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Tech Law Journal |
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Editors' Notes:
IN THE HOUSE OF REPRESENTATIVES Mr. SMITH of Texas 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, and for other purposes.
Original cosponsors - Tom Campbell, Bob Goodlatte [begin page 2] SECTION 1. SHORT TITLE; TABLE OF CONTENTS. (a) SHORT TITLE.---This Act may be cited as the "Technology Worker Temporary Relief Act". (b) TABLE OF CONTENTS.---The table of contents of this Act is as follows: Sec. 1. Short title; table of contents. TITLE I---NUMERICAL LIMITATIONS ON H-1B NONIMMIGRANTS. Sec. 101. Temporary increase in access to H1B nonimmigrants. TITLE II---NEW REQUIREMENTS ON PETITIONING EMPLOYERS. Sec. 201. Minimum salary requirement. TITLE III---ANTI-FRAUD PROVISIONS FOR H-1B NONIMMIRANTS Sec. 301. Requiring specialty occupation workers and fashion models to obtain
status as an H-1B nonimmigrant. Sec. 302. Requiring full-time employment. TITLE. IV---EXTENSION OF PROVISIONS FROM THE AMERICAN COMPETITIVENESS AND WORKFORCE IMPROVEMENT ACT OF 1998 Sec. 401. Protection against displacement of United States workers in case of
H-1B dependent employers. [begin page 3]
SEC. 101. TEMPORARY INCREASE IN ACCESS TO H1B NONIMMIGRANTS. (a) ELIMINATING NUMERICAL LIMITATION FOR FISCAL YEAR 2000; CONDITIONING INCREASES FOR FISCAL YEARS 2001 AND 2002.---Section 214(g)(1)(A) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(1)(A)) is amended to read as follows: "(A) under section 101(a)(15)(H)(i)(b), may not exceed--- "(i) subject to paragraph (5), 107,500 in fiscal year 2001; "(ii) subject to paragraph (5), 65,000 in fiscal year 2002; and "(iii) 65,000 in each succeeding fiscal year; or (b) CONDITIONS ON INCREASES.---Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended by adding at the end following: "(5)(A) The numerical limitations in clauses (i) and (ii) of paragraph (1) (A) shall not apply to an alien described in subparagraph (B) after the date on which final regulations fully implementing all provisions of the American [begin page 4] 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) become effective. "(B) An alien is described in this subparagraph if--- "(i) the alien, disregarding clauses (i) and (ii) of paragraph (1)(A), otherwise is eligible to be issued a visa or provided nonimmigrant status under section 101(a)(15)(H)(i)(b); and (ii) the employer petitioning under subsection (c)(1) with respect to the alien 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 a) during such year; and [begin page 5] "(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). "(C) In making the determinations under subparagraph (B) (ii)--- "(i) any group treated as a single employer under subsection (b), (c), (m), or (o) of section 414 of the Internal Revenue Code of 1986 shall be treated as a single employer; and "(ii) the Attorney General shall disregard workers who ceased employment with an employer by reason of the employer's having sold, or otherwise legally transferred for consideration, the assets of a division or other severable portion of the employer's business to another person before the end of the employer's previous tax year.". (c) EFFECTIVE DATES.--- (1) ELIMINATING NUMERICAL LIMITATION FOR FISCAL YEAR 2000.---The amendment made by subsection (a), to the extent that it eliminates the numerical limitation under section 214(g)(1)(A)(iii) of the Immigration and Nationality Act, as in effect on the day before the date of the enactment of this Act, [begin page 6] shall take effect on the date of the enactment of this Act. (2) CONDITIONING INCREASES FOR FISCAL YEARS 2001 AND 2002.---In all other respects, the amendments made by this section shall take effect on October 1, 2000, 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 Act of 1998 (Public Law 105-277; 112 Stat. 2681-655; 8 U.S.C. 1184 note) is amended--- [begin page 7] (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". (c) EFFECTIVE DATE.---The amendments made by this section shall take effect beginning with the first fiscal [begin page 8] year that begins after the date of the enactment of this Act.
SEC. 201. MINIMUM SALARY REQUIREMENT. Section 212(n)(1)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)(A)) is amended--- (1) by striking "and" at the end of clause (i); (2) by redesignating clause (ii) as clause (iii); and (3) by inserting after clause (i) the following: "(ii) is offering and will offer during the period of authorized employment to H-1B nonimmigrants wages that are at least equal to an annual salary of $40,000 (including cash bonuses and similar compensation), except if the employer is an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965) or a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization, and". [begin page 9] SEC. 202. SUBMISSION OF DATA ON H1-B NONIMMIGRANTS AFTER EMPLOYMENT COMMENCEMENT. (a) IN GENERAL.---Section 212(n)(1) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)) is amended by inserting after subparagraph (G) the following: "(H) The employer will electronically submit to the Secretary, not later than 30 days after the date on which an H-1B nonimmigrant commences employment with the employer, data in an electronic format containing information about the nonimmigrant, including the following: "(i) The name of the nonimmigrant. "(ii) The foreign state of which the nonimmigrant is a citizen or national. "(iii) The academic degrees obtained by the nonimmigrant. "(iv) The nonimmigrant's job title. "(v) The date on which employment commenced. "(vi) The nonimmigrant's salary or wage level.". (b) REQUIREMENT ON SECRETARY.---Not later than 30 days after the receipt of data from an employer that is provided in accordance with section 212(n)(1)(H) of the Immigration and Nationality Act (8 U.S.C. [begin page 10] 1182(n)(1)(H)), as inserted by subsection (a), the Secretary of Labor shall make such data available on the Internet. SEC. 203. ENGLISH LANGUAGE REQUIREMENT FOR H-1B NONIMMIGRANTS PROVIDING INSTRUCTION. Section 214(1)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(1)(2)) is amended--- (1) by striking "(A)" and inserting "(i)"; (2) by striking "(B)" and inserting "(ii)"; (3) in subparagraph (C), by striking "(ii)" and inserting "(II)" (4) by striking "(C)(i)" and inserting "(iii)(I)"; (5) by striking "(2)" and inserting "(2)(A)"; and (6) by adding at the end the following: "(B) In the case of a position in a specialty occupation that requires an alien to provide instruction in any subject to students in the United States, the requirements of this paragraph also include a requirement that the alien have the level of competence in oral and written English considered by the Attorney General, in consultation with the Secretary of Education, to be appropriate for work of the kind in which the alien will be engaged, as shown by an appropriate score on one or more nationally recognized, [begin page 11] commercially available, standardized assessments of ability to speak and write English.". SEC. 204. EFFECTIVE DATE. The amendments made by this title shall take effect on the date of the enactment of this Act and shall apply to petitions filed under section 214(c), and applications filed under section 212(n)(1), of the Immigration and Nationality Act on and after October 1, 2000.
SEC. 301. 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 of this Act, 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), (O), or (P) of section 101(a)(15)) or as a fashion model shall have been issued [begin page 12] a visa (or otherwise been provided nonimmigrant status) under section 101(a)(15)(H)(i)(b).". SEC. 302. REQUIRING FULL-TIME EMPLOYMENT. (a) IN GENERAL.---Section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)) is amended by striking "or (P))" and inserting "or (P)), not less than 35 hours per week (except if the employer is an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965) or a related or affiliated nonprofit entity),". (b) CONFORMING AMENDMENT.---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. 303. REQUIREMENTS FOR SPECIALTY OCCUPATION. (a) IN GENERAL.---Section 214(i) of the Immigration and Nationality Act (8 U.S.C. 1184(i)), as amended by section 203 of this Act, is further amended--- [begin page 13] (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) by amending paragraph (2)(A)(iii) to read as follows: "(iii) (I) completion of a bachelor's degree (or higher degree) that is not described in paragraph (1)(B), (II) experience in the specialty equivalent to the completion of the degree described in paragraph (1)(B) for the occupation, and (III) recognition of expertise in the specialty through progressively responsible positions relating to the specialty."; and (3) by adding at the end the following: "(3)(A) Subject to subparagraph (B), for purposes of this subsection, 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)(i) 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. [begin page 14] "(ii) In carrying out clause (i), the Secretary of State shall verify the authenticity of any foreign educational credential proffered by an alien. The Secretary of State may enter into contracts with public or private entities in conducting such verifications. "(iii) In addition to any other fees authorized by law, the Secretary of State may impose a fee on an employer filing a petition under subsection (c)(1) initially to grant an alien nonimmigrant status described in section 101 (a)(15)(H)(i)(b), if a determination or verification described in clause (i) or (ii) is required with respect to the petition. Fees collected under this clause 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 EDUCATIONAL CREDENTIAL VERIFICATION ACCOUNT.---There is established in the general fund of the Treasury a separate account, which shall be known as the 'H-IB Educational Credential Verification Account'. Notwithstanding any other provision of law, there shall be deposited as offsetting receipts into the account all fees collected under section 214(i)(3)(B)(iii). Amounts deposited into the account shall remain available to the [begin page 15] Secretary of State until expended to carry out section 214(1)(3)(B).". SEC. 304. 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 (1)--- "(i) initially to grant an alien nonimmigrant status described in section 101(a)(15)(H)(i)(b); or "(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(u).". (b) ESTABLISHMENT OF ACCOUNT; USE OF FEES.---Section 286 of the Immigration and Nationality Act (8 U.S.C. 1356), as amended by section 303 of this Act, is further is amended by adding at the end the following: (u) H-1B ANTI-FRAUD ACCOUNT.--- "(1) IN GENERAL.---There is established in the general fund of the Treasury a separate account, [begin page 16] which shall be known as the 'H-IB 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 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 [begin page 17] the class of aliens inadmissible under section 212(a)(6)(C). "(B) SECRETARY OF STATE.---40 percent of amounts deposited into the H-IB Anti-fraud Account shall remain available to the Secretary of State until expended for programs and activities to eliminate fraud by employers and aliens described in subparagraph (A). "(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. 305. ADDITIONAL REQUIREMENTS ON PETITIONING EMPLOYERS. Section 214(c) of the Immigration and Nationality Act (8 U.S.C. 1184(c)), as amended by section 304 of this Act, 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 [begin page 18] 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 requirements and is used exclusively for business purposes. "(B) The employer--- "(i) is a governmental entity: "(ii) has aggregate gross assets with a value of not less than $250.000--- "(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: or [begin page 19] (iii) provides documentation of business activity pursuant to regulations promulgated by the Attorney General.". SEC. 306. REQUIRING FILING OF W-2 FORMS. (a) IN GENERAL.---Section 212(n) (1) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)), as amended by section 202 of this Act, is further amended by inserting after subparagraph (H) the following: "(I) The employer will, with respect to each employee who is an alien admitted or provided status as a nonimmigrant described in section 101(a)(15)(H)(i)(b), annually submit to the Secretary of Labor a copy of the most recent statement under section 6051 of the Internal Revenue Code of 1986. Such submission may be made by electronic means. (b) EFFECTIVE DATE.---The amendment made by subsection (a) applies to applications described in section 212(n)(1) of the Immigration and Nationality Act made on or after October 1, 2000, but only with respect to statements made under section 6051 of the Internal Revenue Code of 1986 on or after January 1, 2001. SEC. 307. EFFECTIVE DATE. Except for the amendment made by section 306, the amendments made by this title shall apply to petitions [begin page 20] 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.
SEC. 401. PROTECTION AGAINST DISPLACEMENT OF UNITED STATES WORKERS IN CASE OF H-1B DEPF14DEM EMPLOYERS. Section 212(n)(1)(E)(ii) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)(E)(ii)) is amended by striking "2001," and inserting "2002,". SEC. 402. ADDITIONAL INVESTIGATIVE AUTHORITY. Section 413(e)(2) 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 "2001." and inserting "2002.". |
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