S 1878 IS.
Kennedy/Feinstein H1-B Bill.
Source: Library of Congress.

S 1878 IS

105th CONGRESS
2d Session

To amend the Immigration and Nationality Act to authorize a temporary increase in the number of skilled foreign workers admitted to the United States, to improve efforts to recruit United States workers in lieu of foreign workers, and to enforce labor conditions regarding nonimmigrant aliens.

IN THE SENATE OF THE UNITED STATES

March 27, 1998

Mr. KENNEDY (for himself and Mrs. FEINSTEIN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

To amend the Immigration and Nationality Act to authorize a temporary increase in the number of skilled foreign workers admitted to the United States, to improve efforts to recruit United States workers in lieu of foreign workers, and to enforce labor conditions regarding nonimmigrant aliens.

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 `High-Tech Immigration and United States Worker Protection Act'.

SEC. 2. TEMPORARY INCREASE IN SKILLED FOREIGN WORKERS.

Section 214(g)(1) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(1)) is amended to read:

`(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), may not exceed--

`(i) 90,000 in each of fiscal years 1998, 1999, and 2000, or

`(ii) 65,000 in fiscal year 2001 or any fiscal year thereafter,

except that in each of fiscal years 1999 through 2000, not more than 5,000 of the visas or grants of status may be provided to aliens described in section 212(a)(5)(C); and

`(B) under section 101(a)(15)(H)(ii)(b), may not exceed--

`(i) 41,000 in each of fiscal years 1998, 1999, and 2000, or

`(ii) 66,000 in fiscal year 2001 or any fiscal year thereafter.'.

SEC. 3. GAO STUDY AND REPORT ON LABOR MARKET NEEDS.

(a) STUDY- The Comptroller General of the United States shall conduct a study assessing labor market needs for workers with high technology skills and the extent to which job openings requiring workers with high technology skills are likely to be unfilled in each of the fiscal years 2001 through 2006.

(b) REPORT- Not later than October 1, 2000, the Comptroller General shall submit a report containing the results of the study described in subsection (a) to the Committees on the Judiciary of the House of Representatives and the Senate. The report shall also address the effect on the high technology labor market of the following:

(1) The downsizing of the defense sector.

(2) The increase in productivity in the computer industry.

(3) The redeployment of workers dedicated to year 2000 projects.

SEC. 4. INVESTMENT IN TRAINING HIGH TECHNOLOGY WORKERS.

(a) IN GENERAL- There is established in the Department of Labor a $100,000,000 fund to assist United States workers to obtain skills that employers indicate are in short supply as evidenced by filings of Labor Condition Applications filed for aliens described in section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act, of which not less than 85 percent shall be available for the activities described in subsection (b).

(b) LOAN PROGRAM-

(1) IN GENERAL- There is established in the Department of Labor a program to provide individuals with loans to obtain training necessary for employment in those occupations which are in high demand as evidenced by filings of Labor Condition Applications by employers for aliens described in section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act. This loan program shall be administered from the funds referred to in section 212(n)(3)(B). Loans provided under this section shall not exceed $10,000 a person.

(2) PROGRAM REQUIREMENTS- The Secretary of Labor shall establish criteria for implementing the loan program described in subsection (a), which include the following:

(A) QUALIFICATIONS OF INDIVIDUALS- The loan program shall provide that individuals receiving a loan under this section--

(i) have sufficient education or experience to enable them to qualify for employment in high technology industries with limited additional training;

(ii) are of working age and are United States citizens or qualified aliens described in section 431 of the Personal Responsibility and Work Reconciliation Act of 1996 (8 U.S.C. 1641); and

(iii) repay the loan in full not later than 4 years after completing the training for which the individual received the loan.

(B) CERTIFICATION-

(i) FISCAL YEARS 1999-2001- For each of fiscal years 1999 through 2001, the loan program shall be available only for training courses that the Secretary of Labor has certified as appropriate to obtain employment in high technology industries in the United States.

(ii) FISCAL YEAR 2002 AND THEREAFTER- For fiscal year 2002, and each fiscal year thereafter, the loan program shall be available only for training courses certified by the Secretary of Labor as appropriate to fill the occupations which are in high demand as evidenced by filings of Labor Condition Applications by employers for aliens described in section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act.

(C) OTHER CRITERIA- The Secretary of Labor shall establish such other criteria as the Secretary determines to be appropriate with respect to certifying courses that qualify for the loan program, identifying individuals who qualify for loans under the program, and carrying out the provisions of this section.

(c) LABOR DEPARTMENT GRANT PROGRAM TO CREATE REGIONAL SKILLS ALLIANCES-

(1) IN GENERAL- The Secretary of Labor, in consultation with the Secretary of Commerce and the Secretary of Education, shall provide `seed' grants to eligible entities described in subsection (b) to assist such entities in creating Regional Skills Alliances. The purpose of these Regional Skills Alliances will be to help industry organize the labor market to better meet their needs by--

(A) improving the job skills of American workers necessary for employment in specific industries and occupations; and/or

(B) assessing and developing strategies to address critical skills needs at the local, State, regional, and national levels.

(2) ELIGIBLE ENTITIES-

(A) IN GENERAL- An eligible entity described in this subsection is a consortium that consists of, but is not limited to, 2 or more of the following:

(i) Employers.

(ii) Labor organizations.

(iii) State and local governments.

(iv) Private Industry Councils or successor entities.

(v) Postsecondary educational institutions.

(vi) Nonprofit organizations that represent businesses or industries.

(vii) Nonprofit training organizations.

(B) ADDITIONAL REQUIREMENT- To the maximum extent practicable, each business, organization, or government that forms an eligible entity under paragraph (1) shall be located in the same geographic region of the United States.

(3) MAXIMUM AMOUNT AND TIMING OF GRANTS- The amount of a grant provided to an eligible entity under paragraph (1) may not exceed $2,000,000 for an 18-month grant period and may be provided to that eligible entity only for a maximum of 2 such grant periods.

(4) APPLICATION- The Secretary may not provide a grant under paragraph (1) to an eligible entity unless such entity submits to the Secretary an application containing such information as the Secretary may reasonably require.

(5) USE OF AMOUNTS- In carrying out the program described in paragraph (1), the eligible entity may, to the extent that such activities build on and supplement activities already underway as opposed to duplicating or substituting for current activities, provide for--

(A) an identification of local, State, regional, and national skills needs;

(B) an assessment of the extent to which United States workers are being educated and trained in needed critical skills;

(C) the development of strategies to better focus existing training and education investments on rapidly expanding occupations;

(D) the provision of improved occupational information and projections;

(E) an assessment of training and job skill needs for specific industries;

(F) development of a sequence of skill standards that are benchmarked to advanced industry practices for specific industries;

(G) development of curriculum and training methods;

(H) identification and development of training providers;

(I) development of apprenticeship programs; and

(J) development of training programs for dislocated workers.

(6) ADDITIONAL CRITERIA FOR GRANTS- In making grants under this subsection, the Secretary shall--

(A) use a peer review process to award grants;

(B) give preference to the extent to which applications provide funds from non-Federal sources to match Federal funds; and

(C) give preference to applications that demonstrate significant collaboration with major stakeholders in the State and local workforce development system, particularly Private Councils and labor organizations.

(7) NATIONAL ALLIANCE FOR HIGH-TECHNOLOGY SKILLS- The grants for Regional Skills alliances will be complemented by the establishment of a National Alliance for High-Technology Skills which shall consist of national representatives from government, industry, labor organizations, and education. The purpose of the National Alliance will be to develop and recommend strategies to the President for the education and training of American workers to meet the demand for high-technology skills.

(8) DEFINITION- For purposes of this subsection, the term `Secretary' means the Secretary of Labor.

SEC. 5. ENFORCEMENT OF LABOR CONDITIONS FOR NONIMMIGRANTS.

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

(1) in paragraph (2)(A), by striking the first sentence and inserting the following: `The Secretary shall conduct an investigation where there is reasonable cause to believe that an employer has made a

misrepresentation of a material fact on a labor condition attestation or has failed to comply with the terms and conditions of an application submitted under paragraph (1) or with the provisions of this section or any rule or regulation pertaining to this section. The Secretary shall establish a process for the receipt, investigation, and disposition of complaints or other cases of noncompliance with this section.';

(2) in paragraph (2)(C), by inserting `, or that the employer failed to cooperate in the conduct of the Secretary's investigation or has intimidated, discharged, or otherwise discriminated against any person because that person has asserted a right or has cooperated in an investigation under this paragraph' after `a material fact in an application';

(3) by inserting after paragraph (2)(D) the following:

`(E) Any alien admitted to the United States as a nonimmigrant described in section 101(a)(15)(H)(i)(b) of this Act who files a complaint pursuant to this subsection and is otherwise eligible to remain and work in the United States, shall be allowed to seek other employment in the United States for the duration of that alien's authorized admission, provided that--

`(i) the complaint results in finding by the Secretary of Labor of a failure by the employer to meet the conditions in paragraph (2)(C), and

`(ii) the alien notifies the Immigration and Naturalization Service of the name and address of his new employer.';

(4) by striking clause (i) of paragraph (2)(C) and inserting the following:

`(i) the Secretary shall notify the Attorney General of such finding and may, in addition, impose such other administrative remedies as the Secretary determines to be appropriate, assess civil money penalties in an amount not to exceed $10,000 for each violation, with such penalties to be deposited for use in the loan program established under section 4 of the High-Tech Immigration and United States Worker Protection Act.';

(5) in paragraph (2), by adding at the end the following new subparagraph:

`(E) The Secretary may issue subpoenas requiring the attendance and testimony of witnesses or the production of any records, books, papers, or documents in connection with any investigation or hearing, conducted under this paragraph. In conducting a hearing, the Secretary may administer oaths, examine witnesses, and receive evidence. For the purpose of any hearing or investigation provided for in this paragraph, the authority contained in sections 9 and 10 of the Federal Trade Commission Act (15 U.S.C. 49 and 50), relating to the attendance of witnesses and the production of books, papers, and documents, shall apply.'; and

(6) by adding at the end the following new paragraph:

`(3)(A) The Secretary of Labor shall require payment of a fee by the employer for each position for which an application is filed under this subsection. The fee shall be in an amount prescribed by the Secretary of Labor, and shall be paid to the Department of Labor.

`(B)(i) Such fee shall be used only--

`(I) to defray the cost of processing labor condition applications and for personnel and other costs directly associated with administering and enforcing the requirements applicable to aliens described in section 101(a)(15)(H)(i)(b), including the collection, safeguarding, and accounting for fees collected pursuant to and funds obligated or expended pursuant to this subsection; and

`(II) to endow the loan program and provide grants established under section 4 of the High-Tech Immigration and United States Worker Protection Act.

`(ii) During the period ending September 30, 2001, such fee shall not exceed $250 for each position.

`(iii) Not less than $5,000,000 of the funds collected from the fee authorized under this paragraph shall be available for the purposes described in this subsection and shall cover the costs to the Department of Labor of conducting regular, random audits relating to the attestations under this subsection and of engaging in other enforcement activities in connection with this subsection.

`(iv) Fees collected under this paragraph shall be available to the Department of Labor, without regard to appropriation Acts and without fiscal year limitation, to supplement funds otherwise available to the Department of Labor.

`(v) It shall be unlawful for an employer to require, as a condition of employment by such employer, that the fee prescribed under this paragraph, or any part of the fee, be paid directly or indirectly by the alien whose services are being sought.

`(vi) Any person or entity that is determined, after notice and opportunity for an administrative hearing, to have violated clause (v) shall be subject to a civil penalty of $5,000 for each violation, to an administrative order requiring the payment of any fee described in this paragraph, and to disqualification for 1 year from petitioning for foreign skilled temporary workers under this subsection.

`(vii) Any amount determined to have been paid, directly or indirectly, toward the filing fee described in paragraph (3)(A) by the alien whose services were sought, shall be repaid from the fund to such alien.'.

SEC. 6. RECRUITMENT OF UNITED STATES WORKERS PRIOR TO SEEKING NONIMMIGRANT WORKERS.

(a) IN GENERAL- Section 212(n)(1) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)) is amended by inserting at the end the following new subparagraph:

`(E)(i) The employer, prior to filing the application, has taken timely, significant, and effective

steps to recruit and retain sufficient United States workers in the specialty occupation in which the nonimmigrant whose services are being sought will be employed. Such steps include good faith recruitment in the United States using procedures that meet industry-wide standards offering compensation as required by subparagraph (A) and offering of employment to any qualified United States worker applicant or such good faith recruitment must otherwise be unsuccessful.

`(ii) The recruitment requirements of this subparagraph shall not apply to aliens with extraordinary ability, aliens who are outstanding professors and researchers, and certain multinational executives and managers described in section 203(b)(1).'.

(b) WAGE COMPARABILITY- Section 212(n)(1)(A)(i)(I) of such Act is amended by inserting `(including wages, benefits, and all other compensation)' after `actual wage level'.

SEC. 7. NONDISPLACEMENT OF UNITED STATES WORKERS.

Section 212(n) of the Immigration and Nationality Act (8 U.S.C. 1182(n)), as amended by section 5, is amended by adding at the end the following new paragraph:

`(4)(A) The employer--

`(i) has not, within the 6-month period prior to the filing of the application, laid off or otherwise displaced any United States worker (as defined in subparagraph (B), including a worker obtained by contract, employee leasing, temporary help agreement, or other similar basis, who has substantially equivalent qualifications and experience in the occupation classification for the position in which the nonimmigrant is intended to be (or is) employed; and

`(ii) will not lay off or otherwise knowingly displace, during the 90-day period following the filing of the application, or during the 90-day period immediately preceding and following the filing of any visa petition supported by the application, any United States worker, including any worker obtained by contract, who has substantially equivalent qualifications and experience in the occupation classification for the position in which the nonimmigrant is intended to be (or is) employed.

`(B) For purposes of this subsection, the term `United States worker' means--

`(i) a citizen or national of the United States;

`(ii) an alien lawfully admitted to the United States for permanent residence; or

`(iii) an alien authorized to be employed by this Act or by the Attorney General.

`(C) For purposes of this subparagraph, the term `laid off', with respect to an employee, means the employee's loss of employment, other than a discharge for cause or a voluntary departure or voluntary retirement. The term `laid off' does not apply to any case in which employment is relocated to a different geographic area and the affected employee is offered a chance to move to the new location with the same wages and benefits but elects not to move to the new location.'.

SEC. 8. LIMITATION ON PERIOD OF AUTHORIZED ADMISSION.

Section 214(g)(4) of the Immigration and Nationality Act is amended by striking `6 years' and inserting `3 years'.

SEC. 9. APPLICABILITY TO EXECUTIVE AGENCIES.

Section 212(n)(1) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)), as amended by adding at the end the following new sentence: `Notwithstanding any other provision of this Act, or any other law, the Secretary shall have authority to require executive agencies as defined in 5 U.S.C. 105 to comply with this section, and such agencies shall be subject to the regulations of the Secretary promulgated pursuant to this section.'.