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H.R. 3881: Visa Transparency Anti-Trafficking Act of 2019

The text of the bill below is as of Jul 23, 2019 (Introduced).


I

116th CONGRESS

1st Session

H. R. 3881

IN THE HOUSE OF REPRESENTATIVES

July 23, 2019

(for herself, Mrs. Wagner, Mr. Deutch, Mr. Schweikert, Mr. Himes, and Mr. Weber of Texas) introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To amend section 214(c)(8) of the Immigration and Nationality Act to modify the data reporting requirements relating to nonimmigrant employees, and for other purposes.

1.

Short title

This Act may be cited as the Visa Transparency Anti-Trafficking Act of 2019.

2.

Definitions

In this Act:

(1)

Bona fide research purposes

The term bona fide research purposes

(A)

means a systematic study or investigation, including research, development, testing, and evaluation, designed to develop or to contribute to fuller or generalizable knowledge or understanding; and

(B)

does not include—

(i)

purposes that are commercial, tortious, or criminal in nature;

(ii)

purposes that are related to immigration enforcement; or

(iii)

nonresearch purposes that would not have been practicable, but for access to the information.

(2)

Employment

The term employment

(A)

means employment in the United States;

(B)

includes cultural exchanges, training, and business activities in which the nonimmigrant receives any form of compensation (including a stipend) from any source, whether paid in the United States or in the nonimmigrant’s country of origin, and whether or not authorized by law; and

(C)

does not include the activities of a nonimmigrant described in section 101(a)(15)(B) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(B)), except—

(i)

personal or domestic servants accompanying or following to join a nonimmigrant employer who seeks admission into, or is already in, the United States;

(ii)

personal or domestic servants accompanying or following to join a United States citizen employer who has a permanent home or is stationed in a foreign country, and who is temporarily visiting the United States;

(iii)

nonimmigrants engaged in training, services, or work normally allowed under other nonimmigrant visa classifications, including—

(I)

services described in clause (i)(b) of section 101(a)(15)(H) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)); and

(II)

training described in clause (iii) of such section; and

(iv)

nonimmigrants engaged in the supervision or training of others engaged in building or construction work, but not for the purpose of performing any such building or construction work themselves (as described in section 214.2(b)(5) of title 8, Code of Federal Regulations and section 41.31(b)(1) of title 22, Code of Federal Regulations).

(3)

Law enforcement

The term law enforcement includes—

(A)

Federal law enforcement officers (as defined in section 115(c)(1) of title 18, United States Code);

(B)

Federal law enforcement officers and local law enforcement officers (as such terms are defined in paragraphs (5) and (6) of subsection (b) of the Combat Human Trafficking Act of 2015 (34 U.S.C. 20709)); and

(C)

State attorneys general (as defined in section 4G(1) of the Clayton Act (15 U.S.C. 15g(1))).

(4)

Nonimmigrant visa classification, status, or subclassification

The term nonimmigrant visa classification, status, or subclassification means any program, level, category, subcategory, or other type of grouping that—

(A)

is part of a nonimmigrant visa classification or status—

(i)

described in section 101(a)(15) or 214(e) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15) and 1184(e)); or

(ii)

otherwise established under the immigration laws (as defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17))); and

(B)

may be specifically created, delineated, or defined in—

(i)

any Federal statute, regulation, agency guidance, directive, memo, or any other source material, including the Code of Federal Regulations, the Foreign Affairs Manual, and Department of State cables (classified or unclassified); or

(ii)

any official form, application, or petition used by the Secretary of Homeland Security, the Secretary of State, or the Secretary of Labor.

(5)

Service providers to human trafficking victims

The term service providers to human trafficking victims means any nonprofit, nongovernmental organization that has significant knowledge and substantial experience in human trafficking prevention and eradication, investigation and identification of human trafficking, and delivering wrap-around services to human trafficking victims, including grant recipients under—

(A)

section 107(b)(2)(A), 107(f), or 112A of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7105(b)(2)(A), 7105(f), and 7109a); or

(B)

section 202 or 203 of the Trafficking Victims Protection Reauthorization Act of 2005 (34 U.S.C. 20702 and 20703).

(6)

Temporary foreign nonimmigrant worker

The term temporary foreign nonimmigrant worker means—

(A)

nonimmigrants—

(i)

who have been issued a visa under section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15));

(ii)

who have petitioned for, requested, or otherwise applied for a visa described in subparagraph (A); or

(iii)

for whom such a visa has been petitioned, requested, or applied; and

(B)

any person authorized to be employed in the United States under any nonimmigrant visa classification, subclassification, or program for nonimmigrants that authorizes employment, except for persons who were issued nonimmigrant visas for the purpose of victim or witness protection.

(7)

Third party intermediary

The term third party intermediary

(A)

means any natural person, corporation, company, firm, partnership, joint stock company or association, or other organization or entity, including municipal corporations, that recruits, solicits, or engages in related activities with respect to an individual who resides outside of the United States in furtherance of employment in the United States, including when such activity occurs outside of the United States; and

(B)

includes recruiters, subrecruiters, placement agencies, staffing agencies, labor contractors, and sponsor organizations designated by the Secretary of State, including for-profit and not-for-profit sponsor entities.

(8)

Worker protection organizations

The term worker protection organizations means any nonprofit, nongovernmental organization that—

(A)

promotes compliance with antidiscrimination, wage, occupational health and safety, workers’ compensation and other labor and employment laws and regulations; or

(B)

otherwise advocates for safeguarding labor standards and improving workplace protections and working conditions.

3.

Annual report to Congress on nonimmigrant visas

Section 214(c)(8) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(8)) is amended to read as follows:

(8)

Not later than 6 months after the end of each fiscal year, the Secretary of Homeland Security shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that includes, with respect to the reporting period—

(A)

the number of citizens of countries with a Compact of Free Association with the United States who—

(i)

are authorized by such Compact to reside indefinitely in the United States as nonimmigrants; and

(ii)

were admitted to the United States;

(B)

the ports of entry at which the individuals described in subparagraph (A) were admitted; and

(C)

with respect to each nonimmigrant visa classification, subclassification, or program for nonimmigrants that authorizes employment, as applicable (except for visas issued for the purpose of victim or witness protection), to the extent that the following data are collected by the Department of Homeland Security, the Department of Labor, the Department of State, or any other Federal agency to which the collection of such data has been delegated by any such Department, or by any successor agency to any such department—

(i)

the number of visas that were issued;

(ii)

the number of persons who were admitted into the United States;

(iii)

the number of persons who were otherwise granted legal status;

(iv)

the number of visas that expired, were revoked, or were otherwise terminated, respectively;

(v)

the number of temporary foreign nonimmigrant workers employed in each State;

(vi)

the 10 employers that hired the most temporary foreign nonimmigrant workers;

(vii)

the 10 occupations, listed by Standard Occupational Classification Code, in which the largest number of temporary foreign nonimmigrant workers are employed in the United States, and the average hourly and yearly salary paid to temporary foreign nonimmigrant workers in each such occupation;

(viii)

the 10 most common nationalities of temporary foreign nonimmigrant workers;

(ix)

the 10 third party intermediaries that recruited or hired the most temporary foreign nonimmigrant workers;

(x)

the percentage of temporary foreign nonimmigrant workers at each major education level;

(xi)

the percentage of temporary foreign nonimmigrant workers who are younger than 20 years of age, between 20 and 24 years of age, between 25 and 29 years of age, between 30 and 34 years of age, between 35 and 39 years of age, between 40 and 44 years of age, between 45 and 49 years of age, between 50 and 54 years of age, between 55 and 59 years of age, between 60 and 64 years of age, or older than 65 years of age, respectively;

(xii)

the percentage of temporary foreign nonimmigrant workers of each sex who were issued visas; and

(xiii)

the source of the data described in clauses (i) through (xii).

.

4.

Database

(a)

In general

(1)

Availability of information

At the time the Secretary of Homeland Security submits each annual report under section 214(c)(8) of the Immigration and Nationality Act, as amended by section 3, with respect to each temporary foreign nonimmigrant worker, the Secretary shall make the information described in subsection (b) (except for information regarding visas issued for the purpose of victim or witness protection) that is collected by the Department of Homeland Security, the Department of Labor, the Department of State, or any other Federal agency to which the collection of such data has been delegated by any such department, or by any successor agency to any such department on a dedicated and searchable database.

(2)

Sources; redundancies

The database established under paragraph (1) shall indicate—

(A)

the sources from which the information described in subsection (b) is derived; and

(B)

to the extent that any of the information described in subsection (b) is available from more than 1 source or Federal agency, the database shall—

(i)

reproduce the information from each source or Federal agency; and

(ii)

indicate the source from which it was derived, including the Federal agency and any relevant petition or application form.

(b)

Required information

(1)

Biographical information

The information made available in the database established under subsection (a) shall include, for each temporary foreign nonimmigrant worker—

(A)

his or her age;

(B)

his or her sex;

(C)

his or her country of origin and local region or State;

(D)

the highest level of education attained, the institution from which such education was attained, and his or her primary field of study; and

(E)

the name of the university at which he or she is enrolled.

(2)

Visa information

The information made available in the database established under subsection (a) shall include, for each visa requested by a temporary foreign nonimmigrant worker—

(A)

the visa classification or status that was requested, including—

(i)

any applicable subclassification, preference, or program associated with the visa classification or status; and

(ii)

if applicable, any section cited from the Code of Federal Regulations, Foreign Affairs Manual, or any other Federal guidance document that corresponds to such subclassification, preference, or program;

(B)

whether the request is for a new visa or an extension of an existing visa or status;

(C)

the status of the visa, such as issued, expired, revoked, or terminated;

(D)

whether the visa was issued pursuant to a blanket petition; and

(E)

whether the visa or status was issued at a port of entry and, if so, the port of entry where it was issued.

(3)

Employment information

The information made available in the database established under subsection (a) shall include—

(A)

for each offer of employment in the United States—

(i)

the temporary foreign nonimmigrant worker’s occupation and the standard occupational classification code for the occupation, or any other occupational code listed;

(ii)

the wages, salary, and any other compensation to be paid to the temporary foreign nonimmigrant worker;

(iii)

the address where the temporary foreign nonimmigrant worker will work, and any additional worksite addresses;

(iv)

the address where the temporary foreign nonimmigrant worker will reside during his or her employment;

(v)

whether the temporary foreign nonimmigrant worker will be assigned to work at an offsite location; and

(vi)

whether the temporary foreign nonimmigrant worker’s position is a full-time position; and

(B)

for each accepted offer of employment in the United States—

(i)

the dates on which the temporary foreign nonimmigrant worker began and ended employment; and

(ii)

the date on which the temporary foreign nonimmigrant worker entered the United States.

(4)

Employer information

The information made available in the database established under subsection (a) shall include, for each employer of temporary foreign nonimmigrant workers—

(A)

the name and address of the employer;

(B)

if the employer is a household employer, the nationality of the employer;

(C)

whether the employer is an H–1B dependent employer;

(D)

whether the employer has ever been found to be a willful violator or to have violated any law or regulation under the employment, labor, or immigration laws of the United States;

(E)

whether the employer conducts outplacement of nonimmigrants; and

(F)

the percentage of nonimmigrants comprising the United States workforce of the employer, including whether the percentage is less than 30 percent, between 30 and 50 percent, or more than 50 percent.

(5)

Application information

The information made available in the database established under subsection (a) shall include, for each application filed on behalf of a temporary foreign nonimmigrant worker—

(A)

the date on which the application was filed;

(B)

the status of such application, such as approved, rejected, denied, withdrawn, or awaiting final action;

(C)

whether the application was for the purpose of—

(i)

beginning new employment;

(ii)

continuing previously approved employment with the same employer without change;

(iii)

changing from previously approved employment;

(iv)

new concurrent employment;

(v)

changing of employer;

(vi)

amending a petition;

(vii)

requesting initial permission to accept employment;

(viii)

renewing permission to accept employment; or

(ix)

something not described in clauses (i) through (viii);

(D)

whether the application was a blanket petition;

(E)

the total number of temporary foreign nonimmigrant workers included in the application;

(F)

the application number;

(G)

whether the temporary foreign nonimmigrant worker is eligible for employment authorization based on pre-completion optional practical training, post-completion optional practical training, or STEM optional practical training;

(H)

if the temporary foreign nonimmigrant worker is eligible for employment authorization based on STEM optional practical training—

(i)

the worker’s degree; and

(ii)

the name of the worker’s employer; and

(I)

the name of the person or entity that filed a permanent status petition on the behalf of the temporary foreign nonimmigrant worker.

(6)

Third party intermediary information

The information made available in the database established under subsection (a) shall include the name and last known domestic and foreign business address of any third party intermediary involved in identifying workers for employment in the United States with a nonimmigrant visa.

(c)

Recipient entities

(1)

In general

The database established under subsection (a), including all personally identifiable information including in such database, shall be made available only to—

(A)

law enforcement;

(B)

service providers to human trafficking victims;

(C)

worker protection organizations; or

(D)

entities agreeing to only use such information for bona fide research purposes.

(2)

Certification

Entities receiving data under paragraph (1)(D) for bona fide research purposes shall certify that—

(A)

the entity will only use the data for research purposes; and

(B)

the entity will not share or disclose the data in disaggregated form, in a manner that would make any personally identifiable information discernible, with any individual or entity that has not been approved by the Department of Homeland Security to receive it.

(3)

Privacy protection

Any government official who uses information contained in the database established under subsection (a) shall take reasonable steps to ensure that such use does not enable such information to be manipulated—

(A)

to identify an individual nonimmigrant to whom the information relates; or

(B)

to disaggregate such information into its component parts.

(d)

Rulemaking

The Secretary of Homeland Security shall—

(1)

promulgate a rule that establishes—

(A)

procedures for requesting and accessing information contained in the database established under subsection (a), which access may not be limited to fewer than 5 years; and

(B)

security procedures for protecting such information, including rules relating to personnel security, physical security, and network security; and

(2)

promulgate regulations making the information described in subsection (a) available to the public in a searchable database format, except for—

(A)

any personally identifiable information, including—

(i)

worksite address, but shall include the State in which the worksite is located; and

(ii)

the names of any household employers;

(B)

any query that returns fewer than 10 workers; and

(C)

any information that, alone or in combination, would allow a reasonable person who does not have personal knowledge of the relevant circumstances, to identify a specific temporary foreign nonimmigrant worker with reasonable certainty.

5.

Authority to modify forms

The Secretary of Homeland Security, the Secretary of State, and the Secretary of Labor may take such steps as may be necessary to revise any application, petition, form, or database used to regulate the issuance of visas to nonimmigrants or to grant nonimmigrant status to comply with the reporting requirements set forth in section 214(c)(8) of the Immigration and Nationality Act, as amended by section 3.

6.

Authority to immediately update fees

Notwithstanding the requirements under chapter 5 of title 5, United States Code (commonly referred to as the Administrative Procedure Act) or any other law, the Secretary of Homeland Security, the Secretary of State, or the Secretary of Labor may, without notice and comment, reasonably adjust applicable fees charged to any person or entity to the extent necessary to recover the full cost implementing this Act or the amendments made by this Act.

7.

Information sharing

The Secretary of State and the Secretary of Labor shall—

(1)

annually submit to the Secretary of Homeland Security, in a timely manner, any information collected or maintained by the Department of State or the Department of Labor that is required to be included in the annual report under section 214(c)(8) of the Immigration and Nationality Act, as amended by section 3; and

(2)

provide any other related information to the Secretary of Homeland Security, upon request, that may be necessary to carry out the Secretary of Homeland Security’s responsibilities under this Act and the amendment made by section 3.

8.

Exemption from Paperwork Reduction Act

The requirements under chapter 35 of title 44, United States Code (commonly referred to as the Paperwork Reduction Act), shall not apply to any action to implement this Act or the amendments made by this Act.

9.

Progressive implementation

(a)

Initial report

Not later than 1 year after the date of the enactment of this Act, the Secretary of Homeland Security shall submit the first report required under section 214(c)(8) of the Immigration and Nationality Act, as amended by section 3, based on the information that is available from the Department of Homeland Security, the Department of Labor, and the Department of State as of the date of the enactment of this Act.

(b)

Full report

Not later than 3 years after the date of the enactment of this Act, the Secretary of Homeland Security shall submit the report required under section 214(c)(8) of the Immigration and Nationality Act, as amended by section 3, which shall include all of the information and data listed in subparagraph (C) of such section, which is collected by the Department of Homeland Security, the Department of Labor, the Department of State, or any other Federal agency to which the collection of such data has been delegated by any such Department, or by any successor agency to any such Department.

10.

Continued reporting

(a)

In general

Federal and State administrative agencies shall continue to publicly report all nonimmigrant visa data required by law as of the day before the date of the enactment of this Act.

(b)

Savings provision

None of the reporting requirements under this Act or the amendments made by this Act may be construed to replace—

(1)

any reporting requirements under any statute or regulation in effect on the date of the enactment of this Act; or

(2)

any reports or publicly available microdata published by any Federal agency pertaining to any nonimmigrant visa classification that authorizes employment.