[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3322 Introduced in House (IH)]
109th CONGRESS
1st Session
H. R. 3322
To amend the Immigration and Nationality Act with respect to the H-1B
and L-1 visa programs to prevent unintended United States job losses,
to increase the monitoring and enforcement authority of the Secretary
of Labor over such programs, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 18, 2005
Mrs. Johnson of Connecticut (for herself, Mr. Simmons, Mr. Shaw, Mr.
Price of North Carolina, and Mr. Bradley of New Hampshire) introduced
the following bill; which was referred to the Committee on the
Judiciary
_______________________________________________________________________
A BILL
To amend the Immigration and Nationality Act with respect to the H-1B
and L-1 visa programs to prevent unintended United States job losses,
to increase the monitoring and enforcement authority of the Secretary
of Labor over such programs, and for other purposes.
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 ``USA Jobs Protection Act of 2005''.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--The Congress finds the following:
(1) The H-1B and L-1 visa programs were established to
enable United States employers to hire workers with the
necessary skills and allow the intracompany transfer of certain
workers in the employ of companies with operations outside of
the United States.
(2) Employers have used the H-1B and L-1 visa programs to
fill hundreds of thousands of positions in United States firms.
(3) According to a General Accounting Office report, 60
percent of the positions being filled by workers provided under
the H-1B visa program are related to information technology.
(4) The median annual salaries for information technology
employment was $45,000 in 1999.
(5) In 2001, Congress specifically banned the displacement
of United States employees by H-1B visa holders and mandated
that employers pay H-1B workers prevailing United States wages.
(6) United States unemployment in information technology
specialties has increased over the last 2 years making it more
difficult for employers to certify that they are unable to find
American information technology employees to fill vacancies as
required to gain approval of H-1B visa applications.
(7) United States consular officers in foreign countries in
the past have expressed concerns that the L-1 visa program was
being exploited beyond the original purpose of the program by
allowing employers to bring in workers who subsequently are
employed by other companies.
(8) It has been reported that the former Immigration and
Naturalization Service was reviewing the L-1 visa program to
assess whether companies were using the L-1 visa to circumvent
restrictions associated with the H-1B visa program.
(9) The Department of Labor has had very limited authority
to enforce the program requirements of the H-1B visa program
and no legal authority to police the L-1 visa program.
(10) Historical weaknesses in the administration of the H-
1B program by the former Immigration and Naturalization Service
caused unnecessary delays in processing employer requests and
also made the H-1B program vulnerable to abuse.
(b) Purpose.--The purpose of this Act is to ensure that the H-1B
and L-1 visa programs are utilized for the purposes for which they were
intended and not to displace American workers with lower cost foreign
visa holders, by closing the loopholes in the programs and
strengthening enforcement and penalties for violations of laws.
SEC. 3. L-1 NONIMMIGRANT VISAS.
(a) Wage Requirements; Limitation on Placement of Intracompany
Transferees; Displacement of Workers.--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:
``(G) No alien may be admitted or provided status as a nonimmigrant
described in section 101(a)(15)(L) unless the importing employer has
filed with the Secretary of Labor an application stating the following:
``(i) The employer shall make available for public
examination, not later than 1 working day after the date on
which an application under this subparagraph is filed, at the
employer's principal place of business or worksite, a copy of
each such application (and such accompanying documents as are
necessary). The Secretary shall compile, on a current basis, a
list (by employer and by occupational classification) of the
applications filed under this subparagraph. The Secretary shall
make such list available for public examination in Washington,
D.C. The Secretary of Labor shall review such an application
only for completeness and obvious inaccuracies. Unless the
Secretary of Labor finds that an application is incomplete or
obviously inaccurate, the Secretary of Labor shall certify to
the Secretary of Homeland Security, not later than 7 days after
the date of the filing of the application, that the
requirements of this subclause have been satisfied. The
application form shall include a clear statement explaining the
liability under this clause if an employer places a
nonimmigrant with another employer in violation of clause (i).
``(ii) The employer is offering and will offer during the
period of authorized employment to aliens admitted or provided
status as a nonimmigrant described in section 101(a)(15)(L)
wages that are at least--
``(I) the actual wage level paid by the employer to
all other individuals with similar experience and
qualifications for the specific employment in question;
or
``(II) the prevailing wage level for the
occupational classification in the area of employment;
whichever is greater, based on the information available at the
time of filing the application.
``(iii) The employer did not displace and will not displace
a United States worker employed by the employer within the
period beginning 180 days before and ending 180 days after the
date of filing of any visa petition supported by the
application.
``(iv) The provisions of section 212(n)(2) shall apply to a
failure to meet a condition of clauses (i), (iii), and (iv) and
subparagraph (G) in the same manner as such provisions apply to
a failure to meet a condition of section 212(n)(1)(F).''.
(b) Appropriate Agencies References.--Section 214(c)(1) of the
Immigration and Nationality Act (8 U.S.C. 1184(c)(1)) is amended by
inserting after ``Department of Agriculture.'' the following: ``For
purposes of this subsection with respect to nonimmigrants described in
section 101(a)(15)(L), the term `appropriate agencies of Government'
means the Department of Labor.''.
(c) Restriction of Blanket Petitions.--Section 214(c)(2)(A) of the
Immigration and Nationality Act (8 U.S.C. 1184(c)(2)(A)) is amended by
striking ``In the case of'' and all that follows through the period and
inserting the following: ``Not later than January 15 of each year, the
Secretary of Homeland Security shall consult with the Secretary of
Labor to ensure that procedures utilized in that calendar year to
process blanket petitions shall not undermine efforts by the Department
of Labor to enforce the provisions of this subsection and shall
consider any recommendations that the Secretary of Labor proposes to
such procedures to enhance compliance with the provisions of this
subsection.''.
(d) Action on Petitions.--Section 214(c)(2)(C) of the Immigration
and Nationality Act (8 U.S.C. 1184(c)(2)(C)) is amended by inserting
before the period the following: ``, unless the Secretary of Homeland
Security, after consultation with the Secretary of Labor, determines
that an additional period of time beyond 30 days is necessary to ensure
the proper implementation of this subsection''.
(e) Employment History.--Section 101(a)(15)(L) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(15)(L)) is amended by striking
``one year'' and inserting ``2 of the last 3 years''.
(f) Period of Admission.--Section 214(c)(2)(D) of the Immigration
and Nationality Act (8 U.S.C. 1184(c)(2)(D)) is amended--
(1) in clause (i), by striking ``7 years'' and inserting
``5 years''; and
(2) in clause (ii), by striking ``5 years'' and inserting
``3 years''.
(g) Recruitment; Administrative Fee; Definitions.--Section
214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)),
as amended by subsection (a), is further amended by adding at the end
the following:
``(H) In the case of a petition to import aliens as nonimmigrants
in a capacity that involves specialized knowledge as described in
section 101(a)(15)(L), the employer, prior to filing the petition,
shall file with the Secretary of Labor an application stating that the
employer has taken good faith steps to recruit, in the United States
using procedures that meet industry-wide standards, United States
workers for the job for which the nonimmigrants are sought.
``(I) The Secretary of Labor shall impose a fee on an employer
filing a petition to import aliens as nonimmigrants described in
section 101(a)(15)(L) to cover the administrative costs of processing
the petition.
``(J) The Secretary of Labor may initiate an investigation of any
employer that employs nonimmigrants described in section 101(a)(15)(L)
if the Secretary of Labor has reasonable cause to believe that the
employer is not in compliance with this subsection. The investigation
may be initiated not solely for completeness and obvious inaccuracies
by the employer in complying with this subsection.
``(K) In this paragraph:
``(i) In the case of an application with respect to 1 or
more nonimmigrants described in section 101(a)(15)(L) by an
employer, the employer is considered to `displace' a United
States worker from a job if the employer lays off the worker
from a job that is essentially the equivalent of the job for
which the nonimmigrant is sought. A job shall not be considered
to be essentially equivalent of another job unless it involves
essentially the same responsibilities, was held by a United
States worker with substantially equivalent qualifications and
experience, and is located in the same area of employment as
the other job.
``(ii)(I) The term `lays off', with respect to a worker--
``(aa) means to cause the worker's loss of
employment, other than through a discharge for
inadequate performance, violation of workplace rules,
cause, voluntary departure, voluntary retirement, or
the expiration of a grant or contract; but
``(bb) does not include any situation in which the
worker is offered, as an alternative to such loss of
employment, a similar employment opportunity with the
same employer at equivalent or higher compensation and
benefits than the position from which the employee was
discharged, regardless of whether or not the employee
accepts the offer.
``(II) Nothing in this clause is intended to limit an
employee's rights under a collective bargaining agreement or
other employment contract.
``(iii) The term `United States worker' means an employee
who--
``(I) is a citizen or national of the United
States; or
``(II) is an alien who is lawfully admitted for
permanent residence or is an immigrant otherwise
authorized by this Act or by the Secretary of Homeland
Security to be employed.''.
(h) Technical and Conforming Amendment.--Section 214 of the
Immigration and Nationality Act (8 U.S.C. 1184) is amended by striking
``Attorney General'' each place that term appears and inserting
``Secretary of Homeland Security''.
SEC. 4. TEMPORARY NONIMMIGRANT WORKERS.
(a) H-1B Dependent Employers.--
(1) In general.--Section 212(n) of the Immigration and
Nationality Act (8 U.S.C. 1182(n)) is amended--
(A) in paragraph (1)--
(i) in subparagraph (E)(ii), by striking
``an H-1B-dependent employer (as defined in
paragraph (3))'' and inserting ``an employer
that employs H-1B nonimmigrants''; and
(ii) in subparagraph (F), by striking
``(regardless of whether or not such other
employer is an H-1B-dependent employer)''; and
(B) in paragraph (2)--
(i) in subparagraph (E), by striking ``If
an H-1B-dependent employer'' and inserting ``If
an employer that employs H-1B nonimmigrants'';
and
(ii) in subparagraph (F), by striking ``The
preceding sentence shall apply to an employer
regardless of whether or not the employer is an
H-1B-dependent employer.''.
(2) Conforming definition amendment.--Section 212(n)(3) of
the Immigration and Nationality Act (8 U.S.C. 1182(n)(3)) is
amended--
(A) by striking subparagraph (A); and
(B) by redesignating subparagraphs (B) and (C) as
subparagraphs (A) and (B), respectively.
(b) Displacement of Workers.--Section 212(n) of the Immigration and
Nationality Act (8 U.S.C. 1182(n)) is amended--
(1) in paragraph (1)(F), by striking ``90 days'' each place
that term appears and inserting ``180 days''; and
(2) in paragraph (2)(C)(iii), by striking ``90 days'' each
place that term appears and inserting ``180 days''.
(c) Enforcement Action.--Section 212(n)(2) of the Immigration and
Nationality Act (8 U.S.C. 1182(n)(2)) is amended by adding at the end
the following:
``(J) The Secretary of Labor may initiate an investigation of any
employer that hires nonimmigrants described in section
101(a)(15)(H)(i)(b) if the Secretary of Labor has reasonable cause to
believe that the employer is not in compliance with this subsection.
The investigation may be initiated not solely for completeness and
obvious inaccuracies by the employer in complying with this
subsection.''.
SEC. 5. COMPTROLLER GENERAL INVESTIGATION.
Not later than 1 year after the date of enactment of this Act, the
Comptroller General of the United States shall undertake an
investigation to determine--
(1) how the amendments made by this Act are being
implemented;
(2) the impact that the amendments made by this Act have
had on employers and workers in the United States; and
(3) whether additional changes to existing law are
necessary--
(A) to prevent American workers from being
displaced by nonimmigrants described in subparagraphs
(L) and (H)(i)(b) of section 101(a)(15) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15));
or
(B) to meet the legitimate needs of United States
employers.
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