skip to main content

H.R. 5413 (108th): To amend the Immigration and Nationality Act to provide greater protections to domestic and foreign workers under the H-1B nonimmigrant worker program.

The text of the bill below is as of Nov 19, 2004 (Introduced).


I

108th CONGRESS

2d Session

H. R. 5413

IN THE HOUSE OF REPRESENTATIVES

November 19, 2004

introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To amend the Immigration and Nationality Act to provide greater protections to domestic and foreign workers under the H–1B nonimmigrant worker program.

1.

Wage determination

(a)

Change in minimum wages

Section 212(n)(1)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)(A)) is amended to read as follows:

(A)

The employer—

(i)

is offering and will offer during the period of authorized employment to aliens admitted or provided status as an H–1B nonimmigrant wages that are at least—

(I)

the locally determined prevailing wage level for the occupational classification in the area of employment;

(II)

the median average wage for all workers in the occupational classification in the area of employment; or

(III)

the median wage for skill level two in the occupational classification found in the most recent Occupational Employment Statistics survey;

whichever is greatest, based on the best information available as of the time of filing of the application; and
(ii)

will provide working conditions for such nonimmigrant that will not adversely affect the working conditions of workers similarly employed.

The wage determination methodology used under clause (i) shall be submitted with the application.

.

(b)

Provision of W–2 forms

Section 212(n)(1) of such Act (8 U.S.C. 1182(n)(1)) is amended by adding at the end the following new subparagraph:

(H)

If the employer employed, in such previous period as the Secretary shall specify, one or more H–1B nonimmigrants, the application shall be accompanied by the Internal Revenue Service Form W–2 Wage and Tax Statement filed by the employer with respect to such nonimmigrants for such period.

.

2.

Good faith recruitment requirement

(a)

Extending time period for no displacement

Section 212(n) of the Immigration and Nationality Act (8 U.S.C. 1182(n)) is amended—

(1)

in paragraph (1)(E)(i), by striking 90 days and inserting 180 days each place it appears; and

(2)

in paragraph (2)(C)(iii), in the matter before subclause (I), by striking 90 days and inserting 180 days each place it appears .

(b)

Requiring active requirement

Section 212(n)(1)(G)(i)(I) of such Act (8 U.S.C. 1182(n)(1)(G)(i)(I)) is amended by inserting actively before recruit.

(c)

Prohibition of outplacement

Section 212(n)(1)(F) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)(F)) is amended to read as follows:

(F)

An employer shall not place, out-source, lease, or otherwise contract for the placement of an alien admitted or provided status as an H–1B nonimmigrant with another employer, regardless of whether or not such other employer is an H–1B-dependent employer.

.

3.

Labor enforcement

(a)

Centralization of administrative and enforcement functions

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 new subparagraph:

(I)

The Secretary shall be responsible under this paragraph for investigations of wage complaints, as well as investigations of allegations of fraud in the filing of applications under this subsection.

.

(b)

Audits

Section 212(n)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)(A)) is amended by adding at the end the following new sentences: In addition, the Secretary may conduct surveys of the level of compliance by employers with the provisions and requirements of this subsection and may conduct annual compliance audits in the case of employers that employ H–1B nonimmigrants. In the case of an employer that employs H–1B nonimmigrants that represent 15 percent or more of the total number of individuals employed by the employer, the Secretary shall conduct annual compliance audits of such employer..

4.

Making H–1B nonimmigrant petitioner fee permanent

(a)

In general

Section 214(c)(9)(A) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(9)(A)), in the matter immediately preceding clause (i), is amended by striking October 1, 2003.

(b)

Effective date

The amendment made by subsection (a) shall apply to petitions filed beginning on or after January 1 of the year beginning after the date of the enactment of this Act.

5.

Private right of 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 new subparagraph:

(I)

In addition to any other remedies available under this paragraph, a person who is harmed by a violation by an employer of a requirement of this subsection may bring a civil action against the employer in any court of competent jurisdiction for damages or other appropriate relief.

.