I 

114TH CONGRESS 

2D SESSION H. R. 4598 

To amend the Immigration and Nationality Act to improve the H–1B visa 

program, to repeal the diversity visa lottery program, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 24, 2016 

Mr. BROOKS of Alabama introduced the following bill; which was referred to 

the Committee on the Judiciary, and in addition to the Committee on 

Education and the Workforce, for a period to be subsequently determined 

by the Speaker, in each case for consideration of such provisions as fall 

within the jurisdiction of the committee concerned 

A BILL 

To amend the Immigration and Nationality Act to improve 

the H–1B visa program, to repeal the diversity visa 

lottery program, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘American Jobs First Act of 2016’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 


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TITLE I—H–1B VISA PROGRAM 

Sec. 101. Amendments to the Immigration and Nationality Act. 

TITLE II—NEW H–1B VISA REQUIREMENTS 

Sec. 201. Degree requirements for foreign nationals. 

Sec. 202. Bar on nondisparagement and nondisclosure agreements. 

Sec. 203. United States Federal court jurisdiction over civil actions pertaining 

to misuse of the H–1B visa program. 

TITLE III—REPEAL OF OTHER PROVISIONS 

Sec. 301. Repeal of the diversity visa lottery. 

1 TITLE I—H–1B VISA PROGRAM 

2 SEC. 101. AMENDMENTS TO THE IMMIGRATION AND NA3 TIONALITY ACT. 

4 (a) INADMISSIBLE ALIENS.—Section 212(n) of the 

5 Immigration and Nationality Act (8 U.S.C. 1182(n)) is 

6 amended to read as follows: 

7 ‘‘(n) LABOR CONDITION APPLICATION.— 

8 ‘‘(1) IN GENERAL.—An alien may not be admit9 ted or provided status as an H–1B nonimmigrant in 

10 an occupational classification unless the petitioner 

11 employer has filed with the Secretary of Labor an 

12 application stating the following: 

13 ‘‘(A) The petitioner employer— 

14 ‘‘(i) is offering an annual wage to the 

15 H–1B nonimmigrant that is the greater 

16 of— 

17 ‘‘(I) the annual wage that was 

18 paid to the United States citizen or 

19 lawful permanent resident employee 


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1 who did identical or similar work dur2 ing the 2 years before the petitioner 

3 employer filed such application; or 

4 ‘‘(II) $110,000, if offered not 

5 later than 1 year after the date of the 

6 enactment of the American Jobs First 

7 Act of 2016, which amount shall be 

8 annually adjusted for inflation by July 

9 1 of each year; 

10 ‘‘(ii) will not require an H–1B non11 immigrant to pay a penalty for ceasing em12 ployment with the petitioner employer be13 fore the date agreed to by the H–1B non14 immigrant and the petitioner employer; 

15 ‘‘(iii) will not— 

16 ‘‘(I) require an alien who is the 

17 subject of a petition filed under para18 graph (1) of section 214(c), for which 

19 a fee is imposed under paragraph (9) 

20 of such section, to reimburse, or oth21 erwise to compensate, the petitioner 

22 employer for part or all of the cost of 

23 such fee; 

24 ‘‘(II) accept reimbursement or 

25 compensation for the fee described in 


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1 subclause (I) from an H–1B non2 immigrant, even if such reimburse3 ment or compensation is alleged to 

4 have been voluntarily given by the H– 

5 1B nonimmigrant; 

6 ‘‘(III) deduct such amounts from 

7 an H–1B nonimmigrant’s pay before 

8 disbursal to such H–1B nonimmigrant 

9 for the purpose of covering the cost of 

10 such fee; or 

11 ‘‘(IV) require an H–1B non12 immigrant to pay any other amounts 

13 or fees for housing, vehicle use or 

14 rental, or equipment use or rental, un15 less the requirement of the payment 

16 of such amounts or fees is identical to 

17 the payments that are required by 

18 United States citizen or lawful perma19 nent resident employees; and 

20 ‘‘(iv) will— 

21 ‘‘(I) after the employer has filed 

22 an application under this subsection 

23 and placed an H–1B nonimmigrant 

24 designated as a full-time employee on 

25 the petition filed under section 


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1 214(c)(1) and the nonimmigrant has 

2 entered into employment with the pe3 titioner employer (in nonproductive 

4 status due to a decision by the peti5 tioner employer, based on factors such 

6 as lack of work or due to the non7 immigrant’s lack of a permit or li8 cense), pay the nonimmigrant full9 time wages in accordance with para10 graph (1)(A) for all such nonproduc11 tive time; 

12 ‘‘(II) after the employer has filed 

13 an application under this subsection 

14 and placed an H–1B nonimmigrant 

15 designated as a part-time employee on 

16 the petition filed under section 

17 214(c)(1) and the nonimmigrant has 

18 entered into employment with the pe19 titioner employer (in nonproductive 

20 status under circumstances described 

21 in subclause (I)), pay the non22 immigrant for such hours as are des23 ignated on such petition in accordance 

24 with the rate of pay identified on such 

25 petition; and 


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1 ‘‘(III) after the employer has 

2 filed an application under this sub3 section, offer to an H–1B non4 immigrant, during the nonimmigrant’s 

5 period of authorized employment, on 

6 the same basis, and in accordance 

7 with the same criteria, as the em8 ployer offers to United States citizens 

9 or lawful permanent residents, bene10 fits and eligibility for benefits, includ11 ing— 

12 ‘‘(aa) the opportunity to 

13 participate in health, life, dis14 ability, and other insurance 

15 plans; 

16 ‘‘(bb) the opportunity to 

17 participate in retirement and sav18 ings plans; and 

19 ‘‘(cc) cash bonuses and 

20 noncash compensation, such as 

21 stock options (whether or not 

22 such compensation is based on 

23 performance). 

24 ‘‘(B) With respect to workplace condi25 tions— 


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1 ‘‘(i) there has not been an employee2 initiated strike at any point during the 2- 

3 year period ending on the date on which 

4 the petitioner employer files the visa appli5 cation that sought redress for salary, wage, 

6 or benefit concerns; 

7 ‘‘(ii) there has not been a petitioner 

8 employer-initiated lockout at any point 

9 during the 2-year period ending on the 

10 date on which the petitioner employer filed 

11 such visa application; and 

12 ‘‘(iii) no employee in the same or sub13 stantially similar occupational classification 

14 for which the employer seeks H–1B non15 immigrants, has been displaced, fur16 loughed, terminated without cause, or oth17 erwise involuntarily separated without 

18 cause in any way at any point during the 

19 2-year period ending on the date on which 

20 the petitioner employer filed such visa ap21 plication. 

22 ‘‘(C) The petitioner employer, at the time 

23 a visa application is filed— 

24 ‘‘(i) has provided notice of the filing 

25 under this paragraph to the bargaining 


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1 representative of its employees in the occu2 pational classification and area for which 

3 aliens are sought; or 

4 ‘‘(ii) if such employees do not have a 

5 bargaining representative, has provided no6 tice of filing in the occupational classifica7 tion through methods such as— 

8 ‘‘(I) physical posting in con9 spicuous locations at the place of em10 ployment; or 

11 ‘‘(II) electronic notification to 

12 employees in the occupational classi13 fication for which H–1B non14 immigrants are sought. 

15 ‘‘(D) The application contains— 

16 ‘‘(i) the specific dollar value of the re17 quired wage, in accordance with subpara18 graph (A); 

19 ‘‘(ii) the specific number of non20 immigrant employees sought; and 

21 ‘‘(iii) the occupational classification in 

22 which the nonimmigrant employees will be 

23 employed. 

24 ‘‘(E)(i) The petitioner employer— 


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1 ‘‘(I) will not replace a United States 

2 citizen or lawful permanent resident with 1 

3 or more nonimmigrants; 

4 ‘‘(II) will not contract with any third 

5 party to provide a nonimmigrant to replace 

6 any United States citizen or lawful perma7 nent resident; and 

8 ‘‘(III) has not displaced, furloughed, 

9 terminated without cause, or otherwise in10 voluntarily separated, and will not displace, 

11 furlough, terminate without cause, or oth12 erwise involuntarily separate a United 

13 States citizen or lawful permanent resident 

14 employed by the petitioner employer during 

15 the 4-year period beginning on the date 

16 that is 2 years before the date on which 

17 the petitioner employer filed any visa peti18 tion supported by the application. 

19 ‘‘(ii) The 4-year period referred to in 

20 clause (i)(III) does not include any period of 

21 on-site, remote, teleconference-based, computer22 based, or other virtual training of non23 immigrants by or with employees of the peti24 tioner employer. 


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1 ‘‘(F) The petitioner employer will not place 

2 an H–1B nonimmigrant employee with another 

3 employer (unless the petitioner employer, after 

4 diligent inquiry of the other employer, has no 

5 knowledge that, during the 4-year period begin6 ning 2 years before the date on which the em7 ployee was placed with the other employer, the 

8 other employer has displaced or intends to dis9 place a United States citizen or lawful perma10 nent resident employed by the other employer) 

11 if— 

12 ‘‘(i) the employee performs duties, in 

13 whole or in part, at 1 or more worksites 

14 owned, operated, or controlled by such 

15 other employer; and 

16 ‘‘(ii) there are indicia of an employ17 ment relationship between the non18 immigrant and such other employer. 

19 ‘‘(G) The petitioner employer, before filing 

20 an application under this paragraph— 

21 ‘‘(i) has documented specific steps to 

22 recruit potential employees who are United 

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1 paigns, and offering wages that are at 

2 least as high as the wage requirements es3 tablished for nonimmigrants in subpara4 graph (A), in order to recruit such citizens 

5 and residents for the job or jobs for which 

6 the nonimmigrant or nonimmigrants is or 

7 are sought; 

8 ‘‘(ii) has offered the job to any United 

9 States citizen or lawful permanent resident 

10 who applies and possesses the same or bet11 ter qualifications for such jobs; 

12 ‘‘(iii) despite the efforts specified in 

13 clauses (i) and (ii), has been unable to hire 

14 United States citizens or lawful permanent 

15 residents for any of such available jobs; 

16 ‘‘(iv) has not intimidated, threatened, 

17 restrained, coerced, blacklisted, discharged, 

18 or in any other manner discriminated 

19 against an employee (including former em20 ployees and applicants for employment) be21 cause the employee— 

22 ‘‘(I) has disclosed information to 

23 the petitioner employer, or to any 

24 other person or entity, that the em25 ployee reasonably believes evidences a 


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1 violation of this subsection, or any 

2 rule or regulation pertaining to this 

3 subsection; or 

4 ‘‘(II) cooperated, or sought to co5 operate, in an investigation or other 

6 proceeding concerning the petitioner 

7 employer’s compliance or noncompli8 ance with the requirements under this 

9 subsection or any rule or regulation 

10 pertaining to this subsection; and 

11 ‘‘(v) has executed a sworn affidavit or 

12 other court-recognized statement that— 

13 ‘‘(I) swears or affirms the truth 

14 of the information regarding such re15 cruiting efforts; and 

16 ‘‘(II) acknowledges that false 

17 statements made in such statement 

18 will subject the affiant to criminal 

19 prosecution under section 1621 of 

20 title 18, United States Code. 

21 ‘‘(2) NOTIFICATION AND TRANSPARENCY RE22 QUIREMENTS.— 

23 ‘‘(A) IN GENERAL.—The petitioner em24 ployer shall make available for examination its 

25 materials relating to its application to the SecVerDate Sep 11 2014 02:33 Feb 25, 2016 Jkt 059200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H4598.IH H4598

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1 retary of Labor in accordance with paragraph 

2 (1). 

3 ‘‘(B) INTERNAL AND EXTERNAL PUBLICA4 TION OF APPLICATION MATERIALS.— 

5 ‘‘(i) ELECTRONIC PUBLICATION.—Not 

6 later than 1 business day after the date on 

7 which an application is filed in accordance 

8 with paragraph (1), the petitioner em9 ployer shall— 

10 ‘‘(I) electronically mail a copy of 

11 such application and necessary accom12 panying documentation to all employ13 ees at all business locations and work14 sites to ensure employer-wide em15 ployee awareness of the application; 

16 and 

17 ‘‘(II) post an electronic copy of 

18 the application and such accom19 panying documentation as are nec20 essary on a publicly accessible website 

21 to ensure public awareness of the ap22 plication. 

23 ‘‘(ii) PHYSICAL POSTING.—Not later 

24 than 5 business days after the date on 

25 which an application is filed in accordance 


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1 with paragraph (1), the petitioner em2 ployer shall post copies of such application 

3 and necessary accompanying documenta4 tion in prominent places at all of its busi5 ness locations and worksites to ensure that 

6 all of its employees are aware of the appli7 cation. 

8 ‘‘(C) FAILURE TO PROVIDE COMPLETE IN9 TERNAL AND EXTERNAL PUBLICATION OF AP10 PLICATION MATERIALS.—If the Secretary of 

11 Labor receives proof that a petitioner employer 

12 has failed to meet the publication requirements 

13 under subparagraph (B) of any application that 

14 is filed in accordance with paragraph (1), the 

15 Secretary shall— 

16 ‘‘(i) deny such application; and 

17 ‘‘(ii) prevent such petitioner employer 

18 from filing another such application during 

19 the 2-year period beginning on such date 

20 of denial. 

21 ‘‘(D) SECRETARY OF LABOR APPLICATION

22 TRANSPARENCY OBLIGATIONS.—The Secretary 

23 of Labor shall— 


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1 ‘‘(i) compile and publish on the De2 partment of Labor website, on an ongoing 

3 basis— 

4 ‘‘(I) the name of the petitioner 

5 employer that has filed an application 

6 under this subsection; 

7 ‘‘(II) the date on which each 

8 such petitioner employer filed such 

9 application; 

10 ‘‘(III) the number of H–1B visas 

11 that have been requested in such ap12 plication; 

13 ‘‘(IV) the sworn affidavit or other 

14 court-recognized statement required 

15 under paragraph (1)(G)(v); and 

16 ‘‘(V) the name of the employee or 

17 employees who signed or executed the 

18 sworn affidavit or other court-recog19 nized statement referred to in sub20 clause (IV); 

21 ‘‘(ii) not later than July 1 of each 

22 year, publish the information described in 

23 clause (i) for the preceding calendar year 

24 in the Federal Register; and 


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1 ‘‘(iii) not later than July 1 of each 

2 year, submit a report to the Committee on 

3 the Judiciary of the Senate and the Com4 mittee on the Judiciary of the House of 

5 Representatives that contains— 

6 ‘‘(I) the information described in 

7 clause (i); 

8 ‘‘(II) information about any peti9 tioner employers whose applications 

10 were denied under subparagraph (C); 

11 ‘‘(III) information about any on12 going investigations of petitioner em13 ployers for potential or determined 

14 violations of use of the H–1B visa 

15 program; 

16 ‘‘(IV) any referrals of potential 

17 violations of section 1621 of title 18, 

18 United States Code, to the Attorney 

19 General, as required under paragraph 

20 (3)(D)(i); 

21 ‘‘(V) any assessments of civil 

22 penalties of petitioner employers, as 

23 required under clauses (ii) and (iii) of 

24 paragraph (3)(D); and 


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1 ‘‘(VI) any additional information 

2 that the Secretary of Labor believes 

3 may be relevant to future congres4 sional evaluation of the H–1B visa 

5 program. 

6 ‘‘(3) H–1B APPLICATION INVESTIGATIONS.— 

7 ‘‘(A) IN GENERAL.—The Secretary of 

8 Labor shall establish a process for the receipt, 

9 investigation, and disposition of complaints re10 specting— 

11 ‘‘(i) a petitioner employer’s failure to 

12 meet a condition specified in an application 

13 submitted under paragraph (1); and 

14 ‘‘(ii) a petitioner employer’s misrepre15 sentation of material facts in such an ap16 plication. 

17 ‘‘(B) INVESTIGATION PROCEDURES.— 

18 ‘‘(i) IN GENERAL.—The Secretary of 

19 Labor may conduct an investigation of any 

20 complaint alleged against a petitioner em21 ployer— 

22 ‘‘(I) based on the independent 

23 judgment of the Secretary; 


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1 ‘‘(II) in response to a referral or 

2 complaint from the head of another 

3 Federal agency; or 

4 ‘‘(III) through any other method 

5 that, in the Secretary’s discretion, 

6 shows cause for such an investigation. 

7 ‘‘(ii) COMPLAINANTS.—A complaint 

8 may be filed by any aggrieved party, in9 cluding— 

10 ‘‘(I) any United States citizen or 

11 lawful permanent resident who be12 lieves his or her job has been elimi13 nated or could potentially be elimi14 nated as the result of the petitioner 

15 employer hiring or seeking to hire a 

16 foreign national pursuant to a non17 immigrant visa; 

18 ‘‘(II) any trade association or 

19 union that represents any person de20 scribed in subclause (I); and 

21 ‘‘(III) any foreign national hired 

22 for work in the United States pursu23 ant to a nonimmigrant visa who be24 lieves he or she is subject to potenVerDate Sep 11 2014 02:33 Feb 25, 2016 Jkt 059200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\H4598.IH H4598

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1 tially unlawful workplace conditions or 

2 requirements. 

3 ‘‘(iii) PROCESS FOR FOREIGN NA4 TIONAL COMPLAINANTS.—The Secretary of 

5 Labor and the Secretary of Homeland Se6 curity shall devise a process under which 

7 an H–1B nonimmigrant who files a com8 plaint regarding a violation under this sub9 section and is otherwise eligible to remain 

10 and work in the United States may be al11 lowed to seek other appropriate employ12 ment in the United States for a period not 

13 to exceed the maximum period of stay au14 thorized for such nonimmigrant classifica15 tion. 

16 ‘‘(iv) PROGRAM PAUSE FOR INITI17 ATION OF INVESTIGATION.—In any situa18 tion in which the Secretary of Labor com19 mences an investigation of a petitioner em20 ployer under this paragraph, the Secretary 

21 of Labor may— 

22 ‘‘(I) cease processing any applica23 tion that is submitted under this sub24 section and filed by such petitioner 


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1 employer until the conclusion of such 

2 investigation; and 

3 ‘‘(II) suspend such petitioner em4 ployer’s usage of currently issued H– 

5 1B nonimmigrant visas, until the con6 clusion of such investigation. 

7 ‘‘(C) INITIATION OF INVESTIGATION.—Not 

8 later than 30 days after the date on which a 

9 complaint is filed with the Department of Labor 

10 under this paragraph, the Secretary of Labor— 

11 ‘‘(i) shall determine whether a reason12 able basis exists to make a finding under 

13 subparagraph (D); 

14 ‘‘(ii) not later than 30 days after the 

15 date of such determination, shall provide 

16 for notice of such determination to the in17 terested parties and an opportunity for a 

18 hearing on such determination, in accord19 ance with section 556 of title 5, United 

20 States Code; 

21 ‘‘(iii) if such a hearing is requested 

22 and held, shall make a finding concerning 

23 the matter not later than 30 days after the 

24 date of such hearing; and 


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1 ‘‘(iv) in the case of similar complaints 

2 respecting the same petitioner employer, 

3 may consolidate the hearings under this 

4 subparagraph on such complaints. 

5 ‘‘(D) PENALTIES.— 

6 ‘‘(i) FINDING OF POSSIBLE CRIMINAL

7 VIOLATION.—If the Secretary of Labor, 

8 after notice and opportunity for a hearing 

9 under subparagraph (C), finds that a peti10 tioner employer made 1 or more false 

11 statements in a sworn affidavit or similar 

12 court-recognized statement, the Secretary 

13 shall refer such petitioner employer to the 

14 Attorney General for criminal prosecution. 

15 ‘‘(ii) FINDING OF MATERIAL FAILURE

16 WITHOUT DISPLACEMENT.—If the Sec17 retary of Labor, after notice and oppor18 tunity for a hearing under subparagraph 

19 (C), finds that a petitioner employer mate20 rially failed to meet a condition required 

21 under paragraph (1), the Secretary may— 

22 ‘‘(I) impose a fine against the pe23 titioner employer that is not less than 

24 $50,000 and not greater than 

25 $100,000 per violation, which shall be 


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1 deposited into the general fund of the 

2 Treasury; 

3 ‘‘(II) immediately revoke all 

4 issued H–1B visas currently being 

5 used by the petitioner employer; and 

6 ‘‘(III) prohibit the petitioner em7 ployer from applying for additional 

8 H–1B visas for a period of not less 

9 than 5 years and not more than 10 

10 years. 

11 ‘‘(iii) FINDING OF MATERIAL FAILURE

12 WITH DISPLACEMENT.—If the Secretary of 

13 Labor, after notice and opportunity for a 

14 hearing under subparagraph (C), finds 

15 that a petitioner employer materially failed 

16 to meet a condition under paragraph (1), 

17 and, in the course of, or as a result of, 

18 such material failure, the petitioner em19 ployer displaced a United States citizen or 

20 lawful permanent resident employed by the 

21 petitioner employer during the period be22 ginning 2 years before the date on which 

23 any visa petition supported by the applica24 tion was filed and ending 2 years after 

25 such date, the Secretary shall— 


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1 ‘‘(I) impose a fine against the pe2 titioner employer that is not less than 

3 $100,000 and not greater than 

4 $500,000 per violation, which shall be 

5 deposited into the general fund of the 

6 Treasury; 

7 ‘‘(II) immediately revoke all 

8 issued H–1B visas currently being 

9 used by the petitioner employer; 

10 ‘‘(III) permanently bar the peti11 tioner employer from applying for ad12 ditional H–1B visas; and 

13 ‘‘(IV) require the petitioner em14 ployer to provide retroactive com15 pensation for any displaced United 

16 States citizen or lawful permanent 

17 resident employee. 

18 ‘‘(E) SCOPE OF INVESTIGATIVE AUTHOR19 ITY.— 

20 ‘‘(i) IN GENERAL.—The Secretary of 

21 Labor may initiate an investigation of any 

22 petitioner employer that employs non23 immigrants described in section 

24 101(a)(15)(H)(i)(b) if the Secretary of 

25 Labor has reasonable cause to believe that 


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1 the petitioner employer is not in compli2 ance with this subsection. 

3 ‘‘(ii) CERTIFICATION.—The Secretary 

4 of Labor (or the acting Secretary in case 

5 of the absence or disability) shall person6 ally certify that reasonable cause exists to 

7 initiate an investigation under this sub8 paragraph. The investigation may be initi9 ated for reasons other than completeness 

10 and obvious inaccuracies by the petitioner 

11 employer in complying with this sub12 section. 

13 ‘‘(iii) USE OF INFORMATION.—If the 

14 Secretary of Labor receives specific cred15 ible information from a source who is likely 

16 to have knowledge of a petitioner employ17 er’s practices or employment conditions, or 

18 a petitioner employer’s compliance with the 

19 petitioner employer’s labor condition appli20 cation under paragraph (1), and whose 

21 identity is known to the Secretary of 

22 Labor, and such information provides rea23 sonable cause to believe that the petitioner 

24 employer has committed a willful failure to 

25 meet a condition under subparagraph (A), 


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1 (B), (C), (E), (F), or (G)(i), has engaged 

2 in a pattern or practice of failures to meet 

3 such a condition, or has committed a sub4 stantial failure to meet such a condition 

5 that affects multiple employees, the Sec6 retary of Labor may— 

7 ‘‘(I) conduct an investigation into 

8 the alleged failure or failures; and 

9 ‘‘(II) withhold the identity of the 

10 source from the petitioner employer, 

11 which shall not be subject to disclo12 sure under section 552 of title 5, 

13 United States Code. 

14 ‘‘(iv) PROCEDURE.—The Secretary of 

15 Labor shall establish a procedure for any 

16 person desiring to provide information de17 scribed in clause (iii) that may be used, in 

18 whole or in part, as the basis for the com19 mencement of an investigation described in 

20 such clause, to provide such information in 

21 writing on a form developed and provided 

22 by the Secretary and completed by or on 

23 behalf of the person. Such person may not 

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1 isfies the requirement under clause (v)(II), 

2 although an officer or employee of the De3 partment of Labor may complete the form 

4 on behalf of the person. 

5 ‘‘(v) INFORMATION SOURCES.—Any 

6 investigation initiated or approved by the 

7 Secretary of Labor under this subpara8 graph shall be based on information that— 

9 ‘‘(I) satisfies the requirements 

10 under clause (iii); and 

11 ‘‘(II)(aa) originates from a 

12 source other than an officer or em13 ployee of the Department of Labor; or 

14 ‘‘(bb) was lawfully obtained by 

15 the Secretary of Labor in the course 

16 of lawfully conducting another De17 partment of Labor investigation. 

18 ‘‘(vi) CLARIFICATION.—The receipt of 

19 information by the Secretary of Labor that 

20 was submitted by a petitioner employer to 

21 the Secretary of Homeland Security or the 

22 Secretary of Labor for purposes of secur23 ing the employment of a nonimmigrant de24 scribed in section 101(a)(15)(H)(i)(b) shall 


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1 not be considered a receipt of information 

2 under clause (iii). 

3 ‘‘(vii) DEADLINE.—An investigation 

4 described in clause (iii) (or a hearing de5 scribed in clause (ix) based on such inves6 tigation) may not be conducted with re7 spect to information about a failure to 

8 meet a condition described in clause (iii) 

9 unless the Secretary of Labor receives the 

10 information not later than 1 year after the 

11 date of the alleged failure. 

12 ‘‘(viii) NOTICE.— 

13 ‘‘(I) IN GENERAL.—Before initi14 ating an investigation of a petitioner 

15 employer under this subparagraph, 

16 the Secretary of Labor shall provide 

17 notice of the intent to conduct such 

18 an investigation to such employer in 

19 such a manner, and containing suffi20 cient information, to permit the peti21 tioner employer to respond to the alle22 gations before the investigation is 

23 commenced. 

24 ‘‘(II) EXCEPTION.—The Sec25 retary of Labor is not required to 


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1 comply with subclause (I) if the Sec2 retary determines that such compli3 ance would interfere with an effort by 

4 the Secretary to secure compliance by 

5 the petitioner employer with the re6 quirements under this subsection. 

7 There shall be no judicial review of a 

8 determination by the Secretary of 

9 Labor under this clause. 

10 ‘‘(ix) TIMING.—An investigation 

11 under this subparagraph may be conducted 

12 for a period of up to 60 days. Not later 

13 than 120 days after the Secretary of Labor 

14 determines, through an investigation under 

15 this subparagraph, that a reasonable basis 

16 exists to determine that the petitioner em17 ployer has committed a willful failure to 

18 meet a condition under subparagraph (A), 

19 (B), (C), (E), (F), or (G)(i) of paragraph 

20 (1), has engaged in a pattern or practice 

21 of failures to meet such a condition, or has 

22 committed a substantial failure to meet 

23 such a condition that affects multiple em24 ployees, the Secretary shall provide for no25 tice of such determination to the interested 


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1 parties and an opportunity for a hearing in 

2 accordance with section 556 of title 5, 

3 United States Code. If such a hearing is 

4 requested, the Secretary of Labor shall 

5 make a finding concerning the matter not 

6 later than 120 days after the date of the 

7 hearing. 

8 ‘‘(F) COMPLIANCE.— 

9 ‘‘(i) GOOD FAITH ATTEMPT.—Except 

10 as provided in clauses (ii) and (iii), a per11 son or entity is considered to have com12 plied with the requirements under this sub13 section, notwithstanding a technical or pro14 cedural failure to meet such requirements, 

15 if there was a good faith attempt to com16 ply with the requirements. 

17 ‘‘(ii) EXCEPTIONS.—Clause (i) shall 

18 not apply if— 

19 ‘‘(I) the Department of Labor (or 

20 another enforcement agency) has ex21 plained to the person or entity the 

22 basis for the failure; 

23 ‘‘(II) the person or entity has 

24 been provided a period of not less 

25 than 10 business days after the date 


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1 of the explanation to correct the fail2 ure; and 

3 ‘‘(III) the person or entity has 

4 not corrected the failure voluntarily 

5 within the period described in sub6 clause (II). 

7 ‘‘(iii) PENALTY AVOIDANCE.—A per8 son or entity shall not be assessed fines or 

9 other penalties for a violation of the pre10 vailing wage requirements under para11 graph (1)(A) if the person or entity estab12 lishes that the manner in which the pre13 vailing wage was calculated was consistent 

14 with recognized industry standards and 

15 practices. 

16 ‘‘(iv) EXCEPTIONS.—Clauses (i) and 

17 (iii) shall not apply to a person or entity 

18 that has engaged in, or is engaging in, a 

19 pattern or practice of willful violations of 

20 this subsection. 

21 ‘‘(4) SAVINGS PROVISION.—Nothing in this sub22 section may be construed to supersede or preempt 

23 any other enforcement-related authority under this 

24 title, including section 274B, or under any other 

25 Act.’’. 


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1 (b) ADMISSION OF NONIMMIGRANTS.—Section 214 of 

2 the Immigration and Nationality Act (8 U.S.C. 1184) is 

3 amended— 

4 (1) by striking ‘‘Attorney General’’ each place 

5 such term appears and inserting ‘‘Secretary of 

6 Homeland Security’’; 

7 (2) by amending subsection (b) to read as fol8 lows: 

9 ‘‘(b) PRESUMPTION OF STATUS; WRITTEN WAIV10 ER.— 

11 ‘‘(1) IN GENERAL.—Every alien (other than a 

12 nonimmigrant described in subparagraph (L) or (V) 

13 of section 101(a)(15) and other than a non14 immigrant described in any provision of subpara15 graph (H) of such section except subclause (b1) of 

16 such subparagraph) shall be presumed to be an im17 migrant until the alien establishes to the satisfaction 

18 of the consular officer, at the time of application for 

19 a visa, and the immigration officers, at the time of 

20 application for admission, that he or she is entitled 

21 to a nonimmigrant status under section 101(a)(15). 

22 ‘‘(2) RESTRICTIONS.—An alien who is an offi23 cer or employee of any foreign government or of any 

24 international organization entitled to enjoy privi25 leges, exemptions, and immunities under the InterVerDate Sep 11 2014 02:33 Feb 25, 2016 Jkt 059200 PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 E:\BILLS\H4598.IH H4598

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1 national Organizations Immunities Act (22 U.S.C. 

2 288 et seq.), and an alien who is the attendant, serv3 ant, employee, or member of the immediate family of 

4 any such alien shall not be entitled to apply for or 

5 receive an immigrant visa, or to enter the United 

6 States as an immigrant unless the alien executes a 

7 written waiver in the same form and substance as is 

8 prescribed under section 247(b).’’; and 

9 (3) in subsection (c)— 

10 (A) by striking paragraph (2); 

11 (B) in paragraph (9)— 

12 (i) in the matter preceding subpara13 graph (A), by striking ‘‘(excluding’’ and all 

14 that follows through ‘‘organization) filing 

15 before’’ and inserting ‘‘filing’’; and 

16 (ii) in subparagraph (B), by striking 

17 ‘‘$1,500’’ and inserting ‘‘$10,000’’; 

18 (C) by striking paragraph (10); 

19 (D) in paragraph (11)(A), by striking ‘‘or 

20 the Secretary of State, as appropriate,’’; and 

21 (E) in paragraph (12)(C), by striking 

22 ‘‘$500’’ and inserting ‘‘$2,000’’. 

23 (c) EMPLOYMENT AUTHORIZATION.—Section 

24 274A(h) of the Immigration and Nationality Act (8 U.S.C. 

25 1324a) is amended by adding at the end the following: 


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1 ‘‘(4) EMPLOYMENT AUTHORIZATION FOR

2 ALIENS NO LONGER ENGAGED IN FULL-TIME STUDY

3 IN THE UNITED STATES.—Notwithstanding any 

4 other provision of law, no alien present in the United 

5 States as a nonimmigrant under section 

6 101(a)(15)(F)(i) may be provided employment au7 thorization in the United States pursuant to the Op8 tional Practical Training Program, or any such suc9 cessor program, without an express Act of Congress 

10 authorizing such a program.’’. 

11 (d) CLERICAL AMENDMENT.—Section 212 of the Im12 migration and Nationality Act (8 U.S.C. 1182) is amend13 ed by redesignating subsection (t), as added by section 

14 1(b)(2)(B) of Public Law 108–449, as subsection (u). 

15 TITLE II—NEW H–1B VISA 

16 REQUIREMENTS 

17 SEC. 201. DEGREE REQUIREMENTS FOR FOREIGN NATION18 ALS. 

19 (a) IN GENERAL.—Each nonimmigrant employed 

20 pursuant to an H–1B visa requested by a petitioner em21 ployer shall possess a doctorate or post-doctorate degree, 

22 or the foreign equivalent of such degree, with the exception 

23 of nonimmigrants who enter the United States pursuant 

24 to subparagraph (O) or (P) of section 101(a)(15) of the 

25 Immigration and Nationality Act (8 U.S.C. 1101(a)(15)). 


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1 (b) UNDERGRADUATE AND MASTERS DEGREES PRO2 HIBITED.—A nonimmigrant who only possesses an under3 graduate degree (or the foreign equivalent of such degree), 

4 or a combination of undergraduate and masters degrees 

5 (or the foreign equivalents of such degrees) shall be ineli6 gible for employment pursuant to a petitioner employer’s 

7 H–1B visa, unless such nonimmigrant gained at least 10 

8 years of relevant experience after obtaining such degree 

9 or degrees. 

10 (c) FOREIGN SCHOOL CERTIFICATION REQUIRE11 MENT.— 

12 (1) IN GENERAL.—Each nonimmigrant em13 ployed pursuant to an H–1B visa requested by a pe14 titioner employer shall possess a degree or degrees, 

15 in accordance with this section, issued from a for16 eign university or universities that are certified by 

17 the Secretary of Labor as meeting appropriate base18 line education standards for institutions of higher 

19 learning. 

20 (2) DEPARTMENT OF LABOR CERTIFICATION OF

21 FOREIGN EDUCATIONAL INSTITUTIONS.—Not later 

22 than 90 days after the date of the enactment of this 

23 Act, the Secretary of Labor shall issue regulations 

24 establishing criteria that a foreign university shall 

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1 ficiency of its academic standards and degree re2 quirements. 

3 (d) DOCTORATE AND POST-DOCTORATE DEGREES

4 FROM UNITED STATES UNIVERSITIES PRIORITIZED.— 

5 (1) IN GENERAL.—A nonimmigrant who pos6 sesses 1 or more doctorate or post-doctorate degrees 

7 from 1 or more universities that are physically lo8 cated in the United States shall receive priority con9 sideration for placement in employment pursuant to 

10 an H–1B visa requested by a petitioner employer. 

11 (2) EMPLOYER OBLIGATIONS TO PRIORITIZE.— 

12 A petitioner employer shall employ a nonimmigrant 

13 described in paragraph (1) before employing any for14 eign national who has obtained his or her degree or 

15 degrees from 1 or more foreign universities. 

16 (3) PENALTIES FOR EMPLOYERS FOR FAILURE

17 TO PRIORITIZE.—Any petitioner employer that fails 

18 to comply with paragraph (2) shall be subject to the 

19 penalties provided in section 212(n)(3)(D) of the 

20 Immigration and Nationality Act, as amended by 

21 section 101(a). 

22 (4) DEVELOPMENT OF PRIORITIZATION PROCE23 DURE.—Not later than 90 days after the date of the 

24 enactment of this Act, the Secretary of Homeland 

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1 gration Services, serving as the Secretary’s designee, 

2 shall develop a procedure that ensures that non3 immigrants who possess 1 or more doctorate or post4 doctorate degrees from 1 or more universities that 

5 are physically located in the United States shall re6 ceive priority consideration, in accordance with para7 graph (1). 

8 (e) FOREIGN NATIONAL WORK EXPERIENCE RE9 QUIREMENT.—A nonimmigrant is not eligible for employ10 ment pursuant to an H–1B visa requested by a petitioner 

11 employer unless the nonimmigrant possesses at least 2 

12 years of nonacademic experience in the same field or pro13 fession for which the nonimmigrant is being sought. 

14 SEC. 202. BAR ON NONDISPARAGEMENT AND NONDISCLO15 SURE AGREEMENTS. 

16 (a) IN GENERAL.—A petitioner employer may not re17 quire a United States citizen or lawful permanent resident 

18 employee of such petitioner employer to sign any non19 disparagement or nondisclosure agreement, regardless of 

20 its characterization or label, that conditions receipt of any 

21 financial or nonfinancial benefit from the petitioner em22 ployer upon the nondisclosure of such petitioner employ23 er’s potential misuse of the H–1B visa program. 

24 (b) PATENT OR TRADEMARK AFFIRMATIVE DE25 FENSE IN LITIGATION.—Notwithstanding subsection (a), 


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1 a petitioner employer, as a defense in litigation, may af2 firmatively assert that an agreement described in sub3 section (a) was necessary to prevent the disclosure of any 

4 highly technical information that might be related to a 

5 pending patent or trademark application. 

6 SEC. 203. UNITED STATES FEDERAL COURT JURISDICTION 

7 OVER CIVIL ACTIONS PERTAINING TO MIS8 USE OF THE H–1B VISA PROGRAM. 

9 (a) IN GENERAL.—Notwithstanding any other provi10 sion of law— 

11 (1) each United States district court shall have 

12 jurisdiction to address civil actions by any person 

13 claiming misuse of the H–1B visa program; 

14 (2) each United States court of appeals shall 

15 have jurisdiction to address appeals of civil actions 

16 by any person claiming misuse of the H–1B visa 

17 program for cases originating within a United States 

18 district court within that circuit; and 

19 (3) the Supreme Court of the United States 

20 shall have jurisdiction to address appeals of civil ac21 tions by any person claiming misuse of the H–1B 

22 visa program for cases originating from any United 

23 States court of appeals. 

24 (b) NO EXHAUSTION REQUIREMENT.—Notwith25 standing any other provision of law, a person shall have 


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1 standing to pursue a civil action claiming misuse of the 

2 H–1B visa program, in accordance with subsection (a), 

3 regardless of whether such person has exhausted all ad4 ministrative remedies in connection with such claims. 

5 (c) RULE OF CONSTRUCTION.—Nothing in this sec6 tion may be construed to affect or change any of the other 

7 jurisdictional, procedural, or administrative rules under 

8 title 28, United States Code, other than the specific estab9 lishment of jurisdiction of Federal courts, as provided in 

10 subsection (a). 

11 TITLE III—REPEAL OF OTHER 

12 PROVISIONS 

13 SEC. 301. REPEAL OF THE DIVERSITY VISA LOTTERY. 

14 Title II of the Immigration and Nationality Act (8 

15 U.S.C. 1151 et seq.) is amended— 

16 (1) in section 201(a)— 

17 (A) in paragraph (1), by adding ‘‘and’’ at 

18 the end; 

19 (B) in paragraph (2), by striking ‘‘; and’’ 

20 and inserting a period; and 

21 (C) by striking paragraph (3); 

22 (2) in section 203— 

23 (A) by striking subsection (c); and 

24 (B) in subsection (e)— 

25 (i) by striking paragraph (2); and 


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1 (ii) by redesignating paragraph (3) as 

2 paragraph (2); and 

3 (3) in section 204(a)(1), by striking subpara4 graph (I). 

Æ 


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