Federal

H–1B and L–1 Visa Reform Act of 2023

Source: Congress.gov · 13,431 words in original text

What This Bill Does

This bill changes the rules for two temporary work visa programs used to hire foreign workers in the United States. It adds new requirements for employers who hire H-1B workers (specialty occupations) and L-1 workers (transferred employees within companies), with stricter rules about wages, job postings, and preventing replacement of American workers. The bill also increases penalties for employers who break these rules and gives the Labor Department more power to investigate violations. ##

Who It Affects

- Employers hiring H-1B workers (temporary specialty occupation workers) - Employers hiring L-1 workers (employees transferred from foreign offices) - Foreign workers seeking H-1B or L-1 visas - The Department of Labor - The Department of Homeland Security - The Department of State - American workers in occupations where these visa holders are employed ##

Key Provisions

- Employers must post job openings online for at least 30 days before hiring H-1B workers, including details about wages, job requirements, and how to apply (Sec. 101) - Employers must pay H-1B workers at least the highest of three amounts: the local prevailing wage, the median wage for that job type in the area, or the median wage for skill level 2 in national job statistics (Sec. 101) - Employers cannot displace American workers when bringing in H-1B workers, and cannot displace American workers within 180 days before or after bringing in an H-1B worker (Sec. 101) - The Department of Labor must conduct compliance audits of at least 1 percent of employers with H-1B workers each year and all employers with more than 100 employees where more than 15 percent are H-1B workers (Sec. 111) - Employers cannot place or contract out H-1B workers to other employers unless the Labor Secretary grants a waiver (Sec. 101) - H-1B workers employed by colleges and universities are held to the same rules as other H-1B employers (Sec. 105) - L-1 workers cannot work at another company's location for more than one year without a Labor Secretary waiver (Sec. 201) - Employers of L-1 workers for more than one year must pay them the same three wage standards as H-1B workers (Sec. 205) - The Department of Labor must establish a searchable website where employers post H-1B positions within 90 days of this bill becoming law (Sec. 121) ##

What Changes

**Wage Requirements:** Employers currently use a lower wage standard for H-1B workers. This bill raises the required wage to the highest of three measures, making it more expensive to hire H-1B workers. **Job Posting:** Employers must now post available positions online for 30 days before hiring H-1B workers. Currently, not all employers do this. **Non-Displacement Rules:** The bill expands protections against replacing American workers. It covers a longer time period (180 days before and after) and applies to all employers. **L-1 Worker Limits:** L-1 workers stationed at other companies can only work there for one year without a waiver, instead of having no specific time limit. **Wage Requirements for L-1:** L-1 workers employed for more than one year must now be paid the same wage standards as H-1B workers, which is new. **Penalties:** Fines for violations increase significantly. For example, a first violation fine increases from $1,000 to $5,000 (Sec. 112). **Investigations:** The Labor Department gains the power to investigate employers based on tip lines and can issue subpoenas to get information. **Application Fee:** Employers must pay a fee to apply for H-1B workers, with money going to an "H-1B Administration, Oversight, Investigation, and Enforcement Account" (Sec. 107). **Employer Cap:** Employers with 50 or more U.S. employees cannot have H-1B or L-1 workers make up more than 50 percent of their total workforce (Sec. 102). ##

Important Definitions

- **H-1B Nonimmigrant**: A foreign worker temporarily employed in the United States in a specialty occupation requiring a bachelor's degree or higher - **L-1 Nonimmigrant**: A foreign worker temporarily transferred to the United States from a foreign office of the same company or parent company - **Specialty Occupation**: Now requires an actual bachelor's or higher degree in the specific field directly related to the job, or full state licensure if required for that job (Sec. 106) - **Specialized Knowledge** (for L-1): Advanced expertise and proprietary knowledge of the employer's product, service, research, equipment, or techniques that is not readily available in the U.S. job market and is clearly unique from what others in similar jobs have (Sec. 210) - **Displace**: To remove a U.S. worker from a job - **Prevailing Wage**: The locally determined standard wage for a specific job in a specific geographic area ##

Effective Date

**The bill's main provisions take effect on the date the bill becomes law** (Sec. 126). **The Department of Labor must establish the job posting website within 90 days of the bill becoming law**, and employers must use it for any application filed 30 days after the website launches (Sec. 121). **Rules for waivers and L-1 outplacement** must be finalized by the Secretaries of Labor and Homeland Security after a public notice and comment period, but no specific deadline is stated (Sec. 113, Sec. 201).

II 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 Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘H–1B and L–1 Visa Reform Act of 2023’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 Sec. 1. Short title; table of contents. VerDate Sep 11 2014 02:20 Apr 06, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S979.IS S979 kjohnson on DSK79L0C42PROD with BILLS 2 •S 979 IS 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. VerDate Sep 11 2014 02:20 Apr 06, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6211 E:\BILLS\S979.IS S979 kjohnson on DSK79L0C42PROD with BILLS 3 •S 979 IS TITLE I—H–1B VISA FRAUD AND 1 ABUSE PROTECTIONS 2 Subtitle A—H–1B Employer 3 Application Requirements 4 SEC. 101. MODIFICATION OF APPLICATION REQUIRE- 5 MENTS. 6 (a) GENERAL APPLICATION REQUIREMENTS.—Sec- 7 tion 212(n)(1)(A) of the Immigration and Nationality Act 8 (8 U.S.C. 1182(n)(1)(A)) is amended to read as follows: 9 ‘‘(A) The employer— 10 ‘‘(i) is offering and will offer to H–1B non- 11 immigrants, during the period of authorized 12 employment for each H–1B nonimmigrant, 13 wages that are determined based on the best in- 14 formation available at the time the application 15 is filed and which are not less than the highest 16 of— 17 ‘‘(I) the locally determined prevailing 18 wage level for the occupational classifica- 19 tion in the area of employment; 20 ‘‘(II) the median wage for all workers 21 in the occupational classification in the 22 area of employment; and 23 ‘‘(III) the median wage for skill level 24 2 in the occupational classification found 25 VerDate Sep 11 2014 02:20 Apr 06, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S979.IS S979 kjohnson on DSK79L0C42PROD with BILLS 4 •S 979 IS in the most recent Occupational Employ- 1 ment Statistics survey; and 2 ‘‘(ii) will provide working conditions for 3 such H–1B nonimmigrant that will not ad- 4 versely affect the working conditions of United 5 States workers similarly employed by the em- 6 ployer or by an employer with which such H– 7 1B nonimmigrant is placed pursuant to a waiv- 8 er under paragraph (2)(E).’’. 9 (b) INTERNET POSTING REQUIREMENT.—Section 10 212(n)(1)(C) of such Act (8 U.S.C. 1182(n)(1)(C)) is 11 amended— 12 (1) by redesignating clause (ii) as subclause 13 (II); 14 (2) by striking ‘‘(i) has provided’’ and inserting 15 the following: 16 ‘‘(ii)(I) has provided’’; and 17 (3) by inserting before clause (ii), as redesig- 18 nated by paragraph (2), the following: 19 ‘‘(i) has posted on the internet website de- 20 scribed in paragraph (3), for at least 30 cal- 21 endar days, a detailed description of each posi- 22 tion for which a nonimmigrant is sought that 23 includes a description of— 24 VerDate Sep 11 2014 02:20 Apr 06, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S979.IS S979 kjohnson on DSK79L0C42PROD with BILLS 5 •S 979 IS ‘‘(I) the wages and other terms and 1 conditions of employment; 2 ‘‘(II) the minimum education, train- 3 ing, experience, and other requirements for 4 the position; and 5 ‘‘(III) the process for applying for the 6 position; and’’. 7 (c) WAGE DETERMINATION INFORMATION.—Section 8 212(n)(1)(D) of such Act (8 U.S.C. 1182(n)(1)(D)) is 9 amended by inserting ‘‘the wage determination method- 10 ology used under subparagraph (A)(i),’’ after ‘‘shall con- 11 tain’’. 12 (d) APPLICATION OF REQUIREMENTS TO ALL EM- 13 PLOYERS.— 14 (1) NONDISPLACEMENT.—Section 212(n)(1)(E) 15 of such Act (8 U.S.C. 1182(n)(1)(E)) is amended to 16 read as follows: 17 ‘‘(E)(i) The employer— 18 ‘‘(I) will not at any time displace a United 19 States worker with 1 or more H–1B non- 20 immigrants; and 21 ‘‘(II) did not displace and will not displace 22 a United States worker employed by the em- 23 ployer within the period beginning 180 days be- 24 fore and ending 180 days after the date of the 25 VerDate Sep 11 2014 02:20 Apr 06, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S979.IS S979 kjohnson on DSK79L0C42PROD with BILLS 6 •S 979 IS placement of the nonimmigrant with the em- 1 ployer. 2 ‘‘(ii) The 180-day periods referred to in clause 3 (i) may not include any period of on-site or virtual 4 training of H–1B nonimmigrants by employees of 5 the employer.’’. 6 (2) RECRUITMENT.—Section 212(n)(1)(G)(i) of 7 such Act (8 U.S.C. 1182(n)(1)(G)(i)) is amended by 8 striking ‘‘In the case of an application described in 9 subparagraph (E)(ii), subject’’ and inserting ‘‘Sub- 10 ject’’. 11 (e) WAIVER REQUIREMENT.—Section 212(n)(1)(F) 12 of such Act (8 U.S.C. 1182(n)(1)(F)) is amended to read 13 as follows: 14 ‘‘(F) The employer will not place, outsource, 15 lease, or otherwise contract for the services or place- 16 ment of H–1B nonimmigrants with another em- 17 ployer, regardless of the physical location where such 18 services will be performed, unless the employer of 19 the alien has been granted a waiver under paragraph 20 (2)(E).’’. 21 SEC. 102. NEW APPLICATION REQUIREMENTS. 22 Section 212(n)(1) of the Immigration and Nationality 23 Act (8 U.S.C. 1182(n)(1)), as amended by section 101, 24 VerDate Sep 11 2014 02:20 Apr 06, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S979.IS S979 kjohnson on DSK79L0C42PROD with BILLS 7 •S 979 IS is further amended by inserting after subparagraph (G) 1 the following: 2 ‘‘(H)(i) The employer, or a person or entity act- 3 ing on the employer’s behalf, has not advertised any 4 available position specified in the application in an 5 advertisement that states or indicates that— 6 ‘‘(I) such position is only available to an 7 individual who is or will be an H–1B non- 8 immigrant; or 9 ‘‘(II) an individual who is or will be an H– 10 1B nonimmigrant shall receive priority or a 11 preference in the hiring process for such posi- 12 tion. 13 ‘‘(ii) The employer has not primarily recruited 14 individuals who are or who will be H–1B non- 15 immigrants to fill such position. 16 ‘‘(I) If the employer employs 50 or more em- 17 ployees in the United States— 18 ‘‘(i) the sum of the number of such em- 19 ployees who are H–1B nonimmigrants plus the 20 number of such employees who are non- 21 immigrants described in section 101(a)(15)(L) 22 does not exceed 50 percent of the total number 23 of employees; and 24 VerDate Sep 11 2014 02:20 Apr 06, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S979.IS S979 kjohnson on DSK79L0C42PROD with BILLS 8 •S 979 IS ‘‘(ii) the employer’s corporate organization 1 has not been restructured to evade the limita- 2 tion under clause (i). 3 ‘‘(J) If the employer, in such previous period as 4 the Secretary shall specify, employed 1 or more H– 5 1B nonimmigrants, the employer shall submit to the 6 Secretary the Internal Revenue Service Form W–2 7 Wage and Tax Statements filed by the employer 8 with respect to the H–1B nonimmigrants for such 9 period.’’. 10 SEC. 103. APPLICATION REVIEW REQUIREMENTS. 11 (a) TECHNICAL AMENDMENT.—Section 212(n)(1) of 12 the Immigration and Nationality Act (8 U.S.C. 13 1182(n)(1)), as amended by sections 101 and 102, is fur- 14 ther amended, in the undesignated paragraph at the end, 15 by striking ‘‘The employer’’ and inserting the following: 16 ‘‘(K) The employer.’’. 17 (b) APPLICATION REVIEW REQUIREMENTS.—Section 18 212(n)(1)(K), as designated by subsection (a), is amend- 19 ed— 20 (1) in the fourth sentence, by inserting ‘‘and 21 through the Department of Labor’s website, without 22 charge.’’ after ‘‘D.C.’’; 23 (2) in the fifth sentence, by striking ‘‘only for 24 completeness’’ and inserting ‘‘for completeness, indi- 25 VerDate Sep 11 2014 02:20 Apr 06, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S979.IS S979 kjohnson on DSK79L0C42PROD with BILLS 9 •S 979 IS cators of fraud or misrepresentation of material 1 fact,’’; 2 (3) in the sixth sentence— 3 (A) by striking ‘‘or obviously inaccurate’’ 4 and inserting ‘‘, presents indicators of fraud or 5 misrepresentation of material fact, or is obvi- 6 ously inaccurate’’; and 7 (B) by striking ‘‘within 7 days of’’ and in- 8 serting ‘‘not later than 14 days after’’; and 9 (4) by adding at the end the following: ‘‘If the 10 Secretary of Labor’s review of an application identi- 11 fies indicators of fraud or misrepresentation of ma- 12 terial fact, the Secretary may conduct an investiga- 13 tion and hearing in accordance with paragraph 14 (2).’’. 15 SEC. 104. H–1B VISA ALLOCATION. 16 Section 214(g)(3) of the Immigration and Nationality 17 Act (8 U.S.C. 1184(g)(3)), is amended— 18 (1) by striking the first sentence and inserting 19 the following: 20 ‘‘(A) Subject to subparagraph (B), aliens who 21 are subject to the numerical limitations under para- 22 graph (1)(A) shall be issued visas, or otherwise pro- 23 vided nonimmigrant status, in a manner and order 24 VerDate Sep 11 2014 02:20 Apr 06, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S979.IS S979 kjohnson on DSK79L0C42PROD with BILLS 10 •S 979 IS established by the Secretary of Homeland Security, 1 by regulation.’’; and 2 (2) by adding at the end the following: 3 ‘‘(B) The Secretary shall consider petitions for 4 nonimmigrant status under section 5 101(a)(15)(H)(i)(b) in the following order: 6 ‘‘(i) Petitions for nonimmigrants described 7 in section 101(a)(15)(F) who, while physically 8 present in the United States, have earned an 9 advanced degree in a field of science, tech- 10 nology, engineering, or mathematics from a 11 United States institution of higher education 12 (as defined in section 101(a) of the Higher 13 Education Act of 1965 (20 U.S.C. 1001(a))) 14 that has been accredited by an accrediting enti- 15 ty that is recognized by the Department of 16 Education. 17 ‘‘(ii) Petitions certifying that the employer 18 will be paying the nonimmigrant the median 19 wage for skill level 4 in the occupational classi- 20 fication found in the most recent Occupational 21 Employment Statistics survey. 22 ‘‘(iii) Petitions for nonimmigrants de- 23 scribed in section 101(a)(15)(F) who are grad- 24 uates of any other advanced degree program, 25 VerDate Sep 11 2014 02:20 Apr 06, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S979.IS S979 kjohnson on DSK79L0C42PROD with BILLS 11 •S 979 IS undertaken while physically present in the 1 United States, from an institution of higher 2 education described in clause (i). 3 ‘‘(iv) Petitions certifying that the employer 4 will be paying the nonimmigrant the median 5 wage for skill level 3 in the occupational classi- 6 fication found in the most recent Occupational 7 Employment Statistics survey. 8 ‘‘(v) Petitions for nonimmigrants described 9 in section 101(a)(15)(F) who are graduates of 10 a bachelor’s degree program, undertaken while 11 physically present in the United States, in a 12 field of science, technology, engineering, or 13 mathematics from an institution of higher edu- 14 cation described in clause (i). 15 ‘‘(vi) Petitions for nonimmigrants de- 16 scribed in section 101(a)(15)(F) who are grad- 17 uates of bachelor’s degree programs, under- 18 taken while physically present in the United 19 States, in any other fields from an institution 20 of higher education described in clause (i). 21 ‘‘(vii) Petitions for aliens who will be work- 22 ing in occupations listed in Group I of the De- 23 partment of Labor’s Schedule A of occupations 24 in which the Secretary of Labor has determined 25 VerDate Sep 11 2014 02:20 Apr 06, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S979.IS S979 kjohnson on DSK79L0C42PROD with BILLS 12 •S 979 IS there are not sufficient United States workers 1 who are able, willing, qualified, and available. 2 ‘‘(viii) Petitions filed by employers meeting 3 the following criteria of good corporate citizen- 4 ship and compliance with the immigration laws: 5 ‘‘(I) The employer is in possession 6 of— 7 ‘‘(aa) a valid E-Verify company 8 identification number; or 9 ‘‘(bb) if the enterprise is using a 10 de [Text truncated for display. Full text available on Congress.gov.]

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