H-1B WORKERS: AMERICAN COMPETITIVENESS AND WORKFORCE IMPROVEMENT ACT
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TITLE IV--AMERICAN COMPETITIVENESS AND WORKFORCE IMPROVEMENT ACT
SEC. 401. SHORT TITLE; TABLE OF CONTENTS; AMENDMENTS TO
IMMIGRATION AND NATIONALITY ACT.
(a) Short Title.--This title may be cited as the ``American
Competitiveness and Workforce Improvement Act of 1998''.
(b) Table of Contents.--The table of contents of this title
is as follows:
Sec. 401. Short title; table of contents; amendments to Immigration and
Nationality Act.
Subtitle A--Provisions Relating to H-1B Nonimmigrants
Sec. 411. Temporary increase in access to temporary skilled personnel
under H-1B program.
Sec. 412. Protection against displacement of United States workers in
case of H-1B-dependent employers.
Sec. 413. Changes in enforcement and penalties.
Sec. 414. Collection and use of H-1B nonimmigrant fees for scholarships
for low-income math, engineering, and computer science
students and job training of United States workers.
Sec. 415. Computation of prevailing wage level.
Sec. 416. Improving count of H-1B and H-2B nonimmigrants.
Sec. 417. Report on older workers in the information technology field.
Sec. 418. Report on high technology labor market needs; reports on
economic impact of increase in H-1B nonimmigrants.
Subtitle B--Special Immigrant Status for Certain NATO Civilian
Employees
Sec. 421. Special immigrant status for certain NATO civilian employees.
Subtitle C--Miscellaneous Provision
Sec. 431. Academic honoraria.
(c) Amendments to Immigration and Nationality Act.--Except
as otherwise specifically provided in this title, whenever in
this title an amendment is expressed in terms of an amendment
to a section or other provision, the reference shall be
considered to be made to that section or other provision of
the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).
Subtitle A--Provisions Relating to H-1B Nonimmigrants
SEC. 411. TEMPORARY INCREASE IN ACCESS TO TEMPORARY SKILLED
PERSONNEL UNDER H-1B PROGRAM.
(a) Temporary Increase in Skilled Nonimmigrant Workers.--
Paragraph (1)(A) of section 214(g) (8 U.S.C. 1184(g)) is
amended to read as follows:
``(A) under section 101(a)(15)(H)(i)(b), may not exceed--
``(i) 65,000 in each fiscal year before fiscal year 1999;
``(ii) 115,000 in fiscal year 1999;
``(iii) 115,000 in fiscal year 2000;
``(iv) 107,500 in fiscal year 2001; and
``(v) 65,000 in each succeeding fiscal year; or''.
(b) Effective Dates.--The amendment made by subsection (a)
applies beginning with fiscal year 1999.
SEC. 412. PROTECTION AGAINST DISPLACEMENT OF UNITED STATES
WORKERS IN CASE OF H-1B-DEPENDENT EMPLOYERS.
(a) Protection Against Layoff and Requirement for Prior
Recruitment of United States Workers.--
(1) Additional statements on application.--Section
212(n)(1) (8 U.S.C. 1182(n)(1)) is amended by inserting after
subparagraph (D) the following:
``(E)(i) In the case of an application described in clause
(ii), the employer did not displace and will not displace a
United States worker (as defined in paragraph (4)) employed
by the employer within the period beginning 90 days before
and ending 90 days after the date of filing
[[Page H11218]]
of any visa petition supported by the application.
``(ii) An application described in this clause is an
application filed on or after the date final regulations are
first promulgated to carry out this subparagraph, and before
October 1, 2001, by an H-1B-dependent employer (as defined in
paragraph (3)) or by an employer that has been found, on or
after the date of the enactment of the American
Competitiveness and Workforce Improvement Act of 1998, under
paragraph (2)(C) or (5) to have committed a willful failure
or misrepresentation during the 5-year period preceding the
filing of the application. An application is not described in
this clause if the only H-1B nonimmigrants sought in the
application are exempt H-1B nonimmigrants.
``(F) In the case of an application described in
subparagraph (E)(ii), the employer will not place the
nonimmigrant with another employer (regardless of whether or
not such other employer is an H-1B-dependent employer)
where--
``(i) the nonimmigrant performs duties in whole or in part
at one or more worksites owned, operated, or controlled by
such other employer; and
``(ii) there are indicia of an employment relationship
between the nonimmigrant and such other employer;
unless the employer has inquired of the other employer as to
whether, and has no knowledge that, within the period
beginning 90 days before and ending 90 days after the date of
the placement of the nonimmigrant with the other employer,
the other employer has displaced or intends to displace a
United States worker employed by the other employer.
``(G)(i) In the case of an application described in
subparagraph (E)(ii), subject to clause (ii), the employer,
prior to filing the application--
``(I) has taken good faith steps to recruit, in the United
States using procedures that meet industry-wide standards and
offering compensation that is at least as great as that
required to be offered to H-1B nonimmigrants under
subparagraph (A), United States workers for the job for which
the nonimmigrant or nonimmigrants is or are sought; and
``(II) has offered the job to any United States worker who
applies and is equally or better qualified for the job for
which the nonimmigrant or nonimmigrants is or are sought.
``(ii) The conditions described in clause (i) shall not
apply to an application filed with respect to the employment
of an H-1B nonimmigrant who is described in subparagraph (A),
(B), or (C) of section 203(b)(1).''.
(2) Notice on application of potential liability of placing
employers.--Section 212(n)(1) (8 U.S.C. 1182(n)(1)) is
amended by adding at the end the following: ``The application
form shall include a clear statement explaining the liability
under subparagraph (F) of a placing employer if the other
employer described in such subparagraph displaces a United
States worker as described in such subparagraph.''.
(3) Construction.--Section 212(n)(1) (8 U.S.C. 1182(n)(1))
is further amended by adding at the end the following:
``Nothing in subparagraph (G) shall be construed to prohibit
an employer from using legitimate selection criteria relevant
to the job that are normal or customary to the type of job
involved, so long as such criteria are not applied in a
discriminatory manner.''.
(b) H-1B-Dependent Employer and Other Definitions.--
(1) In general.--Section 212(n) (8 U.S.C. 1182(n)) is
amended by adding at the end the following:
``(3)(A) For purposes of this subsection, the term `H-1B-
dependent employer' means an employer that--
``(i)(I) has 25 or fewer full-time equivalent employees who
are employed in the United States; and (II) employs more than
7 H-1B nonimmigrants;
``(ii)(I) has at least 26 but not more than 50 full-time
equivalent employees who are employed in the United States;
and (II) employs more than 12 H-1B nonimmigrants; or
``(iii)(I) has at least 51 full-time equivalent employees
who are employed in the United States; and (II) employs H-1B
nonimmigrants in a number that is equal to at least 15
percent of the number of such full-time equivalent employees.
``(B) For purposes of this subsection--
``(i) the term `exempt H-1B nonimmigrant' means an H-1B
nonimmigrant who--
``(I) receives wages (including cash bonuses and similar
compensation) at an annual rate equal to at least $60,000; or
``(II) has attained a master's or higher degree (or its
equivalent) in a specialty related to the intended
employment; and
``(ii) the term `nonexempt H-1B nonimmigrant' means an H-1B
nonimmigrant who is not an exempt H-1B nonimmigrant.
``(C) For purposes of subparagraph (A)--
``(i) in computing the number of full-time equivalent
employees and the number of H-1B nonimmigrants, exempt H-1B
nonimmigrants shall not be taken into account during the
longer of--
``(I) the 6-month period beginning on the date of the
enactment of the American Competitiveness and Workforce
Improvement Act of 1998; or
``(II) the period beginning on the date of the enactment of
the American Competitiveness and Workforce Improvement Act of
1998 and ending on the date final regulations are issued to
carry out this paragraph; and
``(ii) any group treated as a single employer under
subsection (b), (c), (m), or (o) of section 414 of the
Internal Revenue Code of 1986 shall be treated as a single
employer.
``(4) For purposes of this subsection:
``(A) The term `area of employment' means the area within
normal commuting distance of the worksite or physical
location where the work of the H-1B nonimmigrant is or will
be performed. If such worksite or location is within a
Metropolitan Statistical Area, any place within such area is
deemed to be within the area of employment.
``(B) In the case of an application with respect to one or
more H-1B nonimmigrants by an employer, the employer is
considered to `displace' a United States worker from a job if
the employer lays off the worker from a job that is
essentially the equivalent of the job for which the
nonimmigrant or nonimmigrants is or are sought. A job shall
not be considered to be essentially equivalent of another job
unless it involves essentially the same responsibilities, was
held by a United States worker with substantially equivalent
qualifications and experience, and is located in the same
area of employment as the other job.
``(C) The term `H-1B nonimmigrant' means an alien admitted
or provided status as a nonimmigrant described in section
101(a)(15)(H)(i)(b).
``(D)(i) The term `lays off', with respect to a worker--
``(I) means to cause the worker's loss of employment, other
than through a discharge for inadequate performance,
violation of workplace rules, cause, voluntary departure,
voluntary retirement, or the expiration of a grant or
contract (other than a temporary employment contract entered
into in order to evade a condition described in subparagraph
(E) or (F) of paragraph (1)); but
``(II) does not include any situation in which the worker
is offered, as an alternative to such loss of employment, a
similar employment opportunity with the same employer (or, in
the case of a placement of a worker with another employer
under paragraph (1)(F), with either employer described in
such paragraph) at equivalent or higher compensation and
benefits than the position from which the employee was
discharged, regardless of whether or not the employee accepts
the offer.
``(ii) Nothing in this subparagraph is intended to limit an
employee's rights under a collective bargaining agreement or
other employment contract.
``(E) The term `United States worker' means an employee
who--
``(i) is a citizen or national of the United States; or
``(ii) is an alien who is lawfully admitted for permanent
residence, is admitted as a refugee under section 207, is
granted asylum under section 208, or is an immigrant
otherwise authorized, by this Act or by the Attorney General,
to be employed.''.
(2) Conforming amendments.--Section 212(n)(1) (8 U.S.C.
1182(n)(1)) is amended by striking ``a nonimmigrant described
in section 101(a)(15)(H)(i)(b)'' each place it appears and
inserting ``an H-1B nonimmigrant''.
(c) Improved Posting of Notice of Application.--Section
212(n)(1)(C)(ii) (8 U.S.C. 1182(n)(1)(C)(ii)) is amended to
read as follows:
``(ii) if there is no such bargaining representative, has
provided notice of filing in the occupational classification
through such methods as physical posting in conspicuous
locations at the place of employment or electronic
notification to employees in the occupational classification
for which H-1B nonimmigrants are sought.''.
(d) Effective Dates.--The amendments made by subsection (a)
apply to applications filed under section 212(n)(1) of the
Immigration and Nationality Act on or after the date final
regulations are issued to carry out such amendments, and the
amendments made by subsections (b) and (c) take effect on the
date of the enactment of this Act.
(e) Reduction of Period for Public Comment.--In first
promulgating regulations to implement the amendments made by
this section in a timely manner, the Secretary of Labor and
the Attorney General may reduce to not less than 30 days the
period of public comment on proposed regulations.
SEC. 413. CHANGES IN ENFORCEMENT AND PENALTIES.
(a) Increased Enforcement and Penalties.--Section
212(n)(2)(C) (8 U.S.C. 1182(n)(2)(C)) is amended to read as
follows:
``(C)(i) If the Secretary finds, after notice and
opportunity for a hearing, a failure to meet 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), or a misrepresentation of material fact in an
application--
``(I) the Secretary shall notify the Attorney General of
such finding and may, in addition, impose such other
administrative remedies (including civil monetary penalties
in an amount not to exceed $1,000 per violation) as the
Secretary determines to be appropriate; and
``(II) the Attorney General shall not approve petitions
filed with respect to that employer under section 204 or
214(c) during a period of at least 1 year for aliens to be
employed by the employer.
``(ii) If the Secretary finds, after notice and opportunity
for a hearing, a willful failure to meet a condition of
paragraph (1), a willful misrepresentation of material fact
in an application, or a violation of clause (iv)--
``(I) the Secretary shall notify the Attorney General of
such finding and may, in addition, impose such other
administrative remedies (including civil monetary penalties
in an amount not to exceed $5,000 per violation) as the
Secretary determines to be appropriate; and
``(II) the Attorney General shall not approve petitions
filed with respect to that employer under section 204 or
214(c) during a period of at least 2 years for aliens to be
employed by the employer.
``(iii) If the Secretary finds, after notice and
opportunity for a hearing, a willful failure to meet a
condition of paragraph (1) or a willful misrepresentation of
material fact in an application, in the course of which
failure or misrepresentation the employer displaced a United
[[Page H11219]]
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--
``(I) the Secretary shall notify the Attorney General of
such finding and may, in addition, impose such other
administrative remedies (including civil monetary penalties
in an amount not to exceed $35,000 per violation) as the
Secretary determines to be appropriate; and
``(II) the Attorney General shall not approve petitions
filed with respect to that employer under section 204 or
214(c) during a period of at least 3 years for aliens to be
employed by the employer.
``(iv) It is a violation of this clause for an employer who
has filed an application under this subsection to intimidate,
threaten, restrain, coerce, blacklist, discharge, or in any
other manner discriminate against an employee (which term,
for purposes of this clause, includes a former employee and
an applicant for employment) because the employee has
disclosed information to the employer, or to any other
person, that the employee reasonably believes evidences a
violation of this subsection, or any rule or regulation
pertaining to this subsection, or because the employee
cooperates or seeks to cooperate in an investigation or other
proceeding concerning the employer's compliance with the
requirements of this subsection or any rule or regulation
pertaining to this subsection.
``(v) The Secretary of Labor and the Attorney General shall
devise a process under which an H-1B nonimmigrant who files a
complaint regarding a violation of clause (iv) and is
otherwise eligible to remain and work in the United States
may be allowed to seek other appropriate employment in the
United States for a period not to exceed the maximum period
of stay authorized for such nonimmigrant classification.
``(vi)(I) It is a violation of this clause for an employer
who has filed an application under this subsection to require
an H-1B nonimmigrant to pay a penalty for ceasing employment
with the employer prior to a date agreed to by the
nonimmigrant and the employer. The Secretary shall determine
whether a required payment is a penalty (and not liquidated
damages) pursuant to relevant State law.
``(II) It is a violation of this clause for an employer who
has filed an application under this subsection to require an
alien who is the subject of a petition filed under section
214(c)(1), for which a fee is imposed under section
214(c)(9), to reimburse, or otherwise compensate, the
employer for part or all of the cost of such fee. It is a
violation of this clause for such an employer otherwise to
accept such reimbursement or compensation from such an alien.
``(III) If the Secretary finds, after notice and
opportunity for a hearing, that an employer has committed a
violation of this clause, the Secretary may impose a civil
monetary penalty of $1,000 for each such violation and issue
an administrative order requiring the return to the
nonimmigrant of any amount paid in violation of this clause,
or, if the nonimmigrant cannot be located, requiring payment
of any such amount to the general fund of the Treasury.
``(vii)(I) It is a failure to meet a condition of paragraph
(1)(A) for an employer, who has filed an application under
this subsection and who places an H-1B nonimmigrant
designated as a full-time employee on the petition filed
under section 214(c)(1) by the employer with respect to the
nonimmigrant, after the nonimmigrant has entered into
employment with the employer, in nonproductive status due to
a decision by the employer (based on factors such as lack of
work), or due to the nonimmigrant's lack of a permit or
license, to fail to pay the nonimmigrant full-time wages in
accordance with paragraph (1)(A) for all such nonproductive
time.
``(II) It is a failure to meet a condition of paragraph
(1)(A) for an employer, who has filed an application under
this subsection and who places an H-1B nonimmigrant
designated as a part-time employee on the petition filed
under section 214(c)(1) by the employer with respect to the
nonimmigrant, after the nonimmigrant has entered into
employment with the employer, in nonproductive status under
circumstances described in subclause (I), to fail to pay such
a nonimmigrant for such hours as are designated on such
petition consistent with the rate of pay identified on such
petition.
``(III) In the case of an H-1B nonimmigrant who has not yet
entered into employment with an employer who has had approved
an application under this subsection, and a petition under
section 214(c)(1), with respect to the nonimmigrant, the
provisions of subclauses (I) and (II) shall apply to the
employer beginning 30 days after the date the nonimmigrant
first is admitted into the United States pursuant to the
petition, or 60 days after the date the nonimmigrant becomes
eligible to work for the employer (in the case of a
nonimmigrant who is present in the United States on the date
of the approval of the petition).
``(IV) This clause does not apply to a failure to pay wages
to an H-1B nonimmigrant for nonproductive time due to non-
work-related factors, such as the voluntary request of the
nonimmigrant for an absence or circumstances rendering the
nonimmigrant unable to work.
``(V) This clause shall not be construed as prohibiting an
employer that is a school or other educational institution
from applying to an H-1B nonimmigrant an established salary
practice of the employer, under which the employer pays to H-
1B nonimmigrants and United States workers in the same
occupational classification an annual salary in
disbursements over fewer than 12 months, if--
``(aa) the nonimmigrant agrees to the compressed annual
salary payments prior to the commencement of the employment;
and
``(bb) the application of the salary practice to the
nonimmigrant does not otherwise cause the nonimmigrant to
violate any condition of the nonimmigrant's authorization
under this Act to remain in the United States.
``(VI) This clause shall not be construed as superseding
clause (viii).
``(viii) It is a failure to meet a condition of paragraph
(1)(A) for an employer who has filed an application under
this subsection to fail to offer to an H-1B nonimmigrant,
during the nonimmigrant's period of authorized employment,
benefits and eligibility for benefits (including the
opportunity to participate in health, life, disability, and
other insurance plans; the opportunity to participate in
retirement and savings plans; and cash bonuses and noncash
compensation, such as stock options (whether or not based on
performance)) on the same basis, and in accordance with the
same criteria, as the employer offers to United States
workers.''.
(b) Use of Arbitration Process for Disputes Involving
Qualifications of United States Workers Not Hired.--
(1) In general.--Section 212(n) (8 U.S.C. 1182(n)), as
amended by section 412(b), is further amended by adding at
the end the following:
``(5)(A) This paragraph shall apply instead of
subparagraphs (A) through (E) of paragraph (2) in the case of
a violation described in subparagraph (B), but shall not be
construed to limit or affect the authority of the Secretary
or the Attorney General with respect to any other violation.
``(B) The Attorney General shall establish a process for
the receipt, initial review, and disposition in accordance
with this paragraph of complaints respecting an employer's
failure to meet the condition of paragraph (1)(G)(i)(II) or a
petitioner's misrepresentation of material facts with respect
to such condition. Complaints may be filed by an aggrieved
individual who has submitted a resume or otherwise applied in
a reasonable manner for the job that is the subject of the
condition. No proceeding shall be conducted under this
paragraph on a complaint concerning such a failure or
misrepresentation unless the Attorney General determines that
the complaint was filed not later than 12 months after the
date of the failure or misrepresentation, respectively.
``(C) If the Attorney General finds that a complaint has
been filed in accordance with subparagraph (B) and there is
reasonable cause to believe that such a failure or
misrepresentation described in such complaint has occurred,
the Attorney General shall initiate binding arbitration
proceedings by requesting the Federal Mediation and
Conciliation Service to appoint an arbitrator from the roster
of arbitrators maintained by such Service. The procedure and
rules of such Service shall be applicable to the selection of
such arbitrator and to such arbitration proceedings. The
Attorney General shall pay the fee and expenses of the
arbitrator.
``(D)(i) The arbitrator shall make findings respecting
whether a failure or misrepresentation described in
subparagraph (B) occurred. If the arbitrator concludes that
failure or misrepresentation was willful, the arbitrator
shall make a finding to that effect. The arbitrator may not
find such a failure or misrepresentation (or that such a
failure or misrepresentation was willful) unless the
complainant demonstrates such a failure or misrepresentation
(or its willful character) by clear and convincing evidence.
The arbitrator shall transmit the findings in the form of a
written opinion to the parties to the arbitration and
the Attorney General. Such findings shall be final and
conclusive, and, except as provided in this subparagraph,
no official or court of the United States shall have power
or jurisdiction to review any such findings.
``(ii) The Attorney General may review and reverse or
modify the findings of an arbitrator only on the same bases
as an award of an arbitrator may be vacated or modified under
section 10 or 11 of title 9, United States Code.
``(iii) With respect to the findings of an arbitrator, a
court may review only the actions of the Attorney General
under clause (ii) and may set aside such actions only on the
grounds described in subparagraph (A), (B), or (C) of section
706(a)(2) of title 5, United States Code. Notwithstanding any
other provision of law, such judicial review may only be
brought in an appropriate United States court of appeals.
``(E) If the Attorney General receives a finding of an
arbitrator under this paragraph that an employer has failed
to meet the condition of paragraph (1)(G)(i)(II) or has
misrepresented a material fact with respect to such
condition, unless the Attorney General reverses or modifies
the finding under subparagraph (D)(ii)--
``(i) the Attorney General may impose administrative
remedies (including civil monetary penalties in an amount not
to exceed $1,000 per violation or $5,000 per violation in the
case of a willful failure or misrepresentation) as the
Attorney General determines to be appropriate; and
``(ii) the Attorney General is authorized to not approve
petitions filed, with respect to that employer and for aliens
to be employed by the employer, under section 204 or 214(c)--
``(I) during a period of not more than 1 year; or
``(II) in the case of a willful failure or willful
misrepresentation, during a period of not more than 2 years.
``(F) The Attorney General shall not delegate, to any other
employee or official of the Department of Justice, any
function of the Attorney General under this paragraph, until
60 days after the Attorney General has submitted a plan for
such delegation to the Committees on the Judiciary of the
United States House of Representatives and the Senate.''.
(2) Conforming amendment.--The first sentence of section
212(n)(2)(A) (8 U.S.C. 1182(n)(2)(A)) is amended by striking
``The Secretary'' and inserting ``Subject to paragraph
(5)(A), the Secretary''.
(c) Liability of Petitioning Employer in Case of Placement
of H-1B Nonimmigrant
[[Page H11220]]
With Another Employer.--Section 212(n)(2) (8 U.S.C.
1182(n)(2)) is amended by adding at the end the following:
``(E) If an H-1B-dependent employer places a nonexempt H-1B
nonimmigrant with another employer as provided under
paragraph (1)(F) and the other employer has displaced or
displaces a United States worker employed by such other
employer during the period described in such paragraph, such
displacement shall be considered for purposes of this
paragraph a failure, by the placing employer, to meet a
condition specified in an application submitted under
paragraph (1); except that the Attorney General may impose a
sanction described in subclause (II) of subparagraph (C)(i),
(C)(ii), or (C)(iii) only if the Secretary of Labor found
that such placing employer--
``(i) knew or had reason to know of such displacement at
the time of the placement of the nonimmigrant with the other
employer; or
``(ii) has been subject to a sanction under this
subparagraph based upon a previous placement of an H-1B
nonimmigrant with the same other employer.''.
(d) Spot Investigations During Probationary Period.--
Section 212(n)(2) (8 U.S.C. 1182(n)(2)), as amended by
subsection (c), is further amended by adding at the end the
following:
``(F) The Secretary may, on a case-by-case basis, subject
an employer to random investigations for a period of up to 5
years, beginning on the date (on or after the date of the
enactment of the American Competitiveness and Workforce
Improvement Act of 1998) on which the employer is found by
the Secretary to have committed a willful failure to meet a
condition of paragraph (1) (or has been found under paragraph
(5) to have committed a willful failure to meet the condition
of paragraph (1)(G)(i)(II)) or to have made a willful
misrepresentation of material fact in an application. The
preceding sentence shall apply to an employer regardless of
whether or not the employer is an H-1B-dependent employer.
The authority of the Secretary under this subparagraph shall
not be construed to be subject to, or limited by, the
requirements of subparagraph (A).''.
(e) Additional Investigative Authority.--
(1) In General.--Section 212(n)(2) (8 U.S.C. 1182(n)(2)),
as amended by subsection (d), is further amended by adding at
the end the following:
``(G)(i) If the Secretary receives specific credible
information from a source, who is likely to have knowledge of
an employer's practices or employment conditions, or an
employer's compliance with the employer's labor condition
application under paragraph (1), and whose identity is known
to the Secretary, and such information provides reasonable
cause to believe that the employer has committed a willful
failure to meet a condition of paragraph (1)(A), (1)(B),
(1)(E), (1)(F), or (1)(G)(i)(I), has engaged in a pattern or
practice of failures to meet such a condition, or has
committed a substantial failure to meet such a condition that
affects multiple employees, the Secretary may conduct a 30-
day investigation into the alleged failure or failures. The
Secretary (or the Acting Secretary in the case of the
Secretary's absence or disability) shall personally certify
that the requirements for conducting such an investigation
have been met and shall approve commencement of the
investigation. 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.
``(ii) The Secretary shall establish a procedure for any
person, desiring to provide to the Secretary information
described in clause (i) that may be used, in whole or in
part, as the basis for 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. The person may not
be an officer or employee of the Department of Labor, unless
the information satisfies the requirement of clause (iii)(II)
(although an officer or employee of the Department of Labor
may complete the form on behalf of the person).
``(iii) Any investigation initiated or approved by the
Secretary under clause (i) shall be based on information that
satisfies the requirements of such clause and that (I)
originates from a source other than an officer or employee of
the Department of Labor, or (II) was lawfully obtained by the
Secretary of Labor in the course of lawfully conducting
another Department of Labor investigation under this Act or
any other Act.
``(iv) The receipt by the Secretary of information
submitted by an employer to the Attorney General or the
Secretary for purposes of securing the employment of an H-1B
nonimmigrant shall not be considered a receipt of information
for purposes of clause (i).
``(v) No investigation described in clause (i) (or hearing
described in clause (vii)) may be conducted with respect to
information about a failure to meet a condition described in
clause (i), unless the Secretary receives the information not
later than 12 months after the date of the alleged
failure.
``(vi) The Secretary shall provide notice to an employer
with respect to whom the Secretary has received information
described in clause (i), prior to the commencement of an
investigation under such clause, of the receipt of the
information and of the potential for an 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 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.
``(vii) If the Secretary determines under this subparagraph
that a reasonable basis exists to make a finding that a
failure described in clause (i) has occurred, the Secretary
shall provide for notice of such determination to the
interested parties and an opportunity for a hearing, in
accordance with section 556 of title 5, United States Code,
within 60 days after the date of the determination. If such a
hearing is requested, the Secretary shall make a finding
concerning the matter by not later than 60 days after the
date of the hearing.''.
(2) Sunset.--The amendment made by paragraph (1) shall
cease to be effective on September 30, 2001.
(f) Construction.--Section 212(n)(2) (8 U.S.C. 1182(n)(2)),
as amended by subsection (e), is further amended by adding at
the end the following:
``(H) Nothing in this subsection shall be construed as
superseding or preempting any other enforcement-related
authority under this Act (such as the authorities under
section 274B), or any other Act.''.
SEC. 414. COLLECTION AND USE OF H-1B NONIMMIGRANT FEES FOR
SCHOLARSHIPS FOR LOW-INCOME MATH, ENGINEERING,
AND COMPUTER SCIENCE STUDENTS AND JOB TRAINING
OF UNITED STATES WORKERS.
(a) Imposition of Fee.--Section 214(c) (8 U.S.C. 1184(c))
is amended by adding at the end the following:
``(9)(A) The Attorney General shall impose a fee on an
employer (excluding an employer described in subparagraph (A)
or (B) of section 212(p)(1)) filing (on or after December 1,
1998, and before October 1, 2001) a petition under paragraph
(1)--
``(i) initially to grant an alien nonimmigrant status
described in section 101(a)(15)(H)(i)(b);
``(ii) to extend the stay of an alien having such status
(unless the employer previously has obtained an extension for
such alien); or
``(iii) to obtain authorization for an alien having such
status to change employers.
``(B) The amount of the fee shall be $500 for each such
petition.
``(C) Fees collected under this paragraph shall be
deposited in the Treasury in accordance with section
286(s).''.
(b) Establishment of Account; Use of Fees.--Section 286 (8
U.S.C. 1356) is amended by adding at the end the following:
``(s) H-1B Nonimmigrant Petitioner Account.--
``(1) In general.--There is established in the general fund
of the Treasury a separate account, which shall be known as
the `H-1B Nonimmigrant Petitioner Account'. Notwithstanding
any other section of this title, there shall be deposited as
offsetting receipts into the account all fees collected under
section 214(c)(9).
``(2) Use of fees for job training.--56.3 percent of
amounts deposited into the H-1B Nonimmigrant Petitioner
Account shall remain available to the Secretary of Labor
until expended for demonstration programs and projects
described in section 414(c) of the American Competitiveness
and Workforce Improvement Act of 1998.
``(3) Use of fees for low-income scholarship program.--28.2
percent of the amounts deposited into the H-1B Nonimmigrant
Petitioner Account shall remain available to the Director of
the National Science Foundation until expended for
scholarships described in section 414(d) of the American
Competitiveness and Workforce Improvement Act of 1998 for
low-income students enrolled in a program of study leading to
a degree in mathematics, engineering, or computer science.
``(4) Additional nsf uses.--
``(A) Grants for mathematics, engineering, or science
enrichment courses.--4 percent of the amounts deposited into
the H-1B Nonimmigrant Petitioner Account shall remain
available to the Director of the National Science Foundation
until expended to make merit-reviewed grants, under section
3(a)(1) of the National Science Foundation Act of 1950 (42
U.S.C. 1862(a)(1)), for programs that provide opportunities
for enrollment in year-round academic enrichment courses in
mathematics, engineering, or science.
``(B) Systemic reform activities.--4 percent of the amounts
deposited into the H-1B Nonimmigrant Petitioner Account shall
remain available to the Director of the National Science
Foundation until expended to carry out systemic reform
activities administered by the National Science Foundation
under section 3(a)(1) of the National Science Foundation Act
of 1950 (42 U.S.C. 1862(a)(1)).
``(5) Use of fees for duties relating to petitions.--1.5
percent of the amounts deposited into the H-1B Nonimmigrant
Petitioner Account shall remain available to the Attorney
General until expended to carry out duties under paragraphs
(1) and (9) of section 214(c) related to petitions made for
nonimmigrants described in section 101(a)(15)(H)(i)(b), to
decrease the processing time for such petitions, and to carry
out duties under section 416 of the American Competitiveness
and Workforce Improvement Act of 1998. Such amounts shall be
available in addition to any other fees authorized to be
collected by the Attorney General with respect to such
petitions.
``(6) Use of fees for application processing and
enforcement.--For fiscal year 1999, 6 percent of the amounts
deposited into the H-1B Nonimmigrant Petitioner Account shall
remain available to the Secretary of Labor until expended for
decreasing the processing time for applications under section
212(n)(1) and for carrying out section 212(n)(2). Beginning
with fiscal year 2000, 3 percent of the amounts deposited
into the H-1B Nonimmigrant Petitioner Account
[[Page H11221]]
shall remain available to the Secretary of Labor until
expended for decreasing the processing time for applications
under section 212(n)(1), and 3 percent of such amounts shall
remain available to such Secretary until expended for
carrying out section 212(n)(2). Notwithstanding the preceding
sentence, both of the amounts made available for any fiscal
year (beginning with fiscal year 2000) pursuant to the
preceding sentence shall be available to such Secretary, and
shall remain available until expended, only for decreasing
the processing time for applications under section 212(n)(1)
until the Secretary submits to the Congress a report
containing a certification that, during the most recently
concluded calendar year, the Secretary substantially
complied with the requirement in section 212(n)(1)
relating to the provision of the certification described
in section 101(a)(15)(H)(i)(b) within a 7-day period.''.
(c) Demonstration Programs and Projects To Provide
Technical Skills Training for Workers.--
(1) In general.--In establishing demonstration programs
under section 452(c) of the Job Training Partnership Act (29
U.S.C. 1732(c)), as in effect on the date of the enactment of
this Act, or demonstration programs or projects under section
171(b) of the Workforce Investment Act of 1998, the Secretary
of Labor shall use funds available under section 286(s)(2) to
establish demonstration programs or projects to provide
technical skills training for workers, including both
employed and unemployed workers.
(2) Grants.--The Secretary of Labor shall award grants to
carry out the programs and projects described in paragraph
(1) to--
(A)(i) private industry councils established under section
102 of the Job Training Partnership Act (29 U.S.C. 1512), as
in effect on the date of the enactment of this Act; or
(ii) local boards that will carry out such programs or
projects through one-stop delivery systems established under
section 121 of the Workforce Investment Act of 1998; or
(B) regional consortia of councils or local boards
described in subparagraph (A).
(d) Low-Income Scholarship Program.--
(1) Establishment.--The Director of the National Science
Foundation (referred to in this subsection as the
``Director'') shall award scholarships to low-income
individuals to enable such individuals to pursue associate,
undergraduate, or graduate level degrees in mathematics,
engineering, or computer science.
(2) Eligibility.--
(A) In general.--To be eligible to receive a scholarship
under this subsection, an individual--
(i) must be a citizen of the United States, a national of
the United States (as defined in section 101(a) of the
Immigration and Nationality Act), an alien admitted as a
refugee under section 207 of the Immigration and Nationality,
or an alien lawfully admitted to the United States for
permanent residence;
(ii) shall prepare and submit to the Director an
application at such time, in such manner, and containing such
information as the Director may require; and
(iii) shall certify to the Director that the individual
intends to use amounts received under the scholarship to
enroll or continue enrollment at an institution of higher
education (as defined in section 101(a) of the Higher
Education Act of 1965) in order to pursue an associate,
undergraduate, or graduate level degree in mathematics,
engineering, or computer science.
(B) Ability.--Awards of scholarships under this subsection
shall be made by the Director solely on the basis of the
ability of the applicant, except that in any case in which 2
or more applicants for scholarships are deemed by the
Director to be possessed of substantially equal ability, and
there are not sufficient scholarships available to grant one
to each of such applicants, the available scholarship or
scholarships shall be awarded to the applicants in a
manner that will tend to result in a geographically wide
distribution throughout the United States of recipients'
places of permanent residence.
(3) Limitation.--The amount of a scholarship awarded under
this subsection shall be determined by the Director, except
that the Director shall not award a scholarship in an amount
exceeding $2,500 per year.
(4) Funding.--The Director shall carry out this subsection
only with funds made available under section 286(s)(3) of the
Immigration and Nationality Act.
SEC. 415. COMPUTATION OF PREVAILING WAGE LEVEL.
(a) In General.--Section 212 (8 U.S.C. 1182) is amended by
adding at the end the following:
``(p)(1) In computing the prevailing wage level for an
occupational classification in an area of employment for
purposes of subsections (n)(1)(A)(i)(II) and (a)(5)(A) in the
case of an employee of--
``(A) an institution of higher education (as defined in
section 101(a) of the Higher Education Act of 1965), or a
related or affiliated nonprofit entity; or
``(B) a nonprofit research organization or a Governmental
research organization,
the prevailing wage level shall only take into account
employees at such institutions and organizations in the area
of employment.
``(2) With respect to a professional athlete (as defined in
subsection (a)(5)(A)(iii)(II)) when the job opportunity is
covered by professional sports league rules or regulations,
the wage set forth in those rules or regulations shall be
considered as not adversely affecting the wages of United
States workers similarly employed and be considered the
prevailing wage.''.
(b) Effective Date.--The amendment made by subsection (a)
applies to prevailing wage computations made--
(1) for applications filed on or after the date of the
enactment of this Act; and
(2) for applications filed before such date, but only to
the extent that the computation is subject to an
administrative or judicial determination that is not final as
of such date.
SEC. 416. IMPROVING COUNT OF H-1B AND H-2B NONIMMIGRANTS.
(a) Ensuring Accurate Count.--The Attorney General shall
take such steps as are necessary to maintain an accurate
count of the number of aliens subject to the numerical
limitations of section 214(g)(1) of the Immigration and
Nationality Act (8 U.S.C. 1184(g)(1)) who are issued visas or
otherwise provided nonimmigrant status.
(b) Revision of Petition Forms.--The Attorney General shall
take such steps as are necessary to revise the forms used for
petitions for visas or nonimmigrant status under clause
(i)(b) or (ii)(b) of section 101(a)(15)(H) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(15)(H)) so as to ensure
that the forms provide the Attorney General with sufficient
information to permit the Attorney General accurately to
count the number of aliens subject to the numerical
limitations of section 214(g)(1) of such Act (8 U.S.C.
1184(g)(1)) who are issued visas or otherwise provided
nonimmigrant status.
(c) Provision of Information.--
(1) Quarterly notification.--Beginning not later than 60
days after the first day of fiscal year 1999, the Attorney
General shall notify, on a quarterly basis, the Committees on
the Judiciary of the United States House of Representatives
and the Senate of the numbers of aliens who were issued visas
or otherwise provided nonimmigrant status under section
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act
during the preceding 3-month period.
(2) Annual submission.--Beginning with fiscal year 2000,
the Attorney General shall submit on an annual basis, to the
Committees on the Judiciary of the United States House of
Representatives and the Senate, information on the countries
of origin and occupations of, educational levels attained by,
and compensation paid to, aliens who were issued visas or
otherwise provided nonimmigrant status under section
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act
during the previous fiscal year. With respect to the first
submission under this paragraph, the information shall relate
solely to aliens provided nonimmigrant status after the date
that is 60 days after the date on which final regulations are
issued to carry out section 412(a).
(3) Specification of number of petitions filed by certain
employers.--Each notification under paragraph (1), and each
submission under paragraph (2), shall include the number of
aliens who were issued visas or otherwise provided
nonimmigrant status pursuant to petitions filed by
institutions or organizations described in section 212(p)(1)
of the Immigration and Nationality Act (as added by section
415 of this title).
SEC. 417. REPORT ON OLDER WORKERS IN THE INFORMATION
TECHNOLOGY FIELD.
(a) Study.--The Director of the National Science Foundation
shall enter into a contract with the President of the
National Academy of Sciences to conduct a study, using the
best available data, assessing the status of older workers in
the information technology field. The study shall consider
the following:
(1) The existence and extent of age discrimination in the
information technology workplace.
(2) The extent to which there is a difference, based on
age, in--
(A) promotion and advancement;
(B) working hours;
(C) telecommuting;
(D) salary; and
(E) stock options, bonuses, and other benefits.
(3) The relationship between rates of advancement,
promotion, and compensation to experience, skill level,
education, and age.
(4) Differences in skill level on the basis of age.
(b) Report.--Not later than October 1, 2000, the Director
of the National Science Foundation shall submit to the
Committees on the Judiciary of the United States House of
Representatives and the Senate a report containing the
results of the study described in subsection (a).
SEC. 418. REPORT ON HIGH TECHNOLOGY LABOR MARKET NEEDS;
REPORTS ON ECONOMIC IMPACT OF INCREASE IN H-1B
NONIMMIGRANTS.
(a) National Science Foundation Study and Report.--
(1) In general.--The Director of the National Science
Foundation shall conduct a study to assess labor market needs
for workers with high technology skills during the next 10
years. The study shall investigate and analyze the following:
(A) Future training and education needs of companies in the
high technology and information technology sectors and future
training and education needs of United States students to
ensure that students' skills at various levels are matched to
the needs in such sectors.
(B) An analysis of progress made by educators, employers,
and government entities to improve the teaching and
educational level of American students in the fields of math,
science, computer science, and engineering since 1998.
(C) An analysis of the number of United States workers
currently or projected to work overseas in professional,
technical, and managerial capacities.
(D) The relative achievement rates of United States and
foreign students in secondary schools in a variety of
subjects, including math, science, computer science, English,
and history.
(E) The relative performance, by subject area, of United
States and foreign students in postsecondary and graduate
schools as compared to secondary schools.
[[Page H11222]]
(F) The needs of the high technology sector for foreign
workers with specific skills and the potential benefits and
costs to United States employers, workers, consumers,
postsecondary educational institutions, and the United States
economy, from the entry of skilled foreign professionals in
the fields of science and engineering.
(G) The needs of the high technology sector to adapt
products and services for export to particular local markets
in foreign countries.
(H) An examination of the amount and trend of moving the
production or performance of products and services now
occurring in the United States abroad.
(2) Report.--Not later than October 1, 2000, the Director
of the National Science Foundation shall submit to the
Committees on the Judiciary of the United States House of
Representatives and the Senate a report containing the
results of the study described in paragraph (1).
(3) Involvement.--The study under paragraph (1) shall be
conducted in a manner that ensures the participation of
individuals representing a variety of points of view.
(b) Reporting on Studies Showing Economic Impact of H-1B
Nonimmigrant Increase.--The Chairman of the Board of
Governors of the Federal Reserve System, the Director of the
Office of Management and Budget, the Chair of the Council of
Economic Advisers, the Secretary of the Treasury, the
Secretary of Commerce, the Secretary of Labor, and any other
member of the Cabinet, shall promptly report to the Congress
the results of any reliable study that suggests, based on
legitimate economic analysis, that the increase effected by
section 411(a) of this title in the number of aliens who may
be issued visas or otherwise provided nonimmigrant status
under section 101(a)(15)(H)(i)(b) of the Immigration and
Nationality Act has had an impact on any national economic
indicator, such as the level of inflation or unemployment,
that warrants action by the Congress.
Subtitle B--Special Immigrant Status for Certain NATO Civilian
Employees
SEC. 421. SPECIAL IMMIGRANT STATUS FOR CERTAIN NATO CIVILIAN
EMPLOYEES.
(a) In General.--Section 101(a)(27) (8 U.S.C. 1101(a)(27))
is amended--
(1) by striking ``or'' at the end of subparagraph (J);
(2) by striking the period at the end of subparagraph (K)
and inserting ``; or''; and
(3) by adding at the end the following new subparagraph:
``(L) an immigrant who would be described in clause (i),
(ii), (iii), or (iv) of subparagraph (I) if any reference in
such a clause--
``(i) to an international organization described in
paragraph (15)(G)(i) were treated as a reference to the North
Atlantic Treaty Organization (NATO);
``(ii) to a nonimmigrant under paragraph (15)(G)(iv) were
treated as a reference to a nonimmigrant classifiable under
NATO-6 (as a member of a civilian component accompanying a
force entering in accordance with the provisions of the NATO
Status-of-Forces Agreement, a member of a civilian component
attached to or employed by an Allied Headquarters under the
`Protocol on the Status of International Military
Headquarters' set up pursuant to the North Atlantic Treaty,
or as a dependent); and
``(iii) to the Immigration Technical Corrections Act of
1988 or to the Immigration and Nationality Technical
Corrections Act of 1994 were a reference to the American
Competitiveness and Workforce Improvement Act of 1998.''.
(b) Conforming Nonimmigrant Status for Certain Parents of
Special Immigrant Children.--Section 101(a)(15)(N) (8 U.S.C.
1101(a)(15)(N)) is amended--
(1) by inserting ``(or under analogous authority under
paragraph (27)(L))'' after ``(27)(I)(i)''; and
(2) by inserting ``(or under analogous authority under
paragraph (27)(L))'' after ``(27)(I)''.
Subtitle C--Miscellaneous Provision
SEC. 431. ACADEMIC HONORARIA.
(a) In General.--Section 212 (8 U.S.C. 1182), as amended by
section 415, is further amended by adding at the end the
following:
``(q) Any alien admitted under section 101(a)(15)(B) may
accept an honorarium payment and associated incidental
expenses for a usual academic activity or activities (lasting
not longer than 9 days at any single institution), as defined
by the Attorney General in consultation with the Secretary of
Education, if such payment is offered by an institution or
organization described in subsection (p)(1) and is made for
services conducted for the benefit of that institution or
entity and if the alien has not accepted such payment or
expenses from more than 5 institutions or organizations in
the previous 6-month period.''.
(b) Effective Date.--The amendment made by subsection (a)
shall apply to activities occurring on or after the date of
the enactment of this Act.
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