In the nature of a substitute.

SA 939. Mr. LEE submitted an amendment intended to be proposed by him
to the bill H.R. 1044, to amend the Immigration and Nationality Act to
eliminate the per-country numerical limitation for employment-based
immigrants, to increase the per-country

[[Page S5543]]

numerical limitation for family-sponsored immigrants, and for other
purposes; which was referred to the Committee on the Judiciary; as
follows:

Strike all after the enacting clause and insert the
following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Fairness for High-Skilled
Immigrants Act of 2019''.

SEC. 2. NUMERICAL LIMITATION TO ANY SINGLE FOREIGN STATE.

(a) In General.--Section 202(a)(2) of the Immigration and
Nationality Act (8 U.S.C. 1152(a)(2)) is amended to read as
follows:
``(2) Per country levels for family-sponsored immigrants.--
Subject to paragraphs (3) and (4), the total number of
immigrant visas made available to natives of any single
foreign state or dependent area under section 203(a) in any
fiscal year may not exceed 15 percent (in the case of a
single foreign state) or 2 percent (in the case of a
dependent area) of the total number of such visas made
available under such section in that fiscal year.''.
(b) Conforming Amendments.--Section 202 of such Act (8
U.S.C. 1152) is amended--
(1) in subsection (a)--
(A) in paragraph (3), by striking ``both subsections (a)
and (b) of section 203'' and inserting ``section 203(a)'';
and
(B) by striking paragraph (5); and
(2) by amending subsection (e) to read as follows:
``(e) Special Rules for Countries at Ceiling.--If the total
number of immigrant visas made available under section 203(a)
to natives of any single foreign state or dependent area will
exceed the numerical limitation specified in subsection
(a)(2) in any fiscal year, immigrant visas shall be allotted
to such natives under section 203(a) (to the extent
practicable and otherwise consistent with this section and
section 203) in a manner so that, except as provided in
subsection (a)(4), the proportion of the visas made available
under each of paragraphs (1) through (4) of section 203(a) is
equal to the ratio of the total visas made available under
the respective paragraph to the total visas made available
under section 203(a).''.
(c) Country-specific Offset.--Section 2 of the Chinese
Student Protection Act of 1992 (8 U.S.C. 1255 note) is
amended--
(1) in subsection (a), by striking ``(as defined in
subsection (e))'';
(2) by striking subsection (d); and
(3) by redesignating subsection (e) as subsection (d).
(d) Effective Date.--The amendments made by this section
shall take effect as if enacted on September 30, 2019, and
shall apply to fiscal year 2020 and each subsequent fiscal
year.
(e) Transition Rules for Employment-based Immigrants.--
(1) In general.--Subject to paragraphs (2) through (5), and
notwithstanding title II of the Immigration and Nationality
Act (8 U.S.C. 1151 et seq.), the following rules shall apply:
(A) For fiscal year 2020, 15 percent of the immigrant visas
made available under each of paragraphs (2) and (3) of
section 203(b) of such Act (8 U.S.C. 1153(b)) shall be
allotted to immigrants who are natives of a foreign state or
dependent area that is not one of the two states with the
largest aggregate numbers of natives obtaining immigrant
visas under such paragraphs.
(B) For fiscal year 2021, 10 percent of the immigrant visas
made available under each of such paragraphs shall be
allotted to immigrants who are natives of a foreign state or
dependent area that is not one of the two states with the
largest aggregate numbers of natives obtaining immigrant
visas under such paragraphs.
(C) For fiscal year 2022, 10 percent of the immigrant visas
made available under each of such paragraphs shall be
allotted to immigrants who are natives of a foreign state or
dependent area that is not one of the two states with the
largest aggregate numbers of natives obtaining immigrant
visas under such paragraphs.
(2) Per-country levels.--
(A) Reserved visas.--The number of visas reserved under
each of subparagraphs (A) through (C) of paragraph (1) made
available to natives of any single foreign state or dependent
area in the appropriate fiscal year may not exceed 25 percent
(in the case of a single foreign state) or 2 percent (in the
case of a dependent area) of the total number of such visas.
(B) Unreserved visas.--Not more than 85 percent of the
immigrant visas made available under each of paragraphs (2)
and (3) of section 203(b) of the Immigration and Nationality
Act (8 U.S.C. 1153(b)) and not reserved under paragraph (1),
for each of the fiscal years 2020, 2021, and 2022, may be
allotted to immigrants who are natives of any single foreign
state.
(3) Special rule to prevent unused visas.--If, with respect
to fiscal year 2020, 2021, or 2022, the application of
paragraphs (1) and (2) would prevent the total number of
immigrant visas made available under paragraph (2) or (3) of
section 203(b) of the Immigration and Nationality Act (8
U.S.C. 1153(b)) from being issued, such visas may be issued
during the remainder of such fiscal year without regard to
paragraphs (1) and (2).
(4) Transition rule for currently approved beneficiaries.--
(A) In general.--Notwithstanding section 202 of the
Immigration and Nationality Act, as amended by this Act,
immigrant visas under section 203(b) of the Immigration and
Nationality Act (8 U.S.C. 1153(b)) shall be allocated such
that no alien described in subparagraph (B) receives a visa
later than the alien otherwise would have received said visa
had this Act not been enacted.
(B) Alien described.--An alien is described in this
subparagraph if the alien is the beneficiary of a petition
for an immigrant visa under section 203(b) of the Immigration
and Nationality Act (8 U.S.C. 1153(b)) that was approved
prior to the date of enactment of this Act.
(5) Rules for chargeability.--Section 202(b) of such Act (8
U.S.C. 1152(b)) shall apply in determining the foreign state
to which an alien is chargeable for purposes of this
subsection.
(6) Shortage occupations.--
(A) In general.--For each of fiscal years 2020 through
2028, not fewer than 5,000 of the immigrant visas made
available under paragraph (3) of section 203(b) of the
Immigration and Nationality Act (8 U.S.C. 1153(b)) shall be
allotted to immigrants who are--
(i) described in section 656.5(a) of title 20, Code of
Federal Regulations (or a successor regulation); and
(ii) seeking admission to the United States to work in an
occupation described in that section.
(B) Fiscal years 2020, 2021, and 2022.--The visas allotted
under this paragraph for fiscal years 2020, 2021, and 2022
shall be allotted in addition to the visas allotted for such
fiscal years under paragraph (1).

SEC. 3. POSTING AVAILABLE POSITIONS THROUGH THE DEPARTMENT OF
LABOR.

(a) Department of Labor Website.--Section 212(n)(6) of the
Immigration and Nationality Act (8 U.S.C. 1182(n)(6)) is
amended to read as follows:
``(6) For purposes of complying with paragraph (1)(C)--
``(A) Not later than 180 days after the date of the
enactment of the Fairness for High-Skilled Immigrants Act of
2019, the Secretary of Labor shall establish a searchable
internet website for posting positions in accordance with
paragraph (1)(C) that is available to the public without
charge, except that the Secretary may delay the launch of
such website for a single period identified by the Secretary
by notice in the Federal Register that shall not exceed 30
days.
``(B) The Secretary may work with private companies or
nonprofit organizations to develop and operate the Internet
website described in subparagraph (A).
``(C) The Secretary shall promulgate rules, after notice
and a period for comment, to carry out this paragraph.''.
(b) Publication Requirement.--The Secretary of Labor shall
submit to Congress, and publish in the Federal Register and
in other appropriate media, a notice of the date on which the
Internet website required under section 212(n)(6) of the
Immigration and Nationality Act, as established by subsection
(a), will be operational.
(c) Application.--The amendment made by subsection (a)
shall apply to any application filed on or after the date
that is 90 days after the date described in subsection (b).
(d) Internet Posting Requirement.--Section 212(n)(1)(C) of
such Act is amended--
(1) by redesignating clause (ii) as subclause (II);
(2) by striking ``(i) has provided'' and inserting the
following:
``(ii)(I) has provided''; and
(3) by inserting before clause (ii), as redesignated by
paragraph (2), the following:
``(i) except in the case of an employer filing a petition
on behalf of an H-1B nonimmigrant who has already been
counted against the numerical limitations and is not eligible
for a full 6-year period, as described in section 214(g)(7),
or on behalf of an H-1B nonimmigrant authorized to accept
employment under section 214(n), has posted on the internet
website described in paragraph (6), for at least 30 calendar
days, a description of each position for which a nonimmigrant
is sought, that includes--

``(I) the occupational classification, and if different the
employer's job title for the position, in which the
nonimmigrant(s) will be employed;
``(II) the education, training, or experience
qualifications for the position;
``(III) the salary or wage range and employee benefits
offered;
``(IV) the location(s) at which the nonimmigrant(s) will be
employed; and
``(V) the process for applying for a position; and''.

SEC. 4. H-1B EMPLOYER APPLICATION REQUIREMENTS.

(a) Wage Determination Information.--Section 212(n)(1)(D)
of the Immigration and Nationality Act (8 U.S.C.
1182(n)(1)(D)) is amended by inserting ``the prevailing wage
determination methodology used under subparagraph
(A)(i)(II),'' after ``shall contain''.
(b) New Application Requirements.--Section 212(n)(1) of the
Immigration and Nationality Act (8 U.S.C. 1182(n)(1)) is
amended by inserting after subparagraph (G)(ii) the
following:
``(H)(i) The employer, or a person or entity acting on the
employer's behalf, has not advertised any available position
specified in the application in an advertisement that states
or indicates that--
``(I) such position is only available to an individual who
is or will be an H-1B nonimmigrant; or
``(II) an individual who is or will be an H-1B nonimmigrant
shall receive priority or a preference in the hiring process
for such position.

[[Page S5544]]

``(ii) The employer has not primarily recruited individuals
who are or who will be H-1B nonimmigrants to fill such
position.
``(I) If the employer, in a previous period specified by
the Secretary, employed one or more H-1B nonimmigrants, the
employer shall submit to the Secretary the Internal Revenue
Service Form W-2 Wage and Tax Statements filed by the
employer with respect to the H-1B nonimmigrants for such
period.''.
(c) Labor Condition Application Fee.--Section 212(n) of the
Immigration and Nationality Act (8 U.S.C. 1182(n)) is amended
by adding at the end the following:
``(6)(A) The Secretary of Labor shall promulgate a
regulation that requires applicants under this subsection to
pay an administrative fee to cover the average paperwork
processing costs and other administrative costs.
``(B)(i) Fees collected under this paragraph shall be
deposited as offsetting receipts within the general fund of
the Treasury in a separate account, which shall be known as
the `H-1B Administration, Oversight, Investigation, and
Enforcement Account' and shall remain available until
expended.
``(ii) The Secretary of the Treasury shall refund amounts
in such account to the Secretary of Labor for salaries and
related expenses associated with the administration,
oversight, investigation, and enforcement of the H-1B
nonimmigrant visa program.''.
(d) Elimination of B-1 in Lieu of H-1.--Section 214(g) of
the Immigration and Nationality Act (8 U.S.C. 1184(g)) is
amended by adding at the end the following:
``(12)(A) Unless otherwise authorized by law, an alien
normally classifiable under section 101(a)(15)(H)(i) who
seeks admission to the United States to provide services in a
specialty occupation described in paragraph (1) or (3) of
subsection (i) may not be issued a visa or admitted under
section 101(a)(15)(B) for such purpose.
``(B) Nothing in this paragraph may be construed to
authorize the admission of an alien under section
101(a)(15)(B) who is coming to the United States for the
purpose of performing skilled or unskilled labor if such
admission is not otherwise authorized by law.''.

SEC. 5. INVESTIGATION AND DISPOSITION OF COMPLAINTS AGAINST
H-1B EMPLOYERS.

(a) Investigation, Working Conditions, and Penalties.--
Section 212(n)(2)(C) of the Immigration and Nationality Act
(8 U.S.C. 1182(n)(2)(C)) is amended by striking clause (iv)
and inserting the following:
``(iv)(I) An employer that has filed an application under
this subsection violates this clause by taking, failing to
take, or threatening to take or fail to take a personnel
action, or intimidating, threatening, restraining, coercing,
blacklisting, discharging, or discriminating in any other
manner against an employee because the employee--
``(aa) disclosed information that the employee reasonably
believes evidences a violation of this subsection or any rule
or regulation pertaining to this subsection; or
``(bb) cooperated or sought to cooperate with the
requirements under this subsection or any rule or regulation
pertaining to this subsection.
``(II) An employer that violates this clause shall be
liable to the employee harmed by such violation for lost
wages and benefits.
``(III) In this clause, the term `employee' includes--
``(aa) a current employee;
``(bb) a former employee; and
``(cc) an applicant for employment.''.
(b) Information Sharing.--Section 212(n)(2)(H) of the
Immigration and Nationality Act (8 U.S.C. 1182(n)(2)(H)) is
amended to read as follows:
``(H)(i) The Director of U.S. Citizenship and Immigration
Services shall provide the Secretary of Labor with any
information contained in the materials submitted by employers
of H-1B nonimmigrants as part of the petition adjudication
process that indicates that the employer is not complying
with visa program requirements for H-1B nonimmigrants.
``(ii) The Secretary may initiate and conduct an
investigation and hearing under this paragraph after
receiving information of noncompliance under this
subparagraph.''.

SEC. 6. LABOR CONDITION APPLICATIONS.

(a) Application Review Requirements.--Section 212(n)(1) of
the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)) is
amended, in the undesignated matter following subparagraph
(I), as added by section 4(b)--
(1) in the fourth sentence, by inserting ``, and through
the internet website of the Department of Labor, without
charge.'' after ``Washington, D.C.'';
(2) in the fifth sentence, by striking ``only for
completeness'' and inserting ``for completeness, clear
indicators of fraud or misrepresentation of material fact,'';
(3) in the sixth sentence, by striking ``or obviously
inaccurate'' and inserting ``, presents clear indicators of
fraud or misrepresentation of material fact, or is obviously
inaccurate''; and
(4) 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 in
accordance with paragraph (2).''.
(b) Ensuring Prevailing Wages Are for Area of Employment
and Actual Wages Are for Similarly Employed.--Section
212(n)(1)(A) of the Immigration and Nationality Act (8 U.S.C.
1182(n)(1)(A)) is amended--
(1) in clause (i), in the undesignated matter following
subclause (II), by striking ``and'' at the end;
(2) in clause (ii), by striking the period at the end and
inserting ``, and''; and
(3) by adding at the end the following:
``(iii) will ensure that--

``(I) the actual wages or range identified in clause (i)
relate solely to employees having substantially the same
duties and responsibilities as the H-1B nonimmigrant in the
geographical area of intended employment, considering
experience, qualifications, education, job responsibility and
function, specialized knowledge, and other legitimate
business factors, except in a geographical area there are no
such employees, and
``(II) the prevailing wages identified in clause (ii)
reflect the best available information for the geographical
area within normal commuting distance of the actual address
of employment at which the H-1B nonimmigrant is or will be
employed.''.

(c) Procedures for Investigation and Disposition.--Section
212(n)(2)(A) of the Immigration and Nationality Act (8 U.S.C.
1182(n)(2)(A)) is amended--
(1) by striking ``(2)(A) Subject'' and inserting
``(2)(A)(i) Subject'';
(2) by striking the fourth sentence; and
(3) by adding at the end the following:
``(ii)(I) Upon receipt of a complaint under clause (i), the
Secretary may initiate an investigation to determine whether
such a failure or misrepresentation has occurred.
``(II) The Secretary may conduct--
``(aa) surveys of the degree to which employers comply with
the requirements under this subsection; and
``(bb) subject to subclause (IV), annual compliance audits
of any employer that employs H-1B nonimmigrants during the
applicable calendar year.
``(III) Subject to subclause (IV), the Secretary shall--
``(aa) conduct annual compliance audits of each employer
that employs more than 100 full-time equivalent employees who
are employed in the United States if more than 15 percent of
such full-time employees are H-1B nonimmigrants; and
``(bb) make available to the public an executive summary or
report describing the general findings of the audits
conducted under this subclause.
``(IV) In the case of an employer subject to an annual
compliance audit in which there was no finding of a willful
failure to meet a condition under subparagraph (C)(ii), no
further annual compliance audit shall be conducted with
respect to such employer for a period of not less than 4
years, absent evidence of misrepresentation or fraud.''.
(d) Penalties for Violations.--Section 212(n)(2)(C) of the
Immigration and Nationality Act (8 U.S.C. 1182(n)(2)(C)) is
amended -
(1) in clause (i)--
(A) in the matter preceding subclause (I), by striking ``a
condition of paragraph (1)(B), (1)(E), or (1)(F)'' and
inserting ``a condition of paragraph (1)(B), (1)(E), (1)(F),
(1)(H), or 1(I)''; and
(B) in subclause (I), by striking ``$1,000'' and inserting
``$3,000'';
(2) in clause (ii)(I), by striking ``$5,000'' and inserting
``$15,000'';
(3) in clause (iii)(I), by striking ``$35,000'' and
inserting ``$100,000''; and
(4) in clause (vi)(III), by striking ``$1,000'' and
inserting ``$3,000''.
(e) Initiation of Investigations.--Section 212(n)(2)(G) of
the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)(G))
is amended--
(1) in clause (i), by striking ``In the case of an
investigation'' in the second sentence and all that follows
through the period at the end of the clause;
(2) in clause (ii), in the first sentence, 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 under this subsection.'';
(3) in clause (iii), by striking the second sentence;
(4) by striking clauses (iv) and (v);
(5) by redesignating clauses (vi), (vii), and (viii) as
clauses (iv), (v), and (vi), respectively;
(6) in clause (iv), as so redesignated--
(A) by striking``clause (viii)'' and inserting ``clause
(vi)''; and
(B) by striking ``meet a condition described in clause
(ii)'' and inserting ``comply with the requirements under
this subsection'';
(7) by amending clause (v), as so redesignated, to read as
follows:
``(v)(I) The Secretary of Labor shall provide notice to an
employer of the intent to conduct an investigation under
clause (i) or (ii).
``(II) 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.
``(III) 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.
``(IV) A determination by the Secretary under this clause
shall not be subject to judicial review.'';
(8) in clause (vi), as so redesignated, by striking ``An
investigation'' in the first sentence and all that follows
through ``the determination.'' in the second sentence and
inserting ``If the Secretary of Labor, after an investigation
under clause (i) or (ii), determines that a reasonable basis
exists to make

[[Page S5545]]

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 60 days
after the date of such determination.''; and
(9) by adding at the end the following:
``(vii) If the Secretary of Labor, after a hearing, finds
that the employer has violated a requirement under this
subsection, the Secretary may impose a penalty pursuant to
subparagraph (C).''.

____________________