S.Amdt. 1962

SA 1962. Mr. HATCH submitted an amendment intended to be proposed by
him to the bill H.R. 2579, to amend the Internal Revenue Code of 1986
to allow the premium tax credit with respect to unsubsidized COBRA
continuation coverage; which was ordered to lie on the table; as
follows:

At the appropriate place, insert the following:

SEC. __. EMPLOYMENT-BASED NONIMMIGRANT VISAS.

(a) Prohibition on Hoarding H-1B Visas.--
(1) In general.--Section 214(g)(10) of the Immigration and
Nationality Act (8 U.S.C. 1184(g)(10)) is amended--
(A) by inserting ``(A)'' before ``The numerical
limitations''; and
(B) by adding at the end the following:
``(B)(i) Subject to clause (ii), if 5 or more petitions for
H-1B classification subject to the cap established under
paragraph (1)(A) filed by an employer in a fiscal year are
approved, the employer shall pay a penalty for each such
approved petition subject to such cap for which the H-1B
beneficiary works in the United States for less than 25
percent of the first year of the beneficiary's approved work
authorization period for the employer that initially secured
the cap-subject petition approval.
``(ii)(I) Except as provided in subclause (IV), an employer
shall not be subject to the penalties set forth in clause (i)
if the employer withdraws the petition for an H-1B visa--
``(aa) as a result of an unexpected change in the need for
the alien worker;
``(bb) because the alien worker commences employment in the
United States for the employer under another lawful status;
or
``(cc) because the alien worker quit or resigned the
worker's position with the employer.
``(II) An employer withdrawing a petition under subclause
(I) shall file with the Secretary a description of the
circumstances--
``(aa) resulting in the unexpected change in the need for
the alien worker;
``(bb) surrounding the alien worker's commencement of
employment in the United States for the employer withdrawing
the H-1B approval under another lawful status; or
``(cc) surrounding the alien worker's decision to quit or
resign the worker's position with the employer.
``(III) Any unused visas associated with petitions
withdrawn under subclause (I) that were subject to the cap
established under paragraph (1)(A) shall be reassigned to
another H-1B petition filed by another employer either in the
fiscal year in which the withdrawal was received or in the
following fiscal year.
``(IV) Subclause (I) shall not apply to an employer in a
fiscal year if--
``(aa)(AA) at least 20 and not more than 49 petitions filed
by the employer in a fiscal year for H-1B visa classification
subject to the cap established under paragraph (1)(A) are
approved; and
``(BB) the employer withdraws more than 25 percent of the
approved H-1B visa petitions subject to the numerical
limitation under paragraph (1)(A) that were received by the
employer in the fiscal year or the employer withdraws more
than 10 percent of such petitions because the alien worker
resigned his or her employment with the employer before
completing 3 months of employment; or
``(bb)(AA) more than 50 petitions filed by the employer in
a fiscal year for H-1B visa classification subject to the cap
established under paragraph (1)(A) are approved; and
``(BB) the employer withdraws more than 20 percent of the
approved H-1B visa petitions subject to the numerical
limitation under paragraph (1)(A) that were received by the
employer in the fiscal year or the employer withdraws more
than 5 percent of such petitions because the alien worker
resigned his or her employment with the employer before
completing 3 months of employment.
``(iii)(I) The penalty for a violation of clause (i) shall
be--
``(aa) $10,000 for each petition described in such clause
that was filed during the first fiscal year that a penalty is
imposed; and
``(bb) $25,000 for each such petition that was filed after
the first fiscal year that a penalty is imposed.
``(II) A penalty under clause (iii)(I) may not be
reimbursed or indemnified by an H-1B nonimmigrant.
``(III) An employer subject to a penalty under clause (i)
in any 3 fiscal years shall be barred from filing any
petitions for H-1B visas subject to the numerical limitation
under paragraph (1)(A) for the fiscal year immediately
following the third year of noncompliance.
``(iv) Each employer that has 5 or more approved petitions
for H-1B classification subject to the cap established under
paragraph (1)(A) shall submit an annual report to the
Secretary of Homeland Security that identifies--
``(I) the date on which each such H-1B nonimmigrant
approved during the most recent fiscal year began working for
the employer in the United States; and
``(II) the total period of employment in the first year of
available work authorization for each such H-1B nonimmigrant
during the most recent fiscal year.
``(v) Penalties assessed under this subparagraph shall be
deposited into the H-1B Nonimmigrant Petitioner Account
established under section 286(s).''.
(2) Effective date.--Section 214(g)(10)(B) of the
Immigration and Nationality Act, as added by paragraph (1),
shall take effect on the date that is 1 year after the date
of the enactment of this Act.
(3) Reporting requirement.--The Secretary of Homeland
Security shall identify the number of previously approved
visas that--
(A) were the subject of withdrawn petitions under section
214(g)(10)(B)(ii) of the Immigration and Nationality Act, as
added by subsection (b); and
(B) are available for reassignment to another employer.
(b) Dependent H-1B Employers.--Section 212(n) of the
Immigration and Nationality Act (8 U.S.C. 1182(n)) is
amended--
(1) in paragraph (1)(E)--
(A) in clause (i), by striking ``(as defined in paragraph
(4))''; and
(B) by striking clause (ii) and inserting the following:
``(ii) Except as provided in clause (iii), an application
described in this clause is an application filed by--
``(I) an H-1B-dependent employer; or
``(II) an employer that has been found 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)(I) Except as provided in subclause (II), an
application is not described in clause (ii) if the only H-1B
nonimmigrants sought in the application are exempt H-1B
nonimmigrants.
``(II) Subclause (I) shall not apply if the employer has
more than 50 employees and more than 50 percent of the
employer's employees are H-1B nonimmigrants.'';
(2) in paragraph (3)(B)--
(A) by amending clause (i) to read as follows:
``(i) the term `exempt H-1B nonimmigrant' means an H-1B
nonimmigrant who--
``(I) receives wages (including cash bonuses) at an annual
rate equal to not less than the higher of--
``(aa) 105 percent of the occupational mean wage, as
determined based on Bureau of Labor Statistics data for the
geographic area of employment; or
``(bb) $100,000 (or the adjusted amount under clause (iii),
if applicable); or
``(II) has attained a doctoral degree from an institution
of higher education (as defined in section 101(a) of the
Higher Education Act of 1965 (20 U.S.C. 1001(a))) in the
United States in a specialty related to the intended
employment;'';
(B) in clause (ii), by striking the period at the end and
inserting ``; and''; and
(C) by adding at the end the following:
``(iii) the amount under clause (i)(I)(bb) shall be
increased, for the third fiscal year beginning after the date
of the enactment of this clause and for every third fiscal
year thereafter, by the percentage (if any) by which the
Consumer Price Index for the month of June preceding the date
on which such increase takes effect exceeds the Consumer
Price Index for the same month of the third preceding
calendar year.''.
(c) Strengthening the Prevailing Wage System.--Section
212(p)(4) of the Immigration and Nationality Act (8 U.S.C.
1182(p)(4)) is amended by adding at the end the following:
``With regard to the prevailing wage required to be paid
under subsections (a)(5)(A), (n)(1)(A)(i)(II), and
(t)(1)(A)(i)(II) (as added by section 402(b)(2) of Public Law
108-77), the first level of wages shall be not less than the
mean of the lowest 50 percent of the wages surveyed.''.
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