American Jobs First Act of 2020

I 116TH CONGRESS 2D SESSION H. R. 8477 To amend the Immigration and Nationality Act to improve the H–1B visa program, to repeal the diversity visa lottery program, and for other purposes. IN THE HOUSE OF REPRESENTATIVES OCTOBER 1, 2020 Mr. BROOKS of Alabama (for himself, Mr. GAETZ, Mr. GOSAR, and Mr. GOODEN) 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 improve the H–1B visa program, to repeal the diversity visa lottery program, 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 ‘‘American Jobs First Act of 2020’’. 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 00:43 Oct 29, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\H8477.IH H8477 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 8477 IH TITLE I—H–1B VISA PROGRAM Sec. 101. Amendments to the Immigration and Nationality Act. TITLE II—NEW H–1B VISA REQUIREMENTS Sec. 201. Bar on nondisparagement and nondisclosure agreements. Sec. 202. United States Federal court jurisdiction over civil actions pertaining to misuse of the H–1B visa program. TITLE III—REPEAL OF OTHER PROVISIONS Sec. 301. Repeal of the diversity visa lottery. TITLE I—H–1B VISA PROGRAM 1 SEC. 101. AMENDMENTS TO THE IMMIGRATION AND NA- 2 TIONALITY ACT. 3 (a) INADMISSIBLE ALIENS.—Section 212(n) of the 4 Immigration and Nationality Act (8 U.S.C. 1182(n)) is 5 amended to read as follows: 6 ‘‘(n) LABOR CONDITION APPLICATION.— 7 ‘‘(1) IN GENERAL.—An alien may not be admit- 8 ted or provided status as an H–1B nonimmigrant in 9 an occupational classification unless the petitioner 10 employer has filed with the Secretary of Labor an 11 application stating the following: 12 ‘‘(A) The petitioner employer— 13 ‘‘(i) is offering an annual wage to the 14 H–1B nonimmigrant that is the greater 15 of— 16 ‘‘(I) the annual wage that was 17 paid to the United States citizen or 18 lawful permanent resident employee 19 who did identical or similar work dur- 20 VerDate Sep 11 2014 00:43 Oct 29, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H8477.IH H8477 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 8477 IH ing the 2 years before the petitioner 1 employer filed such application; or 2 ‘‘(II) $110,000, if offered not 3 later than 1 year after the date of the 4 enactment of the American Jobs First 5 Act of 2020, which amount shall be 6 annually adjusted for inflation by July 7 1 of each year; 8 ‘‘(ii) will not require an H–1B non- 9 immigrant to pay a penalty for ceasing em- 10 ployment with the petitioner employer be- 11 fore the date agreed to by the H–1B non- 12 immigrant and the petitioner employer; 13 ‘‘(iii) will not— 14 ‘‘(I) require an alien who is the 15 subject of a petition filed under para- 16 graph (1) of section 214(c), for which 17 a fee is imposed under paragraph (9) 18 of such section, to reimburse, or oth- 19 erwise to compensate, the petitioner 20 employer for part or all of the cost of 21 such fee; 22 ‘‘(II) accept reimbursement or 23 compensation for the fee described in 24 subclause (I) from an H–1B non- 25 VerDate Sep 11 2014 00:43 Oct 29, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H8477.IH H8477 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 8477 IH immigrant, even if such reimburse- 1 ment or compensation is alleged to 2 have been voluntarily given by the H– 3 1B nonimmigrant; 4 ‘‘(III) deduct such amounts from 5 an H–1B nonimmigrant’s pay before 6 disbursal to such H–1B nonimmigrant 7 for the purpose of covering the cost of 8 such fee; or 9 ‘‘(IV) require an H–1B non- 10 immigrant to pay any other amounts 11 or fees for housing, vehicle use or 12 rental, equipment use or rental, or 13 other goods or services, unless the re- 14 quirement of the payment of such 15 amounts or fees is identical to the 16 payments that are required by United 17 States citizen or lawful permanent 18 resident employees; and 19 ‘‘(iv) will— 20 ‘‘(I) after the employer has filed 21 an application under this subsection 22 and placed an H–1B nonimmigrant 23 designated as a full-time employee on 24 the petition filed under section 25 VerDate Sep 11 2014 00:43 Oct 29, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H8477.IH H8477 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 8477 IH 214(c)(1) and the nonimmigrant has 1 entered into employment with the pe- 2 titioner employer (in nonproductive 3 status due to a decision by the peti- 4 tioner employer, based on factors such 5 as lack of work or due to the non- 6 immigrant’s lack of a permit or li- 7 cense), pay the nonimmigrant full- 8 time wages in accordance with para- 9 graph (1)(A) for all such nonproduc- 10 tive time; 11 ‘‘(II) after the employer has filed 12 an application under this subsection 13 and placed an H–1B nonimmigrant 14 designated as a part-time employee on 15 the petition filed under section 16 214(c)(1) and the nonimmigrant has 17 entered into employment with the pe- 18 titioner employer (in nonproductive 19 status under circumstances described 20 in subclause (I)), pay the non- 21 immigrant for such hours as are des- 22 ignated on such petition in accordance 23 with the rate of pay identified on such 24 petition; and 25 VerDate Sep 11 2014 00:43 Oct 29, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H8477.IH H8477 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 8477 IH ‘‘(III) after the employer has 1 filed an application under this sub- 2 section, offer to an H–1B non- 3 immigrant, during the nonimmigrant’s 4 period of authorized employment, on 5 the same basis, and in accordance 6 with the same criteria, as the em- 7 ployer offers to United States citizens 8 or lawful permanent residents, bene- 9 fits and eligibility for benefits, includ- 10 ing— 11 ‘‘(aa) the opportunity to 12 participate in health, life, dis- 13 ability, and other insurance 14 plans; 15 ‘‘(bb) the opportunity to 16 participate in retirement and sav- 17 ings plans; and 18 ‘‘(cc) cash bonuses and 19 noncash compensation, such as 20 stock options (whether or not 21 such compensation is based on 22 performance). 23 ‘‘(B) With respect to workplace condi- 24 tions— 25 VerDate Sep 11 2014 00:43 Oct 29, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H8477.IH H8477 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 8477 IH ‘‘(i) there has not been an employee- 1 initiated strike at any point during the 2- 2 year period ending on the date on which 3 the petitioner employer files the visa appli- 4 cation that sought redress for salary, wage, 5 or benefit concerns; 6 ‘‘(ii) there has not been a petitioner 7 employer-initiated lockout at any point 8 during the 2-year period ending on the 9 date on which the petitioner employer filed 10 such visa application; and 11 ‘‘(iii) no employee in the same or sub- 12 stantially similar occupational classification 13 for which the employer seeks H–1B non- 14 immigrants, has been displaced, fur- 15 loughed, terminated without cause, or oth- 16 erwise involuntarily separated without 17 cause in any way at any point during the 18 2-year period ending on the date on which 19 the petitioner employer filed such visa ap- 20 plication. 21 ‘‘(C) The petitioner employer, at the time 22 a visa application is filed— 23 ‘‘(i) has provided notice of the filing 24 under this paragraph to the bargaining 25 VerDate Sep 11 2014 00:43 Oct 29, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H8477.IH H8477 pbinns on DSKJLVW7X2PROD with BILLS 8 •HR 8477 IH representative of its employees in the occu- 1 pational classification and area for which 2 aliens are sought; or 3 ‘‘(ii) if such employees do not have a 4 bargaining representative, has provided no- 5 tice of filing in the occupational classifica- 6 tion through methods such as— 7 ‘‘(I) physical posting in con- 8 spicuous locations at the place of em- 9 ployment; or 10 ‘‘(II) electronic notification to 11 employees in the occupational classi- 12 fication for which H–1B non- 13 immigrants are sought. 14 ‘‘(D) The application contains— 15 ‘‘(i) the specific dollar value of the re- 16 quired wage, in accordance with subpara- 17 graph (A); 18 ‘‘(ii) the specific number of non- 19 immigrant employees sought; and 20 ‘‘(iii) the occupational classification in 21 which the nonimmigrant employees will be 22 employed. 23 ‘‘(E)(i) The petitioner employer— 24 VerDate Sep 11 2014 00:43 Oct 29, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H8477.IH H8477 pbinns on DSKJLVW7X2PROD with BILLS 9 •HR 8477 IH ‘‘(I) will not replace a United States 1 citizen or lawful permanent resident with 2 one or more nonimmigrants; 3 ‘‘(II) will not contract with any third 4 party to provide a nonimmigrant to replace 5 any United States citizen or lawful perma- 6 nent resident; and 7 ‘‘(III) has not displaced, furloughed, 8 terminated without cause, or otherwise in- 9 voluntarily separated, and will not displace, 10 furlough, terminate without cause, or oth- 11 erwise involuntarily separate a United 12 States citizen or lawful permanent resident 13 employed by the petitioner employer during 14 the 4-year period beginning on the date 15 that is 2 years before the date on which 16 the petitioner employer filed any visa peti- 17 tion supported by the application. 18 ‘‘(ii) The 4-year period referred to in 19 clause (i)(III) does not include any period of 20 on-site, remote, teleconference-based, computer- 21 based, or other virtual training of non- 22 immigrants by or with employees of the peti- 23 tioner employer. 24 VerDate Sep 11 2014 00:43 Oct 29, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H8477.IH H8477 pbinns on DSKJLVW7X2PROD with BILLS 10 •HR 8477 IH ‘‘(F) The petitioner employer will not place 1 an H–1B nonimmigrant employee with another 2 employer (unless the petitioner employer, after 3 diligent inquiry of the other employer, has no 4 knowledge that, during the 4-year period begin- 5 ning 2 years before the date on which the em- 6 ployee was placed with the other employer, the 7 other employer has displaced or intends to dis- 8 place a United States citizen or lawful perma- 9 nent resident employed by the other employer) 10 if— 11 ‘‘(i) the employee performs duties, in 12 whole or in part, at one or more worksites 13 owned, operated, or controlled by such 14 other employer; and 15 ‘‘(ii) there are indicia of an employ- 16 ment relationship between the non- 17 immigrant and such other employer. 18 ‘‘(G) The petitioner employer, before filing 19 an application under this paragraph— 20 ‘‘(i) has documented specific steps to 21 recruit potential employees who are United 22 States citizens or lawful permanent resi- 23 dents using mainstream and industry-fo- 24 cused media and online advertising cam- 25 VerDate Sep 11 2014 00:43 Oct 29, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H8477.IH H8477 pbinns on DSKJLVW7X2PROD with BILLS 11 •HR 8477 IH paigns, and offering wages that are at 1 least as high as the wage requirements es- 2 tablished for nonimmigrants in subpara- 3 graph (A), in order to recruit such citizens 4 and residents for the job or jobs for which 5 the nonimmigrant or nonimmigrants is or 6 are sought; 7 ‘‘(ii) has offered the job to any United 8 States citizen or lawful permanent resident 9 who applies and possesses the same or bet- 10 ter qualifications for such jobs; 11 ‘‘(iii) despite the efforts specified in 12 clauses (i) and (ii), has been unable to hire 13 United States citizens or lawful permanent 14 residents for any of such available jobs; 15 ‘‘(iv) has not intimidated, threatened, 16 restrained, coerced, blacklisted, discharged, 17 or in any other manner discriminated 18 against an employee (including former em- 19 ployees and applicants for employment) be- 20 cause the employee— 21 ‘‘(I) has disclosed information to 22 the petitioner employer, or to any 23 other person or entity, that the em- 24 ployee reasonably believes evidences a 25 VerDate Sep 11 2014 00:43 Oct 29, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H8477.IH H8477 pbinns on DSKJLVW7X2PROD with BILLS 12 •HR 8477 IH violation of this subsection, or any 1 rule or regulation pertaining to this 2 subsection; or 3 ‘‘(II) cooperated, or sought to co- 4 operate, in an investigation or other 5 proceeding concerning the petitioner 6 employer’s compliance or noncompli- 7 ance with the requirements under this 8 subsection or any rule or regulation 9 pertaining to this subsection; and 10 ‘‘(v) has executed a sworn affidavit or 11 other court-recognized statement that— 12 ‘‘(I) swears or affirms the truth 13 of the information regarding such re- 14 cruiting efforts; and 15 ‘‘(II) acknowledges that false 16 statements made in such statement 17 will subject the affiant to criminal 18 prosecution under section 1621 of 19 title 18, United States Code. 20 ‘‘(2) NOTIFICATION AND TRANSPARENCY RE- 21 QUIREMENTS.— 22 ‘‘(A) IN GENERAL.—The petitioner em- 23 ployer shall make available for examination its 24 materials relating to its application to the Sec- 25 VerDate Sep 11 2014 00:43 Oct 29, 2020 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H8477.IH H8477 pbinns on DSKJLVW7X2PROD with BILLS 13 •HR 8477 IH retary of Labor in accordance with paragraph 1 (1). 2 ‘‘(B) INTERNAL AND EXTERNAL PUBLICA- 3 TION OF APPLICATION MATERIALS.— 4 ‘‘(i) ELECTRONIC PUBLICATION.—Not 5 later than 1 business day after the date on 6 which an application is filed in accordance 7 with paragraph (1), the petitioner em- 8 ployer shall— 9 ‘‘(I) electronically mail a copy of 10 such application and necessary accom- 11 panying documentation to all employ- 12 ees at all business locations and work- 13 sites to ensure employer-wide em- 14 ployee awareness of the application; 15 and 16 ‘‘(II) post an electronic copy of 17 the application and such accom- 18 panying documentation as are nec- 19 essary on a publicly accessible website 20 to ensure public awareness of the ap- 21 plication. 22 ‘‘(ii) PHYSICAL POSTING.—Not later 23 than 5 business days after the date on 24 which an application is filed in accordance 25 VerDate Sep 11 2014 00:43 Oct 29, 2020 Jkt 019200 PO 00000 Frm 00013 Fmt [Text truncated for display. 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