II
110th CONGRESS
1st Session
S. 31
IN THE SENATE OF THE UNITED STATES
May 22, 2007
Ms. Collins introduced the following bill; which was read twice and referred to the Committee on the Judiciary
A BILL
To amend the Immigration and Nationality Act to reduce fraud in certain visa programs for aliens working temporarily in the United States.
Short title
This Act may be cited as the
H–1B Visa Fraud Prevention Act of
2007
.
H–1B employer requirements
Prohibition of outplacement
In general
Section 212(n) of the Immigration and Nationality Act (8 U.S.C. 1182(n)) is amended—
in paragraph (1), by amending subparagraph (F) to read as follows:
The employer shall not place, outsource, lease, or otherwise contract for the placement of an alien admitted or provided status as an H–1B nonimmigrant with another employer if the worksite of the receiving employer is located in a different State;
and
in paragraph (2), by striking subparagraph (E).
Effective date
The amendments made by paragraph (1) shall apply to applications filed on or after the date of the enactment of this Act.
Immigration documents
Section 204 of such Act (8 U.S.C. 1154) is amended by adding at the end the following:
Employer To share all immigration paperwork exchanged with Federal agencies
Not later than 10 working days after receiving a written request from a former, current, or future employee or beneficiary, an employer shall provide the employee or beneficiary with the original (or a certified copy of the original) of all petitions, notices, and other written communication exchanged between the employer and the Department of Labor, the Department of Homeland Security, or any other Federal agency that is related to an immigrant or nonimmigrant petition filed by the employer for the employee or beneficiary.
.
H–1B government authority and requirements
Safeguards against fraud and misrepresentation in application review process
Section 212(n)(1) of the Immigration and Nationality Act (8 U.S.C. 1182(n)) is amended—
in the
undesignated paragraph at the end, by striking The employer
and
inserting the following:
The employer
; and
in subparagraph (H), as designated by paragraph (1) of this subsection—
by inserting and through the
Department of Labor’s website, without charge.
after
D.C.
;
by inserting , clear indicators of
fraud, misrepresentation of material fact,
after
completeness
;
by striking or obviously
inaccurate
and inserting , presents clear indicators of fraud or
misrepresentation of material fact, or is obviously inaccurate
;
by striking within 7 days of
and inserting not later than 14 days after
; and
by adding at the end the following:
If the Secretary’s review of an application identifies clear indicators
of fraud or misrepresentation of material fact, the Secretary may conduct an
investigation and hearing under paragraph (2).
.
Investigations by department of labor
Section 212(n)(2) of such Act is amended—
in subparagraph (A), by striking The
Secretary shall conduct
and all that follows and inserting Upon
the receipt of such a complaint, the Secretary may initiate an investigation to
determine if such a failure or misrepresentation has occurred.
;
in subparagraph (C)(i)—
by striking a condition of paragraph
(1)(B), (1)(E), or (1)(F)
and inserting a condition under
subparagraph (B), (C)(i), (E), (F), (H), (I), or (J) of paragraph (1)
;
and
by striking (1)(C)
and
inserting (1)(C)(ii)
;
in subparagraph (G)—
in clause (i), by striking if the
Secretary
and all that follows and inserting with regard to the
employer’s compliance with the requirements of this subsection.
;
in clause (ii), by striking and
whose identity
and all that follows through failure or
failures.
and inserting the Secretary of Labor may conduct an
investigation into the employer’s compliance with the requirements of this
subsection.
;
in clause (iii), by striking the last sentence;
by striking clauses (iv) and (v);
by redesignating clauses (vi), (vii), and (viii) as clauses (iv), (v), and (vi), respectively;
by amending clause (v), as redesignated, to read as follows:
The Secretary of Labor shall provide notice to an employer of the intent to conduct an investigation. The notice shall be provided in such a manner, and shall contain sufficient detail, to permit the employer to respond to the allegations before an investigation is commenced. The Secretary is not required to comply with this clause if the Secretary determines that such compliance would interfere with an effort by the Secretary to investigate or secure compliance by the employer with the requirements of this subsection. A determination by the Secretary under this clause shall not be subject to judicial review.
;
in clause (vi), as redesignated, by
striking An investigation
and all that follows through
the determination.
and inserting If the Secretary of
Labor, after an investigation under clause (i) or (ii), determines that a
reasonable basis exists to make a finding that the employer has failed to
comply with the requirements under this subsection, the Secretary shall provide
interested parties with notice of such determination and an opportunity for a
hearing in accordance with section 556 of title 5, United States Code, not
later than 120 days after the date of such determination.
; and
by adding at the end the following:
The Secretary of Labor may impose a penalty under subparagraph (C) if the Secretary, after a hearing, finds a reasonable basis to believe that—
the employer has violated the requirements under this subsection; and
the violation was not made in good faith.
; and
by striking subparagraph (H).
Information sharing between department of labor and department of homeland security
Section 212(n)(2) of such Act, as amended by this section, is further amended by inserting after subparagraph (G) the following:
The Director of United States Citizenship and Immigration Services shall provide the Secretary of Labor with any information contained in the materials submitted by H–1B employers as part of the adjudication process that indicates that the employer is not complying with H–1B visa program requirements. The Secretary may initiate and conduct an investigation and hearing under this paragraph after receiving information of noncompliance under this subparagraph.
.
Audits
Section 212(n)(2)(A) of such Act, as
amended by this section, is further amended by adding at the end the following:
The Secretary may conduct surveys of the degree to which employers
comply with the requirements under this subsection and may conduct annual
compliance audits of employers that employ H–1B nonimmigrants.
.
Penalties
Section 212(n)(2)(C) of such Act, as amended by this section, is further amended—
in clause (i)(I), by striking
$1,000
and inserting $2,000
;
in clause (ii)(I), by striking
$5,000
and inserting $10,000
; and
in clause (vi)(III), by striking
$1,000
and inserting $2,000
.
Information provided to H–1B nonimmigrants upon visa issuance
Section 212(n) of such Act, as amended by this section, is further amended by inserting after paragraph (2) the following:
Upon issuing an H–1B visa to an applicant outside the United States, the issuing office shall provide the applicant with—
a brochure outlining the employer’s obligations and the employee’s rights under Federal law, including labor and wage protections;
the contact information for Federal agencies that can offer more information or assistance in clarifying employer obligations and workers’ rights; and
a copy of the employer’s H–1B application for the position that the H–1B nonimmigrant has been issued the visa to fill.
Upon the issuance of an H–1B visa to an alien inside the United States, the officer of the Department of Homeland Security shall provide the applicant with—
a brochure outlining the employer’s obligations and the employee’s rights under Federal law, including labor and wage protections;
the contact information for Federal agencies that can offer more information or assistance in clarifying employer's obligations and workers' rights; and
a copy of the employer's H–1B application for the position that the H–1B nonimmigrant has been issued the visa to fill.
.
H–1B whistleblower protections
Section 212(n)(2)(C)(iv) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)(C)(iv)) is amended—
by inserting take, fail to take, or
threaten to take or fail to take, a personnel action, or
before
to intimidate
; and
by adding at the end the following:
An employer that violates this clause shall be liable to the employees
harmed by such violation for lost wages and benefits.
.
Fraud assessment
Not later than 30 days after the date of the enactment of this Act, the Director of United States Citizenship and Immigration Services shall submit to Congress a fraud risk assessment of the H–1B visa program.