110th CONGRESS
1st Session
S. 1035
To amend the Immigration and Nationality Act to reduce fraud and
abuse in certain visa programs for aliens working temporarily in the United
States.
IN THE SENATE OF THE UNITED STATES
March 29, 2007
Mr. DURBIN (for himself and Mr. GRASSLEY) 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 reduce fraud and
abuse in certain visa programs for aliens working temporarily in the United
States.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title- This Act may be cited as the `H-1B and L-1 Visa Fraud and
Abuse Prevention Act of 2007'.
(b) Table of Contents- The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. H-1B employer requirements.
Sec. 3. H-1B government authority and requirements.
Sec. 4. L-1 visa fraud and abuse protections.
Sec. 5. Whistleblower protections.
Sec. 6. Additional Department of Labor employees.
SEC. 2. H-1B EMPLOYER REQUIREMENTS.
(a) Application of Nondisplacement and Good Faith Recruitment Requirements
to All H-1B Employers-
(1) AMENDMENTS- Section 212(n) of the Immigration and Nationality Act
(8 U.S.C. 1182(n)) is amended--
(I) in clause (i), by striking `(E)(i) In the case of an application
described in clause (ii), the' and inserting `(E) The'; and
(II) by striking clause (ii);
(ii) in subparagraph (F), by striking `In the case of' and all that
follows through `where--' and inserting the following: `The employer
will not place the nonimmigrant with another employer if--'; and
(iii) in subparagraph (G), by striking `In the case of an application
described in subparagraph (E)(ii), subject' and inserting `Subject';
(i) in subparagraph (E), by striking `If an H-1B-dependent employer'
and inserting `If an employer that employs H-1B nonimmigrants'; and
(ii) in subparagraph (F), by striking `The preceding sentence shall
apply to an employer regardless of whether or not the employer is
an H-1B-dependent employer.'; and
(C) by striking paragraph (3).
(2) EFFECTIVE DATE- The amendments made by paragraph (1) shall apply to
applications filed on or after the date of the enactment of this Act.
(b) Nondisplacement Requirement-
(1) EXTENDING TIME PERIOD FOR NONDISPLACEMENT- Section 212(n) of such
Act, as amended by subsection (a), is further amended--
(i) in subparagraph (E), by striking `90 days' each place it appears
and inserting `180 days';
(ii) in subparagraph (F)(ii), by striking `90 days' each place it
appears and inserting `180 days'; and
(B) in paragraph (2)(C)(iii), by striking `90 days' each place it appears
and inserting `180 days'.
(2) EFFECTIVE DATE- The amendments made by paragraph (1)--
(A) shall apply to applications filed on or after the date of the enactment
of this Act; and
(B) shall not apply to displacements for periods occurring more than
90 days before such date.
(c) Public Listing of Available Positions-
(1) LISTING OF AVAILABLE POSITIONS- Section 212(n)(1)(C) of such Act is
amended--
(A) in clause (i), by striking `(i) has provided' and inserting the
following:
(B) by redesignating clause (ii) as subclause (II); and
(C) by inserting before clause (ii), as redesignated, the following:
`(i) has advertised the job availability on the list described in paragraph
(6), for at least 30 calendar days; and'.
(2) LIST MAINTAINED BY THE DEPARTMENT OF LABOR- Section 212(n) of such
Act, as amended by this section, is further amended by adding at the end
the following:
`(6)(A) Not later than 90 days after the date of the enactment of this paragraph,
the Secretary of Labor shall establish a list of available jobs, which shall
be publicly accessible without charge--
`(i) on a website maintained by the Department of Labor, which website
shall be searchable by--
`(I) the name, city, State, and zip code of the employer;
`(II) the date on which the job is expected to begin;
`(III) the title and description of the job; and
`(IV) the State and city (or county) at which the work will be performed;
and
`(ii) at each 1-stop center created under the Workforce Investment Act
of 1998 (Public Law 105-220).
`(B) Each available job advertised on the list shall include--
`(i) the employer's full legal name;
`(ii) the address of the employer's principal place of business;
`(iii) the employer's city, State and zip code;
`(iv) the employer's Federal Employer Identification Number;
`(v) the phone number, including area code and extension, as appropriate,
of the hiring official or other designated official of the employer;
`(vi) the e-mail address, if available, of the hiring official or other
designated official of the employer;
`(vii) the wage rate to be paid for the position and, if the wage rate
in the offer is expressed as a range, the bottom of the wage range;
`(viii) whether the rate of pay is expressed on an annual, monthly, biweekly,
weekly, or hourly basis;
`(ix) a statement of the expected hours per week that the job will require;
`(x) the date on which the job is expected to begin;
`(xi) the date on which the job is expected to end, if applicable;
`(xii) the number of persons expected to be employed for the job;
`(xiv) the job description;
`(xv) the city and State of the physical location at which the work will
be performed; and
`(xvi) a description of a process by which a United States worker may
submit an application to be considered for the job.
`(C) The Secretary of Labor may charge a nominal filing fee to employers
who advertise available jobs on the list established under this paragraph
to cover expenses for establishing and administering the requirements under
this paragraph.
`(D) The Secretary may promulgate rules, after notice and a period for comment--
`(i) to carry out the requirements of this paragraph; and
`(ii) that require employers to provide other information in order to
advertise available jobs on the list.'.
(3) EFFECTIVE DATE- Paragraph (1) shall take effect for applications filed
at least 30 days after the creation of the list described in paragraph
(2).
(d) H-1B Nonimmigrants Not Admitted for Jobs Advertised or Offered Only
to H-1B Nonimmigrants- Section 212(n)(1) of such Act, as amended by this
section, is further amended--
(1) by inserting after subparagraph (G) the following:
`(H)(i) The employer has not advertised the available jobs specified in
the application in an advertisement that states or indicates that--
`(I) the job or jobs are only available to persons who are or who may
become H-1B nonimmigrants; or
`(II) persons who are or who may become H-1B nonimmigrants shall receive
priority or a preference in the hiring process.
`(ii) The employer has not only recruited persons who are, or who may
become, H-1B nonimmigrants to fill the job or jobs.'; and
(2) in the undesignated paragraph at the end, by striking `The employer'
and inserting the following:
(e) Prohibition of Outplacement-
(1) IN GENERAL- Section 212(n) of such Act, as amended by this section,
is further amended--
(A) in paragraph (1), by amending subparagraph (F) to read as follows:
`(F) The employer shall not place, outsource, lease, or otherwise contract
for the placement of an alien admitted or provided status as an H-1B nonimmigrant
with another employer;' and
(B) in paragraph (2), by striking subparagraph (E).
(2) EFFECTIVE DATE- The amendments made by paragraph (1) shall apply to
applications filed on or after the date of the enactment of this Act.
(f) Limit on Percentage of H-1B Employees- Section 212(n)(1) of such Act,
as amended by this section, is further amended by inserting after subparagraph
(H), as added by subsection (d)(1), the following:
`(I) If the employer employs not less than 50 employees in the United
States, not more than 50 percent of such employees are H-1B nonimmigrants.'.
(1) CHANGE IN MINIMUM WAGES- Section 212(n)(1) of such Act, as amended
by this section, is further amended--
(A) by amending subparagraph (A) to read as follows:
`(i) is offering and will offer, during the period of authorized employment,
to aliens admitted or provided status as an H-1B nonimmigrant, wages,
based on the best information available at the time the application
is filed, which are not less than the highest of--
`(I) the locally determined prevailing wage level for the occupational
classification in the area of employment;
`(II) the median average wage for all workers in the occupational
classification in the area of employment; or
`(III) the median wage for skill level 2 in the occupational classification
found in the most recent Occupational Employment Statistics survey;
and
`(ii) will provide working conditions for such a nonimmigrant that will
not adversely affect the working conditions of workers similarly employed.';
and
(B) in subparagraph (D), by inserting `the wage determination methodology
used under subparagraph (A)(i),' after `shall contain'.
(2) PROVISION OF W-2 FORMS- Section 212(n)(1) of such Act is amended by
inserting after subparagraph (I), as added by subsection (f), the following:
`(J) If the employer, in such previous period as the Secretary shall specify,
employed 1 or more H-1B nonimmigrants, the employer shall submit to the
Secretary the Internal Revenue Service Form W-2 Wage and Tax Statement
filed by the employer with respect to such nonimmigrants for such period.'.
(3) EFFECTIVE DATE- The amendments made by this subsection shall apply
to applications filed on or after the date of the enactment of this Act.
(h) Immigration Documents- Section 204 of such Act (8 U.S.C. 1154) is amended
by adding at the end the following:
`(l) Employer To Share All Immigration Paperwork Exchanged With Federal
Agencies- Not later than 10 working days after receiving a written request
from a former, current, or future employee or beneficiary, an employer shall
provide the employee or beneficiary with the original (or a certified copy
of the original) of all petitions, notices, and other written communication
exchanged between the employer and the Department of Labor, the Department
of Homeland Security, or any other Federal agency that is related to an
immigrant or nonimmigrant petition filed by the employer for the employee
or beneficiary.'.
SEC. 3. H-1B GOVERNMENT AUTHORITY AND REQUIREMENTS.
(a) Safeguards Against Fraud and Misrepresentation in Application Review
Process- Section 212(n)(1)(K) of the Immigration and Nationality Act, as
redesignated by section 2(d)(2), is amended--
(1) by inserting `and through the Department of Labor's website, without
charge.' after `D.C.';
(2) by inserting `, clear indicators of fraud, misrepresentation of material
fact,' after `completeness';
(3) by striking `or obviously inaccurate' and inserting `, presents clear
indicators of fraud or misrepresentation of material fact, or is obviously
inaccurate';
(4) by striking `within 7 days of' and inserting `not later than 14 days
after'; and
(5) by adding at the end the following: `If the Secretary's review of
an application identifies clear indicators of fraud or misrepresentation
of material fact, the Secretary may conduct an investigation and hearing
under paragraph (2).
(b) Investigations by Department of Labor- Section 212(n)(2) of such Act
is amended--
(1) in subparagraph (A)--
(A) by striking `12 months' and inserting `24 months'; and
(B) by striking `The Secretary shall conduct' and all that follows and
inserting `Upon the receipt of such a complaint, the Secretary may initiate
an investigation to determine if such a failure or misrepresentation
has occurred.';
(2) in subparagraph (C)(i)--
(A) by striking `a condition of paragraph (1)(B), (1)(E), or (1)(F)'
and inserting `a condition under subparagraph (B), (C)(i), (E), (F),
(H), (I), or (J) of paragraph (1)'; and
(B) by striking `(1)(C)' and inserting `(1)(C)(ii)';
(3) in subparagraph (G)--
(A) in clause (i), by striking `if the Secretary' and all that follows
and inserting `with regard to the employer's compliance with the requirements
of this subsection.';
(B) in clause (ii), by striking `and whose identity' and all that follows
through `failure or failures.' and inserting `the Secretary of Labor
may conduct an investigation into the employer's compliance with the
requirements of this subsection.';
(C) in clause (iii), by striking the last sentence;
(D) by striking clauses (iv) and (v);
(E) by redesignating clauses (vi), (vii), and (viii) as clauses (iv),
(v), and (vi), respectively;
(F) in clause (iv), as redesignated, by striking `meet a condition described
in clause (ii), unless the Secretary of Labor receives the information
not later than 12 months' and inserting `comply with the requirements
under this subsection, unless the Secretary of Labor receives the information
not later than 24 months';
(G) by amending clause (v), as redesignated, to read as follows:
`(v) The Secretary of Labor shall provide notice to an employer of the intent
to conduct 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 such
compliance would interfere with an effort by the Secretary to investigate
or secure compliance by the employer with the requirements of this subsection.
A determination by the Secretary under this clause shall not be subject
to judicial review.'.
(H) in clause (vi), as redesignated, by striking `An investigation'
and all that follows through `the determination.' and inserting `If
the Secretary of Labor, after an investigation under clause (i) or (ii),
determines that a reasonable basis exists to make a finding that the
employer has failed to comply with the requirements under this subsection,
the Secretary shall provide interested parties with notice of such determination
and an opportunity for a hearing in accordance with section 556 of title
5, United States Code, not later than 120 days after the date of such
determination.'; and
(I) by adding at the end the following:
`(vii) If the Secretary of Labor, after a hearing, finds a reasonable basis
to believe that the employer has violated the requirements under this subsection,
the Secretary may impose a penalty under subparagraph (C).'; and
(4) by striking subparagraph (H).
(c) Information Sharing Between Department of Labor and Department of Homeland
Security- Section 212(n)(2) of such Act, as amended by this section, is
further amended by inserting after subparagraph (G) the following:
`(H) The Director of United States Citizenship and Immigration Services
shall provide the Secretary of Labor with any information contained in
the materials submitted by H-1B employers as part of the adjudication
process that indicates that the employer is not complying with H-1B visa
program requirements. The Secretary may initiate and conduct an investigation
and hearing under this paragraph after receiving information of noncompliance
under this subparagraph.'.
(d) Audits- Section 212(n)(2)(A) of such Act, as amended by this section,
is further amended by adding at the end the following: `The Secretary may
conduct surveys of the degree to which employers comply with the requirements
under this subsection and may conduct annual compliance audits of employers
that employ H-1B nonimmigrants. The Secretary shall conduct annual compliance
audits of not less than 1 percent of the employers that employ H-1B nonimmigrants
during the applicable calendar year. The Secretary shall conduct annual
compliance audits of each employer with more than 100 employees who work
in the United States if more than 15 percent of such employees are H-1B
nonimmigrants.'.
(e) Penalties- Section 212(n)(2)(C) of such Act, as amended by this section,
is further amended--
(1) in clause (i)(I), by striking `$1,000' and inserting `$2,000';
(2) in clause (ii)(I), by striking `$5,000' and inserting `$10,000'; and
(3) in clause (vi)(III), by striking `$1,000' and inserting `$2,000'.
(f) Information Provided to H-1B Nonimmigrants Upon Visa Issuance- Section
212(n) of such Act, as amended by this section, is further amended by inserting
after paragraph (2) the following:
`(3)(A) Upon issuing an H-1B visa to an applicant outside the United States,
the issuing office shall provide the applicant with--
`(i) a brochure outlining the employer's obligations and the employee's
rights under Federal law, including labor and wage protections;
`(ii) the contact information for Federal agencies that can offer more
information or assistance in clarifying employer obligations and workers'
rights; and
`(iii) a copy of the employer's H-1B application for the position that
the H-1B nonimmigrant has been issued the visa to fill.
`(B) Upon the issuance of an H-1B visa to an alien inside the United States,
the officer of the Department of Homeland Security shall provide the applicant
with--
`(i) a brochure outlining the employer's obligations and the employee's
rights under Federal law, including labor and wage protections;
`(ii) the contact information for Federal agencies that can offer more
information or assistance in clarifying employer's obligations and workers'
rights; and
`(iii) a copy of the employer's H-1B application for the position that
the H-1B nonimmigrant has been issued the visa to fill.'.
SEC. 4. L-1 VISA FRAUD AND ABUSE PROTECTIONS.
(a) In General- Section 214(c)(2) of the Immigration and Nationality Act
(8 U.S.C. 1184(c)(2)) is amended--
(1) by striking `Attorney General' each place it appears and inserting
`Secretary of Homeland Security';
(2) in subparagraph (E), by striking `In the case of an alien spouse admitted
under section 101(a)(15)(L), who' and inserting `Except as provided in
subparagraph (H), if an alien spouse admitted under section 101(a)(15)(L)';
and
(3) by adding at the end the following:
`(G)(i) If the beneficiary of a petition under this subsection is coming
to the United States to open, or be employed in, a new facility, the petition
may be approved for up to 12 months only if the employer operating the new
facility has--
`(II) sufficient physical premises to carry out the proposed business
activities; and
`(III) the financial ability to commence doing business immediately upon
the approval of the petition.
`(ii) An extension of the approval period under clause (i) may not be granted
until the importing employer submits an application to the Secretary of
Homeland Security that contains--
`(I) evidence that the importing employer meets the requirements of this
subsection;
`(II) evidence that the beneficiary meets the requirements under section
101(a)(15)(L);
`(III) a statement summarizing the original petition;
`(IV) evidence that the importing employer has fully complied with the
business plan submitted under clause (i)(I);
`(V) evidence of the truthfulness of any representations made in connection
with the filing of the original petition;
`(VI) evidence that the importing employer, during the preceding 12 months,
has been doing business at the new facility through regular, systematic,
and continuous provision of goods or services, or has otherwise been taking
commercially reasonable steps to establish the new facility as a commercial
enterprise;
`(VII) a statement of the duties the beneficiary has performed at the
new facility during the preceding 12 months and the duties the beneficiary
will perform at the new facility during the extension period approved
under this clause;
`(VIII) a statement describing the staffing at the new facility, including
the number of employees and the types of positions held by such employees;
`(IX) evidence of wages paid to employees;
`(X) evidence of the financial status of the new facility; and
`(XI) any other evidence or data prescribed by the Secretary.
`(iii) Notwithstanding subclauses (I) through (VI) of clause (ii), and subject
to the maximum period of authorized admission set forth in subparagraph
(D), the Secretary of Homeland Security may approve a petition subsequently
filed on behalf of the beneficiary to continue employment at the facility
described in this subsection for a period beyond the initially granted 12-month
period if the importing employer demonstrates that the failure to satisfy
any of the requirements described in those subclauses was directly caused
by extraordinary circumstances beyond the control of the importing employer.
`(iv) For purposes of determining the eligibility of an alien for classification
under section 101(a)(15)(L), the Secretary of Homeland Security shall work
cooperatively with the Secretary of State to verify a company or facility's
existence in the United States and abroad.'.
(b) Restriction on Blanket Petitions- Section 214(c)(2)(A) of such Act is
amended to read as follows:
`(2)(A) The Secretary of Homeland Security may not permit the use of blanket
petitions to import aliens as nonimmigrants under section 101(a)(15)(L).'.
(c) Prohibition on Outplacement- Section 214(c)(2) of such Act, as amended
by this section, is further amended by adding at the end the following:
`(H) An employer who imports 1 or more aliens as nonimmigrants described
in section 101(a)(15)(L) shall not place, outsource, lease, or otherwise
contract for the placement of an alien admitted or provided status as an
L-1 nonimmigrant with another employer.'.
(d) Investigations and Audits by Department of Homeland Security-
(1) DEPARTMENT OF HOMELAND SECURITY INVESTIGATIONS- Section 214(c)(2)
of such Act, as amended by this section, is further amended by adding
at the end the following:
`(I)(i) The Secretary of Homeland Security may initiate an investigation
of any employer that employs nonimmigrants described in section 101(a)(15)(L)
with regard to the employer's compliance with the requirements of this subsection.
`(ii) If the Secretary of Homeland Security receives specific credible information
from a source who is likely to have knowledge of an employer's practices,
employment conditions, or compliance with the requirements under this subsection,
the Secretary may conduct an investigation into the employer's compliance
with the requirements of this subsection. The Secretary may withhold the
identity of the source from the employer, and the source's identity shall
not be subject to disclosure under section 552 of title 5.
`(iii) The Secretary of Homeland Security shall establish a procedure for
any person desiring to provide to the Secretary of Homeland Security information
described in clause (ii) that may be used, in whole or in part, as the basis
for the commencement of an investigation described in such clause, to provide
the information in writing on a form developed and provided by the Secretary
of Homeland Security and completed by or on behalf of the person.
`(iv) No investigation described in clause (ii) (or hearing described in
clause (vi) based on such investigation) may be conducted with respect to
information about a failure to comply with the requirements under this subsection,
unless the Secretary of Homeland Security receives the information not later
than 24 months after the date of the alleged failure.
`(v) Before commencing an investigation of an employer under clause (i)
or (ii), the Secretary of Homeland Security shall provide notice to the
employer of the intent to conduct such investigation. The notice shall be
provided in such a manner, and shall contain sufficient detail, to permit
the employer to respond to the allegations before an investigation is commenced.
The Secretary is not required to comply with this clause if the Secretary
determines that to do so would interfere with an effort by the Secretary
to investigate or secure compliance by the employer with the requirements
of this subsection. There shall be no judicial review of a determination
by the Secretary under this clause.
`(vi) If the Secretary of Homeland Security, after an investigation under
clause (i) or (ii), determines that a reasonable basis exists to make a
finding that the employer has failed to comply with the requirements under
this subsection, the Secretary shall provide interested parties with notice
of such determination and an opportunity for a hearing in accordance with
section 556 of title 5, United States Code, not later than 120 days after
the date of such determination. If such a hearing is requested, the Secretary
shall make a finding concerning the matter by not later than 120 days after
the date of the hearing.
`(vii) If the Secretary of Homeland Security, after a hearing, finds a reasonable
basis to believe that the employer has violated the requirements under this
subsection, the Secretary may impose a penalty under section 214(c)(2)(J).'.
(2) AUDITS- Section 214(c)(2)(I) of such Act, as added by paragraph (1),
is amended by adding at the end the following:
`(viii) The Secretary of Homeland Security may conduct surveys of the degree
to which employers comply with the requirements under this section and may
conduct annual compliance audits of employers that employ H-1B nonimmigrants.
The Secretary shall conduct annual compliance audits of not less than 1
percent of the employers that employ nonimmigrants described in section
101(a)(15)(L) during the applicable calendar year. The Secretary shall conduct
annual compliance audits of each employer with more than 100 employees who
work in the United States if more than 15 percent of such employees are
nonimmigrants described in section 101(a)(15)(L).'.
(3) REPORTING REQUIREMENT- Section 214(c)(8) of such Act is amended by
inserting `(L),' after `(H),'.
(e) Penalties- Section 214(c)(2) of such Act, as amended by this section,
is further amended by adding at the end the following:
`(J)(i) If the Secretary of Homeland Security finds, after notice and
an opportunity for a hearing, a failure by an employer to meet a condition
under subparagraph (F), (G), (H), (I), or (K) or a misrepresentation
of material fact in a petition to employ 1 or more aliens as nonimmigrants
described in section 101(a)(15)(L)--
`(I) the Secretary of Homeland Security may impose such other administrative
remedies (including civil monetary penalties in an amount not to exceed
$2,000 per violation) as the Secretary determines to be appropriate;
and
`(II) the Secretary of Homeland Security may not, during a period
of at least 1 year, approve a petition for that employer to employ
1 or more aliens as such nonimmigrants.
`(ii) If the Secretary of Homeland Security finds, after notice and
an opportunity for a hearing, a willful failure by an employer to meet
a condition under subparagraph (F), (G), (H), (I), or (K) or a misrepresentation
of material fact in a petition to employ 1 or more aliens as nonimmigrants
described in section 101(a)(15)(L)--
`(I) the Secretary of Homeland Security may impose such other administrative
remedies (including civil monetary penalties in an amount not to exceed
$10,000 per violation) as the Secretary determines to be appropriate;
and
`(II) the Secretary of Homeland Security may not, during a period
of at least 2 years, approve a petition filed for that employer to
employ 1 or more aliens as such nonimmigrants.
`(iii) If the Secretary of Homeland Security finds, after notice and
an opportunity for a hearing, a willful failure by an employer to meet
a condition under subparagraph (L)(i)--
`(I) the Secretary of Homeland Security may impose such other administrative
remedies (including civil monetary penalties in an amount not to exceed
$10,000 per violation) as the Secretary determines to be appropriate;
and
`(II) the employer shall be liable to employees harmed for lost wages
and benefits.'.
(1) CHANGE IN MINIMUM WAGES- Section 214(c)(2) of such Act, as amended
by this section, is further amended by adding at the end the following:
`(K)(i) An employer that employs a nonimmigrant described in section
101(a)(15)(L) shall--
`(I) offer such nonimmigrant, during the period of authorized employment,
wages, based on the best information available at the time the application
is filed, which are not less than the highest of--
`(aa) the locally determined prevailing wage level for the occupational
classification in the area of employment;
`(bb) the median average wage for all workers in the occupational
classification in the area of employment; or
`(cc) the median wage for skill level 2 in the occupational classification
found in the most recent Occupational Employment Statistics survey;
and
`(II) provide working conditions for such nonimmigrant that will not
adversely affect the working conditions of workers similarly employed.
`(ii) If an employer, in such previous period specified by the Secretary
of Homeland Security, employed 1 or more L-1 nonimmigrants, the employer
shall provide to the Secretary of Homeland Security the Internal Revenue
Service Form W-2 Wage and Tax Statement filed by the employer with respect
to such nonimmigrants for such period.
`(iii) It is a failure to meet a condition under this subparagraph for
an employer, who has filed a petition to import 1 or more aliens as
nonimmigrants described in section 101(a)(15)(L), to--
`(I) require such a nonimmigrant to pay a penalty for ceasing employment
with the employer before a date mutually agreed to by the nonimmigrant
and the employer; or
`(II) fail to offer to such a nonimmigrant, during the nonimmigrant's
period of authorized employment, on the same basis, and in accordance
with the same criteria, as the employer offers to United States workers,
benefits and eligibility for benefits, including--
`(aa) the opportunity to participate in health, life, disability,
and other insurance plans;
`(bb) the opportunity to participate in retirement and savings plans;
and
`(cc) cash bonuses and noncash compensation, such as stock options
(whether or not based on performance).
`(iv) The Secretary of Homeland Security shall determine whether a required
payment under clause (iii)(I) is a penalty (and not liquidated damages)
pursuant to relevant State law.'.
(2) EFFECTIVE DATE- The amendments made by this subsection shall apply
to applications filed on or after the date of the enactment of this Act.
SEC. 5. WHISTLEBLOWER PROTECTIONS.
(a) H-1B Whistleblower Protections- Section 212(n)(2)(C)(iv) of the Immigration
and Nationality Act (8 U.S.C. 1182(n)(2)(C)(iv)) is amended--
(1) by inserting `take, fail to take, or threaten to take or fail to take,
a personnel action, or' before `to intimidate'; and
(2) by adding at the end the following: `An employer that violates this
clause shall be liable to the employees harmed by such violation for lost
wages and benefits.'.
(b) L-1 Whistleblower Protections- Section 214(c)(2) of such Act, as amended
by section 4, is further amended by adding at the end the following:
`(L)(i) It is a violation of this subparagraph for an employer who has filed
a petition to import 1 or more aliens as nonimmigrants described in section
101(a)(15)(L) to take, fail to take, or threaten to take or fail to take,
a personnel action, or to intimidate, threaten, restrain, coerce, blacklist,
discharge, or discriminate in any other manner against an employee because
the employee--
`(I) has disclosed information that the employee reasonably believes evidences
a violation of this subsection, or any rule or regulation pertaining to
this subsection; or
`(II) cooperates or seeks to cooperate with the requirements of this subsection,
or any rule or regulation pertaining to this subsection.
`(ii) An employer that violates this subparagraph shall be liable to the
employees harmed by such violation for lost wages and benefits.
`(iii) In this subparagraph, the term `employee' includes--
`(II) a former employee; and
`(III) an applicant for employment.'.
SEC. 6. ADDITIONAL DEPARTMENT OF LABOR EMPLOYEES.
(a) In General- The Secretary of Labor is authorized to hire 200 additional
employees to administer, oversee, investigate, and enforce programs involving
H-1B nonimmigrant workers.
(b) Authorization of Appropriations- There are authorized to be appropriated
such sums as may be necessary to carry out this section.
END
