S 1723 IS.
(Abraham H1-B Bill).
Source: Library of Congress.

S 1723 IS

105th CONGRESS
2d Session

To amend the Immigration and Nationality Act to assist the United States to remain competitive by increasing the access of United States firms and institutions of higher education to skilled personnel and by expanding educational and training opportunities for American students and workers.

IN THE SENATE OF THE UNITED STATES

March 6, 1998

Mr. ABRAHAM (for himself, Mr. HATCH, Mr. MCCAIN, Mr. DEWINE and Mr. SPECTER) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

To amend the Immigration and Nationality Act to assist the United States to remain competitive by increasing the access of United States firms and institutions of higher education to skilled personnel and by expanding educational and training opportunities for American students and workers.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; REFERENCES IN ACT.

(a) SHORT TITLE- This Act may be cited as the `American Competitiveness Act'.

(b) REFERENCES IN ACT- Except as otherwise specifically provided in this Act, whenever in this Act an amendment or repeal is expressed as an amendment to or a repeal of a provision, the reference shall be deemed to be made to the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

SEC. 2. FINDINGS.

Congress makes the following findings:

(1) American companies today are engaged in fierce competition in global markets.

(2) Companies across America are faced with severe high skill labor shortages that threaten their competitiveness.

(3) The National Software Alliance, a consortium of concerned government, industry, and academic leaders that includes the United States Army, Navy, and Air Force, has concluded that `The supply of computer science graduates is far short of the number needed by industry.'. The Alliance concludes that the current severe understaffing could lead to inflation and lower productivity.

(4) The Department of Labor projects that the United States economy will produce more than 130,000 information technology jobs in each of the next 10 years, for a total of more than 1,300,000.

(5) Between 1986 and 1995, the number of bachelor's degrees awarded in computer science declined by 42 percent. Therefore, any short-term increases in enrollment may only return the United States to the 1986 level of graduates and take several years to produce these additional graduates.

(6) A study conducted by Virginia Tech for the Information Technology Association of America estimates that there are more than 340,000 unfilled positions for highly skilled information technology workers in American companies.

(7) The Hudson Institute estimates that the unaddressed shortage of skilled workers throughout the United States economy will result in a 5-percent drop in the growth rate of GDP. That translates into approximately $200,000,000,000 in lost output, nearly $1,000 for every American.

(8) It is necessary to deal with the current situation with both short-term and long-term measures.

(9) In fiscal year 1997, United States companies and universities reached the cap of 65,000 on H-1B temporary visas a month before the end of the fiscal year. In fiscal year 1998 the cap is expected to be reached as early as May if Congress takes no action. And it will be hit earlier each year until backlogs develop of such a magnitude as to prevent United States companies and researchers from having any timely access to skilled foreign-born professionals.

(10) It is vital that more American young people be encouraged and equipped to enter technical fields, such as mathematics, engineering, and computer science.

(11) If American companies cannot find home-grown talent, and if they cannot bring talent to this country, a large number are likely to move key operations overseas, sending those and related American jobs with them.

(12) Inaction in these areas will carry significant consequences for the future of American competitiveness around the world and will seriously undermine efforts to create and keep jobs in the United States.

SEC. 3. INCREASED ACCESS TO SKILLED PERSONNEL FOR UNITED STATES COMPANIES AND UNIVERSITIES.

(a) ESTABLISHMENT OF H1-C NONIMMIGRANT CATEGORY-

(1) IN GENERAL- Section 101(a)(15)(H)(i) (8 U.S.C. 1101(a)(15)(H)(i)) is amended--

(A) by inserting `and other than services described in clause (c)' after `subparagraph (O) or (P)'; and

(B) by inserting after `section 212(n)(1)' the following: `, or (c) who is coming temporarily to the United States to perform labor as a health care worker, other than a physician, if the alien qualifies for the exemption from the grounds of inadmissibility described in section 212(a)(5)(C)'.

(2) TRANSITION RULE- Any petition filed prior to the date of enactment of this Act, for issuance of a visa under section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act on behalf of an alien described in the amendment made by paragraph (1)(B) shall, on and after that date, be treated as a petition filed under section 101(a)(15)(H)(i)(c) of that Act, as added by paragraph (1).

(b) ANNUAL CEILINGS FOR H1-B AND H1-C WORKERS-

(1) AMENDMENT OF THE INA- Section 214(g)(1) (8 U.S.C. 1184(g)(1)) is amended to read as follows:

`(g)(1) The total number of aliens who may be issued visas or otherwise provided nonimmigrant status during any fiscal year--

`(A) under section 101(a)(15)(H)(i)(b)--

`(i) for each of fiscal years 1992 through 1997, may not exceed 65,000,

`(ii) for fiscal year 1998, may not exceed 2 times the number of aliens issued visas or otherwise provided nonimmigrant status between October 1, 1997, and March 31, 1998,

`(iii) for fiscal year 1999, may not exceed the number determined for fiscal year 1998 under such section, minus 10,000, plus the number of unused visas under subparagraph (B) for the fiscal year preceding the applicable fiscal year, and

`(iv) for fiscal year 2000 and each applicable fiscal year thereafter, may not exceed the number determined for fiscal year 1998 under such section, minus 10,000, plus the number of unused visas under subparagraph (B) for the fiscal year preceding the applicable fiscal year, plus the number of unused visas under subparagraph (C) for the fiscal year preceding the applicable fiscal year;

`(B) under section 101(a)(15)(H)(ii)(b), beginning with fiscal year 1992, may not exceed 66,000; or

`(C) under section 101(a)(15)(H)(i)(c), beginning with fiscal year 1999, may not exceed 10,000.

For purposes of determining the ceiling under subparagraph (A) (iii) and (iv), not more than 25,000 of the unused visas under subparagraph (B) may be taken into account for any fiscal year.'.

(2) TRANSITION PROCEDURES- Any visa issued or nonimmigrant status otherwise accorded to any alien under clause (i)(b) or (ii)(b) of section 101(a)(15)(H) of the Immigration and Nationality Act pursuant to a petition filed during fiscal year 1998 but approved on or after October 1, 1998, shall be counted against the applicable ceiling in section 214(g)(1) of that Act for fiscal year 1998 (as amended by paragraph (1) of this subsection), except that, in the case where counting the visa or the other granting of status would cause the applicable ceiling for fiscal year 1998 to be exceeded, the visa or grant of status shall be counted against the applicable ceiling for fiscal year 1999.

SEC. 4. EDUCATION AND TRAINING IN SCIENCE AND TECHNOLOGY.

(a) DEGREES IN MATHEMATICS, COMPUTER SCIENCE, AND ENGINEERING- Subpart 4 of part A of title IV of the Higher Education Act of 1965 (20 U.S.C. 1070c et seq.) is amended--

(1) in section 415A(b)(1) (20 U.S.C. 1070c(b)(1))--

(A) by striking `$105,000,000 for fiscal year 1993' and inserting `$155,000,000 for fiscal year 1999'; and

(B) by inserting `, of which the amount in excess of $25,000,000 for each fiscal year that does not exceed $50,000,000 shall be available to carry out section 415F for the fiscal year' before the period; and

(2) by adding at the end the following:

`SEC. 415F. DEGREES IN MATHEMATICS, COMPUTER SCIENCE, AND ENGINEERING.

`(a) ALLOTMENTS AND GRANTS- From amounts made available to carry out this section under section 415A(b)(1) for a fiscal year, the Secretary shall make allotments to States to enable the States to pay not more than 50 percent of the amount of grants awarded to low-income students in the States.

`(b) USE OF GRANTS- Grants awarded under this section shall be used by the students for attendance on a full-time basis at an institution of higher education in a program of study leading to an associate, baccalaureate or graduate degree in mathematics, computer science, or engineering.

`(c) COMPARABILITY- The Secretary shall make allotments and grants shall be awarded under this section in the same manner, and under the same terms and conditions, as--

`(1) the Secretary makes allotments and grants are awarded under this subpart (other than this section); and

`(2) are not inconsistent with this section.'.

(b) DATA BANK; TRAINING-

(A) establish or improve a data bank on the Internet that facilitates--

(i) job searches by individuals seeking employment in the field of technology; and

(ii) the matching of individuals possessing technology

(1) IN GENERAL- The Secretary of Labor shall--

credentials with employment in the field of technology; and

(B) provide training in information technology to unemployed individuals who are seeking employment.

(2) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated for fiscal year 1999 and each of the 4 succeeding fiscal years--

(A) $8,000,000 to carry out paragraph (1)(A); and

(B) $10,000,000 to carry out paragraph (1)(B).

SEC. 5. INCREASED ENFORCEMENT PENALTIES AND IMPROVED OPERATIONS.

(a) INCREASED PENALTIES FOR VIOLATIONS OF H1-B OR H1-C PROGRAM- Section 212(n)(2)(C) (8 U.S.C. 1182(n)(2)(C)) is amended--

(1) by striking `a failure to meet' and all that follows through `an application--' and inserting `a willful failure to meet a condition in paragraph (1) or a willful misrepresentation of a material fact in an application--'; and

(2) in clause (i), by striking `$1,000' and inserting `$5,000'.

(b) SPOT INSPECTIONS DURING PROBATIONARY PERIOD- Section 212(n)(2) (8 U.S.C. 1182(n)(2)) is amended--

(1) by redesignating subparagraph (D) as subparagraph (E); and

(2) by inserting after subparagraph (C) the following:

`(D) The Secretary of Labor may, on a case-by-case basis, subject an employer to random inspections for a period of up to five years beginning on the date that such employer is found by the Secretary of Labor to have engaged in a willful failure to meet a condition of subparagraph (A), or a misrepresentation of material fact in an application.'.

(c) EXPEDITED REVIEWS AND DECISIONS- Section 214(c)(2)(C) (8 U.S.C. 1184(c)(2)(C)) is amended by inserting `or section 101(a)(15)(H)(i)(b)' after `section 101(a)(15)(L)'.

(d) DETERMINATIONS ON LABOR CONDITION APPLICATIONS TO BE MADE BY ATTORNEY GENERAL-

(1) IN GENERAL- Section 101(a)(15)(H)(i)(b) (8 U.S.C. 1101(a)(15)(H)(i)(b)) is amended by striking `with respect to whom' and all that follows through `with the Secretary' and inserting `with respect to whom the Attorney General determines that the intending employer has filed with the Attorney General'.

(2) CONFORMING AMENDMENTS- Section 212(n) (8 U.S.C. 1182(n)(1)) is amended--

(A) in paragraph (1)--

(i) in the first sentence, by striking `Secretary of Labor' and inserting `Attorney General';

(ii) in the sixth and eighth sentences, by inserting `of Labor' after `Secretary' each place it appears;

(iii) in the ninth sentence, by striking `Secretary of Labor' and inserting `Attorney General';

(iv) by amending the tenth sentence to read as follows: `Unless the Attorney General finds that the application is incomplete or obviously inaccurate, the Attorney General shall provide the certification described in section 101(a)(15)(H)(i)(b) and adjudicate the nonimmigrant visa petition.'; and

(v) by inserting in full measure margin after subparagraph (D) the following new sentence: `Such application shall be filed with the employer's petition for a nonimmigrant visa for the alien, and the Attorney General shall transmit a copy of such application to the Secretary of Labor.'; and

(B) in the first sentence of paragraph (2)(A), by striking `Secretary' and inserting `Secretary of Labor'.

(e) PREVAILING WAGE CONSIDERATIONS- Section 101(a) (8 U.S.C. 1101(a)) is amended by adding at the end the following:

`(50) The term `prevailing wage' means the following:

`(A) If the job opportunity is subject to a wage determination in the area under the Act of March 3, 1931 (commonly known as the Davis-Bacon Act (40 U.S.C. 276a et seq.)), or the Service Contract Act of 1965 (41 U.S.C. 351 et seq.), the prevailing wage shall be the rate required under such Acts.

`(B) If the job opportunity is not covered by a prevailing wage determined under the Acts referred to in subparagraph (A), the prevailing wage shall be--

`(i) the rate of wages to be determined, to the extent feasible, by adding the wage paid to workers similarly employed in the area of intended employment and dividing the total by the number of such workers, except that the wage set forth in the application shall be considered as meeting the prevailing wage standard if it is within 5 percent of the average rate of wages; or

`(ii) if the job opportunity is covered by a collective bargaining agreement, the wage rate set forth in the agreement shall be considered as not adversely affecting the wages of United States workers similarly employed and shall be considered the `prevailing wage'.

`(C) A prevailing wage determination made pursuant to this section shall not permit an employer to pay a wage lower than that required under any other Federal, State, or local law.

`(D) For purposes of this section:

`(i) The term `similarly employed' means having substantially comparable jobs in the occupational category in the area of intended employment, except that, if no such workers are employed by employers other than the employer applicant in the area of intended employment, the term `similarly employed' means--

`(I) having jobs requiring a substantially similar level of skills within the area of intended employment; or

`(II) if there are no substantially comparable jobs in the area of intended employment, having substantially comparable jobs with employers outside of the area of intended employment.

`(ii) The term `substantially comparable jobs' means jobs with substantially comparable employers, taking into account size, profit or nonprofit classification, start-up or mature business operations, the specific industry, public or private sector, status as an academic institution, or other defining characteristics which the employer can demonstrate result in a distinct wage scale from the industry at large.

`(iii) The term `similarly employed' shall be construed to require separate average rates of wage taking into account such factors as years of experience, academic degree, educational institution attended, grade point average, publications or other distinctions, personal traits deemed essential to job performance, specialized training or skills, competitive market factors, or any other factors typically considered by employers within the industry.

`(iv) Employers may use either government or nongovernment published surveys, including industry, region, or statewide wage surveys, to determine the prevailing wage, which shall be considered correct and valid where the employer has maintained a copy of the survey information.'.

(f) POSTING REQUIREMENT- Section 212(n)(1)(C)(ii) (8 U.S.C. 1182(n)(1)(C)(ii)) is amended to read as follows:

`(ii) if there is no such bargaining representative, has provided notice of filing to the employer's employees in the occupational classification through such methods as physical posting in a conspicuous location at the employer's place of business, or electronic posting through an internal job bank, or electronic notification available to employees in the occupational classification.'.

SEC. 6. ANNUAL REPORTS ON H1-B VISAS.

Section 212(n) (8 U.S.C. 1182(n)) is amended by adding at the end the following:

`(3) Using data from petitions for visas issued under section 101(a)(15)(H)(i)(b), the Attorney General shall annually submit the following reports to Congress:

`(A) Quarterly reports on the numbers of aliens who were provided nonimmigrant status under section 101(a)(15)(H)(i)(b) during the previous quarter and who were subject to the numerical ceiling for the fiscal year established under section 214(g)(1).

`(B) Annual reports on the occupations and compensation of aliens provided nonimmigrant status under such section during the previous fiscal year.'.

SEC. 7. LIMITATION ON PER COUNTRY CEILING WITH RESPECT TO EMPLOYMENT-BASED IMMIGRANTS.

(a) SPECIAL RULES- Section 202(a) (8 U.S.C. 1152(a)) is amended by adding at the end the following new paragraph:

`(5) RULES FOR EMPLOYMENT-BASED IMMIGRANTS-

`(A) EMPLOYMENT-BASED IMMIGRANTS NOT SUBJECT TO PER COUNTRY LIMITATION IF ADDITIONAL VISAS AVAILABLE- If the total number of visas available under paragraph (1), (2), (3), (4), or (5) of section 203(b) for a calendar quarter exceeds the number of qualified immigrants who may otherwise be issued such visas, the visas made available under that paragraph shall be issued without regard to the numerical limitation under paragraph (2) of this subsection during the remainder of the calendar quarter.

`(B) LIMITING FALL ACROSS FOR CERTAIN COUNTRIES SUBJECT TO SUBSECTION (e)- In the case of a foreign state or dependent area to which subsection (e) applies, if the total number of visas issued under section 203(b) exceeds the maximum number of visas that may be made available to immigrants of the state or area under section 203(b) consistent with subsection (e) (determined without regard to this paragraph), in applying subsection (e) all visas shall be deemed to have been required for the classes of aliens specified in section 203(b).'.

(b) CONFORMING AMENDMENTS-

(1) Section 202(a)(2) (8 U.S.C. 1152(a)(2)) is amended by striking `paragraphs (3) and (4)' and inserting `paragraphs (3), (4), and (5)'.

(2) Section 202(e)(3) (8 U.S.C. 1152(e)(3)) is amended by striking `the proportion of the visa numbers' and inserting `except as provided in subsection (a)(5), the proportion of the visa numbers'.

(c) ONE-TIME PROTECTION UNDER PER COUNTRY CEILING- Notwithstanding section 214(g)(4) of the Immigration and Nationality Act, any alien who--

(1) as of the date of enactment of this Act is a nonimmigrant described in section 101(a)(15)(H)(i) of that Act;

(2) is the beneficiary of a petition filed under section 204(a) for a preference status under paragraph (1), (2), or (3) of section 203(b); and

(3) would be subject to the per country limitations applicable to immigrants under those paragraphs but for this subsection,

may apply for and the Attorney General may grant an extension of such nonimmigrant status until the alien's application for adjustment of status has been processed and a decision made thereon.

SEC. 8. ACADEMIC HONORARIA.

Section 212 (8 U.S.C. 1182) is amended by adding at the end the following new subsection:

`(p) Any alien admitted under section 101(a)(15)(B) may accept an honorarium payment and associated incidental expenses for a usual academic activity or activities, as defined by the Attorney General in consultation with the Secretary of Education, if such payment is offered by an institution of higher education (as defined in section 1201(a) of the Higher Education Act of 1965) or other nonprofit entity and is made for services conducted for the benefit of that institution or entity.'.