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Rami Fakhoury on IT Immigration

The Fight Book: Appendix II

Rating: 3 votes, 5.00 average.

Rami Fakhoury and Mark Levey


Copyright @2010 Fakhoury Law Group/ Rami Fakhoury


APPENDIX II:


House Comprehensive Immigration reform Bill, H.R. 4321, Would Impose Severe H-1B Restrictions


On December 15, 2009, Congressman Luis V. Gutierrez (D-IL) introduced legislation (HR 4321), the Comprehensive Immigration Reform for America's Security and Prosperity Act of 2009 (CIR ASAP). So far, this 700-page bill has failed to find enthusiastic support of the tech industry and it contains provisions that will simply enrage H-1B critics and the IT Consulting industry, alike, once they become better understood. One clause that may win industry support calls for the release of all the H-1B visas that went unused from 1992 to 2008 -- a total of about 309,000. 


But this House Bill also incorporates parts of other bills that impose restrictions on H-1B use and call for tougher enforcement that mirror the Senate Durbin-Grassley proposals.  The specific enforcement provisions include[1]:


SEC. 531. MODIFICATION OF APPLICATION REQUIREMENTS.



  • Raises the prevailing wage to the median wage for skill level 2 in the occupational classification found in the most recent Occupational Employment Statistics survey (Sec. 531(a)(A)(i)(III)); 

  • Require internet posting of LCAs  for 30 days (Sec. 531(b));

  • Non-displacement attestations required for H-1B dependent employers would be increased to 180 days prior to filing an LCA from the present 90-day period (Sec. 531(d)(I)(A)(i))

  • Requirement for a waiver from the U.S. Secretary of Labor for H-1B outsourcing. Sec. 531"(e) Requirement for Waiver- Subparagraph (F) of such section 212(n)(1) is amended to read as follows:


`(F) The employer shall not place, outsource, lease, or otherwise contract for the services or placement of H-1B nonimmigrants with another employer unless the employer of the alien has been granted a waiver under paragraph (2)(E).'."



SEC. 532. NEW APPLICATION REQUIREMENTS.


1)Bans the alleged practice of employers recruiting exclusively for H-1B workers, and giving preference for H-1B in recruitment, 2) bans additional LCAs for firms of larger than 50 employees with staffs that are more than 50% H-1B or L-1, and 3) allows the USDOL to request IRS records of employers:


" `(H)(i) The employer 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.


`(ii) The employer has not solely recruited individuals who are or who will be H-1B nonimmigrants to fill such position.[NOTE: This language appears to ban recruitment advertising for H-1B workers without regard to whether the relevant recruitment  is conducted inside the U.S. or conducted abroad.]


`(I) If the employer employs 50 or more employees in the United States, the sum of the number of such employees who are H-1B nonimmigrants plus the number of such employees who are nonimmigrants described in section 101(a)(15)(L) may not exceed 50 percent of the total number of employees.


`(J) If the employer, in such previous period as the Secretary shall specify, employed 1 or more H-1B nonimmigrants, the employer shall submit to the Secretary the Internal Revenue Service Form W-2 Wage and Tax Statement filed by the employer with respect to the H-1B nonimmigrants for such period.'."


 


SEC. 533. APPLICATION REVIEW REQUIREMENTS.


 Significantly broadens the authority of the USDOL to review LCAs for "indicators of fraud or misrepresentation of material fact."  Existing statute limits that agency's review to "only for completeness", reserving initial investigatory power to DHS.


(a) Technical Amendment- Section 212(n)(1) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)), as amended by section 102, is further amended in the undesignated paragraph at the end, by striking `The employer' and inserting the following:


`(K) The employer.'.


(b) Application Review Requirements- Subparagraph (K) of such section 212(n)(1), as designated by subsection (a), is amended--


(1) by inserting `and through the Department of Labor's website, without charge.' after `D.C.';


(2) by striking `only for completeness' and inserting `for completeness and clear indicators of fraud or misrepresentation of material fact,';


(3) by striking `or obviously inaccurate' and inserting `, presents clear indicators of fraud or misrepresentation of material fact, or is obviously inaccurate';


(4) by striking `within 7 days of' and inserting `not later than 14 days after'; and


(5) 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).'.


Subchapter B--Investigation and Disposition of Complaints Against H-1B


SEC. 541. GENERAL MODIFICATION OF PROCEDURES FOR INVESTIGATION AND DISPOSITION.


 


1) Extends the time frame for USDOL investigations of LCA-related matters from one to two years from date of receipt; 2) authorizes USDOL to conduct site surveys and annual compliance audits of H-1B employers; mandates annual USDOL audits for larger firms with more than 15 percent H-1B employment. 


 


Subparagraph (A) of section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)) is amended--


(1) by striking `(A) Subject' and inserting `(A)(i) Subject';


(2) by striking `12 months' and inserting `24 months';


(3) by striking the last sentence; and


(4) by adding at the end the following:


`(ii)(I) Upon the receipt of such a complaint, the Secretary may initiate an investigation to determine if such a failure or misrepresentation has occurred.


`(II) The Secretary may conduct surveys of the degree to which employers comply with the requirements of this subsection and may conduct annual compliance audits of employers that employ H-1B nonimmigrants.


`(III) The Secretary shall--


`(aa) conduct annual compliance audits of not less than 1 percent of the employers that employ H-1B nonimmigrants during the applicable calendar year;


`(bb) conduct annual compliance audits of each employer with more than 100 employees who work in the United States if more than 15 percent of such employees are H-1B nonimmigrants; and


`(cc) make available to the public an executive summary or report describing the general findings of the audits carried out pursuant to this subclause.'.


 


SEC. 542. INVESTIGATION, WORKING CONDITIONS, AND PENALTIES.


 Doubles fines and penalties for willful violation of LCA requirements. Imposes an unspecified penalty for "benching" H-1B workers beyond liquidated damages.   


Subparagraph (C) of section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)) is amended--


(1) in clause (i)--


(A) in the matter preceding subclause (I)--


(i) by striking `a condition of paragraph (1)(B), (1)(E), or (1)(F)' and inserting `a condition under subparagraph (A), (B), (C)(i), (E), (F), (G)(i)(I), (H), (I), or (J) of paragraph (1)'; and


(ii) by striking `(1)(C)' and inserting `(1)(C)(ii)'; and


(B) in subclause (I)--


(i) by striking `$1,000' and inserting `$2,000'; and


(ii) by striking `and' at the end;


(C) in subclause (II), by striking the period at the end and inserting a semicolon and `and';


(D) by adding at the end the following:


`(III) an employer that violates such subparagraph (A) shall be liable to the employees harmed by such violations for lost wages and benefits.'; and


(2) in clause (ii)--


(A) in subclause (I)--


(i) by striking `may' and inserting `shall'; and


(ii) by striking `$5,000' and inserting `$10,000'; and


(B) in subclause (II), by striking the period at the end and inserting a semicolon and `and';


(C) by adding at the end the following:


`(III) an employer that violates such subparagraph (A) shall be liable to the employees harmed by such violations for lost wages and benefits.'; and


(3) in clause (iii)--


(A) in the matter preceding subclause (I), by striking `90 days' both places it appears and inserting `180 days';


(B) in subclause (I)--


(i) by striking `may' and inserting `shall'; and


(ii) by striking `and' at the end;


(C) in subclause (II), by striking the period at the end and inserting a semicolon and `and'; and


(D) by adding at the end the following:


`(III) an employer that violates subparagraph (A) of such paragraph shall be liable to the employees harmed by such violations for lost wages and benefits.';


(4) in clause (iv)--


(A) by inserting `to take, fail to take, or threaten to take or fail to take, a personnel action, or' before `to intimidate';


(B) by inserting `(I)' after `(iv)'; and


(C) by adding at the end the following:


`(II) An employer that violates this clause shall be liable to the employees harmed by such violation for lost wages and benefits.'; and


(5) in clause (vi)--


(A) by amending subclause (I) to read as follows:


`(I) It is a violation of this clause for an employer who has filed an application under this subsection--


`(aa) to require an H-1B nonimmigrant to pay a penalty for ceasing employment with the employer prior to a date agreed to by the nonimmigrant and the employer (the Secretary shall determine whether a required payment is a penalty, and not liquidated damages, pursuant to relevant State law); and


`(bb) to fail to offer to an H-1B nonimmigrant, during the nonimmigrant's period of authorized employment, on the same basis, and in accordance with the same criteria, as the employer offers to United States workers, benefits and eligibility for benefits, including--


`(AA) the opportunity to participate in health, life, disability, and other insurance plans;


`(BB) the opportunity to participate in retirement and savings plans; and


`(CC) cash bonuses and noncash compensation, such as stock options (whether or not based on performance).'; and


(B) in subclause (III), by striking `$1,000' and inserting `$2,000'.


 


SEC. 543. WAIVER REQUIREMENTS.


 Imposes a bar upon H-1B worker outsourcing similar to that imposed in 2005 upon L-1B workers placed at client sites.   Also, for the first time, imposes a regulatory requirement that work of H-1B employees placed at client sites be "controlled and supervised" by the petitioner, instead of "supervised, or otherwise controlled",  as under current regulations governing H-1B placement agencies.   A waiver is offered if the petitioner can show that there have been no layoffs and now will result for six months prior and after the placement of the H-1B worker at the client site.


 


(a) In General- Subparagraph (E) of section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)) is amended to read as follows:


`(E)(i) The Secretary of Labor may waive the prohibition in paragraph (1)(F) if the Secretary determines that the employer seeking the waiver has established that--


`(I) the employer with whom the H-1B nonimmigrant would be placed has not displaced, and does not intend to displace, a United States worker employed by the employer within the period beginning 180 days before and ending 180 days after the date of the placement of the nonimmigrant with the employer;


`(II) the H-1B nonimmigrant will not be controlled and supervised principally by the employer with whom the H-1B nonimmigrant would be placed; and


`(III) the placement of the H-1B nonimmigrant is not essentially an arrangement to provide labor for hire for the employer with whom the H-1B nonimmigrant will be placed.


`(ii) The Secretary shall grant or deny a waiver under this subparagraph not later than 7 days after the Secretary receives the application for such waiver.'.


(b) Requirement for Rules-


(1) RULES FOR WAIVERS- The Secretary of Labor shall promulgate rules, after notice and a period for comment, for an employer to apply for a waiver under subparagraph (E) of section 212(n)(2) of such Act, as amended by subsection (a).


(2) REQUIREMENT FOR PUBLICATION- The Secretary of Labor shall submit to Congress and publish in the Federal Register and other appropriate media a notice of the date that rules required by paragraph (1) are published.


 


SEC. 544. INITIATION OF INVESTIGATIONS.


Permits USDOL to initiate its own investigations and administrative sanction of suspected violations related to LCA requirements during the previous two years.  Allows "investigations and efforts to secure compliance by the employer with this subsection" without providing notice to the party suspected of violation.   Exempts such determinations made by the Secretary from judicial review.


Subparagraph (G) of section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)) is amended--


(1) 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.';


(2) 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.';


(3) in clause (iii), by striking the last 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, by striking `meet a condition described in clause (ii), unless the Secretary of Labor receives the information not later than 12 months' and inserting `comply with the requirements under this subsection, unless the Secretary of Labor receives the information not later than 24 months';


(7) by amending clause (v), as so redesignated, to read as follows:


`(v) 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.';


(8) in clause (vi), as so 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


(9) by adding at the end the following:


`(vii) If the Secretary of Labor, after a hearing, finds a reasonable basis to believe that the employer has violated the requirements under this subsection, the Secretary shall impose a penalty under subparagraph (C).'.


 


SEC. 545. INFORMATION SHARING.


 Permits USDOL to launch investigations based upon information provided by USCIS and to share the contents of I-129 petitions and any subsequent FDNS audits or investigations.


 Subparagraph (H) of section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)) is amended to read as follows:


`(H) The Director of United States 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 adjudication process that indicates that the employer is not complying with visa program requirements for H-1B nonimmigrants. The Secretary may initiate and conduct an investigation and hearing under this paragraph after receiving information of noncompliance under this subparagraph.'.


 


SEC. 546. CONFORMING AMENDMENT.


 


Subparagraph (F) of section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182) is amended by striking `The preceding sentence shall apply to an employer regardless of whether or not the employer is an H-1B-dependent employer.'.


 


Subchapter C--Other H-1B Provisions


SEC. 551. POSTING AVAILABLE H-1B POSITIONS THROUGH THE DEPARTMENT OF LABOR.


 


Effectively puts in place a national advertising requirement for all H-1B positions.  The inevitable fact of complaints made by U.S. worker applicants not hired will create, in effect, a burden to establish that there are no willing, able, or qualified U.S. workers for the position along with considerable potential liability upon H-1B hiring firms.


(a) Department of Labor Website- Paragraph (3) of section 212(n) of the Immigration and Nationality Act (8 U.S.C. 1182(n)) is amended to read as follows:


`(3)(A) Not later than 90 days after the date of the enactment of the H-1B and L-1 Visa Reform Act of 2009, the Secretary of Labor shall establish a searchable Internet website for posting positions as required by paragraph (1)(C). Such website shall be available to the public without charge.


`(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 may promulgate rules, after notice and a period for comment, to carry out the requirements of this paragraph.'.


(b) Requirement for Publication- The Secretary of Labor shall submit to Congress and publish in the Federal Register and other appropriate media a notice of the date that the Internet website required by paragraph (3) of section 212(n) of such Act, as amended by subsection (a), will be operational.


(c) Application- The amendments made by subsection (a) shall apply to an application filed on or after the date that is 30 days after the date described in subsection (b).


 


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