S.Amdt. 1527
What it does: 2 changes: replaces text, adds a sectionWhat it changes
2 changes to S. 744 · 1 shown in the bill's text
Change 1: Rewrites page 1505, lines 11–13
ReplacesPrinted pageRemoves page 1505, lines 11–13 of the printed bill. See that page
Inserted: (1) Worker.--The term "worker" means an individual who is the subject of foreign labor contracting activity and does not include an exchange visitor (as defined in section 62.2 of title 22, Code of Federal Regulations, or any similar successor regulation).
Original wording
On page 1505, strike lines 11 through 13, and insert the following:
Change 2: Adds Subtitle I--Providing Tools to Exchange Visitors and Exchange Visitor Sponsors to Protect Exchange Visitor Program Participants and Prevent Trafficking SEC. 3901. DEFINITIONS at the end of title III
Adds a sectionIn S. 744 · Reported to Senate
If any provision of this subtitle or amendment made by this subtitle, or the application of a provision or amendment to any person or circumstance, is held to be unconstitutional, the remainder of this subtitle and amendments made by this subtitle, and the application of the provisions and amendment to any person or circumstance, shall not be affected by the holding.
Inserted: Subtitle I--Providing Tools to Exchange Visitors and Exchange Visitor Sponsors to Protect Exchange Visitor Program Participants and Prevent Trafficking SEC. 3901. DEFINITIONS.
Inserted: (a) In General.--Except as otherwise provided by this subtitle, the terms used in this subtitle shall have the same meanings, respectively, as are given those terms in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203), except that the term "employer" shall also include a prospective employer seeking to hire exchange visitors with which the sponsor has a contractual relationship.
Inserted: (b) Other Definitions.--
Inserted: (1) Exchange visitor.--The term "exchange visitor" means a foreign national who is inquiring about or applying to participate in the exchange visitor program or who has successfully applied and has completed or is completing an exchange visitor programs not funded by the United States Government as governed by sections 2.22, 62.24, 62.30, 62.31, and 62.32 of title 22, Code of Federal Regulations.
Inserted: (2) Exchange visitor program.--The term "exchange visitor program" means the international exchange program administered by the Department of State to implement the Mutual Educational and Cultural Exchange Act of 1961 (22 U.S.C. 2451 et seq.), by means of educational and cultural programs.
Inserted: (3) Exchange visitor program recruitment activities.--The term "exchange visitor program recruitment activities" means activities related to recruiting, soliciting, transferring, providing, obtaining, or facilitating participation of individuals who reside outside the United States in an exchange visitor program including when such activity occurs wholly outside the United States.
Inserted: (4) Exchange visitor program sponsor; sponsor.--The term "exchange visitor program sponsor" or "sponsor" means a legal entity designated by the Secretary of State, in the Secretary's discretion, to conduct an exchange visitor program governed by sections 62.22, 62.24, 62.30, 62.31, and 62.32 of title 22, Code of Federal Regulations).
Inserted: (5) Foreign entity.--The term "foreign entity" means a person contracted by a sponsor to engage in exchange visitor program recruitment activities on the sponsor's behalf and any subcontractors thereof.
Inserted: (6) Host entity.--The term "host entity" means "host organization", "primary or secondary accredited educational institution", "camp facility", "host family", or "employer/host employer" as used in sections 62.22, 62.24, 62.30, 62.31, and 62.32 of title 22, Code of Federal Regulations, respectively.
Inserted: (7) Regulations.--Any reference to any provision of regulations shall include any successor provision addressing the same subject matter.
Inserted: SEC. 3902. DISCLOSURE.
Inserted: (a) Requirement for Disclosure at Time of Exchange Visitor Program Recruitment Activity.--Any person who engages in exchange visitor program recruitment activity shall develop certain information, previously approved by and on file with the exchange visitor program sponsor, to be disclosed in writing in English to the exchange visitor before the exchange visitor pays fees described in section 3904, other than refundable fees and a reasonable non-refundable deposit, or otherwise detrimentally relies on information provided by an exchange program sponsor or foreign entity. This information shall be made available to the Secretary of State, or an exchange visitor requesting his or her own file, within 5 business days of request, consistent with program regulations in part 62 of title 22, Code of Federal Regulations. Not later than 18 months after the date of the enactment of this Act, the Secretary of State shall, in consultation with the Secretary of Labor, amend such regulations to reflect the information to be disclosed, including the following:
Show 107 more inserted paragraphsShow less
Inserted: (1) The identity and address of the exchange visitor program sponsor, host entity, and any foreign entity with authority to charge fees and costs under section 3904.
Inserted: (2) All assurances and terms and conditions of employment, from the prospective host entity of the exchange visitor, including place and period of employment, job duties, number of work hours, wages and compensation, and any deductions from wages and
Inserted: benefits, including deductions for housing and transportation. Nothing in this paragraph shall be construed to permit any charge, deduction, or expense prohibited by this or any other law.
Inserted: (3) A copy of the prospective agreement between the exchange visitor program sponsor, exchange visitor, and the host entity.
Inserted: (4) Information regarding the terms and conditions of the nonimmigrant status under which the exchange visitor is to be admitted, and the period of stay in the United States allowed for such nonimmigrant status.
Inserted: (5) A copy of the fee disclosure form as described in section 3904(d) listing the mandatory and optional costs or expenses to be charged to the exchange visitor.
Inserted: (6) The existence of any labor organizing effort, collective bargaining agreement, labor contract, strike, lockout, or other labor dispute at the host entity.
Inserted: (7) Whether and the extent to which exchange visitors will be compensated through workers' compensation, private insurance, or otherwise for injuries or death, including work-related injuries and death, during the period of employment.
Inserted: (8) A description of the sanctions the exchange visitor program sponsor is currently subject to, if any, as imposed by the Department of State.
Inserted: (9) A statement in a form specified by the Secretary of State--
Inserted: (A) stating that in accordance with guidelines and regulations promulgated by the Secretary --
Inserted: (i) the costs and fees charged by the exchange program sponsor, foreign entity, and host entity do not exceed those permitted by section 3904 and are legal under the laws of the United States and the home country of the exchange visitor; and
Inserted: (ii) the exchange visitor program sponsor, foreign entity, or host entity may bear costs or fees not provided for in section 3904, but that fees under that section cannot be passed along to the exchange visitor.
Inserted: (10) Any education or training to be provided or required, other than education or training provided in accordance with section 62.10 (b) and (c) of title 22, Code of Federal Regulations, as "pre-arrival information" or "orientation" and additional orientation and training requirements as described in each relevant category under sections 62.22, 62.24, 62.30, 62.31, and 62.32 of that title.
Inserted: (11) A clear statement explaining that--
Inserted: (A) except as provided in subparagraph (B), no additional significant requirements or significant changes may be made to the original contract signed with a handwritten, electronic, or digital pin code signature by the exchange visitor without at least 24 hours to consider such changes and the specific consent of the exchange visitor, obtained voluntarily and without threat of penalty; and
Inserted: (B) changes may be made to the conditions of employment contained in the original contract even if the exchange visitor has not had 24 hours to consider such changes, provided the exchange visitor has specifically consented to the changes, voluntarily and without threat of penalty, and such changes must be implemented without giving the exchange visitor 24 hours to consider them in order to protect the health or welfare of the exchange visitor.
Inserted: (b) Requirement for Rules.--The Secretary of State shall define by rule or guidance what constitutes "refundable fees" and a "reasonable non-refundable deposit" for the purpose subsection (a).
Inserted: (c) Relationship to Labor and Employment Laws.--Nothing in the disclosure required by subsection (a) shall constitute a legal conclusion as to the exchange visitor's status or rights under the labor and employment laws.
Inserted: (d) Prohibition on False and Misleading Information and Certain Fees.--No exchange visitor program sponsor, foreign entity, or host entity who engages in any exchange visitor program activity shall knowingly provide materially false or misleading information to any exchange visitor concerning any matter required to be disclosed under subsection (a). Charging fees for services not provided or assessing fees that exceed the amounts established by the Secretary of State pursuant to section 3904 is a violation of this section. The disclosure required by this section is a document concerning the proper administration of a matter within the jurisdiction of a department or agency of the United States for the purposes of section 1519 of title 18, United States Code, and other provisions of such title.
Inserted: (e) Public Availability of Information.--The Secretary of State shall amend its regulations at part 62 of title 22, Code of Federal Regulations, to require sponsors to make publicly available, including on their websites and in recruiting materials, information regarding fees, costs, and services associated with their exchange visitor programs, including foreign entity names and contact points, and other factors relevant to exchange visitors' choice of sponsor or foreign entity.
Inserted: SEC. 3903. PROHIBITION ON DISCRIMINATION.
Inserted: (a) In General.--It shall be unlawful for an exchange visitor program sponsor, foreign entity, or host entity to fail or refuse to select, hire, discharge, intimidate, threaten, restrain, coerce, or blacklist any individual or otherwise discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, creed, sex, national origin, religion, age, or disability.
Inserted: (b) Determinations of Discrimination.--For the purposes of determining the existence of unlawful discrimination under subsection (a)--
Inserted: (1) in the case of a claim of discrimination based on race, color, sex, national origin, or religion, the same legal standards shall apply as are applicable under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.);
Inserted: (2) in the case of a claim of discrimination based on age, the same legal standards shall apply as are applicable under the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.); and
Inserted: (3) in the case of a claim of discrimination based on disability, the same legal standards shall apply as are applicable under title I of the Americans With Disabilities Act of 1990 as amended (42 U.S.C. 12111 et seq.).
Inserted: SEC. 3904. FEES.
Inserted: (a) In General.--Not later than 2 years after the date of the enactment of this Act, the Secretary of State, in consultation with the Secretary of Labor, shall promulgate regulations to set limits on the mandatory fees charged by exchange visitor program sponsors, host entities, and their foreign entities to the exchange visitor. In promulgating such regulations, the Secretary of State shall conduct public meetings with exchange visitor program sponsors, organizations representing exchange visitors, and members of the public with expertise in public diplomacy, educational and cultural exchange, labor markets, labor relations, migration, civil rights, human rights, and prohibiting human trafficking. The Secretary of State may, in the Secretary's discretion, consider factors including what costs are within the control of sponsors, differences among programs and countries, level and amount of educational and cultural activities included, and services rendered.
Inserted: (b) Maximum Fees.--It shall be unlawful for any person to charge a fee higher than the maximum allowable fee as established by regulations promulgated under subsection (a), and any person who charges a higher fee shall be liable under this subtitle. If a fee higher than the maximum is charged by a sponsor or foreign entity, the sponsor shall be liable. If a fee higher than the maximum allowable is charged by the host entity or a host entity's agent, the host entity shall be liable.
Inserted: (c) Update of Maximum Fees.--The Secretary of State shall update the maximum allowable fees described in subsection (a) in response to changing economic conditions and other factors as needed.
Inserted: (d) Fee Transparency.--The Secretary of State shall amend its regulations at part 62 of title 22, Code of Federal Regulations, to require exchange visitor program sponsors to--
Inserted: (1) provide the Department of State annually with an itemized list of fees charged to exchange visitor program participants including by their foreign entities, subcontractors, or foreign entity's agents; and
Inserted: (2) require a 3-party document signed by the exchange visitor, foreign entity, and sponsor that outlines a basic level fee structure and itemizes mandatory and optional fees.
Inserted: SEC. 3905. ANNUAL NOTIFICATION.
Inserted: (a) Annual Exchange Visitor Program Sponsor Notification.--
Inserted: (1) In general.--Subject to paragraph (2), prior to engaging in any exchange visitor program activity, any person who seeks to be an exchange visitor program sponsor shall be designated by the Secretary of State pursuant to regulations that the Secretary of State has prescribed or shall prescribe after the date of the enactment of this Act.
Inserted: (2) Notification.--Each exchange visitor program sponsor shall notify the Secretary of State, not less frequently than once every year, of the identity of any third party, agent, or exchange visitor program sponsor employee involved in any exchange visitor program recruitment activity for, or on behalf of, the exchange visitor program sponsor.
Inserted: (3) Personal jurisdiction over foreign entities.--As a condition of initial and continued registration, each program sponsor shall obtain a written and signed agreement from any foreign entity. In that agreement, the foreign entity shall stipulate and agree, as a condition for receiving any payment or compensation for performing any work or service for the program sponsor, that the laws of the United States shall govern any and all disputes among and between the parties or the United States, including any enforcement actions, and that any dispute or enforcement action shall be brought in the United States District Court for the District of Columbia. The agreement shall be in such form and contain such other information as the Secretary of State shall prescribe.
Inserted: (4) Noncompliance notification.--An host entity shall notify the Secretary of State upon gaining knowledge of noncompliance with this subtitle by an exchange visitor program sponsor. An exchange visitor program sponsor shall notify the Secretary of State upon gaining knowledge of noncompliance with this subtitle by a host entity or foreign entity.
Inserted: (b) Regulations.--Not later than 180 days after the date of the enactment of this Act, the Secretary of State shall amend its regulations at part 62 of title 22, Code of Federal Regulations, regarding the annual exchange visitor program sponsor notification.
Inserted: (c) Refusal to Issue and Revocation of Designation.--The Secretary of State shall amend its regulations at part 62 of title 22, Code of Federal Regulations, to include the following bases for refusing to issue or renew, or for revoking a sponsor's designation for a period of not greater than 5 years:
Inserted: (1) The applicant for, or holder of, the designation has knowingly made a material misrepresentation in the application for such designation.
Inserted: (2) The applicant for, or holder of, the designation has committed any felony under State or Federal law or any crime involving fraud, robbery, bribery, extortion, embezzlement, grand larceny, burglary, arson, violation of narcotics laws, murder, rape, trafficking in persons, assault with intent to kill, assault which inflicts grievous bodily injury, prostitution, peonage, or smuggling or harboring individuals who have entered the United States illegally.
Inserted: (3) The applicant for, or holder of, the designation has committed any crime relating to gambling, or to the sale, distribution, or possession of alcoholic beverages, in connection with or incident to any exchange visitor recruitment activities.
Inserted: (4) Such other criteria as the Secretary of State may, in the Secretary's discretion, establish.
Inserted: SEC. 3906. BONDING REQUIREMENT.
Inserted: (a) In General.--The Secretary of State may assess a bond amount sufficient to ensure the ability of a sponsor to discharge its responsibilities and to ensure protection of exchange visitors, including wages or stipends. In requiring a sponsor to post the bond, the Secretary of State shall take into account the degree to which the sponsor's assets can be reached by United States courts.
Inserted: (b) Regulations.--The Secretary of State, by regulation, shall establish the conditions under which the bond amount is determined, paid, and forfeited, which shall include the sponsor's history of compliance.
Inserted: (c) Relationship to Other Remedies.--The bond requirements and forfeiture of the bond under this section shall be in addition to or, pursuant to court order, in conjunction with, other remedies under 3910 or any other provision of law.
Inserted: SEC. 3907. MAINTENANCE OF LISTS.
Inserted: (a) In General.--The Secretary of State shall work with the Secretary of Homeland Security to ensure that the information described in paragraphs (1) through (4) of subsection (b) is included on the foreign entity list kept and updated pursuant to section 3607 and shall share that list with the Department of Labor.
Inserted: (b) Information.--Not later than 1 year after the date of the enactment of this Act, each sponsor shall compile and share with the Secretary of State on a regular basis a list that includes the following information:
Inserted: (1) The countries from which the sponsor recruits.
Inserted: (2) The host entities for whom the sponsor recruits.
Inserted: (3) The occupations for which the sponsor recruits.
Inserted: (4) The States where recruited exchange visitors are employed.
Inserted: (c) Limitation on Public Availability.--Neither the Secretary of State nor the Secretary of Homeland Security shall make the information described in paragraphs (1) through (4) of subsection (b) public as part of the list described in section 3607.
Inserted: SEC. 3908. AMENDMENT TO THE IMMIGRATION AND NATIONALITY ACT.
Inserted: Section 214 (8 U.S.C. 1184), as amended by title IV, is further amended by adding at the end the following:
Inserted: "(bb) A visa shall not be issued under section 101(a)(15) until the consular officer--
Inserted: "(1) has confirmed that the applicant has received, read, and understood the information and resources pamphlet required by section 202 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1375b); and
Inserted: "(2) has reviewed and made a part of the visa file the exchange visitor program sponsor disclosures required by section 3902 of the Border Security, Economic Opportunity, and Immigration Modernization Act, including whether the exchange visitor program sponsor is designated pursuant to that section.".
Inserted: SEC. 3909. RESPONSIBILITIES OF SECRETARY OF STATE.
Inserted: (a) In General.--The Secretary of State shall ensure that each United States diplomatic mission has a person who is responsible for receiving information from any exchange visitor who has been subject to violations of this subtitle.
Inserted: (b) Provision of Information.--The responsible person referred to in subsection (a) shall ensure that the information received is provided to the Department of State. The Department of State may share that information as necessary with the Department of Justice, the Department of Labor, and any other relevant Federal agency.
Inserted: (c) Mechanisms.--The Attorney General and the Secretary of State shall ensure that there is a mechanism for any actions that need to be taken in response to information received under subsection (a).
Inserted: (d) Assistance From Foreign Government.--The person designated for receiving information pursuant to subsection (a) is strongly encouraged to coordinate with governments and civil society organizations in the countries of origin to ensure the exchange visitor receives additional support.
Inserted: (e) Maintenance and Availability of Information.--The Secretary of State shall ensure that consulates coordinate with the Department of State to have access to information regarding the identities of sponsors and the foreign entities with whom sponsors contract for exchange visitor program recruitment activities. The Secretary of State shall ensure information on the identity of sponsors is publicly available in written form on the Department of State website, and information on the identity of foreign entities in each individual country is publicly available on the websites of United States embassies in each of those countries.
Inserted: SEC. 3910. ENFORCEMENT PROVISIONS.
Inserted: (a) Investigations.--The Secretary of State shall undertake compliance actions and sanctions against exchange visitor program sponsors in accordance with part 62 of title 22, Code of Federal Regulations.
Inserted: (b) Representation.--Except as provided in section 518(a) of title 28, United States Code, the Attorney General may appear for and represent the Secretary in any civil litigation brought under this paragraph. All such litigation shall be subject to the direction and control of the Attorney General. Exchange visitor sponsors shall be allowed a reasonable period of inquiry and response before civil litigation is initiated.
Inserted: (c) Enforcement.--The Secretary of State or an exchange visitor who is subject to any violation of this subtitle may bring a civil action against an exchange visitor program sponsor, foreign entity, or host entity in a court of competent jurisdiction and recover appropriate relief, including injunctive relief, damages, reasonable attorneys' fees and costs, and any other remedy that would effectuate the purposes of this subtitle. Any action must be filed within 3 years after the date on which the exchange visitor became aware of the violation, but under no circumstances more than 5 years after the date on which the violation occurred.
Inserted: (d) Actions by the Secretary of State or an Exchange Visitor.--If the court finds in a civil action filed under this section that the defendant has violated any provision of this subtitle (or any regulation issued pursuant to this subtitle), the court may award damages, up to and including an amount equal to the amount of actual damages, and statutory damages of up to $1,000 per plaintiff per violation, or other equitable relief, except that with respect to statutory damages--
Inserted: (1) multiple infractions of a single provision of this subtitle (or of a regulation under this subtitle) shall constitute only 1 violation for purposes of section 3902(a) to determine the amount of statutory damages due a plaintiff; and
Inserted: (2) if such complaint is certified as a class action the court may award--
Inserted: (A) damages up to an amount equal to the amount of actual damages; and
Inserted: (B) statutory damages of not more than the lesser of up to $1,000 per class member per violation, or up to $500,000;
Inserted: (C) other equitable relief;
Inserted: (D) reasonable attorneys' fees and costs; and
Inserted: (E) such other and further relief, including declaratory and injunctive relief, as necessary to effectuate the purposes of this subtitle.
Inserted: (e) Bond.--To satisfy the damages, fees, and costs found owing under this section, as much of the bond held pursuant to section 3906 shall be released as necessary.
Inserted: (f) Appeal.--Any civil action brought under this section shall be subject to appeal as provided in chapter 83 of title 28, United States Code.
Inserted: (g) Safe Harbor.--A host entity shall not have any liability under this section for the actions or omissions of an exchange visitor program sponsor that has a valid designation with the State Department pursuant to section 3905, unless and to the extent that the host entity has engaged in conduct that violates this subtitle.
Inserted: (h) Liability for Foreign Entities.--Exchange visitor program sponsors shall be liable for violations of this subtitle by any foreign employees, agents, foreign entities, or subcontractees of any level in relation to the exchange visitor program recruitment activities of the foreign employees, agents, foreign entities, or subcontractees to the same extent as if the exchange visitor program sponsor had committed the violation, unless the exchange visitor program sponsor--
Inserted: (1) uses reasonable procedures to protect against violations of this subtitle by foreign employees, agents, foreign entities, or subcontractees (including contractually forbidding in writing any foreign employees, agents, foreign entities, or subcontractees from seeking or receiving prohibited fees from workers);
Inserted: (2) does not act with reckless disregard of the fact that foreign employees, agents, foreign entities, or subcontractees have violated any provision of this subtitle; and
Inserted: (3) timely reports any potential violations to the Secretary of State.
Inserted: (i) Waiver of Rights.--Agreements between exchange visitors with sponsors, foreign entities, or host entities purporting to waive or to modify their rights under this subtitle shall be void as contrary to public policy.
Inserted: (j) Retaliation.--No person shall intimidate, threaten, restrain, coerce, discharge, or in any other manner discriminate or retaliate against any exchange visitor or his or her family members (including a former exchange visitor or an applicant for employment) because such exchange visitor disclosed information to any person that the exchange visitor reasonably believes evidences a violation of this section (or any rule or regulation pertaining to this section), including speaking with a worker organization, seeking legal assistance of counsel, or cooperating with an investigation or other proceeding concerning compliance with this section (or any regulation pertaining to this section).
Inserted: (k) Prohibition on Retaliation.--It shall be unlawful for an exchange visitor program sponsor or foreign entity to terminate or remove from the exchange visitor program, ban from the program, adversely annotate an exchange visitor's SEVIS (as defined in section 4902) record, fire, demote, take other adverse employment action, or evict, or to threaten to take any of such actions against an exchange visitor in retaliation for the act of complaining about program conditions, including housing and job placements, wages, hours, and general treatment, or for disclosing retaliation by an exchange visitor sponsor, exchange visitor foreign entity, or host entity against any exchange visitor.
Inserted: (l) Presence During Pendency of Actions.--If other immigration relief is not available to the exchange visitor, the Secretary of Homeland Security may permit, only on the basis of proof, the exchange visitor to remain lawfully in the United States for the time sufficient to allow the exchange visitor to fully and effectively participate in all legal proceedings related to any action taken pursuant to this section.
Inserted: (m) Access to Legal Services Corporation.--Notwithstanding any other provision of law, the Legal Services Corporation and recipients of its funding may provide legal assistance on behalf of any alien with respect to any provision of this subtitle.
Inserted: (n) Host Entity Violations.--The Secretary, in consultation with the Secretary of Labor, shall maintain a list of host entities against whom there has been a complaint substantiated by the Department of State for significant program violations. Information from that list shall be made available to sponsors upon request.
Inserted: SEC. 3911. AUDITS AND TRANSPARENCY.
Inserted: (a) Compliance Audits.--
Inserted: (1) In general.--The Secretary of State shall by regulation require audit reports to be filed by exchange visitor program sponsors operating under the following specific program categories, as described under subpart B of part 62 of title 22, Code of Federal Regulations, and any successor regulations:
Inserted: (A) Summer work travel.
Inserted: (B) Trainees and interns.
Inserted: (C) Camp counselors.
Inserted: (D) Au pairs.
Inserted: (E) Teachers.
Inserted: (2) Audit reports.--Audit reports shall be filed with the Department of State and be conducted by a certified public accountant, pursuant to a format designated by the Secretary of State, attesting to the sponsor's compliance with the regulatory and reporting requirements set forth in part 62 of title 22, Code of Federal Regulations. The report shall be conducted at the expense of the sponsor and no more frequently than on a biannual basis.
Inserted: (b) Annual Report.--Not later than 1 year after the date of the enactment of this Act, and annually thereafter, the Secretary of State shall submit to Congress a report on the exchange visitor program, which shall detail for each specific program category--
Inserted: (1) summary data on the number of exchange visitors and countries participating in that category;
Inserted: (2) public diplomacy outcomes; and
Inserted: (3) recent sanctions imposed by the Department of State.
Original wording
At the end of title III, add the following:
Read automatically from the Congressional Record. Check the original before relying on it.
As printed
SA 1527. Mr. KING (for himself and Mr. Johnson of Wisconsin) submitted an amendment intended to be proposed by him to the bill S. 744, to provide for comprehensive immigration reform and for other purposes; which was ordered to lie on the table; as follows:
On page 1505, strike lines 11 through 13, and insert the following:
(1) Worker.--The term “worker” means an individual who is the subject of foreign labor contracting activity and does not include an exchange visitor (as defined in section 62.2 of title 22, Code of Federal Regulations, or any similar successor regulation).
At the end of title III, add the following:
Subtitle I--Providing Tools to Exchange Visitors and Exchange Visitor
Sponsors to Protect Exchange Visitor Program Participants and Prevent Trafficking SEC. 3901. DEFINITIONS.
(a) In General.--Except as otherwise provided by this subtitle, the terms used in this subtitle shall have the same meanings, respectively, as are given those terms in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203), except that the term “employer” shall also include a prospective employer seeking to hire exchange visitors with which the sponsor has a contractual relationship.
(b) Other Definitions.--
(1) Exchange visitor.--The term “exchange visitor” means a foreign national who is inquiring about or applying to participate in the exchange visitor program or who has successfully applied and has completed or is completing an exchange visitor programs not funded by the United States Government as governed by sections 2.22, 62.24, 62.30, 62.31, and 62.32 of title 22, Code of Federal Regulations.
(2) Exchange visitor program.--The term “exchange visitor program” means the international exchange program administered by the Department of State to implement the Mutual Educational and Cultural Exchange Act of 1961 (22 U.S.C. 2451 et seq.), by means of educational and cultural programs.
(3) Exchange visitor program recruitment activities.--The term “exchange visitor program recruitment activities” means activities related to recruiting, soliciting, transferring, providing, obtaining, or facilitating participation of individuals who reside outside the United States in an exchange visitor program including when such activity occurs wholly outside the United States.
(4) Exchange visitor program sponsor; sponsor.--The term “exchange visitor program sponsor” or “sponsor” means a legal entity designated by the Secretary of State, in the Secretary's discretion, to conduct an exchange visitor program governed by sections 62.22, 62.24, 62.30, 62.31, and 62.32 of title 22, Code of Federal Regulations).
(5) Foreign entity.--The term “foreign entity” means a person contracted by a sponsor to engage in exchange visitor program recruitment activities on the sponsor's behalf and any subcontractors thereof.
(6) Host entity.--The term “host entity” means “host organization”, “primary or secondary accredited educational institution”, “camp facility”, “host family”, or “employer/host employer” as used in sections 62.22, 62.24, 62.30, 62.31, and 62.32 of title 22, Code of Federal Regulations, respectively.
(7) Regulations.--Any reference to any provision of regulations shall include any successor provision addressing the same subject matter.
SEC. 3902. DISCLOSURE.
(a) Requirement for Disclosure at Time of Exchange Visitor Program Recruitment Activity.--Any person who engages in exchange visitor program recruitment activity shall develop certain information, previously approved by and on file with the exchange visitor program sponsor, to be disclosed in writing in English to the exchange visitor before the exchange visitor pays fees described in section 3904, other than refundable fees and a reasonable non-refundable deposit, or otherwise detrimentally relies on information provided by an exchange program sponsor or foreign entity. This information shall be made available to the Secretary of State, or an exchange visitor requesting his or her own file, within 5 business days of request, consistent with program regulations in part 62 of title 22, Code of Federal Regulations. Not later than 18 months after the date of the enactment of this Act, the Secretary of State shall, in consultation with the Secretary of Labor, amend such regulations to reflect the information to be disclosed, including the following:
(1) The identity and address of the exchange visitor program sponsor, host entity, and any foreign entity with authority to charge fees and costs under section 3904.
(2) All assurances and terms and conditions of employment, from the prospective host entity of the exchange visitor, including place and period of employment, job duties, number of work hours, wages and compensation, and any deductions from wages and
benefits, including deductions for housing and transportation. Nothing in this paragraph shall be construed to permit any charge, deduction, or expense prohibited by this or any other law.
(3) A copy of the prospective agreement between the exchange visitor program sponsor, exchange visitor, and the host entity.
(4) Information regarding the terms and conditions of the nonimmigrant status under which the exchange visitor is to be admitted, and the period of stay in the United States allowed for such nonimmigrant status.
(5) A copy of the fee disclosure form as described in section 3904(d) listing the mandatory and optional costs or expenses to be charged to the exchange visitor.
(6) The existence of any labor organizing effort, collective bargaining agreement, labor contract, strike, lockout, or other labor dispute at the host entity.
(7) Whether and the extent to which exchange visitors will be compensated through workers' compensation, private insurance, or otherwise for injuries or death, including work-related injuries and death, during the period of employment.
(8) A description of the sanctions the exchange visitor program sponsor is currently subject to, if any, as imposed by the Department of State.
(9) A statement in a form specified by the Secretary of State--
(A) stating that in accordance with guidelines and regulations promulgated by the Secretary --
(i) the costs and fees charged by the exchange program sponsor, foreign entity, and host entity do not exceed those permitted by section 3904 and are legal under the laws of the United States and the home country of the exchange visitor; and
(ii) the exchange visitor program sponsor, foreign entity, or host entity may bear costs or fees not provided for in section 3904, but that fees under that section cannot be passed along to the exchange visitor.
(10) Any education or training to be provided or required, other than education or training provided in accordance with section 62.10 (b) and (c) of title 22, Code of Federal Regulations, as “pre-arrival information” or “orientation” and additional orientation and training requirements as described in each relevant category under sections 62.22, 62.24, 62.30, 62.31, and 62.32 of that title.
(11) A clear statement explaining that--
(A) except as provided in subparagraph (B), no additional significant requirements or significant changes may be made to the original contract signed with a handwritten, electronic, or digital pin code signature by the exchange visitor without at least 24 hours to consider such changes and the specific consent of the exchange visitor, obtained voluntarily and without threat of penalty; and
(B) changes may be made to the conditions of employment contained in the original contract even if the exchange visitor has not had 24 hours to consider such changes, provided the exchange visitor has specifically consented to the changes, voluntarily and without threat of penalty, and such changes must be implemented without giving the exchange visitor 24 hours to consider them in order to protect the health or welfare of the exchange visitor.
(b) Requirement for Rules.--The Secretary of State shall define by rule or guidance what constitutes “refundable fees” and a “reasonable non-refundable deposit” for the purpose subsection (a).
(c) Relationship to Labor and Employment Laws.--Nothing in the disclosure required by subsection (a) shall constitute a legal conclusion as to the exchange visitor's status or rights under the labor and employment laws.
(d) Prohibition on False and Misleading Information and Certain Fees.--No exchange visitor program sponsor, foreign entity, or host entity who engages in any exchange visitor program activity shall knowingly provide materially false or misleading information to any exchange visitor concerning any matter required to be disclosed under subsection (a). Charging fees for services not provided or assessing fees that exceed the amounts established by the Secretary of State pursuant to section 3904 is a violation of this section. The disclosure required by this section is a document concerning the proper administration of a matter within the jurisdiction of a department or agency of the United States for the purposes of section 1519 of title 18, United States Code, and other provisions of such title.
(e) Public Availability of Information.--The Secretary of State shall amend its regulations at part 62 of title 22, Code of Federal Regulations, to require sponsors to make publicly available, including on their websites and in recruiting materials, information regarding fees, costs, and services associated with their exchange visitor programs, including foreign entity names and contact points, and other factors relevant to exchange visitors' choice of sponsor or foreign entity.
SEC. 3903. PROHIBITION ON DISCRIMINATION.
(a) In General.--It shall be unlawful for an exchange visitor program sponsor, foreign entity, or host entity to fail or refuse to select, hire, discharge, intimidate, threaten, restrain, coerce, or blacklist any individual or otherwise discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, creed, sex, national origin, religion, age, or disability.
(b) Determinations of Discrimination.--For the purposes of determining the existence of unlawful discrimination under subsection (a)--
(1) in the case of a claim of discrimination based on race, color, sex, national origin, or religion, the same legal standards shall apply as are applicable under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.);
(2) in the case of a claim of discrimination based on age, the same legal standards shall apply as are applicable under the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.); and
(3) in the case of a claim of discrimination based on disability, the same legal standards shall apply as are applicable under title I of the Americans With Disabilities Act of 1990 as amended (42 U.S.C. 12111 et seq.).
SEC. 3904. FEES.
(a) In General.--Not later than 2 years after the date of the enactment of this Act, the Secretary of State, in consultation with the Secretary of Labor, shall promulgate regulations to set limits on the mandatory fees charged by exchange visitor program sponsors, host entities, and their foreign entities to the exchange visitor. In promulgating such regulations, the Secretary of State shall conduct public meetings with exchange visitor program sponsors, organizations representing exchange visitors, and members of the public with expertise in public diplomacy, educational and cultural exchange, labor markets, labor relations, migration, civil rights, human rights, and prohibiting human trafficking. The Secretary of State may, in the Secretary's discretion, consider factors including what costs are within the control of sponsors, differences among programs and countries, level and amount of educational and cultural activities included, and services rendered.
(b) Maximum Fees.--It shall be unlawful for any person to charge a fee higher than the maximum allowable fee as established by regulations promulgated under subsection (a), and any person who charges a higher fee shall be liable under this subtitle. If a fee higher than the maximum is charged by a sponsor or foreign entity, the sponsor shall be liable. If a fee higher than the maximum allowable is charged by the host entity or a host entity's agent, the host entity shall be liable.
(c) Update of Maximum Fees.--The Secretary of State shall update the maximum allowable fees described in subsection (a) in response to changing economic conditions and other factors as needed.
(d) Fee Transparency.--The Secretary of State shall amend its regulations at part 62 of title 22, Code of Federal Regulations, to require exchange visitor program sponsors to--
(1) provide the Department of State annually with an itemized list of fees charged to exchange visitor program participants including by their foreign entities, subcontractors, or foreign entity's agents; and
(2) require a 3-party document signed by the exchange visitor, foreign entity, and sponsor that outlines a basic level fee structure and itemizes mandatory and optional fees.
SEC. 3905. ANNUAL NOTIFICATION.
(a) Annual Exchange Visitor Program Sponsor Notification.--
(1) In general.--Subject to paragraph (2), prior to engaging in any exchange visitor program activity, any person who seeks to be an exchange visitor program sponsor shall be designated by the Secretary of State pursuant to regulations that the Secretary of State has prescribed or shall prescribe after the date of the enactment of this Act.
(2) Notification.--Each exchange visitor program sponsor shall notify the Secretary of State, not less frequently than once every year, of the identity of any third party, agent, or exchange visitor program sponsor employee involved in any exchange visitor program recruitment activity for, or on behalf of, the exchange visitor program sponsor.
(3) Personal jurisdiction over foreign entities.--As a condition of initial and continued registration, each program sponsor shall obtain a written and signed agreement from any foreign entity. In that agreement, the foreign entity shall stipulate and agree, as a condition for receiving any payment or compensation for performing any work or service for the program sponsor, that the laws of the United States shall govern any and all disputes among and between the parties or the United States, including any enforcement actions, and that any dispute or enforcement action shall be brought in the United States District Court for the District of Columbia. The agreement shall be in such form and contain such other information as the Secretary of State shall prescribe.
(4) Noncompliance notification.--An host entity shall notify the Secretary of State upon gaining knowledge of noncompliance with this subtitle by an exchange visitor program sponsor. An exchange visitor program sponsor shall notify the Secretary of State upon gaining knowledge of noncompliance with this subtitle by a host entity or foreign entity.
(b) Regulations.--Not later than 180 days after the date of the enactment of this Act, the Secretary of State shall amend its regulations at part 62 of title 22, Code of Federal Regulations, regarding the annual exchange visitor program sponsor notification.
(c) Refusal to Issue and Revocation of Designation.--The Secretary of State shall amend its regulations at part 62 of title 22, Code of Federal Regulations, to include the following bases for refusing to issue or renew, or for revoking a sponsor's designation for a period of not greater than 5 years:
(1) The applicant for, or holder of, the designation has knowingly made a material misrepresentation in the application for such designation.
(2) The applicant for, or holder of, the designation has committed any felony under State or Federal law or any crime involving fraud, robbery, bribery, extortion, embezzlement, grand larceny, burglary, arson, violation of narcotics laws, murder, rape, trafficking in persons, assault with intent to kill, assault which inflicts grievous bodily injury, prostitution, peonage, or smuggling or harboring individuals who have entered the United States illegally.
(3) The applicant for, or holder of, the designation has committed any crime relating to gambling, or to the sale, distribution, or possession of alcoholic beverages, in connection with or incident to any exchange visitor recruitment activities.
(4) Such other criteria as the Secretary of State may, in the Secretary's discretion, establish.
SEC. 3906. BONDING REQUIREMENT.
(a) In General.--The Secretary of State may assess a bond amount sufficient to ensure the ability of a sponsor to discharge its responsibilities and to ensure protection of exchange visitors, including wages or stipends. In requiring a sponsor to post the bond, the Secretary of State shall take into account the degree to which the sponsor's assets can be reached by United States courts.
(b) Regulations.--The Secretary of State, by regulation, shall establish the conditions under which the bond amount is determined, paid, and forfeited, which shall include the sponsor's history of compliance.
(c) Relationship to Other Remedies.--The bond requirements and forfeiture of the bond under this section shall be in addition to or, pursuant to court order, in conjunction with, other remedies under 3910 or any other provision of law.
SEC. 3907. MAINTENANCE OF LISTS.
(a) In General.--The Secretary of State shall work with the Secretary of Homeland Security to ensure that the information described in paragraphs (1) through (4) of subsection (b) is included on the foreign entity list kept and updated pursuant to section 3607 and shall share that list with the Department of Labor.
(b) Information.--Not later than 1 year after the date of the enactment of this Act, each sponsor shall compile and share with the Secretary of State on a regular basis a list that includes the following information:
(1) The countries from which the sponsor recruits.
(2) The host entities for whom the sponsor recruits.
(3) The occupations for which the sponsor recruits.
(4) The States where recruited exchange visitors are employed.
(c) Limitation on Public Availability.--Neither the Secretary of State nor the Secretary of Homeland Security shall make the information described in paragraphs (1) through (4) of subsection (b) public as part of the list described in section 3607.
SEC. 3908. AMENDMENT TO THE IMMIGRATION AND NATIONALITY ACT.
Section 214 (8 U.S.C. 1184), as amended by title IV, is further amended by adding at the end the following:
“(bb) A visa shall not be issued under section 101(a)(15) until the consular officer--
“(1) has confirmed that the applicant has received, read, and understood the information and resources pamphlet required by section 202 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1375b); and
“(2) has reviewed and made a part of the visa file the exchange visitor program sponsor disclosures required by section 3902 of the Border Security, Economic Opportunity, and Immigration Modernization Act, including whether the exchange visitor program sponsor is designated pursuant to that section.”.
SEC. 3909. RESPONSIBILITIES OF SECRETARY OF STATE.
(a) In General.--The Secretary of State shall ensure that each United States diplomatic mission has a person who is responsible for receiving information from any exchange visitor who has been subject to violations of this subtitle.
(b) Provision of Information.--The responsible person referred to in subsection (a) shall ensure that the information received is provided to the Department of State. The Department of State may share that information as necessary with the Department of Justice, the Department of Labor, and any other relevant Federal agency.
(c) Mechanisms.--The Attorney General and the Secretary of State shall ensure that there is a mechanism for any actions that need to be taken in response to information received under subsection (a).
(d) Assistance From Foreign Government.--The person designated for receiving information pursuant to subsection (a) is strongly encouraged to coordinate with governments and civil society organizations in the countries of origin to ensure the exchange visitor receives additional support.
(e) Maintenance and Availability of Information.--The Secretary of State shall ensure that consulates coordinate with the Department of State to have access to information regarding the identities of sponsors and the foreign entities with whom sponsors contract for exchange visitor program recruitment activities. The Secretary of State shall ensure information on the identity of sponsors is publicly available in written form on the Department of State website, and information on the identity of foreign entities in each individual country is publicly available on the websites of United States embassies in each of those countries.
SEC. 3910. ENFORCEMENT PROVISIONS.
(a) Investigations.--The Secretary of State shall undertake compliance actions and sanctions against exchange visitor program sponsors in accordance with part 62 of title 22, Code of Federal Regulations.
(b) Representation.--Except as provided in section 518(a) of title 28, United States Code, the Attorney General may appear for and represent the Secretary in any civil litigation brought under this paragraph. All such litigation shall be subject to the direction and control of the Attorney General. Exchange visitor sponsors shall be allowed a reasonable period of inquiry and response before civil litigation is initiated.
(c) Enforcement.--The Secretary of State or an exchange visitor who is subject to any violation of this subtitle may bring a civil action against an exchange visitor program sponsor, foreign entity, or host entity in a court of competent jurisdiction and recover appropriate relief, including injunctive relief, damages, reasonable attorneys' fees and costs, and any other remedy that would effectuate the purposes of this subtitle. Any action must be filed within 3 years after the date on which the exchange visitor became aware of the violation, but under no circumstances more than 5 years after the date on which the violation occurred.
(d) Actions by the Secretary of State or an Exchange Visitor.--If the court finds in a civil action filed under this section that the defendant has violated any provision of this subtitle (or any regulation issued pursuant to this subtitle), the court may award damages, up to and including an amount equal to the amount of actual damages, and statutory damages of up to $1,000 per plaintiff per violation, or other equitable relief, except that with respect to statutory damages--
(1) multiple infractions of a single provision of this subtitle (or of a regulation under this subtitle) shall constitute only 1 violation for purposes of section 3902(a) to determine the amount of statutory damages due a plaintiff; and
(2) if such complaint is certified as a class action the court may award--
(A) damages up to an amount equal to the amount of actual damages; and
(B) statutory damages of not more than the lesser of up to $1,000 per class member per violation, or up to $500,000;
(C) other equitable relief;
(D) reasonable attorneys' fees and costs; and
(E) such other and further relief, including declaratory and injunctive relief, as necessary to effectuate the purposes of this subtitle.
(e) Bond.--To satisfy the damages, fees, and costs found owing under this section, as much of the bond held pursuant to section 3906 shall be released as necessary.
(f) Appeal.--Any civil action brought under this section shall be subject to appeal as provided in chapter 83 of title 28, United States Code.
(g) Safe Harbor.--A host entity shall not have any liability under this section for the actions or omissions of an exchange visitor program sponsor that has a valid designation with the State Department pursuant to section 3905, unless and to the extent that the host entity has engaged in conduct that violates this subtitle.
(h) Liability for Foreign Entities.--Exchange visitor program sponsors shall be liable for violations of this subtitle by any foreign employees, agents, foreign entities, or subcontractees of any level in relation to the exchange visitor program recruitment activities of the foreign employees, agents, foreign entities, or subcontractees to the same extent as if the exchange visitor program sponsor had committed the violation, unless the exchange visitor program sponsor--
(1) uses reasonable procedures to protect against violations of this subtitle by foreign employees, agents, foreign entities, or subcontractees (including contractually forbidding in writing any foreign employees, agents, foreign entities, or subcontractees from seeking or receiving prohibited fees from workers);
(2) does not act with reckless disregard of the fact that foreign employees, agents, foreign entities, or subcontractees have violated any provision of this subtitle; and
(3) timely reports any potential violations to the Secretary of State.
(i) Waiver of Rights.--Agreements between exchange visitors with sponsors, foreign entities, or host entities purporting to waive or to modify their rights under this subtitle shall be void as contrary to public policy.
(j) Retaliation.--No person shall intimidate, threaten, restrain, coerce, discharge, or in any other manner discriminate or retaliate against any exchange visitor or his or her family members (including a former exchange visitor or an applicant for employment) because such exchange visitor disclosed information to any person that the exchange visitor reasonably believes evidences a violation of this section (or any rule or regulation pertaining to this section), including speaking with a worker organization, seeking legal assistance of counsel, or cooperating with an investigation or other proceeding concerning compliance with this section (or any regulation pertaining to this section).
(k) Prohibition on Retaliation.--It shall be unlawful for an exchange visitor program sponsor or foreign entity to terminate or remove from the exchange visitor program, ban from the program, adversely annotate an exchange visitor's SEVIS (as defined in section 4902) record, fire, demote, take other adverse employment action, or evict, or to threaten to take any of such actions against an exchange visitor in retaliation for the act of complaining about program conditions, including housing and job placements, wages, hours, and general treatment, or for disclosing retaliation by an exchange visitor sponsor, exchange visitor foreign entity, or host entity against any exchange visitor.
(l) Presence During Pendency of Actions.--If other immigration relief is not available to the exchange visitor, the Secretary of Homeland Security may permit, only on the basis of proof, the exchange visitor to remain lawfully in the United States for the time sufficient to allow the exchange visitor to fully and effectively participate in all legal proceedings related to any action taken pursuant to this section.
(m) Access to Legal Services Corporation.--Notwithstanding any other provision of law, the Legal Services Corporation and recipients of its funding may provide legal assistance on behalf of any alien with respect to any provision of this subtitle.
(n) Host Entity Violations.--The Secretary, in consultation with the Secretary of Labor, shall maintain a list of host entities against whom there has been a complaint substantiated by the Department of State for significant program violations. Information from that list shall be made available to sponsors upon request.
SEC. 3911. AUDITS AND TRANSPARENCY.
(a) Compliance Audits.--
(1) In general.--The Secretary of State shall by regulation require audit reports to be filed by exchange visitor program sponsors operating under the following specific program categories, as described under subpart B of part 62 of title 22, Code of Federal Regulations, and any successor regulations:
(A) Summer work travel.
(B) Trainees and interns.
(C) Camp counselors.
(D) Au pairs.
(E) Teachers.
(2) Audit reports.--Audit reports shall be filed with the Department of State and be conducted by a certified public accountant, pursuant to a format designated by the Secretary of State, attesting to the sponsor's compliance with the regulatory and reporting requirements set forth in part 62 of title 22, Code of Federal Regulations. The report shall be conducted at the expense of the sponsor and no more frequently than on a biannual basis.
(b) Annual Report.--Not later than 1 year after the date of the enactment of this Act, and annually thereafter, the Secretary of State shall submit to Congress a report on the exchange visitor program, which shall detail for each specific program category--
(1) summary data on the number of exchange visitors and countries participating in that category;
(2) public diplomacy outcomes; and
(3) recent sanctions imposed by the Department of State.
Legislative Activity
Stay on top of the latest movement without scrolling through every action
Senate amendment submitted
June 20, 2013