HR 3814, Technology Worker Temporary Relief Act.
Re: increasing the cap on H1B visas.
Date introduced: March 1, 2000.
Sponsor: Rep. Lamar Smith (R-TX).
Source: Tech Law Journal created this page by scanning and converting into HTML a paper copy received from Rep. Lamar Smith.

IN THE HOUSE OF REPRESENTATIVES

Mr. SMITH of Texas (for himself, [see. attached list of cosponsors]) introduced the following bill; which was referred to the Committee on ____________

A BILL

To amend the Immigration and Nationality Act with respect to the number of aliens granted nonimmigrant status described in section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act, to implement measures to prevent fraud and abuse in the granting of such status, to provide for expedited processing of certain employers' petitions with respect to aliens seeking such status, to increase, and modify the use of, fees paid by employers petitioning with respect to such aliens, and for other purposes.

[attached list of cosponsors]

Original Cosponsors: Tom Campbell, Chris Cannon, Bob Goodlatte

[begin page 2]

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

SECTION 1. SHORT TITLE.

This Act may be cited as the "Technology Worker Temporary Relief Act".

TITLE I -- NUMERICAL LIMITATIONS ON H-1B NONIMMIGRANTS

SEC. 101. INAPPLICABILITY OF FISCAL YEAR 2000 NUMERICAL LIMITATIONS TO CERTAIN ALIENS.

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

(1) in paragraph (1)(A)(iii), by inserting "Subject to paragraph (5)," before "115,000"; and

(2) by adding at the end the following:

"(5)(A) After the numerical limitation in paragraph (1)(A)(iii) has been exceeded, 45,000 aliens described in subparagraph (B) may be issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) in fiscal year 2000 without regard to such paragraph.

"(B) An alien is described in this subparagraph if---

"(i) the alien, disregarding paragraph (1)(A)(iii), otherwise is eligible to be issued a visa or [begin page 3] provided nonimmigrant status under section 101(a)(15)(H)(i)(b); and

"(ii) such employer demonstrates in the petition that---

"(I) as of the last day of the employer's previous tax year, there was a net increase (as compared with the first day of such tax year) in the number of full-time equivalent United States workers (as defined in section 212(n)(4)(E)) on the employer's payroll;

"(II) as of the end of the employer's previous tax year, there was a net increase (as compared with the prior tax year) in the total wages (including cash bonuses and similar compensation) paid to United States workers described in subclause (1) during such year; and

"(III) as of the end of the employer's previous tax year, there was a net increase (as compared with the prior tax year) in the median of the wages described in subclause (II).".

(b) EFFECTIVE DATE.---

(1) IN GENERAL.---The amendments made by subsection (a) shall take effect on the date on which final regulations fully implementing all provisions of the American Competitiveness and Workforce [begin page 4] Improvement Act of 1998 (as contained in title IV of division C of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999; Public Law 105-277) become effective.

(2) AMENDMENTS MAY TAKE EFFECT WITHOUT REGULATIONS.-The amendments made by subsection (a) shall take effect as provided in paragraph (1) without regard to whether or not proposed or final regulations to carry out such amendments have been promulgated.

SEC. 102. SECRETARY OF STATE TO MAINTAIN RECORDS ON H-1B NONIMMIGRANTS.

(a) IN GENERAL.---Section 214(g)(3) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(3)) is amended---

(1) by striking "(3)" and inserting "(3)(A)"; and

(2) by adding at the end the following:

"(B) Records with respect to the issuance of visas (or the provision otherwise of nonimmigrant status) under section 101(a)(15)(H)(i)(b) shall be maintained in accordance with regulations prescribed by the Secretary of State.".

(b) CONFORMING AMENDMENTS.---Section 416 of the American Competitiveness and Workforce Improvement [begin page 5] Act of 1998 (Public Law 105-277; 112 Stat. 2681-655; 8 U.S.C. 1184 note) is amended---

(1) in subsection (a)---

(A) by striking "214(g)(1)" and inserting "214(g)(1)(B)";

(B) by striking "1184(g)(1))" and inserting "1184(g)(1)(B))"; and

(C) by adding at the end "The Secretary of State, with the assistance of the Attorney General, shall take such steps as are necessary to maintain an accurate count of the number of aliens subject to the numerical limitations of section 214(g)(1)(A) of such Act (8 U.S.C. 1184(g)(1)(A)) who- are issued visas or otherwise provided nonimmigrant status.";

(2) in subsection (b), by striking "to count" and inserting "to count, or to assist the Secretary of State in accurately counting,"; and

(3) in subsection (c)---

(A) in paragraph (1), by striking "Attorney General" and inserting "Secretary of State"; and

(B) in paragraph (2), by inserting "and the Secretary of State" after "Attorney General".

[begin page 6]

(c) EFFECTIVE DATE.---The amendments made by this section shall take effect beginning with the first fiscal year that begins after the date of the enactment of this Act.

TITLE II -- ANTI-FRAUD PROVISIONS FOR H-1B NONIMMIGRANTS

SEC. 201. REQUIRING SPECIALTY OCCUPATION WORKERS AND FASHION MODELS TO OBTAIN STATUS AS AN H-1B NONIMMIGRANT.

Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)), as amended by section 101, is further amended by adding at the end the following:

"(6) Notwithstanding any other provision of this Act, any alien admitted or provided status as a nonimmigrant in order to provide services in a specialty occupation described in subsection (i)(1) (other than services described in subparagraph (H)(ii)(a), (0), or (P) of section 101(a)(15)) or as a fashion model shall have been issued a visa (or otherwise been provided nonimmigrant status) under section 101(a)(15)(H)(i)(b).".

SEC. 202. REQUIRING FULL-TIME EMPLOYMENT.

(a) IN GENERAL.---Section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (8 U.S.C. [begin page 7] 1101(a)(15)(H)(i)(b)) is amended by inserting "not less than 35 hours per week" after "or (P))".

(b) CONFORMING AMENDMENTS.---Section 212(n)(2)(C)(vii) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)(C)(vii) is amended---

(1) in subclause (I), by striking "a full-time" and inserting "an",

(2) by striking subclause (II);

(3) in subclause (III), by striking "subclauses (I) and (II)'' and inserting "subclause (I)"; and

(4) by redesignating subclauses (III) through (VI) as subclauses (II) through (V), respectively.

SEC. 203. REQUIREMENTS FOR SPECIALTY OCCUPATION.

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

(1) by amending paragraph (1)(B) to read as follows:

"(B) attainment of a bachelor's degree (or higher degree) in the specific specialty as a minimum for entry into the occupation in the United States.";

(2) in paragraph (2)---

(A) in subparagraph (A), by adding "and" at the end;

[begin page 8]

(B) in subparagraph (B), by striking "or" at the end and inserting a period; and

(C) by striking subparagraph (C); and

(3) by adding at the end the following:

"(3)(A) Subject to subparagraph (B), for purposes of paragraph (1)(B), the term 'bachelor's degree (or higher degree)' includes a foreign degree that is a recognized foreign equivalent of a bachelor's degree (or higher degree).

"(B) In the case of an alien obtaining a foreign degree, any determination with respect to the equivalence of that degree to a degree obtained in the United States shall be made by the Secretary of State. In carrying out the preceding sentence, the Secretary of State shall verify the authenticity of any foreign educational credential proffered by an alien.".

SEC. 204. ANTI-FRAUD FEE.

(a) IMPOSITION OF FEE.---Section 214(c) of the Immigration and Nationality Act (8 U.S.C. 1184(c)) is amended by adding at the end the following:

"(10)(A) In addition to any other fees authorized by law, the Attorney General shall impose an anti-fraud fee on an employer filing a petition under paragraph (I)---

"(i) initially to grant an alien nonimmigrant status described in section 101(a)(15)(H)(1)(b); or

[begin page 9]

"(ii) to obtain authorization for an alien having such status to change employers.

"(B) The amount of the fee shall be $100 for each such petition.

"(C) Fees collected under this paragraph shall be deposited in the Treasury in accordance with section 286(t).

(b) ESTABLISHMENT OF ACCOUNT; USE OF FEES.---Section 286 of the Immigration and Nationality Act (8 U.S.C. 1356) is amended by adding at the end the following:

"(t) H-1B ANTI-FRAUD ACCOUNT.---

"(1) IN GENERAL.---There is established in the general fund of the Treasury a separate account, which shall be known as the 'H-1B Anti-fraud Account'. Notwithstanding any other provision of law, there shall be deposited as offsetting receipts into the account all fees collected under section 214(c)(10).

"(2) USE OF FEES TO COMBAT FRAUD.---

"(A) ATTORNEY GENERAL.

" (i) PROGRAMS TO ELIMINATE FRAUD.---20 percent of amounts deposited into the H-1B Anti-fraud Account shall remain available to the Attorney General [begin page 10] until expended for programs and activities to eliminate fraud by employers filing petitions described in section 214(c)(9)(A) and aliens who are the beneficiaries of such petitions.

"(ii) REMOVAL OF ALIENS.---20 percent of amounts deposited into the H-1B Anti-fraud Account shall remain available to the Attorney General until expended for the removal of H-1B nonimmigrants (as defined in section 212(n)(4)(C)) who are deportable under section 237(a)(1)(A) by reason of having been found to be within the class of aliens inadmissible under section 212(a)(6)(C).

"(B) SECRETARY OF STATE.---40 percent of amounts deposited into the H-1B Anti-fraud Account shall remain available to the Secretary of State until expended---

"(i) to carry out section 214(i)(3)(B); and

"(ii) for other programs and activities to eliminate fraud by employers and aliens described in subparagraph (A).

[begin page 11]

"(C) JOINT PROGRAMS.---20 percent of amounts deposited into the H-1B Anti-fraud Account shall remain available to the Attorney General and the Secretary of State until expended for programs and activities conducted by them Jointly to eliminate fraud by employers and aliens described in subparagraph (A).".

SEC. 205. ADDITIONAL REQUIREMENTS ON PETITIONING EMPLOYERS.

Section 214(c) of the Immigration and Nationality Act (8 U.S.C. 1184(c)), as amended by section 204, is further amended by adding at the end the following:

"(11) The Attorney General may not approve any petition under paragraph (1) filed by an employer with respect to an alien seeking to obtain or having the status of a nonimmigrant, under section 101(a)(15)(H)(i)(b) unless the employer satisfies the following requirements:

"(A) The employer---

"(i) is an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965), or a governmental or nonprofit entity; or

"(ii) maintains a place of business in the United States that is licensed in accordance with any applicable State or local business licensing [begin page 12] requirements and is used exclusively for business purposes.

"(B) The employer---

"(i) is a governmental entity; or

"(ii) has aggregate gross assets 'With a value of not less than $5,000,000---

"(I) in the case of an employer that is a publicly held corporation, as determined using its most recent report filed with the Securities and Exchange Commission; or

"(II) in the case of any other employer, as determined as of the date on which the petition is filed pursuant to regulations promulgated by the Attorney General.".

SEC. 206. EFFECTIVE DATE.

The amendments made by this title shall apply to petitions filed under section 214(c), and applications filed under section 212(n)(1), of the Immigration and Nationality Act on or after the date final regulations are issued to carry out such amendments.

[begin page 13]

TITLE III -- EXPEDITED PROCESSING FOR CERTAIN EMPLOYERS

SEC. 301. EXPEDITED PROCESSING OF PETITIONS BY CERTAIN EMPLOYERS.

(a) IN GENERAL.---Section 214(c) of the Immigration and Nationality Act (8 U.S.C. 1184(c)), as amended by section 205, is further amended by adding at the end the following:

"(12)(A) In the case of an employer filing a petition described in paragraph (11) who is qualified for expedited processing under subparagraphs (B) and (C) and has paid the expedited processing fee under subparagraph (D) (in addition to any other fees imposed under paragraph (9) or (10))---

"(i) determinations with respect to the petition shall be made by the Attorney General through a national office established by the Attorney General for this purpose;

"(ii) if the petition is complete when it is filed, and if the Attorney General does not approve or disapprove the petition during the 30-day period beginning on the date on which it is filed, it shall be deemed approved, except that in a case where the Attorney General, before the expiration of such 30 [begin page 14] day period, requests the employer to submit additional information, the Attorney General shall have 30 days after the date of that submission in which to approve or disapprove the petition before it is deemed approved; and

"(iii) the employer shall be deemed to have satisfied the requirement in paragraph (11)(B)(ii) if the employer states in the petition that it satisfies such requirement.

"(B) An employer may qualify for expedited processing under this subparagraph by demonstrating, in an application submitted to the Attorney General, that---

"(i) the employer---

"(I) is an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965), a related or affiliated nonprofit entity, a nonprofit research organization or a governmental entity and has been in existence continuously for not less than 5 years; or

"(II) has been doing business continuously for not less than 5 years and has reported at least $100,000,000 in gross receipts or sales on a United States income tax return for each of the 2 most recently completed tax years,

[begin page 15]

"(ii) the employer is not an H-1B dependent employer (as defined in section 212(n)(3)(A));

"(iii) the employer has never submitted a petition described in paragraph (11) that was denied, or been subject to an approval that was subsequently revoked, on account of fraud, except if such denial or revocation was done in cooperation With, or at the request of, the employer;

"(iv) the employer has never been found willfully to have failed to meet a condition of section 212(n)(1), willfully to have made a misrepresentation of material fact in an application under such section, or to have committed a violation of section 212(n)(2)(C)(iv); and

"(v) the employer has not been found to have failed to meet a condition of section 212(n)(1), or to have made a misrepresentation of material fact in an application under such section, during the last 5 years.

"(C) In the case of an employer who has qualified for expedited processing under subparagraph (B), the employer shall cease to be considered so qualified upon a determination by the Attorney General that any of clauses (i) through (v) of such subparagraph are no longer accurate with respect to the employer.

[begin page 16]

(D)(i) The Attorney General shall impose a fee on an employer filing a petition under paragraph (1) and requesting expedited processing of the petition under this paragraph.

"(ii) The amount of the fee shall be $250 for each such petition.

"(iii) Fees collected under this paragraph shall be deposited as offsetting receipts into the account entitled 'Immigration Examinations Fee Account' in the Treasury of the United States and shall be available in accordance with section 286(n).".

(b) EFFECTIVE DATE.---The amendment made by subsection (a) shall apply to petitions filed under section 214(c) of the Immigration and Nationality Act on or after the date final regulations are issued to carry out such amendment.

TITLE IV -- COLLECTION AND USE OF H-1B NONIMMIGRANT FEES FOR SCHOLARSHIPS

SEC. 401. INCREASE IN H-1B NONIMMIGRANT FEES.

Section 214(c)(9) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(9)) is amended---

(1) in subparagraph (A), by striking "on or after December 1, 1998," and inserting "on or after [begin page 17] the date of the enactment of the Technology Worker Temporary Relief Act"; and

(2) in subparagraph (B), by striking "$500" and inserting "$1,000".

SEC. 402. REPEAL OF AUTHORITY TO USE FEES UNDER JOB TRAINING PARTNERSHIP ACT AND WORKFORCE INVESTMENT ACT.

(a) REPEAL OF DEPOSIT ALLOCATION.

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

(A) by striking paragraph (2); and

(B) by redesignating paragraphs (3) through (6) as paragraphs (2) through (5), respectively.

(2) CONFORMING AMENDMENT.---Section 414(d)(4) of the American Competitiveness and Workforce Improvement Act of 1998 (as contained in title IV of division C of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999; Public Law 105-277) is amended by striking "286(s)(3)" and inserting "286(s)(2)".

(b) REPEAL OF AUTHORITY TO USE FUNDS FOR DEMONSTRATION PROGRAMS AND PROJECTS.

[begin page 18]

(1) IN GENERAL.---Section 414 of the American Competitiveness and Workforce Improvement Act of 1998 is amended---

(A) by striking subsection (c); and

(B) by redesignating subsection (d) as subsection (c).

(2) CONFORMING AMENDMENT.---Section 286(s)(2) of the Immigration and Nationality Act (8 U.S.C. 1356(s)(2)) (as redesignated by subsection (a)(1)(B)) is amended by striking "414(d)" and inserting "414(c)".

SEC. 403. USE OF FEES FOR SCHOLARSHIP PROGRAM.

(a) DEPOSIT ALLOCATION.---Section 286(s)(2) of the Immigration and Nationality Act (8 U.S.C. 1356(s)(2)) (as redesignated by section 402(a)(1)(B) of this Act) is amended---

(1) in the paragraph heading, by striking "LOW-INCOME";

(2) by striking "28.2 percent" and inserting "84.5 percent";

(3) by inserting "merit-based" before "scholarships";

(4) by striking "low-income";

(5) by striking "a degree in mathematics, engineering, or computer science." and inserting "a [begin page 19] bachelor's or graduate degree with an academic major in computer science, computer programming, information sciences, systems analysis, computer engineering, electrical engineering, electronics engineering, or electronic commerce."; and

(6) by adding at the end "Not more than 5 percent of the amounts made available under this paragraph may be used for administrative expenses.".

(b) SCHOLARSHIP PROGRAM AUTHORIZED.---Section 414(c) of the American Competitiveness and Workforce Improvement Act of 1998 (as redesignated by section 402(b)(1)(B) of this Act) is amended---

(1) in the subsection heading, by striking "LOW-INCOME";

(2) in paragraph (1)---

(A) by inserting "merit-based" before "scholarships";

(B) by inserting "directly" after "scholarships";

(C) by striking "low-income individuals" and inserting "graduate students and under graduate students who are in their junior or senior year of attendance at an institution of higher education"; and

[begin page 20]

(D) by striking "associate," and all that follows through the period at the end and inserting "a bachelor's or graduate degree with an academic major in computer science, computer programming, information sciences, systems analysis, computer engineering, electrical engineering, electronics engineering, or electronic commerce."; and

(3) in paragraph (2)---

(A) in subparagraph (A)(iii)---

(i) by inserting "will be a graduate student or an undergraduate student in the junior or senior year and" before "intends"; and

(ii) by striking "an associate," and all that follows through the period at the end and inserting "a bachelor's or graduate degree with an academic major in computer science, computer programming, information sciences, systems analysis, computer engineering, electrical engineering, electronics engineering, or electronic commerce."; and

(B) by adding at the end the following:

[begin page 21]

(C) SCHOLARSHIP REVOCATION.---A scholarship awarded under this subsection shall be revoked if the individual to whom the award is made does not maintain a status of good standing in a degree program with an academic major in computer science, computer programming, information sciences, systems analysis, computer engineering, electrical engineering, electronics engineering, or electronic commerce.