applying for the position; and’.CommentsClose CommentsPermalink





(c) Wage Determination Information- Subparagraph (D) of such section 212(n)(1) is amended by inserting ‘the wage determination methodology used under subparagraph (A)(i),’ after ‘shall contain’.CommentsClose CommentsPermalink





(d) Application of Requirements to All Employers-CommentsClose CommentsPermalink





(1) NONDISPLACEMENT- Subparagraph (E) of such section 212(n)(1) is amended--CommentsClose CommentsPermalink





(A) in clause (i)--CommentsClose CommentsPermalink





(i) by striking ‘90 days’ both places it appears and inserting ‘180 days’; andCommentsClose CommentsPermalink





(ii) by striking ‘(i) In the case of an application described in clause (ii), the’ and inserting ‘The’; andCommentsClose CommentsPermalink





(B) by striking clause (ii).CommentsClose CommentsPermalink





(2) RECRUITMENT- Subparagraph (G)(i) of such section 212(n)(1) is amended by striking ‘In the case of an application described in subparagraph (E)(ii), subject’ and inserting ‘Subject’.CommentsClose CommentsPermalink





(e) Requirement for Waiver- Subparagraph (F) of such section 212(n)(1) is amended to read as follows:CommentsClose CommentsPermalink





‘(F) The employer shall not place, outsource, lease, or otherwise contract for the services or placement of H-1B nonimmigrants with another employer unless the employer of the alien has been granted a waiver under paragraph (2)(E).’.CommentsClose CommentsPermalink

SEC. 102. NEW APPLICATION REQUIREMENTS.

Section 212(n)(1) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)) is amended by inserting after clause (ii) of subparagraph (G) the following:CommentsClose CommentsPermalink





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





‘(I) such position is only available to an individual who is or will be an H-1B nonimmigrant; orCommentsClose CommentsPermalink





‘(II) an individual who is or will be an H-1B nonimmigrant shall receive priority or a preference in the hiring process for such position.CommentsClose CommentsPermalink





‘(ii) The employer has not solely recruited individuals who are or who will be H-1B nonimmigrants to fill such position.CommentsClose CommentsPermalink





‘(I) If the employer employs 50 or more employees in the United States, the sum of the number of such employees who are H-1B nonimmigrants plus the number of such employees who are nonimmigrants described in section 101(a)(15)(L) may not exceed 50 percent of the total number of employees.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 the H-1B nonimmigrants for such period.’.CommentsClose CommentsPermalink

SEC. 103. APPLICATION REVIEW REQUIREMENTS.

(a) Technical Amendment- Section 212(n)(1) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)), as amended by section 102, is further amended in the undesignated paragraph at the end, by striking ‘The employer’ and inserting the following:CommentsClose CommentsPermalink





‘(K) The employer.’.CommentsClose CommentsPermalink





(b) Application Review Requirements- Subparagraph (K) of such section 212(n)(1), as designated by subsection (a), is amended--CommentsClose CommentsPermalink





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





(2) by striking ‘only for completeness’ and inserting ‘for completeness and clear indicators of fraud or misrepresentation of material fact,’;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 in accordance with paragraph (2).’.CommentsClose CommentsPermalink

Subtitle B--Investigation and Disposition of Complaints Against H-1B EmployersCommentsClose CommentsPermalink

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

Subparagraph (A) of section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)) is amended--CommentsClose CommentsPermalink





(1) by striking ‘(A) Subject’ and inserting ‘(A)(i) Subject’;CommentsClose CommentsPermalink





(2) by striking ‘12 months’ and inserting ‘24 months’;CommentsClose CommentsPermalink





(3) by striking the last sentence; andCommentsClose CommentsPermalink





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





‘(ii)(I) Upon the receipt of such a complaint, the Secretary may initiate an investigation to determine if such a failure or misrepresentation has occurred.CommentsClose CommentsPermalink





‘(II) The Secretary may conduct surveys of the degree to which employers comply with the requirements of this subsection and may conduct annual compliance audits of employers that employ H-1B nonimmigrants.CommentsClose CommentsPermalink





‘(III) The Secretary shall--CommentsClose CommentsPermalink





‘(aa) 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





‘(bb) conduct annual compliance audits of each employer with more than 100 employees who work in the United States if more than 15 percent of such employees are H-1B nonimmigrants; andCommentsClose CommentsPermalink





‘(cc) make available to the public an executive summary or report describing the general findings of the audits carried out pursuant to this subclause.’.CommentsClose CommentsPermalink

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

Subparagraph (C) of section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)) is amended--CommentsClose CommentsPermalink





(1) in clause (i)--CommentsClose CommentsPermalink





(A) in the matter preceding subclause (I)--CommentsClose CommentsPermalink





(i) by striking ‘a condition of paragraph (1)(B), (1)(E), or (1)(F)’ and inserting ‘a condition under subparagraph (A), (B), (C)(i), (E), (F), (G)(i)(I), (H), (I), or (J) of paragraph (1)’; andCommentsClose CommentsPermalink





(ii) by striking ‘(1)(C)’ and inserting ‘(1)(C)(ii)’; andCommentsClose CommentsPermalink





(B) in subclause (I)--CommentsClose CommentsPermalink





(i) by striking ‘$1,000’ and inserting ‘$2,000’; andCommentsClose CommentsPermalink





(ii) by striking ‘and’ at the end;CommentsClose CommentsPermalink





(C) in subclause (II), by striking the period at the end and inserting a semicolon and ‘and’;CommentsClose CommentsPermalink





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





‘(III) an employer that violates such subparagraph (A) shall be liable to the employees harmed by such violations for lost wages and benefits.’; andCommentsClose CommentsPermalink





(2) in clause (ii)CommentsClose CommentsPermalink





(A) in subclause (I)--CommentsClose CommentsPermalink





(i) by striking ‘may’ and inserting ‘shall’; andCommentsClose CommentsPermalink





(ii) by striking ‘$5,000’ and inserting ‘$10,000’; andCommentsClose CommentsPermalink





(B) in subclause (II), by striking the period at the end and inserting a semicolon and ‘and’;CommentsClose CommentsPermalink





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





‘(III) an employer that violates such subparagraph (A) shall be liable to the employees harmed by such violations for lost wages and benefits.’; andCommentsClose CommentsPermalink





(3) in clause (iii)--CommentsClose CommentsPermalink





(A) in the matter preceding subclause (I), by striking ‘90 days’ both places it appears and inserting ‘180 days’;CommentsClose CommentsPermalink





(B) in subclause (I)--CommentsClose CommentsPermalink





(i) by striking ‘may’ and inserting ‘shall’; andCommentsClose CommentsPermalink





(ii) by striking ‘and’ at the end;CommentsClose CommentsPermalink





(C) in subclause (II), by striking the period at the end and inserting a semicolon and ‘and’; andCommentsClose CommentsPermalink





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





‘(III) an employer that violates subparagraph (A) of such paragraph shall be liable to the employees harmed by such violations for lost wages and benefits.’;CommentsClose CommentsPermalink





(4) in clause (iv)--CommentsClose CommentsPermalink





(A) by inserting ‘to take, fail to take, or threaten to take or fail to take, a personnel action, or’ before ‘to intimidate’;CommentsClose CommentsPermalink





(B) by inserting ‘(I)’ after ‘(iv)’; andCommentsClose CommentsPermalink





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





‘(II) An employer that violates this clause shall be liable to the employees harmed by such violation for lost wages and benefits.’; andCommentsClose CommentsPermalink





(5) in clause (vi)--CommentsClose CommentsPermalink





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





‘(I) It is a violation of this clause for an employer who has filed an application under this subsection--CommentsClose CommentsPermalink





‘(aa) to require an H-1B nonimmigrant to pay a penalty for ceasing employment with the employer prior to a date agreed to by the nonimmigrant and the employer (the Secretary shall determine whether a required payment is a penalty, and not liquidated damages, pursuant to relevant State law); andCommentsClose CommentsPermalink





‘(bb) to fail to offer to an H-1B nonimmigrant, during the nonimmigrant’s period of authorized employment, on the same basis, and in accordance with the same criteria, as the employer offers to United States workers, benefits and eligibility for benefits, including--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).’; andCommentsClose CommentsPermalink





(B) in subclause (III), by striking ‘$1,000’ and inserting ‘$2,000’.CommentsClose CommentsPermalink

SEC. 113. WAIVER REQUIREMENTS.

(a) In General- Subparagraph (E) of section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)) is amended to read as follows:CommentsClose CommentsPermalink





‘(E)(i) The Secretary of Labor may waive the prohibition in paragraph (1)(F) if the Secretary determines that the employer seeking the waiver has established that--CommentsClose CommentsPermalink





‘(I) the employer with whom the H-1B nonimmigrant would be placed has not displaced, and does not intend to displace, a United States worker employed by the employer within the period beginning 180 days before and ending 180 days after the date of the placement of the nonimmigrant with the employer;CommentsClose CommentsPermalink





‘(II) the H-1B nonimmigrant will not be controlled and supervised principally by the employer with whom the H-1B nonimmigrant would be placed; andCommentsClose CommentsPermalink





‘(III) the placement of the H-1B nonimmigrant is not essentially an arrangement to provide labor for hire for the employer with whom the H-1B nonimmigrant will be placed.CommentsClose CommentsPermalink





‘(ii) The Secretary shall grant or deny a waiver under this subparagraph not later than 7 days after the Secretary receives the application for such waiver.’.CommentsClose CommentsPermalink





(b) Requirement for Rules-CommentsClose CommentsPermalink





(1) RULES FOR WAIVERS- The Secretary of Labor shall promulgate rules, after notice and a period for comment, for an employer to apply for a waiver under subparagraph (E) of section 212(n)(2) of such Act, as amended by subsection (a).CommentsClose CommentsPermalink





(2) REQUIREMENT FOR PUBLICATION- The Secretary of Labor shall submit to Congress and publish in the Federal Register and other appropriate media a notice of the date that rules required by paragraph (1) are published.CommentsClose CommentsPermalink

SEC. 114. INITIATION OF INVESTIGATIONS.

Subparagraph (G) of section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)) is amended--CommentsClose CommentsPermalink





(1) in clause (i), by striking ‘if the Secretary’ and all that follows and inserting ‘with regard to the employer’s compliance with the requirements of this subsection.’;CommentsClose CommentsPermalink





(2) in clause (ii), by striking ‘and whose identity’ and all that follows through ‘failure or failures.’ and inserting ‘the Secretary of Labor may conduct an investigation into the employer’s compliance with the requirements of this subsection.’;CommentsClose CommentsPermalink





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





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





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





(6) in clause (iv), as so redesignated, by striking ‘meet a condition described in clause (ii), unless the Secretary of Labor receives the information not later than 12 months’ and inserting ‘comply with the requirements under this subsection, unless the Secretary of Labor receives the information not later than 24 months’;CommentsClose CommentsPermalink





(7) by amending clause (v), as so 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





(8) in clause (vi), as so redesignated, by striking ‘An investigation’ and all that follows through ‘the determination.’ and inserting ‘If the Secretary of Labor, after an investigation under clause (i) or (ii), determines that a reasonable basis exists to make a finding that the employer has failed to comply with the requirements under this subsection, the Secretary shall provide interested parties with notice of such determination and an opportunity for a hearing in accordance with section 556 of title 5, United States Code, not later than 120 days after the date of such determination.’; andCommentsClose CommentsPermalink





(9) 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 shall impose a penalty under subparagraph (C).’.CommentsClose CommentsPermalink

SEC. 115. INFORMATION SHARING.

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

SEC. 116. CONFORMING AMENDMENT.

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

Subtitle C--Other ProtectionsCommentsClose CommentsPermalink

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

(a) Department of Labor Website- Paragraph (3) of section 212(n) of the Immigration and Nationality Act (8 U.S.C. 1182(n)) is amended to read as follows:CommentsClose CommentsPermalink





‘(3)(A) Not later than 90 days after the date of the enactment of the H-1B and L-1 Visa Reform Act of 2009, the Secretary of Labor shall establish a searchable Internet website for posting positions as required by paragraph (1)(C). Such website shall be available to the public without charge.CommentsClose CommentsPermalink





‘(B) The Secretary may work with private companies or nonprofit organizations to develop and operate the Internet website described in subparagraph (A).CommentsClose CommentsPermalink





‘(C) The Secretary may promulgate rules, after notice and a period for comment, to carry out the requirements of this paragraph.’.CommentsClose CommentsPermalink





(b) Requirement for Publication- The Secretary of Labor shall submit to Congress and publish in the Federal Register and other appropriate media a notice of the date that the Internet website required by paragraph (3) of section 212(n) of such Act, as amended by subsection (a), will be operational.CommentsClose CommentsPermalink





(c) Application- The amendments made by subsection (a) shall apply to an application filed on or after the date that is 30 days after the date described in subsection (b).CommentsClose CommentsPermalink

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

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





‘(l) Employer To Provide Immigration Paperwork Exchanged With Federal Agencies- Not later than 21 business days after receiving a written request from a former, current, or future employee or beneficiary, an employer shall provide such employee or beneficiary with the original (or a certified copy of the original) of all petitions, notices, and other written communication exchanged between the employer and the Department of Labor, the Department of Homeland Security, or any other Federal agency or department that is related to an immigrant or nonimmigrant petition filed by the employer for such employee or beneficiary.’.CommentsClose CommentsPermalink





(b) Report on Job Classification and Wage Determinations- Not later than 1 year after the date of the enactment of this Act, the Comptroller General of the United States shall prepare a report analyzing the accuracy and effectiveness of the Secretary of Labor’s current job classification and wage determination system. The report shall--CommentsClose CommentsPermalink





(1) specifically address whether the systems in place accurately reflect the complexity of current job types as well as geographic wage differences; andCommentsClose CommentsPermalink





(2) make recommendations concerning necessary updates and modifications.CommentsClose CommentsPermalink

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

Section 214 of the Immigration and Nationality Act (8 U.S.C. 1184) is amended by adding at the end the following:CommentsClose CommentsPermalink





‘(s) Requirements for Information for H-1B and L-1 Nonimmigrants-CommentsClose CommentsPermalink





‘(1) IN GENERAL- Upon issuing a visa to an applicant for nonimmigrant status pursuant to subparagraph (H)(i)(b) or (L) of section 101(a)(15) who is outside the United States, the issuing office shall provide the applicant with--CommentsClose CommentsPermalink





‘(A) a brochure outlining the obligations of the applicant’s employer and the rights of the applicant with regard to employment under Federal law, including labor and wage protections;CommentsClose CommentsPermalink





‘(B) the contact information for appropriate Federal agencies or departments that offer additional information or assistance in clarifying such obligations and rights; andCommentsClose CommentsPermalink





‘(C) a copy of the application submitted for the nonimmigrant under section 212(n) or the petition submitted for the nonimmigrant under subsection (c)(2)(A), as appropriate.CommentsClose CommentsPermalink





‘(2) Upon the issuance of a visa to an applicant referred to in paragraph (1) who is inside the United States, the issuing officer of the Department of Homeland Security shall provide the applicant with the material described in clauses (i), (ii), and (iii) of subparagraph (A).’.CommentsClose CommentsPermalink

SEC. 124. ADDITIONAL DEPARTMENT OF LABOR EMPLOYEES.

(a) In General- The Secretary of Labor is authorized to hire 200 additional employees to administer, oversee, investigate, and enforce programs involving nonimmigrant employees described in section 101(a)(15)(H)(i)(B).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

SEC. 125. TECHNICAL CORRECTION.

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

SEC. 126. APPLICATION.

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

TITLE II--L-1 VISA FRAUD AND ABUSE PROTECTIONSCommentsClose CommentsPermalink

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

(a) In General- Subparagraph (F) of section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)) is amended to read as follows:CommentsClose CommentsPermalink





‘(F)(i) Unless an employer receives a waiver under clause (ii), an employer may not employ an alien, for a cumulative period of more than 1 year, who--CommentsClose CommentsPermalink





‘(I) will serve in a capacity involving specialized knowledge with respect to an employer for purposes of section 101(a)(15)(L); andCommentsClose CommentsPermalink





‘(II) will be stationed primarily at the worksite of an employer other than the petitioning employer or its affiliate, subsidiary, or parent, including pursuant to an outsourcing, leasing, or other contracting agreement.’CommentsClose CommentsPermalink





‘(ii) The Secretary of Homeland Security may grant a waiver of the requirements of clause (i) for an employer if the Secretary determines that the employer has established that--CommentsClose CommentsPermalink





‘(I) the employer with whom the alien referred to in clause (i) would be placed has not displaced and does not intend to displace a United States worker employed by the employer within the period beginning 180 days after the date of the placement of such alien with the employer;CommentsClose CommentsPermalink





‘(II) such alien will not be controlled and supervised principally by the employer with whom the nonimmigrant would be placed; andCommentsClose CommentsPermalink





‘(III) the placement of the nonimmigrant is not essentially an arrangement to provide labor for hire for an unaffiliated employer with whom the nonimmigrant will be placed, rather than a placement in connection with the provision or a product or service for which specialized knowledge specific to the petitioning employer is necessary.CommentsClose CommentsPermalink





‘(iii) The Secretary shall grant or deny a waiver under clause (ii) not later than 7 days after the date that the Secretary receives the application for the waiver.’.CommentsClose CommentsPermalink





(b) Regulations- The Secretary of Homeland Security shall promulgate rules, after notice and a period for comment, for an employer to apply for a waiver under subparagraph (F)(ii) of section 214(c)(2), as added by subsection (a).CommentsClose CommentsPermalink

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

Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)) is amended by adding at the end the following:CommentsClose CommentsPermalink





‘(G)(i) If the beneficiary of a petition under this paragraph is coming to the United States to open, or be employed in, a new office, the petition may be approved for up to 12 months only if--CommentsClose CommentsPermalink





‘(I) the alien has not been the beneficiary of 2 or more petitions under this subparagraph during the immediately preceding 2 years; andCommentsClose CommentsPermalink





‘(II) the employer operating the new office has--CommentsClose CommentsPermalink





‘(aa) an adequate business plan;CommentsClose CommentsPermalink





‘(bb) sufficient physical premises to carry out the proposed business activities; andCommentsClose CommentsPermalink





‘(cc) 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 of the petition is eligible for nonimmigrant status 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, for the entire period beginning on the date on which the petition was approved under clause (i), has been doing business at the new office through regular, systematic, and continuous provision of goods and services;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 granted 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;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 paragraph shall do business only through regular, systematic, and continuous provision of goods and services for the entire period for which the petition is sought.CommentsClose CommentsPermalink





‘(iv) Notwithstanding clause (ii), and subject to the maximum period of authorized admission set forth in subparagraph (D), the Secretary of Homeland Security, in the Secretary’s discretion, may approve a subsequently filed petition on behalf of the beneficiary to continue employment at the office described in this subparagraph for a period beyond the initially granted 12-month period if the importing employer has been doing business at the new office through regular, systematic, and continuous provision of goods and services for the 6 months immediately preceding the date of extension petition filing and demonstrates that the failure to satisfy any of the requirements described in those subclauses was directly caused by extraordinary circumstances, as determined by the Secretary in the Secretary’s discretion.’.CommentsClose CommentsPermalink

SEC. 203. COOPERATION WITH SECRETARY OF STATE.

Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)), as amended by section 202, is further amended by adding at the end the following:CommentsClose CommentsPermalink





‘(H) For purposes of approving petitions under this paragraph, the Secretary of Homeland Security shall work cooperatively with the Secretary of State to verify the existence or continued existence of a company or office in the United States or in a foreign country.’.CommentsClose CommentsPermalink

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

Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)), as amended by sections 202 and 203, is further amended by adding at the end the following: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 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 shall establish a procedure for any person desiring to provide to the Secretary information described in clause (ii) that may be used, in whole or in part, as the basis for the commencement of an investigation described in such clause, to provide the information in writing on a form developed and provided by the Secretary and completed by or on behalf of the person.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 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 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, after an investigation under clause (i) or (ii), determines that a reasonable basis exists to make a finding that the employer has failed to comply with the requirements under this subsection, the Secretary shall provide the interested parties with notice of such determination and an opportunity for a hearing in accordance with section 556 of title 5, United States Code, not later than 120 days after the date of such determination. If such a hearing is requested, the Secretary shall make a finding concerning the matter by not later than 120 days after the date of the hearing.CommentsClose CommentsPermalink





‘(vii) If the Secretary, after a hearing, finds a reasonable basis to believe that the employer has violated the requirements under this subsection, the Secretary shall impose a penalty under subparagraph (L).CommentsClose CommentsPermalink





‘(viii)(I) The Secretary may conduct surveys of the degree to which employers comply with the requirements under this section.CommentsClose CommentsPermalink





‘(II) The Secretary shall--CommentsClose CommentsPermalink





‘(aa) conduct annual compliance audits of not less than 1 percent of the employers that employ nonimmigrants described in section 101(a)(15)(L) during the applicable fiscal year;CommentsClose CommentsPermalink





‘(bb) conduct annual compliance audits of each employer with more than 100 employees who work in the United States if more than 15 percent of such employees are nonimmigrants described in 101(a)(15)(L); andCommentsClose CommentsPermalink





‘(cc) make available to the public an executive summary or report describing the general findings of the audits carried out pursuant to this subclause.’.CommentsClose CommentsPermalink

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

(a) In General- Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)), as amended by section 202, 203, and 204, is further amended by adding at the end the following:CommentsClose CommentsPermalink





‘(J)(i) An employer that employs a nonimmigrant described in section 101(a)(15)(L) for a cumulative period of time in excess of 1 year shall--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; andCommentsClose 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 such nonimmigrants, the employer shall provide to the Secretary of Homeland Security the Internal Revenue Service Form W-2 Wage and Tax Statement filed by the employer with respect to such nonimmigrants for such period.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)--CommentsClose CommentsPermalink





‘(I) to require such a nonimmigrant to pay a penalty for ceasing employment with the employer before a date mutually agreed to by the nonimmigrant and the employer; orCommentsClose CommentsPermalink





‘(II) to fail to offer to such a nonimmigrant, during the nonimmigrant’s period of authorized employment, on the same basis, and in accordance with the same criteria, as the employer offers to United States workers, benefits and eligibility for benefits, including--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





(b) Regulations- The Secretary of Homeland Security shall promulgate rules, after notice and a period of comment, to implement the requirements of subparagraph (J) of section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)), as added by subsection (a). In promulgating these rules, the Secretary shall take into consideration any special circumstances relating to intracompany transfers.CommentsClose CommentsPermalink

SEC. 206. PENALTIES.

Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)), as amended by sections 202, 203, 204, and 205, is further amended by adding at the end the following:CommentsClose CommentsPermalink





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





‘(I) the Secretary shall impose such administrative remedies (including civil monetary penalties in an amount not to exceed $2,000 per violation) as the Secretary determines to be appropriate;CommentsClose CommentsPermalink





‘(II) the Secretary may not, during a period of at least 1 year, approve a petition for that employer to employ 1 or more aliens as such nonimmigrants; andCommentsClose CommentsPermalink





‘(III) in the case of a violation of subparagraph (J) or (L), the employer shall be liable to the employees harmed by such violation for lost wages and benefits.CommentsClose CommentsPermalink





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





‘(I) the Secretary shall impose such administrative remedies (including civil monetary penalties in an amount not to exceed $10,000 per violation) as the Secretary determines to be appropriate;CommentsClose CommentsPermalink





‘(II) the Secretary may not, during a period of at least 2 years, approve a petition filed for that employer to employ 1 or more aliens as such nonimmigrants; andCommentsClose CommentsPermalink





‘(III) in the case of a violation of subparagraph (J) or (L), the employer shall be liable to the employees harmed by such violation for lost wages and benefits.’.CommentsClose CommentsPermalink

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

Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)), as amended by section 202, 203, 204, 205, and 206, is further amended by adding at the end the following: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) 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. 208. REPORTS ON L-1 NONIMMIGRANTS.

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

SEC. 209. TECHNICAL AMENDMENTS.

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

SEC. 210. APPLICATION.

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

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

(a) Requirement for Report- Not later than 6 months after the date of the enactment of this Act, the Inspector General of the Department of Homeland Security shall submit to the appropriate committees of Congress a report regarding the use of blanket petitions under section 214(c)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)(A)). Such report shall assess the efficiency and reliability of the process for reviewing such blanket petitions, including whether the process includes adequate safeguards against fraud and abuse.CommentsClose CommentsPermalink





(b) Appropriate Committees of Congress- In this section the term ‘appropriate committees of Congress’ means--CommentsClose CommentsPermalink





(1) the Committee on Homeland Security and Governmental Affairs of the Senate;CommentsClose CommentsPermalink





(2) the Committee on the Judiciary of the Senate;CommentsClose CommentsPermalink





(3) the Committee on Homeland Security of the House of Representatives; andCommentsClose CommentsPermalink





(4) the Committee on the Judiciary of the House of Representatives.CommentsClose CommentsPermalink