§ 4211 : MODIFICATION OF APPLICATION REQUIREMENTS

WAGES FOR EDUCATIONAL, NONPROFIT, RESEARCH, AND GOVERNMENTAL ENTITIES.— Section 212(8 U.S.C. 1182), as amended by sections 2312and 2313, is further amended by adding at the end the following:

x.

DETERMINATION OF PREVAILING WAGE.—In the case of a nonprofit institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)), a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization, the Secretary of Labor shall determine such wage levels as follows:

1.

If the Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision.

2.

If an existing government survey has only 2 levels, 2 intermediate levels may be created by dividing by 3, the difference between the 2 levels offered, adding the quotient thus obtained to the first level and subtracting that quotient from the second level.

3.

For institutions of higher education, only teaching positions and research positions may be paid using this special educational wage level.

4.

In computing the prevailing wage level for an occupational classification in an area of employment for purposes of subsections (a)(5)(A), (n)(1)(A)(i)(II), and (t)(1)(A)(i)(II) and section 203(b)(1)(D) for an employee of an institution of higher education, or a related or affiliated nonprofit entity or 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.

INTERNET POSTING REQUIREMENT.— Section 212(n)(1)(C)(8 U.S.C. 1182(n)(1)(C)) is amended—

1.

by redesignating clause (ii) as subclause (II);

2.

by striking (i) has provided and inserting the following:(ii)(I) has provided;

3.

by striking sought, or and inserting sought; or;

4.

by inserting before clause (ii), as redesignated by paragraph (2), the following:

i.

has advertised on the Internet website maintained by the Secretary of Labor for the purpose of such advertising, for at least 30 calendar days, a detailed description of each position for which a nonimmigrant is sought that includes a description of—

I.

the wage ranges and other terms and conditions of employment;

II.

the minimum education, training, experience, and other requirements for the position;

[Grassley58]

III.

the process for applying for the position;

IV.

the title and description of the position, including the location where the work will be performed; and

V.

the name, city, and zip code of the employer; and

[end]

APPLICATION OF REQUIREMENTS TO ALL EMPLOYERS.—

1.

NONDISPLACEMENT.— Section 212(n)(1)(E)(8 U.S.C. 1182(n)(1)(E)) is amended to read as follows: [Hatch10/Schumer]

E.

 i.  I. In the case of an application filed by an employer that is an H–1B skilled worker dependent employer, and is not an H–1B dependent employer, the employer did not displace and will not displace a United States worker employed by the employer during the period beginning 90 days before the date on which a visa petition supported by the application is filed and ending 90 days after such filing.

II.

An employer that is not an H–1B skilled worker dependent employer shall not be subject to subclause (I) unless—

aa.

the employer is filing the H–1B petition with the intent or purpose of displacing a specific United States worker from the position to be occupied by the beneficiary of the petition; or

bb.

workers are displaced who—

AA.

provide services, in whole or in part, at 1 or more worksites owned, operated, or controlled by a Federal, State, or local government entity , other than a public institution of higher education, that directs and controls the work of the H–1B worker; or

BB.

are employed as public school kindergarten, elementary, middle school, or secondary school teachers.

ii.

 I. In the case of an application filed by an H–1B-dependent employer, the employer did not displace and will not displace a United States worker employed by the employer within the period beginning 180 days before the date on which a visa petition supported by the application is filed and ending 180 days after such filing.

[end]

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 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.

iii.

In this subparagraph, the term job zone means a zone assigned to an occupation by—

I.

the Occupational Information Network Database (O*NET) on the date of the enactment of this Act; or

II.

such database or a similar successor database, as designated by the Secretary of Labor, after the date of the enactment of the Border Security, Economic Opportunity, and Immigration Modernization Act.

RECRUITMENT.—Section 212(n)(1)(G) (8 U.S.C. 1182(n)(1)(G)) is amended to read as follows:

G.

An employer, prior to filing the application—

i.

has taken good faith steps to recruit United States workers for the occupational classification for which the nonimmigrant or nonimmigrants is or are sought, 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);

ii.

has advertised the job on an Internet website maintained by the Secretary of Labor for the purpose of such advertising; and

iii.

if the employer is an H–1B skilled worker dependent employer, 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.

OUTPLACEMENT.— Section 212(n)(1)(F)(8 U.S.C. 1182(n)(1)(F)) is amended to read as follows:

F.

 i. An H–1B-dependent employer may not place, outsource, lease, or otherwise contract for the services or placement of an H–1B nonimmigrant employee.

ii.

An employer that is not an H–1B-dependent employer and not described in paragraph (3)(A)(i) may not place, outsource, lease, or otherwise contract for the services or placement of an H–1B nonimmigrant employee unless the employer pays a fee of $500 per outplaced worker..

iii.

A fee collected under clause (ii) shall be deposited in the Comprehensive Immigration Reform Trust Fund established under section 6of the Border Security, Economic Opportunity, and Immigration Modernization Act

[Hatch10/Schumer]

iv.

An H–1B dependent employer shall be exempt from the prohibition on outplacement under clause (i) if the employer is a nonprofit institution of higher education, a nonprofit research organization, or primarily a health care business and is petitioning for a physician, a nurse, or a physical therapist or a substantially equivalent health care occupation. Such employer shall be subject to the fee set forth in clause (ii).

[end]

H–1B-DEPENDENT EMPLOYER DEFINED.— Section 212(n)(3)(8 U.S.C. 1182(n)(3)) is amended to read as follows:

3.

 A. The term H–1B-dependent employer means an employer (other than nonprofit education and research institutions) that—

i.

in the case of an employer that has 25 or fewer full-time equivalent employees who are employed in the United States, employs more than 7 H–1B nonimmigrants;

ii.

in the case of an employer that has at least 26 but not more than 50 full-time equivalent employees who are employed in the United States, employs more than 12 H–1B nonimmigrants; or

iii.

in the case of an employer that has at least 51 full-time equivalent employees who are employed in the United States, 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.

In determining the number of employees who are H–1B nonimmigrants under subparagraph (A)(ii), an intending immigrant employee shall not count toward such number

H–1B SKILLED WORKER DEPENDENT DEFINED.—Section 212(n)(3) (8 U.S.C. 1182(n)(3)) is amended—

1.

by redesignating subparagraph (B) as subparagraph (D); and

2.

by inserting after subparagraph (A) the following:

B.

 i. For purposes of this subsection, an H–1B skilled worker dependent employer means an employer (other than nonprofit education and research institutions) who employs H–1B nonimmigrants in the United States in a number that in total is equal to at least 15 percent of the number of its full-time equivalent employees in the United States employed in occupations contained within Occupational Information Network Database (O*NET) Job Zone 4 and Job Zone 5.

ii.

An H–1B nonimmigrant who is an intending immigrant shall be counted as a United States worker in making a determination under clause (i).

[end]

INTENDING IMMIGRANTS DEFINED.— Section 101(a)(8 U.S.C. 1101(a)) as amended by section 3504(a), is further amended by adding at the end the following:

54.

 A. The term intending immigrant means, with respect to the number of aliens employed by an employer, an alien who intends to work and reside permanently in the United States, as evidenced by—

i.

a pending or approved application for a labor certification filed for such alien by a covered employer; or

ii.

a pending or approved immigrant status petition filed for such alien [Hatch10/Schumer] by a covered employer .

B.

In this paragraph:

[Hatch10/Schumer]

i.

The term covered employer means an employer that has filed immigrant status petitions for not less than 90 percent of current employees who were the beneficiaries of applications for labor certification that were approved during the 1-year period ending 6 months before the filing of an application or petition for which the number of intending immigrants is relevant.

[end]

ii.

The term immigrant status petition means a petition filed under paragraph (1),(2), or (3) of section 203(b).

iii.

The term labor certification means an employment certification under section 212(a)(5)(A).

C.

Notwithstanding any other provision of law —

i.

for all calculations under this Act of the number of aliens admitted pursuant to subparagraph (H)(i)(b) or (L) of paragraph (15) an intending immigrant shall be counted as an alien lawfully admitted for permanent residence and shall not be counted as an employee admitted pursuant to such a subparagraph; and

ii.

for all determinations of the number of employees or United States workers employed by an employer, all of the employees in 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 counted.