[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 979 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
1st Session
S. 979
To amend the Immigration and Nationality Act to reform and reduce fraud
and abuse in certain visa programs for aliens working temporarily in
the United States, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 27, 2023
Mr. Durbin (for himself, Mr. Grassley, Mr. Sanders, Mr. Tuberville, Mr.
Brown, and Mr. Blumenthal) introduced the following bill; which was
read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend the Immigration and Nationality Act to reform and reduce fraud
and abuse in certain visa programs for aliens working temporarily in
the United States, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``H-1B and L-1 Visa
Reform Act of 2023''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--H-1B VISA FRAUD AND ABUSE PROTECTIONS
Subtitle A--H-1B Employer Application Requirements
Sec. 101. Modification of application requirements.
Sec. 102. New application requirements.
Sec. 103. Application review requirements.
Sec. 104. H-1B visa allocation.
Sec. 105. H-1B workers employed by institutions of higher education.
Sec. 106. Specialty occupation to require an actual degree.
Sec. 107. Labor condition application fee.
Sec. 108. H-1B subpoena authority for the Department of Labor.
Sec. 109. Limitation on extension of H-1B petition.
Sec. 110. Elimination of B-1 visas in lieu of H-1 visas.
Subtitle B--Investigation and Disposition of Complaints Against H-1B
Employers
Sec. 111. General modification of procedures for investigation and
disposition.
Sec. 112. Investigation, working conditions, and penalties.
Sec. 113. Waiver requirements.
Sec. 114. Initiation of investigations.
Sec. 115. Information sharing.
Sec. 116. Conforming amendment.
Subtitle C--Other Protections
Sec. 121. Posting available positions through the Department of Labor.
Sec. 122. Transparency and report on wage system.
Sec. 123. Requirements for information for H-1B and L-1 nonimmigrants.
Sec. 124. Additional Department of Labor employees.
Sec. 125. Technical correction.
Sec. 126. Application.
TITLE II--L-1 VISA FRAUD AND ABUSE PROTECTIONS
Sec. 201. Prohibition on displacement of United States workers and
restricting outplacement of L-1
nonimmigrants.
Sec. 202. L-1 employer petition requirements for employment at new
offices.
Sec. 203. Cooperation with Secretary of State.
Sec. 204. Investigation and disposition of complaints against L-1
employers.
Sec. 205. Wage rate and working conditions for L-1 nonimmigrants.
Sec. 206. Penalties.
Sec. 207. Prohibition on retaliation against L-1 nonimmigrants.
Sec. 208. Adjudication by Department of Homeland Security of petitions
under blanket petition.
Sec. 209. Reports on employment-based nonimmigrants.
Sec. 210. Specialized knowledge.
Sec. 211. Technical amendments.
Sec. 212. Application.
TITLE I--H-1B VISA FRAUD AND ABUSE PROTECTIONS
Subtitle A--H-1B Employer Application Requirements
SEC. 101. MODIFICATION OF APPLICATION REQUIREMENTS.
(a) General Application Requirements.--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 to H-1B
nonimmigrants, during the period of authorized
employment for each H-1B nonimmigrant, wages that are
determined based on the best information available at
the time the application is filed and which are not
less than the highest of--
``(I) the locally determined prevailing
wage level for the occupational classification
in the area of employment;
``(II) the median wage for all workers in
the occupational classification in the area of
employment; and
``(III) the median wage for skill level 2
in the occupational classification found in the
most recent Occupational Employment Statistics
survey; and
``(ii) will provide working conditions for such H-
1B nonimmigrant that will not adversely affect the
working conditions of United States workers similarly
employed by the employer or by an employer with which
such H-1B nonimmigrant is placed pursuant to a waiver
under paragraph (2)(E).''.
(b) Internet Posting Requirement.--Section 212(n)(1)(C) of such Act
(8 U.S.C. 1182(n)(1)(C)) is amended--
(1) by redesignating clause (ii) as subclause (II);
(2) by striking ``(i) has provided'' and inserting the
following:
``(ii)(I) has provided''; and
(3) by inserting before clause (ii), as redesignated by
paragraph (2), the following:
``(i) has posted on the internet website described
in paragraph (3), for at least 30 calendar days, a
detailed description of each position for which a
nonimmigrant is sought that includes a description of--
``(I) the wages and other terms and
conditions of employment;
``(II) the minimum education, training,
experience, and other requirements for the
position; and
``(III) the process for applying for the
position; and''.
(c) Wage Determination Information.--Section 212(n)(1)(D) of such
Act (8 U.S.C. 1182(n)(1)(D)) is amended by inserting ``the wage
determination methodology used under subparagraph (A)(i),'' after
``shall contain''.
(d) Application of Requirements to All Employers.--
(1) Nondisplacement.--Section 212(n)(1)(E) of such Act (8
U.S.C. 1182(n)(1)(E)) is amended to read as follows:
``(E)(i) The employer--
``(I) will not at any time displace a United States
worker with 1 or more H-1B nonimmigrants; and
``(II) did not displace and will not displace a
United States worker employed by the employer within
the period beginning 180 days before and ending 180
days after the date of the placement of the
nonimmigrant with the employer.
``(ii) The 180-day periods referred to in clause (i) may
not include any period of on-site or virtual training of H-1B
nonimmigrants by employees of the employer.''.
(2) Recruitment.--Section 212(n)(1)(G)(i) of such Act (8
U.S.C. 1182(n)(1)(G)(i)) is amended by striking ``In the case
of an application described in subparagraph (E)(ii), subject''
and inserting ``Subject''.
(e) Waiver Requirement.--Section 212(n)(1)(F) of such Act (8 U.S.C.
1182(n)(1)(F)) is amended to read as follows:
``(F) The employer will not place, outsource, lease, or
otherwise contract for the services or placement of H-1B
nonimmigrants with another employer, regardless of the physical
location where such services will be performed, unless the
employer of the alien has been granted a waiver under paragraph
(2)(E).''.
SEC. 102. NEW APPLICATION REQUIREMENTS.
Section 212(n)(1) of the Immigration and Nationality Act (8 U.S.C.
1182(n)(1)), as amended by section 101, is further amended by inserting
after subparagraph (G) the following:
``(H)(i) The employer, or a person or entity acting on the
employer's behalf, has not advertised any available position
specified in the application in an advertisement that states or
indicates that--
``(I) such position is only available to an
individual who is or will be an H-1B nonimmigrant; or
``(II) an individual who is or will be an H-1B
nonimmigrant shall receive priority or a preference in
the hiring process for such position.
``(ii) The employer has not primarily recruited individuals
who are or who will be H-1B nonimmigrants to fill such
position.
``(I) If the employer employs 50 or more employees in the
United States--
``(i) the sum of the number of such employees who
are H-1B nonimmigrants plus the number of such
employees who are nonimmigrants described in section
101(a)(15)(L) does not exceed 50 percent of the total
number of employees; and
``(ii) the employer's corporate organization has
not been restructured to evade the limitation under
clause (i).
``(J) If the employer, in such previous period as the
Secretary shall specify, employed 1 or more H-1B nonimmigrants,
the employer shall submit to the Secretary the Internal Revenue
Service Form W-2 Wage and Tax Statements filed by the employer
with respect to the H-1B nonimmigrants for such period.''.
SEC. 103. APPLICATION REVIEW REQUIREMENTS.
(a) Technical Amendment.--Section 212(n)(1) of the Immigration and
Nationality Act (8 U.S.C. 1182(n)(1)), as amended by sections 101 and
102, is further amended, in the undesignated paragraph at the end, by
striking ``The employer'' and inserting the following:
``(K) The employer.''.
(b) Application Review Requirements.--Section 212(n)(1)(K), as
designated by subsection (a), is amended--
(1) in the fourth sentence, by inserting ``and through the
Department of Labor's website, without charge.'' after
``D.C.'';
(2) in the fifth sentence, by striking ``only for
completeness'' and inserting ``for completeness, indicators of
fraud or misrepresentation of material fact,'';
(3) in the sixth sentence--
(A) by striking ``or obviously inaccurate'' and
inserting ``, presents indicators of fraud or
misrepresentation of material fact, or is obviously
inaccurate''; and
(B) by striking ``within 7 days of'' and inserting
``not later than 14 days after''; and
(4) by adding at the end the following: ``If the Secretary
of Labor's review of an application identifies indicators of
fraud or misrepresentation of material fact, the Secretary may
conduct an investigation and hearing in accordance with
paragraph (2).''.
SEC. 104. H-1B VISA ALLOCATION.
Section 214(g)(3) of the Immigration and Nationality Act (8 U.S.C.
1184(g)(3)), is amended--
(1) by striking the first sentence and inserting the
following:
``(A) Subject to subparagraph (B), aliens who are subject
to the numerical limitations under paragraph (1)(A) shall be
issued visas, or otherwise provided nonimmigrant status, in a
manner and order established by the Secretary of Homeland
Security, by regulation.''; and
(2) by adding at the end the following:
``(B) The Secretary shall consider petitions for
nonimmigrant status under section 101(a)(15)(H)(i)(b) in the
following order:
``(i) Petitions for nonimmigrants described in
section 101(a)(15)(F) who, while physically present in
the United States, have earned an advanced degree in a
field of science, technology, engineering, or
mathematics from a United States institution of higher
education (as defined in section 101(a) of the Higher
Education Act of 1965 (20 U.S.C. 1001(a))) that has
been accredited by an accrediting entity that is
recognized by the Department of Education.
``(ii) Petitions certifying that the employer will
be paying the nonimmigrant the median wage for skill
level 4 in the occupational classification found in the
most recent Occupational Employment Statistics survey.
``(iii) Petitions for nonimmigrants described in
section 101(a)(15)(F) who are graduates of any other
advanced degree program, undertaken while physically
present in the United States, from an institution of
higher education described in clause (i).
``(iv) Petitions certifying that the employer will
be paying the nonimmigrant the median wage for skill
level 3 in the occupational classification found in the
most recent Occupational Employment Statistics survey.
``(v) Petitions for nonimmigrants described in
section 101(a)(15)(F) who are graduates of a bachelor's
degree program, undertaken while physically present in
the United States, in a field of science, technology,
engineering, or mathematics from an institution of
higher education described in clause (i).
``(vi) Petitions for nonimmigrants described in
section 101(a)(15)(F) who are graduates of bachelor's
degree programs, undertaken while physically present in
the United States, in any other fields from an
institution of higher education described in clause
(i).
``(vii) Petitions for aliens who will be working in
occupations listed in Group I of the Department of
Labor's Schedule A of occupations in which the
Secretary of Labor has determined there are not
sufficient United States workers who are able, willing,
qualified, and available.
``(viii) Petitions filed by employers meeting the
following criteria of good corporate citizenship and
compliance with the immigration laws:
``(I) The employer is in possession of--
``(aa) a valid E-Verify company
identification number; or
``(bb) if the enterprise is using a
designated agent to perform E-Verify
queries, a valid E-Verify client
company identification number and
documentation from U.S. Citizenship and
Immigration Services that the
commercial enterprise is a participant
in good standing in the E-Verify
program.
``(II) The employer is not under
investigation by any Federal agency for
violation of the immigration laws or labor
laws.
``(III) A Federal agency has not
determined, during the immediately preceding 5
years, that the employer violated the
immigration laws or labor laws.
``(IV) During each of the preceding 3
fiscal years, at least 90 percent of the
petitions filed by the employer under section
101(a)(15)(H)(i)(b) were approved.
``(V) The employer has filed, pursuant to
section 204(a)(1)(F), employment-based
immigrant petitions, including an approved
labor certification application under section
212(a)(5)(A), for at least 90 percent of
employees imported under section
101(a)(15)(H)(i)(b) during the preceding 3
fiscal years.
``(ix) Any remaining petitions.
``(C) In this paragraph the term `field of science,
technology, engineering, or mathematics' means a field included
in the Department of Education's Classification of
Instructional Programs taxonomy within the summary groups of
computer and information sciences and support services,
engineering, biological and biomedical sciences, mathematics
and statistics, and physical sciences.''.
SEC. 105. H-1B WORKERS EMPLOYED BY INSTITUTIONS OF HIGHER EDUCATION.
Section 214(g)(5) of the Immigration and Nationality Act (8 U.S.C.
1184(g)(5)) is amended by striking ``is employed (or has received an
offer of employment) at'' each place such phrase appears and inserting
``is employed by (or has received an offer of employment from)''.
SEC. 106. SPECIALTY OCCUPATION TO REQUIRE AN ACTUAL DEGREE.
Section 214(i) of the Immigration and Nationality Act (8 U.S.C.
1184(i)) is amended--
(1) in paragraph (1), by amending subparagraph (B) to read
as follows:
``(B) attainment of a bachelor's or higher degree in the
specific specialty directly related to the occupation as a
minimum for entry into the occupation in the United States.'';
and
(2) by striking paragraph (2) and inserting the following:
``(2) For purposes of section 101(a)(15)(H)(i)(b), the requirements
under this paragraph, with respect to a specialty occupation, are--
``(A) full State licensure to practice in the occupation,
if such licensure is required to practice in the occupation; or
``(B) if a license is not required to practice in the
occupation--
``(i) completion of a United States degree
described in paragraph (1)(B) for the occupation; or
``(ii) completion of a foreign degree that is
equivalent to a United States degree described in
paragraph (1)(B) for the occupation.''.
SEC. 107. LABOR CONDITION APPLICATION FEE.
Section 212(n) of the Immigration and Nationality Act (8 U.S.C.
1182(n)), as amended by sections 101 through 103, is further amended by
adding at the end the following:
``(6)(A) The Secretary of Labor shall promulgate a regulation that
requires applicants under this subsection to pay a reasonable
application processing fee.
``(B) All of the fees collected under this paragraph shall be
deposited as offsetting receipts within the general fund of the
Treasury in a separate account, which shall be known as the `H-1B
Administration, Oversight, Investigation, and Enforcement Account' and
shall remain available until expended. The Secretary of the Treasury
shall refund amounts in such account to the Secretary of Labor for
salaries and related expenses associated with the administration,
oversight, investigation, and enforcement of the H-1B nonimmigrant visa
program.''.
SEC. 108. H-1B SUBPOENA AUTHORITY FOR THE DEPARTMENT OF LABOR.
Section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C.
1182(n)(2)) is amended--
(1) by redesignating subparagraph (I) as subparagraph (J);
and
(2) by inserting after subparagraph (H) the following:
``(I) The Secretary of Labor is authorized to take such actions,
including issuing subpoenas and seeking appropriate injunctive relief
and specific performance of contractual obligations, as may be
necessary to ensure employer compliance with the terms and conditions
under this subsection. The rights and remedies provided to H-1B
nonimmigrants under this subsection are in addition to any other
contractual or statutory rights and remedies of such nonimmigrants and
are not intended to alter or affect such rights and remedies.''.
SEC. 109. LIMITATION ON EXTENSION OF H-1B PETITION.
Section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C.
1184(g)(4)) is amended to read as follows:
``(4)(A) Except as provided in subparagraph (B), the period of
authorized admission of a nonimmigrant described in section
101(a)(15)(H)(i)(b) may not exceed 3 years.
``(B) The period of authorized admission of a nonimmigrant
described in subparagraph (A) who is the beneficiary of an approved
employment-based immigrant petition under section 204(a)(1)(F) may be
authorized for a period of up to 3 additional years if the total period
of stay does not exceed six years, except for an extension under
section 104(c) or 106(b) of the American Competitiveness in the Twenty-
first Century Act of 2000 (8 U.S.C. 1184 note).''.
SEC. 110. ELIMINATION OF B-1 VISAS IN LIEU OF H-1 VISAS.
Section 214(g) of the Immigration and Nationality Act (8 U.S.C.
1184(g)) is amended by adding at the end the following:
``(12) Unless otherwise authorized by law, an alien normally
classifiable under section 101(a)(15)(H)(i) who seeks admission to the
United States to provide services in a specialty occupation described
in paragraph (1) or (3) of subsection (i) may not be issued a visa or
admitted under section 101(a)(15)(B) for such purpose. Nothing in this
paragraph may be construed to authorize the admission of an alien under
section 101(a)(15)(B) who is coming to the United States for the
purpose of performing skilled or unskilled labor if such admission is
not otherwise authorized by law.''.
Subtitle B--Investigation and Disposition of Complaints Against H-1B
Employers
SEC. 111. GENERAL MODIFICATION OF PROCEDURES FOR INVESTIGATION AND
DISPOSITION.
Section 212(n)(2)(A) of the Immigration and Nationality Act (8
U.S.C. 1182(n)(2)(A)) is amended--
(1) by striking ``(A) Subject'' and inserting the
following:
``(A)(i) Subject'';
(2) by striking ``12 months'' and inserting ``two years'';
(3) by striking the last sentence; and
(4) by adding at the end the following:
``(ii)(I) Upon the receipt of a complaint under clause (i), the
Secretary may initiate an investigation to determine if such failure or
misrepresentation has occurred.
``(II) In conducting an investigation under subclause (I), the
Secretary may--
``(aa) conduct surveys of the degree to which employers
comply with the requirements under this subsection; and
``(bb) conduct compliance audits of employers that employ
H-1B nonimmigrants.
``(III) The Secretary shall--
``(aa) conduct annual compliance audits of not fewer than 1
percent of the employers that employ H-1B nonimmigrants during
the applicable calendar year;
``(bb) 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;
and
``(cc) make available to the public an executive summary or
report describing the general findings of the audits carried
out pursuant to this subclause.
``(iii) The process for receiving complaints under clause (i) shall
include a hotline that is accessible 24 hours a day, by telephonic and
electronic means.''.
SEC. 112. INVESTIGATION, WORKING CONDITIONS, AND PENALTIES.
Section 212(n)(2)(C) of the Immigration and Nationality Act (8
U.S.C. 1182(n)(2)(C)) is amended--
(1) in clause (i)--
(A) in the matter preceding subclause (I), by
striking ``a condition of paragraph (1)(B), (1)(E), or
(1)(F), a substantial failure to meet a condition of
paragraph (1)(C), (1)(D), or (1)(G)(i)(I)'' and
inserting ``a condition under subparagraph (A), (B),
(C), (D), (E), (F), (G)(i), (H), (I), or (J) of
paragraph (1)'';
(B) in subclause (I)--
(i) by striking ``$1,000'' and inserting
``$5,000''; and
(ii) by striking ``and'' at the end;
(C) in subclause (II)--
(i) by striking ``the Attorney General
shall not approve petitions'' and inserting
``the Secretary of Homeland Security or the
Secretary of State, as appropriate, shall not
approve petitions or applications'';
(ii) by striking ``under section 204 or
214(c)'' and inserting ``under section
101(a)(15)(E)(iii), 101(a)(15)(H)(i)(b1), 204,
214(c), or 214(e)''; and
(iii) by striking the period at the end and
inserting ``; and''; and
(D) by adding at the end the following:
``(III) an employer that violates paragraph (1)(A) shall be
liable to the employees harmed by such violation for lost wages
and benefits.'';
(2) in clause (ii)--
(A) in subclause (I)--
(i) by striking ``may'' and inserting
``shall''; and
(ii) by striking ``$5,000'' and inserting
``$25,000'';
(B) in subclause (II)--
(i) by striking ``the Attorney General
shall not approve petitions'' and inserting
``the Secretary of Homeland Security or the
Secretary of State, as appropriate, shall not
approve petitions or applications'';
(ii) by striking ``under section 204 or
214(c)'' and inserting ``under section
101(a)(15)(E)(iii), 101(a)(15)(H)(i)(b1), 204,
214(c), or 214(e)''; and
(iii) by striking the period at the end and
inserting ``; and''; and
(C) by adding at the end the following:
``(III) an employer that violates paragraph (1)(A) shall be
liable to the employees harmed by such violation for lost wages
and benefits.'';
(3) in clause (iii)--
(A) in the matter preceding subclause (I), by
striking ``the employer displaced a United States
worker employed by the employer within the period
beginning 90 days before and ending 90 days after the
date of filing of any visa petition supported by the
application'' and inserting ``a United States worker
employed at a worksite that the employer supplies with
nonimmigrant workers was displaced in violation of
paragraph (1)(E) or the conditions of a waiver under
subparagraph (E)'';
(B) in subclause (I)--
(i) by striking ``may'' and inserting
``shall'';
(ii) by striking ``$35,000'' and inserting
``$150,000''; and
(iii) by striking ``and'' at the end;
(C) in subclause (II)--
(i) by striking ``the Attorney General
shall not approve petitions'' and inserting
``the Secretary of Homeland Security or the
Secretary of State, as appropriate, shall not
approve petitions or applications'';
(ii) by striking ``under section 204 or
214(c)'' and inserting ``under section
101(a)(15)(E)(iii), 101(a)(15)(H)(i)(b1), 204,
214(c), or 214(e)''; and
(iii) by striking the period at the end and
inserting ``; and''; and
(D) by adding at the end the following:
``(III) an employer that violates paragraph (1)(A) shall be
liable to the employees harmed by such violation for lost wages
and benefits.'';
(4) by striking clause (iv) and inserting the following:
``(iv)(I) An employer that has filed an application under this
subsection violates this clause by taking, failing to take, or
threatening to take or fail to take a personnel action, or
intimidating, threatening, restraining, coercing, blacklisting,
discharging, or discriminating in any other manner against an employee
because the employee--
``(aa) disclosed information that the employee reasonably
believes evidences a violation of this subsection or any rule
or regulation pertaining to this subsection; or
``(bb) cooperated or sought to cooperate with the
requirements under this subsection or any rule or regulation
pertaining to this subsection.
``(II) In this subparagraph, the term `employee' includes--
``(aa) a current employee;
``(bb) a former employee; and
``(cc) an applicant for employment.
``(III) An employer that violates this clause shall be liable to
the employee harmed by such violation for lost wages and benefits.'';
and
(5) in clause (v)--
(A) by inserting ``(I)'' after ``(v)''; and
(B) by adding at the end the following:
``(II) Upon the termination of an H-1B nonimmigrant's employment on
account of such alien's disclosure of information or cooperation in an
investigation described in clause (iv), the nonimmigrant stay of any
beneficiary and any dependents listed on the beneficiary's petition
will be authorized and the alien will not accrue any period of unlawful
presence under section 212(a)(9) for a 90-day period or until the
expiration of the authorized validity period, whichever comes first,
following the date of such termination for the purpose of departure or
extension of nonimmigrant status based upon a subsequent offer of
employment.''; and
(6) in clause (vi)--
(A) by amending subclause (I) to read as follows:
``(I) It is a violation of this clause for an employer that has
filed an application under this subsection--
``(aa) to require an H-1B nonimmigrant to pay a penalty or
liquidated damages for ceasing employment with the employer
before a date agreed to by the nonimmigrant and the employer;
or
``(bb) to fail to offer to an H-1B nonimmigrant, during the
nonimmigrant's period of authorized employment, on the same
basis, and in accordance with the same criteria, as the
employer offers to United States workers, benefits and
eligibility for benefits, including--
``(AA) the opportunity to participate in health,
life, disability, and other insurance plans;
``(BB) the opportunity to participate in retirement
and savings plans; and
``(CC) cash bonuses and noncash compensation, such
as stock options (whether or not based on
performance).''; and
(B) in subclause (III), by striking ``$1,000'' and
inserting ``$5,000''.
SEC. 113. WAIVER REQUIREMENTS.
(a) In General.--Section 212(n)(2)(E) of the Immigration and
Nationality Act (8 U.S.C. 1182(n)(2)(E)) is amended to read as follows:
``(E)(i) The Secretary of Labor may waive the prohibition under
paragraph (1)(F) if the Secretary determines that the employer seeking
such waiver has established that--
``(I) the employer with which the H-1B nonimmigrant would
be placed--
``(aa) will not at any time displace a United
States worker with 1 or more H-1B nonimmigrants; and
``(bb) has not displaced and will not displace a
United States worker employed by the employer within
the period beginning 180 days before the date of the
placement of the nonimmigrant with the employer and
ending 180 days after such date (not including any
period of on-site or virtual training of H-1B
nonimmigrants by employees of the employer);
``(II) the H-1B nonimmigrant will be principally controlled
and supervised by the petitioning employer; and
``(III) the placement of the H-1B nonimmigrant is not
essentially an arrangement to provide labor for hire for the
employer with which the H-1B nonimmigrant will be placed.
``(ii) The Secretary shall grant or deny a waiver under this
subparagraph not later than seven days after the date on which the
Secretary receives an application for such waiver.''.
(b) Rulemaking.--
(1) Rules for waivers.--The Secretary of Labor, after
notice and a period for comment, shall promulgate a final rule
for an employer to apply for a waiver under section
212(n)(2)(E) of the Immigration and Nationality Act, as amended
by subsection (a).
(2) Requirement for publication.--The Secretary of Labor
shall submit to Congress, and publish in the Federal Register
and in other appropriate media, a notice of the date on which
the rules required under paragraph (1) are promulgated.
SEC. 114. INITIATION OF INVESTIGATIONS.
Section 212(n)(2)(G) of the Immigration and Nationality Act (8
U.S.C. 1182(n)(2)(G)) is amended--
(1) in clause (i), by striking ``if the Secretary of
Labor'' and all that follows and inserting ``with regard to the
employer's compliance with the requirements under this
subsection.'';
(2) in clause (ii), by striking ``and whose identity'' and
all that follows through ``failure or failures.'' and inserting
``the Secretary may conduct an investigation into the
employer's compliance with the requirements under this
subsection.'';
(3) in clause (iii), by striking the last sentence;
(4) by striking clauses (iv) and (v);
(5) by redesignating clauses (vi), (vii), and (viii) as
clauses (iv), (v), and (vi), respectively;
(6) in clause (iv), as redesignated, by striking ``meet a
condition described in clause (ii), unless the Secretary of
Labor receives the information not later than 12 months'' and
inserting ``comply with the requirements under this subsection
unless the Secretary of Labor receives the information not
later than 2 years'';
(7) by amending clause (v), as redesignated, to read as
follows:
``(v)(I) Except as provided in subclause (II), the Secretary of
Labor shall provide notice to an employer of the intent to conduct an
investigation under this subparagraph. Such 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.
``(II) The Secretary of Labor is not required to comply with
subclause (I) if the Secretary determines that such compliance would
interfere with an effort by the Secretary to investigate or secure
compliance by the employer with the requirements under this subsection.
``(III) A determination by the Secretary of Labor under this clause
shall not be subject to judicial review.'';
(8) 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, not later than 120 days after the
date of such determination, 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.''; and
(9) 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 the
requirements under this subsection, the Secretary shall impose a
penalty in accordance with subparagraph (C).''.
SEC. 115. INFORMATION SHARING.
Section 212(n)(2)(H) of the Immigration and Nationality Act (8
U.S.C. 1182(n)(2)(H)) is amended to read as follows:
``(H) The Director of U.S. Citizenship and Immigration Services
shall provide the Secretary of Labor with any information contained in
the materials submitted by employers of H-1B nonimmigrants as part of
the petition adjudication process that indicates that the employer is
not complying with visa program requirements for H-1B nonimmigrants.
The Secretary may initiate and conduct an investigation and hearing
under this paragraph after receiving information of noncompliance under
this subparagraph.''.
SEC. 116. CONFORMING AMENDMENT.
Section 212(n)(2)(F) of the Immigration and Nationality Act (8
U.S.C. 1182(n)(2)(F)) is amended by striking ``The preceding sentence
shall apply to an employer regardless of whether or not the employer is
an H-1B-dependent employer.''.
Subtitle C--Other Protections
SEC. 121. POSTING AVAILABLE POSITIONS THROUGH THE DEPARTMENT OF LABOR.
(a) Department of Labor Website.--Section 212(n)(3) of the
Immigration and Nationality Act (8 U.S.C. 1182(n)(3)) is amended to
read as follows:
``(3)(A) Not later than 90 days after the date of the enactment of
the H-1B and L-1 Visa Reform Act of 2023, the Secretary of Labor shall
establish a searchable internet website for posting positions in
accordance with paragraph (1)(C) that is available to the public
without charge.
``(B) The Secretary may work with private companies or nonprofit
organizations to develop and operate the internet website described in
subparagraph (A).
``(C) The Secretary may promulgate rules, after notice and a period
for comment, to carry out this paragraph.''.
(b) Publication Requirement.--The Secretary of Labor shall submit
to Congress, and publish in the Federal Register and in other
appropriate media, a notice of the date on which the internet website
required under section 212(n)(3) of the Immigration and Nationality
Act, as amended by subsection (a), will be operational.
(c) Application.--The amendment made by subsection (a) shall apply
to any application filed on or after the date that is 30 days after the
date described in subsection (b).
SEC. 122. TRANSPARENCY AND REPORT ON WAGE SYSTEM.
(a) Immigration Documents.--Section 204 of the Immigration and
Nationality Act (8 U.S.C. 1154) is amended by adding at the end the
following:
``(m) Employer To Provide Immigration Paperwork Exchanged With
Federal Agencies.--
``(1) In general.--Not later than 21 business days after
receiving a written request from a former, current, or
prospective employee listed as the beneficiary of an
employment-based nonimmigrant petition, the employer who filed
such petition shall provide such beneficiary with the original
(or a certified copy of the original) of all petitions,
notices, and other written communication exchanged between the
employer and the Department of Labor, the Department of
Homeland Security, or any other Federal agency or department
that is related to an immigrant or nonimmigrant petition filed
by the employer for such employee or beneficiary.
``(2) Withholding of financial or proprietary
information.--If a document required to be provided to an
employee or prospective employee under paragraph (1) includes
any sensitive financial or proprietary information of the
employer, the employer may redact such information from the
copies provided to such person.''.
(b) GAO Report on Job Classification and Wage Determinations.--Not
later than 1 year after the date of the enactment of this Act, the
Comptroller General of the United States shall prepare a report that--
(1) analyzes the accuracy and effectiveness of the
Secretary of Labor's current job classification and wage
determination system;
(2) specifically addresses whether the systems in place
accurately reflect the complexity of current job types and
geographic wage differences; and
(3) makes recommendations concerning necessary updates and
modifications.
SEC. 123. REQUIREMENTS FOR INFORMATION FOR H-1B AND L-1 NONIMMIGRANTS.
Section 214 of the Immigration and Nationality Act (8 U.S.C. 1184),
as amended by this Act, is further amended by adding at the end the
following:
``(s) Requirements for Information for H-1B and L-1
Nonimmigrants.--
``(1) In general.--Upon issuing a visa to an applicant, who
is outside the United States, for nonimmigrant status pursuant
to subparagraph (H)(i)(b) or (L) of section 101(a)(15), the
issuing office shall provide the applicant with--
``(A) a brochure outlining the obligations of the
applicant's employer and the rights of the applicant
with regard to employment under Federal law, including
labor and wage protections;
``(B) the contact information for appropriate
Federal agencies or departments that offer additional
information or assistance in clarifying such
obligations and rights; and
``(C) a copy of the petition submitted for the
nonimmigrant under section 212(n) or the petition
submitted for the nonimmigrant under subsection
(c)(2)(A), as appropriate.
``(2) Applicants inside the united states.--Upon the
approval of an initial petition filed for an alien who is in
the United States and seeking status under subparagraph
(H)(i)(b) or (L) of section 101(a)(15), the Secretary of
Homeland Security shall provide the applicant with the material
described in subparagraphs (A), (B), and (C) of paragraph
(1).''.
SEC. 124. ADDITIONAL DEPARTMENT OF LABOR EMPLOYEES.
(a) In General.--The Secretary of Labor is authorized to hire up to
200 additional employees to administer, oversee, investigate, and
enforce programs involving nonimmigrant employees described in section
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(i)(b)).
(b) Source of Funds.--The cost of hiring the additional employees
authorized to be hired under subsection (a) shall be recovered with
funds from the H-1B Administration, Oversight, Investigation, and
Enforcement Account established under section 212(n)(6) of the
Immigration and Nationality Act, as added by section 107.
SEC. 125. TECHNICAL CORRECTION.
Section 212 of the Immigration and Nationality Act (8 U.S.C. 1182)
is amended by redesignating the second subsection (t), as added by
section 1(b)(2)(B) of the Act entitled ``An Act to amend and extend the
Irish Peace Process Cultural and Training Program Act of 1998'' (Public
Law 108-449; 118 Stat. 3470), as subsection (u).
SEC. 126. APPLICATION.
Except as specifically otherwise provided, the amendments made by
this title shall apply to petitions and applications filed on or after
the date of the enactment of this Act.
TITLE II--L-1 VISA FRAUD AND ABUSE PROTECTIONS
SEC. 201. PROHIBITION ON DISPLACEMENT OF UNITED STATES WORKERS AND
RESTRICTING OUTPLACEMENT OF L-1 NONIMMIGRANTS.
(a) Restriction on Outplacement of L-1 Workers.--Section
214(c)(2)(F) of the Immigration and Nationality Act (8 U.S.C.
1184(c)(2)(F)) is amended to read as follows:
``(F)(i) Unless an employer receives a waiver under clause (ii), an
employer may not employ an alien, for a cumulative period exceeding 1
year, who--
``(I) will serve in a capacity involving specialized
knowledge with respect to an employer for purposes of section
101(a)(15)(L); and
``(II) will be stationed primarily at the worksite of an
employer other than the petitioning employer or its affiliate,
subsidiary, or parent, including pursuant to an outsourcing,
leasing, or other contracting agreement.
``(ii) The Secretary of Labor may grant a waiver of the
requirements under clause (i) if the Secretary determines that the
employer requesting such waiver has established that--
``(I) the employer with which the alien referred to in
clause (i) would be placed--
``(aa) will not at any time displace (as defined in
section 212(n)(4)(B)) a United States worker (as
defined in section 212(n)(4)(E)) with 1 or more
nonimmigrants described in section 101(a)(15)(L); and
``(bb) has not displaced and will not displace (as
defined in section 212(n)(4)(B)) a United States worker
(as defined in section 212(n)(4)(E)) employed by the
employer within the period beginning 180 days before
the date of the placement of such alien with the
employer and ending 180 days after such date (not
including any period of on-site or virtual training of
nonimmigrants described in section 101(a)(15)(L) by
employees of the employer);
``(II) such alien will be principally controlled and
supervised by the petitioning employer; and
``(III) the placement of the nonimmigrant is not
essentially an arrangement to provide labor for hire for an
unaffiliated employer with which the nonimmigrant will be
placed, rather than a placement in connection with the
provision of a product or service for which specialized
knowledge specific to the petitioning employer is necessary.
``(iii) The Secretary shall grant or deny a waiver under clause
(ii) not later than seven days after the date on which the Secretary
receives the application for the waiver.''.
(b) Prohibition on Displacement of United States Workers.--Section
214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2))
is amended by adding at the end the following:
``(G)(i) An employer importing an alien as a nonimmigrant under
section 101(a)(15)(L)--
``(I) may not at any time displace (as defined in section
212(n)(4)(B)) a United States worker (as defined in section
212(n)(4)(E)) with 1 or more such nonimmigrants; and
``(II) may not displace (as defined in section
212(n)(4)(B)) a United States worker (as defined in section
212(n)(4)(E)) employed by the employer during the period
beginning 180 days before and ending 180 days after the date of
the placement of such a nonimmigrant with the employer.
``(ii) The 180-day periods referenced in clause (i) may not include
any period of on-site or virtual training of nonimmigrants described in
clause (i) by employees of the employer.''.
(c) Rulemaking.--The Secretary of Homeland Security, after notice
and a period for comment, shall promulgate rules for an employer to
apply for a waiver under section 214(c)(2)(F)(ii), as added by
subsection (a).
SEC. 202. L-1 EMPLOYER PETITION REQUIREMENTS FOR EMPLOYMENT AT NEW
OFFICES.
Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C.
1184(c)(2)), as amended by section 201, is further amended by adding at
the end the following:
``(H)(i) If the beneficiary of a petition under this paragraph is
coming to the United States to open, or to be employed in, a new
office, the petition may be approved for up to 12 months only if--
``(I) the alien has not been the beneficiary of 2 or more
petitions under this subparagraph during the immediately
preceding 2 years; and
``(II) the employer operating the new office has--
``(aa) an adequate business plan;
``(bb) sufficient physical premises to carry out
the proposed business activities; and
``(cc) the financial ability to commence doing
business immediately upon the approval of the petition.
``(ii) An extension of the approval period under clause (i) may not
be granted until the importing employer submits an application to the
Secretary of Homeland Security that contains--
``(I) evidence that the importing employer meets the
requirements of this subsection;
``(II) evidence that the beneficiary of the petition is
eligible for nonimmigrant status under section 101(a)(15)(L);
``(III) a statement summarizing the original petition;
``(IV) evidence that the importing employer has fully
complied with the business plan submitted under clause (i)(I);
``(V) evidence of the truthfulness of any representations
made in connection with the filing of the original petition;
``(VI) evidence that the importing employer, for the entire
period beginning on the date on which the petition was approved
under clause (i), has been doing business at the new office
through regular, systematic, and continuous provision of goods
and services;
``(VII) a statement of the duties the beneficiary has
performed at the new office during the approval period under
clause (i) and the duties the beneficiary will perform at the
new office during the extension period granted under this
clause;
``(VIII) a statement describing the staffing at the new
office, including the number of employees and the types of
positions held by such employees;
``(IX) evidence of wages paid to employees;
``(X) evidence of the financial status of the new office;
and
``(XI) any other evidence or data prescribed by the
Secretary.
``(iii) A new office employing the beneficiary of an L-1 petition
approved under this paragraph shall do business only through regular,
systematic, and continuous provision of goods and services for the
entire period for which the petition is sought.
``(iv) Notwithstanding clause (ii), and subject to the maximum
period of authorized admission set forth in subparagraph (D), the
Secretary of Homeland Security, in the Secretary's discretion, may
approve a subsequently filed petition on behalf of the beneficiary to
continue employment at the office described in this subparagraph for a
period beyond the initially granted 12-month period if the importing
employer has been doing business at the new office through regular,
systematic, and continuous provision of goods and services for the 6
months immediately preceding the date of extension petition filing and
demonstrates that the failure to satisfy any of the requirements
described in those subclauses was directly caused by extraordinary
circumstances, as determined by the Secretary in the Secretary's
discretion.''.
SEC. 203. COOPERATION WITH SECRETARY OF STATE.
Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C.
1184(c)(2)), as amended by sections 201 and 202, is further amended by
adding at the end the following:
``(I) The Secretary of Homeland Security shall work cooperatively
with the Secretary of State to verify the existence or continued
existence of a company or office in the United States or in a foreign
country for purposes of approving petitions under this paragraph.''.
SEC. 204. INVESTIGATION AND DISPOSITION OF COMPLAINTS AGAINST L-1
EMPLOYERS.
Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C.
1184(c)(2)), as amended by sections 201 through 203, is further amended
by adding at the end the following:
``(J)(i) The Secretary of Homeland Security may initiate an
investigation of any employer that employs nonimmigrants described in
section 101(a)(15)(L) with regard to the employer's compliance with the
requirements under this subsection.
``(ii) If the Secretary receives specific credible information from
a source who is likely to have knowledge of an employer's practices,
employment conditions, or compliance with the requirements under this
subsection, the Secretary may conduct an investigation into the
employer's compliance with the requirements of this subsection. The
Secretary may withhold the identity of the source from the employer,
and the source's identity shall not be subject to disclosure under
section 552 of title 5, United States Code.
``(iii) The Secretary shall establish a procedure for any person
desiring to provide to the Secretary information described in clause
(ii) that may be used, in whole or in part, as the basis for the
commencement of an investigation described in such clause, to provide
the information in writing on a form developed and provided by the
Secretary and completed by or on behalf of the person.
``(iv) No investigation described in clause (ii) (or hearing
described in clause (vi) based on such investigation) may be conducted
with respect to information about a failure to comply with the
requirements under this subsection, unless the Secretary receives the
information not later than 24 months after the date of the alleged
failure.
``(v) Before commencing an investigation of an employer under
clause (i) or (ii), the Secretary shall provide notice to the employer
of the intent to conduct such 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 to do so would
interfere with an effort by the Secretary to investigate or secure
compliance by the employer with the requirements of this subsection.
There shall be no judicial review of a determination by the Secretary
under this clause.
``(vi) If the Secretary, 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 the 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. If such a hearing
is requested, the Secretary shall make a finding concerning the matter
by not later than 120 days after the date of the hearing.
``(vii) If the Secretary, after a hearing, finds a reasonable basis
to believe that the employer has violated the requirements under this
subsection, the Secretary shall impose a penalty under subparagraph
(L).
``(viii)(I) The Secretary may conduct surveys of the degree to
which employers comply with the requirements under this section.
``(II) The Secretary shall--
``(aa) conduct annual compliance audits of not less than 1
percent of the employers that employ nonimmigrants described in
section 101(a)(15)(L) during the applicable fiscal year;
``(bb) 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 nonimmigrants
described in section 101(a)(15)(L); and
``(cc) make available to the public an executive summary or
report describing the general findings of the audits carried
out pursuant to this subclause.
``(ix) The Secretary is authorized to take other such actions,
including issuing subpoenas and seeking appropriate injunctive relief
and specific performance of contractual obligations, as may be
necessary to assure employer compliance with the terms and conditions
under this paragraph. The rights and remedies provided to nonimmigrants
described in section 101(a)(15)(L) under this paragraph are in addition
to, and not in lieu of, any other contractual or statutory rights and
remedies of such nonimmigrants, and are not intended to alter or affect
such rights and remedies.''.
SEC. 205. WAGE RATE AND WORKING CONDITIONS FOR L-1 NONIMMIGRANTS.
(a) In General.--Section 214(c)(2) of the Immigration and
Nationality Act (8 U.S.C. 1184(c)(2)), as amended by sections 201
through 204, is further amended by adding at the end the following:
``(K)(i) An employer that employs a nonimmigrant described in
section 101(a)(15)(L) for a cumulative period of time in excess of 1
year shall--
``(I) offer such nonimmigrant, during the period of
authorized employment, wages, based on the best information
available at the time the application is filed, which are not
less than the highest of--
``(aa) the locally determined prevailing wage level
for the occupational classification in the area of
employment;
``(bb) the median wage for all workers in the
occupational classification in the area of employment;
and
``(cc) the median wage for skill level 2 in the
occupational classification found in the most recent
Occupational Employment Statistics survey; and
``(II) provide working conditions for such nonimmigrant
that will not adversely affect the working conditions of
workers similarly employed by the employer or by an employer
with which such nonimmigrant is placed pursuant to a waiver
under subparagraph (F)(ii).
``(ii) If an employer, in such previous period specified by the
Secretary of Homeland Security, employed 1 or more such nonimmigrants,
the employer shall provide to the Secretary of Homeland Security the
Internal Revenue Service Form W-2 Wage and Tax Statement filed by the
employer with respect to such nonimmigrants for such period.
``(iii) It is a failure to meet a condition under this subparagraph
for an employer who has filed a petition to import 1 or more aliens as
nonimmigrants described in section 101(a)(15)(L)--
``(I) to require such a nonimmigrant to pay a penalty or
liquidated damages for ceasing employment with the employer
before a date mutually agreed to by the nonimmigrant and the
employer; or
``(II) to fail to offer to such a nonimmigrant, during the
nonimmigrant's period of authorized employment, on the same
basis, and in accordance with the same criteria, as the
employer offers to United States workers, benefits and
eligibility for benefits, including--
``(aa) the opportunity to participate in health,
life, disability, and other insurance plans;
``(bb) the opportunity to participate in retirement
and savings plans; and
``(cc) cash bonuses and noncash compensation, such
as stock options (whether or not based on
performance).''.
(b) Rulemaking.--The Secretary of Homeland Security, after notice
and a period of comment and taking into consideration any special
circumstances relating to intracompany transfers, shall promulgate
rules to implement the requirements under section 214(c)(2)(K) of the
Immigration and Nationality Act, as added by subsection (a).
SEC. 206. PENALTIES.
Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C.
1184(c)(2)), as amended by sections 201 through 205, is further amended
by adding at the end the following:
``(L)(i) If the Secretary of Homeland Security determines, after
notice and an opportunity for a hearing, that an employer failed to
meet a condition under subparagraph (F), (G), (K), or (M), or
misrepresented a material fact in a petition to employ 1 or more aliens
as nonimmigrants described in section 101(a)(15)(L)--
``(I) the Secretary shall impose such administrative
remedies (including civil monetary penalties in an amount not
to exceed $5,000 per violation) as the Secretary determines to
be appropriate;
``(II) the Secretary of Homeland Security or the Secretary
of State, as appropriate, shall not approve petitions or
applications filed with respect to that employer during a
period of at least 1 year for 1 or more aliens to be employed
as such nonimmigrants by the employer; and
``(III) in the case of a violation of subparagraph (K) or
(M), the employer shall be liable to the employees harmed by
such violation for lost wages and benefits.
``(ii) If the Secretary finds, after notice and an opportunity for
a hearing, a willful failure by an employer to meet a condition under
subparagraph (F), (G), (K), or (M) or a willful misrepresentation of
material fact in a petition to employ 1 or more aliens as nonimmigrants
described in section 101(a)(15)(L)--
``(I) the Secretary shall impose such administrative
remedies (including civil monetary penalties in an amount not
to exceed $25,000 per violation) as the Secretary determines to
be appropriate;
``(II) the Secretary of Homeland Security or the Secretary
of State, as appropriate, shall not approve petitions or
applications filed with respect to that employer during a
period of at least 2 years for 1 or more aliens to be employed
as such nonimmigrants by the employer; and
``(III) in the case of a violation of subparagraph (K) or
(M), the employer shall be liable to the employees harmed by
such violation for lost wages and benefits.''.
SEC. 207. PROHIBITION ON RETALIATION AGAINST L-1 NONIMMIGRANTS.
Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C.
1184(c)(2)), as amended by sections 201 through 206, is further amended
by adding at the end the following:
``(M)(i) An employer that has filed a petition to import 1 or more
aliens as nonimmigrants described in section 101(a)(15)(L) violates
this subparagraph by taking, failing to take, or threatening to take or
fail to take, a personnel action, or intimidating, threatening,
restraining, coercing, blacklisting, discharging, or discriminating in
any other manner against an employee because the employee--
``(I) has disclosed information that the employee
reasonably believes evidences a violation of this subsection,
or any rule or regulation pertaining to this subsection; or
``(II) cooperates or seeks to cooperate with the
requirements under this subsection, or any rule or regulation
pertaining to this subsection.
``(ii) Upon termination of the employment of an alien described in
section 101(a)(15)(L) on account of actions by such alien described in
subclauses (I) and (II) of clause (i), such alien's nonimmigrant stay
and the stay of any beneficiary and any dependents listed on the
beneficiary's petition or application will be authorized and the aliens
will not accrue any period of unlawful presence under section 212(a)(9)
for a 90-day period or upon the expiration of the authorized validity
period, whichever comes first, following the date of such termination
for the purpose of departure or extension of nonimmigrant status based
upon a subsequent offer of employment.
``(iii) In this subparagraph, the term `employee' includes--
``(I) a current employee;
``(II) a former employee; and
``(III) an applicant for employment.''.
SEC. 208. ADJUDICATION BY DEPARTMENT OF HOMELAND SECURITY OF PETITIONS
UNDER BLANKET PETITION.
(a) In General.--Section 214(c)(2)(A) of the Immigration and
Nationality Act (8 U.S.C. 1184(c)(2)(A)) is amended to read as follows:
``(A) The Secretary of Homeland Security shall establish a
procedure under which an importing employer that meets the requirements
established by the Secretary may file a blanket petition with the
Secretary to authorize aliens to enter the United States as
nonimmigrants described in section 101(a)(15)(L) instead of filing
individual petitions under paragraph (1) on behalf of such aliens. Such
procedure shall permit--
``(i) the expedited adjudication by the Secretary of
Homeland Security of individual petitions covered under such
blanket petitions; and
``(ii) the expedited processing by the Secretary of State
of visas for admission of aliens covered under such blanket
petitions.''.
(b) Effective Date.--The amendment made by subsection (a) shall
apply to petitions filed on or after the date of the enactment of this
Act.
SEC. 209. REPORTS ON EMPLOYMENT-BASED NONIMMIGRANTS.
(a) In General.--Section 214(c)(8) of the Immigration and
Nationality Act (8 U.S.C. 1184(c)(8)) is amended to read as follows--
``(8) The Secretary of Homeland Security or Secretary of State, as
appropriate, shall submit an annual report to the Committee on the
Judiciary of the Senate and the Committee on the Judiciary of the House
of Representatives that describes, with respect to petitions under
subsection (e) and each subcategory of subparagraphs (H), (L), (O),
(P), and (Q) of section 101(a)(15)--
``(A) the number of such petitions (or applications for
admission, in the case of applications by Canadian nationals
seeking admission under subsection (e) or section
101(a)(15)(L)) which have been filed;
``(B) the number of such petitions which have been approved
and the number of workers (by occupation) included in such
approved petitions;
``(C) the number of such petitions which have been denied
and the number of workers (by occupation) requested in such
denied petitions;
``(D) the number of such petitions which have been
withdrawn;
``(E) the number of such petitions which are awaiting final
action;
``(F) the number of aliens in the United States under each
subcategory under section 101(a)(15)(H); and
``(G) the number of aliens in the United States under each
subcategory under section 101(a)(15)(L).''.
(b) Nonimmigrant Characteristics Report.--Section 416(c) of the
American Competitiveness and Workforce Improvement Act of 1998 (8
U.S.C. 1184 note) is amended--
(1) by amending paragraph (2) to read as follows:
``(2) Annual h-1b nonimmigrant characteristics report.--The
Secretary of Homeland Security shall submit an annual report to
the Committee on the Judiciary of the Senate and the Committee
on the Judiciary of the House of Representatives that
contains--
``(A) for the previous fiscal year--
``(i) information on the countries of
origin of, occupations of, educational levels
attained by, and compensation paid to, aliens
who were issued visas or provided nonimmigrant
status under section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(i)(b));
``(ii) a list of all employers who
petitioned for H-1B workers, the number of such
petitions filed and approved for each such
employer, the occupational classifications for
the approved positions, and the number of H-1B
nonimmigrants for whom each such employer filed
an employment-based immigrant petition pursuant
to section 204(a)(1)(F) of the Immigration and
Nationality Act (8 U.S.C. 1154(a)(1)(F)); and
``(iii) the number of employment-based
immigrant petitions filed pursuant to such
section 204(a)(1)(F) on behalf of H-1B
nonimmigrants;
``(B) a list of all employers for whom more than 15
percent of their United States workforce is H-1B or L-1
nonimmigrants;
``(C) a list of all employers for whom more than 50
percent of their United States workforce is H-1B or L-1
nonimmigrants;
``(D) a gender breakdown by occupation and by
country of origin of H-1B nonimmigrants;
``(E) a list of all employers who have been granted
a waiver under section 214(n)(2)(E) of the Immigration
and Nationality Act (8 U.S.C. 1184(n)(2)(E)); and
``(F) the number of H-1B nonimmigrants categorized
by their highest level of education and whether such
education was obtained in the United States or in a
foreign country.'';
(2) by redesignating paragraph (3) as paragraph (5);
(3) by inserting after paragraph (2) the following:
``(3) Annual l-1 nonimmigrant characteristics report.--The
Secretary of Homeland Security shall submit an annual report to
the Committee on the Judiciary of the Senate and the Committee
on the Judiciary of the House of Representatives that
contains--
``(A) for the previous fiscal year--
``(i) information on the countries of
origin of, occupations of, educational levels
attained by, and compensation paid to, aliens
who were issued visas or provided nonimmigrant
status under section 101(a)(15)(L) of the
Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(L));
``(ii) a list of all employers who
petitioned for L-1 workers, the number of such
petitions filed and approved for each such
employer, the occupational classifications for
the approved positions, and the number of L-1
nonimmigrants for whom each such employer filed
an employment-based immigrant petition pursuant
to section 204(a)(1)(F) of the Immigration and
Nationality Act (8 U.S.C. 1154(a)(1)(F)); and
``(iii) the number of employment-based
immigrant petitions filed pursuant to such
section 204(a)(1)(F) on behalf of L-1
nonimmigrants;
``(B) a gender breakdown by occupation and by
country of L-1 nonimmigrants;
``(C) a list of all employers who have been granted
a waiver under section 214(c)(2)(F)(ii) of the
Immigration and Nationality Act (8 U.S.C.
1184(c)(2)(F)(ii));
``(D) the number of L-1 nonimmigrants categorized
by their highest level of education and whether such
education was obtained in the United States or in a
foreign country;
``(E) the number of applications that have been
filed for each subcategory of nonimmigrant described
under section 101(a)(15)(L) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)(L)), based on an
approved blanket petition under section 214(c)(2)(A) of
such Act; and
``(F) the number of applications that have been
approved for each subcategory of nonimmigrant described
under such section 101(a)(15)(L), based on an approved
blanket petition under such section 214(c)(2)(A).
``(4) Annual h-1b employer survey.--The Secretary of Labor
shall--
``(A) conduct an annual survey of employers hiring
foreign nationals under the H-1B visa program; and
``(B) issue an annual report that--
``(i) describes the methods employers are
using to meet the requirement under section
212(n)(1)(G)(i) of the Immigration and
Nationality Act (8 U.S.C. 1182(n)(1)(G)(i)) of
taking good faith steps to recruit United
States workers for the occupational
classification for which the nonimmigrants are
sought, using procedures that meet industry-
wide standards;
``(ii) describes the best practices for
recruiting among employers; and
``(iii) contains recommendations on which
recruiting steps employers can take to maximize
the likelihood of hiring American workers.'';
and
(4) in paragraph (5), as redesignated, by striking
``paragraph (2)'' and inserting ``paragraphs (2) and (3)''.
SEC. 210. SPECIALIZED KNOWLEDGE.
Section 214(c)(2)(B) of the Immigration and Nationality Act (8
U.S.C. 1184(c)(2)(B)) is amended to read as follows:
``(B)(i) For purposes of section 101(a)(15)(L), the term
`specialized knowledge'--
``(I) means knowledge possessed by an individual whose
advanced level of expertise and proprietary knowledge of the
employer's product, service, research, equipment, techniques,
management, or other interests of the employer are not readily
available in the United States labor market;
``(II) is clearly unique from those held by others employed
in the same or similar occupations; and
``(III) does not apply to persons who have general
knowledge or expertise which enables them merely to produce a
product or provide a service.
``(ii)(I) The ownership of patented products or copyrighted works
by a petitioner under section 101(a)(15)(L) does not establish that a
particular employee has specialized knowledge. In order to meet the
definition under clause (i), the beneficiary shall be a key person with
knowledge that is critical for performance of the job duties and is
protected from disclosure through patent, copyright, or company policy.
``(II) Unique procedures are not proprietary knowledge within this
context unless the entire system and philosophy behind the procedures
are clearly different from those of other firms, they are relatively
complex, and they are protected from disclosure to competition.''.
SEC. 211. TECHNICAL AMENDMENTS.
(a) Delegation of Authority.--Section 212(n)(5)(F) of the
Immigration and Nationality Act (8 U.S.C. 1182(n)(5)(F)) is amended by
striking ``Department of Justice'' and inserting ``Department of
Homeland Security''.
(b) Petitions for Certain Nonimmigrant Visas.--Section 214(c) of
such Act (8 U.S.C. 1184(c)) is amended by striking ``Attorney General''
each place such term appears and inserting ``Secretary of Homeland
Security''.
SEC. 212. APPLICATION.
Except as otherwise specifically provided, the amendments made by
this title shall apply to petitions and applications filed on or after
the date of the enactment of this Act.
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