S 31
110th CONGRESS
1st Session
S. 31
To amend the Immigration and Nationality Act to reduce fraud
in certain visa programs for aliens working temporarily in the United
States.
IN THE SENATE OF THE UNITED STATES
May 22, 2007
Ms. COLLINS 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
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.
This Act may be cited as the `H-1B Visa Fraud Prevention Act of 2007'.
SEC. 2. H-1B EMPLOYER REQUIREMENTS.
(a) Prohibition of Outplacement-
(1) IN GENERAL- Section 212(n) of the Immigration and Nationality
Act (8 U.S.C. 1182(n)) is 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 if the worksite of the
receiving employer is located in a different State;' 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.
(b) 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) of the Immigration and Nationality Act (8
U.S.C. 1182(n)) is amended--
(1) in the undesignated paragraph at the end, by striking `The employer'
and inserting the following:
(2) in subparagraph (H), as designated by paragraph (1) of this subsection--
(A) by inserting `and through the Department of Labor's website,
without charge.' after `D.C.';
(B) by inserting `, clear indicators of fraud, misrepresentation
of material fact,' after `completeness';
(C) by striking `or obviously inaccurate' and inserting `, presents
clear indicators of fraud or misrepresentation of material fact,
or is obviously inaccurate';
(D) by striking `within 7 days of' and inserting `not later than
14 days after'; and
(E) 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), 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) 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.';
(G) 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
(H) by adding at the end the following:
`(vii) The Secretary of Labor may impose a penalty under subparagraph
(C) if the Secretary, after a hearing, finds a reasonable basis to believe
that--
`(I) the employer has violated the requirements under this subsection;
and
`(II) the violation was not made in good faith.'; 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.'.
(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. 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.'.
SEC. 5. FRAUD ASSESSMENT.
Not later than 30 days after the date of the enactment of this Act,
the Director of United States Citizenship and Immigration Services shall
submit to Congress a fraud risk assessment of the H-1B visa program.
END
