H–1B and L–1 Visa Reform Act of 2020

I 116TH CONGRESS 2D SESSION H. R. 6993 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 HOUSE OF REPRESENTATIVES MAY 22, 2020 Mr. PASCRELL introduced the following bill; which was referred to the Com- mittee on the Judiciary, and in addition to the Committee on Education and Labor, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the juris- diction of the committee concerned 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 2020’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 VerDate Sep 11 2014 21:14 Jun 16, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H6993.IH H6993 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 6993 IH 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 in lieu of H–1. 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 replacement 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 21:14 Jun 16, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6211 E:\BILLS\H6993.IH H6993 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 6993 IH 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 21:14 Jun 16, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H6993.IH H6993 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 6993 IH 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 is amended— 11 (1) by redesignating clause (ii) as subclause 12 (II); 13 (2) by striking ‘‘(i) has provided’’ and inserting 14 the following: 15 ‘‘(ii)(I) has provided’’; and 16 (3) by inserting before clause (ii), as redesig- 17 nated by paragraph (2), the following: 18 ‘‘(i) has posted on the Internet website de- 19 scribed in paragraph (3), for at least 30 cal- 20 endar days, a detailed description of each posi- 21 tion for which a nonimmigrant is sought that 22 includes a description of— 23 ‘‘(I) the wages and other terms and 24 conditions of employment; 25 VerDate Sep 11 2014 21:14 Jun 16, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H6993.IH H6993 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 6993 IH ‘‘(II) the minimum education, train- 1 ing, experience, and other requirements for 2 the position; and 3 ‘‘(III) the process for applying for the 4 position; and’’. 5 (c) WAGE DETERMINATION INFORMATION.—Section 6 212(n)(1)(D) of such Act is amended by inserting ‘‘the 7 wage determination methodology used under subpara- 8 graph (A)(i),’’ after ‘‘shall contain’’. 9 (d) APPLICATION OF REQUIREMENTS TO ALL EM- 10 PLOYERS.— 11 (1) NONDISPLACEMENT.—Section 212(n)(1)(E) 12 of such Act is amended to read as follows: 13 ‘‘(E)(i) The employer— 14 ‘‘(I) will not at any time replace a United 15 States worker with 1 or more H–1B non- 16 immigrants; and 17 ‘‘(II) did not displace and will not displace 18 a United States worker employed by the em- 19 ployer within the period beginning 180 days be- 20 fore and ending 180 days after the date of the 21 placement of the nonimmigrant with the em- 22 ployer. 23 ‘‘(ii) The 180-day period referred to in clause 24 (i) may not include any period of on-site or virtual 25 VerDate Sep 11 2014 21:14 Jun 16, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H6993.IH H6993 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 6993 IH training of H–1B nonimmigrants by employees of 1 the employer.’’. 2 (2) RECRUITMENT.—Section 212(n)(1)(G)(i) of 3 such Act is amended by striking ‘‘In the case of an 4 application described in subparagraph (E)(ii), sub- 5 ject’’ and inserting ‘‘Subject’’. 6 (e) WAIVER REQUIREMENT.—Section 212(n)(1)(F) 7 of such Act is amended to read as follows: 8 ‘‘(F) The employer will not place, outsource, 9 lease, or otherwise contract for the services or place- 10 ment of H–1B nonimmigrants with another em- 11 ployer, regardless of the physical location where such 12 services will be performed, unless the employer of 13 the alien has been granted a waiver under paragraph 14 (2)(E).’’. 15 SEC. 102. NEW APPLICATION REQUIREMENTS. 16 Section 212(n)(1) of the Immigration and Nationality 17 Act (8 U.S.C. 1182(n)(1)), as amended by section 101, 18 is further amended by inserting after subparagraph (G)(ii) 19 the following: 20 ‘‘(H)(i) The employer, or a person or entity act- 21 ing on the employer’s behalf, has not advertised any 22 available position specified in the application in an 23 advertisement that states or indicates that— 24 VerDate Sep 11 2014 21:14 Jun 16, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H6993.IH H6993 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 6993 IH ‘‘(I) such position is only available to an 1 individual who is or will be an H–1B non- 2 immigrant; or 3 ‘‘(II) an individual who is or will be an H– 4 1B nonimmigrant shall receive priority or a 5 preference in the hiring process for such posi- 6 tion. 7 ‘‘(ii) The employer has not primarily recruited 8 individuals who are or who will be H–1B non- 9 immigrants to fill such position. 10 ‘‘(I) If the employer employs 50 or more 11 employees in the United States— 12 ‘‘(i) the sum of the number of such employees 13 who are H–1B nonimmigrants plus the number of 14 such employees who are nonimmigrants described in 15 section 101(a)(15)(L) does not exceed 50 percent of 16 the total number of employees; and 17 ‘‘(ii) the employer’s corporate organization has 18 not been restructured to evade the limitation under 19 clause (i). 20 ‘‘(J) If the employer, in such previous period as 21 the Secretary shall specify, employed 1 or more H– 22 1B nonimmigrants, the employer will submit to the 23 Secretary the Internal Revenue Service Form W–2 24 Wage and Tax Statements filed by the employer 25 VerDate Sep 11 2014 02:42 Jun 19, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H6993.IH H6993 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 6993 IH with respect to the H–1B nonimmigrants for such 1 period.’’. 2 SEC. 103. APPLICATION REVIEW REQUIREMENTS. 3 (a) TECHNICAL AMENDMENT.—Section 212(n)(1) of 4 the Immigration and Nationality Act (8 U.S.C. 5 1182(n)(1)), as amended by sections 101 and 102, is fur- 6 ther amended, in the undesignated paragraph at the end, 7 by striking ‘‘The employer’’ and inserting the following: 8 ‘‘(K) The employer.’’. 9 (b) APPLICATION REVIEW REQUIREMENTS.—Section 10 212(n)(1)(K), as designated by subsection (a), is amend- 11 ed— 12 (1) in the fourth sentence, by inserting ‘‘and 13 through the Department of Labor’s website, without 14 charge.’’ after ‘‘D.C.’’; 15 (2) in the fifth sentence, by striking ‘‘only for 16 completeness’’ and inserting ‘‘for completeness, indi- 17 cators of fraud or misrepresentation of material 18 fact,’’; 19 (3) in the sixth sentence— 20 (A) by striking ‘‘or obviously inaccurate’’ 21 and inserting ‘‘, presents indicators of fraud or 22 misrepresentation of material fact, or is obvi- 23 ously inaccurate’’; and 24 VerDate Sep 11 2014 02:42 Jun 19, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H6993.IH H6993 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 6993 IH (B) by striking ‘‘within 7 days of’’ and in- 1 serting ‘‘not later than 14 days after’’; and 2 (4) by adding at the end the following: ‘‘If the 3 Secretary of Labor’s review of an application identi- 4 fies indicators of fraud or misrepresentation of ma- 5 terial fact, the Secretary may conduct an investiga- 6 tion and hearing in accordance with paragraph 7 (2).’’. 8 SEC. 104. H–1B VISA ALLOCATION. 9 Section 214(g)(3) of the Immigration and Nationality 10 Act (8 U.S.C. 1184(g)(3)), is amended— 11 (1) by striking the first sentence and inserting 12 the following: 13 ‘‘(A) Subject to subparagraph (B), aliens who 14 are subject to the numerical limitations under para- 15 graph (1)(A) shall be issued visas, or otherwise pro- 16 vided nonimmigrant status, in a manner and order 17 established by the Secretary by regulation.’’; and 18 (2) by adding at the end the following: 19 ‘‘(B) The Secretary shall consider petitions for 20 nonimmigrant status under section 21 101(a)(15)(H)(i)(b) in the following order: 22 ‘‘(i) Petitions for nonimmigrants described 23 in section 101(a)(15)(F) who, while physically 24 present in the United States, have earned an 25 VerDate Sep 11 2014 21:14 Jun 16, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H6993.IH H6993 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 6993 IH advanced degree in a field of science, tech- 1 nology, engineering, or mathematics from a 2 United States institution of higher education 3 (as defined in section 101(a) of the Higher 4 Education Act of 1965 (20 U.S.C. 1001(a))) 5 that has been accredited by an accrediting enti- 6 ty that is recognized by the Department of 7 Education. 8 ‘‘(ii) Petitions certifying that the employer 9 will be paying the nonimmigrant the median 10 wage for skill level 4 in the occupational classi- 11 fication found in the most recent Occupational 12 Employment Statistics survey. 13 ‘‘(iii) Petitions for nonimmigrants de- 14 scribed in section 101(a)(15)(F) who are grad- 15 uates of any other advanced degree program, 16 undertaken while physically present in the 17 United States, from an institution of higher 18 education described in clause (i). 19 ‘‘(iv) Petitions certifying that the employer 20 will be paying the nonimmigrant the median 21 wage for skill level 3 in the occupational classi- 22 fication found in the most recent Occupational 23 Employment Statistics survey. 24 VerDate Sep 11 2014 21:14 Jun 16, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H6993.IH H6993 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 6993 IH ‘‘(v) Petitions for nonimmigrants described 1 in section 101(a)(15)(F) who are graduates of 2 a bachelor’s degree program, undertaken while 3 physically present in the United States, in a 4 field of science, technology, engineering, or 5 mathematics from an institution of higher edu- 6 cation described in clause (i). 7 ‘‘(vi) Petitions for nonimmigrants de- 8 scribed in section 101(a)(15)(F) who are grad- 9 uates of bachelor’s degree programs, under- 10 taken while physically present in the United 11 States, in any other fields from an institution 12 of higher education described in clause (i). 13 ‘‘(vii) Petitions for aliens who will be work- 14 ing in occupations listed in Group I of the De- 15 partment of Labor’s Schedule A of occupations 16 in which the Secretary of Labor has determined 17 there are not sufficient United States workers 18 who are able, willing, qualified, and available. 19 ‘‘(viii) Petitions filed by employers meeting 20 the following criteria of good corporate citizen- 21 ship and compliance with the immigration laws: 22 ‘‘(I) The employer is in possession 23 of— 24 VerDate Sep 11 2014 21:14 Jun 16, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H6993.IH H6993 pamtmann on DSKBC07HB2PROD with BILLS 12 •HR 6993 IH ‘‘(aa) a valid E-Verify company 1 identification number; or 2 ‘‘(bb) if the enterprise is using a 3 designated agent to p [Text truncated for display. 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