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S. 1397 (110th): Skilled Worker Immigration and Fairness Act


The text of the bill below is as of May 15, 2007 (Introduced). The bill was not enacted into law.


II

110th CONGRESS

1st Session

S. 1397

IN THE SENATE OF THE UNITED STATES

May 15, 2007

(for himself, Mr. Hagel, Ms. Cantwell, and Mr. Voinovich) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To increase the allocation of visas for certain highly skilled workers and to reduce fraud and abuse in certain visa programs for aliens working temporarily in the United States.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Skilled Worker Immigration and Fairness Act.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. H–1B visas.

Sec. 3. Employment-based immigration.

Sec. 4. H–1B visa fraud and abuse protections.

2.

H–1B visas

(a)

Exemptions to numerical limitations

(1)

In general

Section 214(g)(5) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(5)) is amended—

(A)

in subparagraph (C), by striking until the number of aliens who are exempted from such numerical limitation during such year exceeds 20,000. and inserting or has been awarded a medical specialty certification based on post-doctoral training and experience in the United States; or; and

(B)

by adding at the end the following:

(D)

has earned a masters or higher degree in science, technology, engineering, or mathematics from an institution of higher education outside of the United States.

.

(2)

Applicability

The amendments made by paragraph (1) shall apply to—

(A)

any petition or visa application pending on the date of the enactment of this Act; and

(B)

any petition or visa application filed on or after such date.

(b)

Market-based visa limits

Section 214(g) of such Act (8 U.S.C. 1184(g)), as amended by subsection (a), is further amended—

(1)

in paragraph (1)—

(A)

in the matter preceding subparagraph (A), by striking (beginning with fiscal year 1992); and

(B)

in subparagraph (A), by striking clauses (i) through (vii) and inserting the following:

(i)

115,000 in fiscal year 2007; and

(ii)

in fiscal year 2008, and in each subsequent fiscal year, the greater of—

(I)

115,000; or

(II)

the number calculated under paragraph (9);

;

(2)

in paragraph (8)—

(A)

in subparagraph (B), by striking clause (iv); and

(B)

by striking subparagraph (D);

(3)

by redesignating paragraphs (9), (10), and (11) as paragraphs (10), (11), and (12), respectively; and

(4)

by inserting after paragraph (8) the following:

(9)

If the numerical limitation under paragraph (1)(A)—

(A)

is reached during a given fiscal year, the numerical limitation under paragraph (1)(A) for the subsequent fiscal year shall be equal to the lesser of—

(i)

120 percent of the numerical limitation for the given fiscal year; or

(ii)

180,000; and

(B)

is not reached during a given fiscal year, the numerical limitation under paragraph (1)(A) for the subsequent fiscal year shall be equal to the numerical limitation for the given fiscal year.

.

3.

Employment-based immigration

(a)

In general

Section 201(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1151(b)(1)) is amended by adding at the end the following:

(F)

Aliens who have earned a master's or higher degree from an accredited university in the United States.

(G)

Aliens who—

(i)

have earned an advanced degree in science, technology, engineering, or mathematics; and

(ii)

have been working in a related field in the United States under a nonimmigrant visa during the 3-year period preceding their application for an immigrant visa under section 203(b).

(H)

Aliens who—

(i)

are described in subparagraph (A) or (B) of section 203(b)(1); or

(ii)

have received a national interest waiver under section 203(b)(2)(B).

(I)

The immediate relatives of an alien who is admitted as an employment-based immigrant under section 203(b).

.

(b)

Adjustment of status for employment-based immigrants

(1)

In general

Section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) is amended by adding at the end the following:

(n)

Adjustment of status to employment-based immigrant

(1)

Eligibility

An alien, and any eligible dependents of such alien, may file an application for adjustment of status with the Secretary of Homeland Security, whether or not an employment-based immigrant visa is immediately available at the time the application is filed, if—

(A)

a petition filed under subparagraph (E) or (F) of section 204(a)(1) on behalf of the alien has been approved; or

(B)

in the discretion of the Secretary, the adjudication of such petition is pending.

(2)

Visa availability

An application filed under paragraph (1) may not be approved until the appropriate employment-based immigrant visa becomes available under section 203(b).

(3)

Fees

If an employment-based immigrant visa is not available on the date on which an application is filed under paragraph (1), a supplemental fee of $500 shall be paid on behalf of the beneficiary of such application. Such fee may not be charged with respect to any dependent accompanying or following to join such beneficiary.

(o)

Extension of employment authorization and advanced parole document

The Secretary of Homeland Security—

(1)

shall issue a 3-year employment authorization and 3-year advanced parole document to any beneficiary of an application for adjustment of status if a petition has been filed or is pending under subparagraph (E) or (F) of section 204(a)(1); and

(2)

may adjust fees assessed under this section in accordance to the 3-year period of validity assigned to the employment authorization or advanced parole documents issued under subparagraph (1).

.

(2)

Use of fees

Section 286 of such Act (8 U.S.C. 1356) is amended—

(A)

in subsection (m), by striking provisions of law, all adjudication fees and inserting provision of law, all adjudication fees and the fees collected under section 245(n)(3); and

(B)

in subsection (n)—

(i)

by striking All deposits and inserting the following: (1) Except as provided in paragraph (2), all deposits; and

(ii)

by adding at the end the following:

(2)

All deposits in the Immigration Examinations Fee Account that were originally collected under section 245(n)(3) shall be used to clear security background check delays.

.

(c)

Applicability

The amendments made by subsections (a) and (b) shall apply to any visa application—

(1)

pending on the date of the enactment of this Act; or

(2)

filed on or after such date.

4.

H–1B visa fraud and abuse protections

(a)

Prohibition against advertising exclusively to H–1B nonimmigrants

Section 212(n)(1) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)) is amended—

(1)

by redesignating subparagraph (G) as subparagraph (H);

(2)

by inserting after subparagraph (H), as redesignated, the following:

(I)

The employer has not advertised the available jobs specified in the application in an advertisement that states or indicates that—

(i)

the jobs are only available to persons who are, or may become, H–1B nonimmigrants; or

(ii)

persons will receive priority or preference in the hiring process because they are, or may become, H–1B nonimmigrants.

; and

(3)

in the undesignated paragraph at the end, by striking The employer and inserting the following:

(K)

The employer

.

(b)

Limit on percentage of H–1B employees

Section 212(n)(1) of such Act, as amended by this section, is further amended by inserting after subparagraph (I), as added by subsection (a)(1), the following:

(J)

If the employer employs 50 or more employees in the United States, not more than 50 percent of such employees are H–1B nonimmigrants.

.

(c)

Safeguards against fraud and misrepresentation in application review process

Section 212(n)(1)(K) of such Act, as designated by subsection (a)(2), is amended—

(1)

by inserting , clear indicators of fraud, misrepresentation of material fact, after completeness;

(2)

by striking or obviously inaccurate and inserting , presents clear indicators of fraud or misrepresentation of material fact, or is obviously inaccurate; and

(3)

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 under paragraph (2)..

(d)

Investigations by department of labor

Section 212(n)(2) of such Act is amended—

(1)

in subparagraph (A), by striking 12 months and all that follows and inserting 24 months after the date of the failure or misrepresentation, respectively. Upon the receipt of such a complaint, the Secretary may initiate an investigation to determine if such a failure or misrepresentation has occurred.;

(2)

in subparagraph (C)(i)—

(A)

by striking a condition of paragraph (1)(B), (1)(E), or (1)(F) and inserting a condition under subparagraph (B), (C), (E), (F), (H), (I), or (J) of paragraph (1); and

(B)

by striking paragraph (1)(C), (1)(D), or (1)(G)(i)(I) and inserting subparagraph (C), (D) or (G)(i)(I) of paragraph (1);

(3)

in subparagraph (G)—

(A)

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

(B)

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 under this subsection.;

(C)

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

(D)

by striking clauses (iv) and (v);

(E)

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

(F)

in clause (iv), as redesignated, by striking meet a condition and all that follows and inserting comply with the requirements under this subsection, unless the Secretary of Labor receives the information not later than 24 months after the date of the alleged failure.;

(G)

by amending clause (v), as redesignated, to read as follows:

(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 the employer or secure the employer’s compliance with this subsection. A determination by the Secretary under this clause is not subject to judicial review.

;

(H)

in clause (vi), as 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.; and

(I)

by adding at the end the following:

(vii)

If the Secretary of Labor, after a hearing, finds a reasonable basis to believe that the employer has violated a requirement under this subsection, the Secretary may impose a penalty under subparagraph (C).

;

(4)

by redesignating subparagraph (I) as subparagraph (J).

(e)

Additional department of labor employees

(1)

In general

The Secretary of Labor is authorized to hire 200 additional employees to administer, oversee, investigate, and enforce programs involving H–1B nonimmigrant workers.

(2)

Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary to carry out this subsection.

(f)

Schedule of fees

Section 214(c)(12)(C) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(12)(C)) is amended by striking $500 and inserting $1,000.

(g)

Information sharing between department of labor and department of homeland security

Section 212(n)(2) of such Act, as amended by this section, is further amended by inserting after subparagraph (H) the following:

(I)

If any information contained in the materials submitted by employers of H–1B nonimmigrants as part of the adjudication process indicates that the employer is not complying with the requirements under this subsection, the Director of United States Citizenship and Immigration Services shall provide such information to the Secretary of Labor. The Secretary may initiate and conduct an investigation and hearing under this paragraph after receiving such information.

.

(h)

Audits

Section 212(n)(2)(A) of such Act, as amended by this section, is further amended by adding at the end the following: The Secretary may conduct surveys regarding the degree to which employers comply with the requirements under this subsection and may conduct annual compliance audits of employers of H–1B nonimmigrants. The Secretary shall conduct annual compliance audits of not less than 1 percent of the employers of H–1B nonimmigrants during the applicable calendar year. The Secretary shall 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..

(i)

Penalties

Section 212(n)(2)(C) of such Act, as amended by this section, is further amended—

(1)

in clause (i)(I), by striking $1,000 and inserting $2,000;

(2)

in clause (ii)(I), by striking $5,000 and inserting $10,000; and

(3)

in clause (vi)(III), by striking $1,000 and inserting $2,000.

(j)

Information provided to H–1B nonimmigrants upon visa issuance

Section 212(n) of such Act, as amended by this section, is further amended by adding at the end the following:

(6)
(A)

Upon providing H–1B nonimmigrant status to an alien in the United States, the office processing the petition for such status shall provide the applicant with—

(i)

a brochure outlining the employer’s obligations and the employee’s rights under Federal law, including labor and wage protections; and

(ii)

the contact information for Federal agencies that can offer more information or assistance in clarifying employer obligations and workers’ rights.

(B)

Upon issuing an H–1B nonimmigrant visa to an alien outside the United States, the officer of the Department of State shall provide the applicant with the items described in clauses (i) and (ii) of subparagraph (A).

.