I 

110TH CONGRESS 

1ST SESSION H. R. 2538 

To amend the Immigration and Nationality Act to provide greater protections 

to domestic and foreign workers under the H–1B nonimmigrant worker 

program. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 24, 2007 

Mr. PASCRELL (for himself, Mr. LATOURETTE, Mr. ROHRABACHER, and Ms. 

DELAURO) introduced the following bill; which was referred to the Committee on the Judiciary 

A BILL 

To amend the Immigration and Nationality Act to provide 

greater protections to domestic and foreign workers 

under the H–1B nonimmigrant worker program. 

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. 

4 This Act may be cited as the ‘‘Defend the American 

5 Dream Act of 2007’’. 

6 SEC. 2. WAGE DETERMINATION. 

7 (a) CHANGE IN MINIMUM WAGES.—Section 

8 212(n)(1)(A) of the Immigration and Nationality Act (8 

9 U.S.C. 1182(n)(1)(A)) is amended to read as follows: 


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1 ‘‘(A) The employer— 

2 ‘‘(i) is offering and will offer during the 

3 period of authorized employment to aliens ad4 mitted or provided status as an H–1B non5 immigrant wages that are at least— 

6 ‘‘(I) the locally determined prevailing 

7 wage level for the occupational classifica8 tion in the area of employment; 

9 ‘‘(II) the median average wage for all 

10 workers in the occupational classification 

11 in the area of employment; or 

12 ‘‘(III) the median wage for skill level 

13 two in the occupational classification found 

14 in the most recent Occupational Employ15 ment Statistics survey; 

16 whichever is greatest, based on the best infor17 mation available as of the time of filing of the 

18 application; and 

19 ‘‘(ii) will provide working conditions for 

20 such nonimmigrant that will not adversely af21 fect the working conditions of workers similarly 

22 employed. 

23 The wage determination methodology used under 

24 clause (i) shall be submitted with the application.’’. 


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1 (b) PROVISION OF W–2 FORMS.—Section 212(n)(1) 

2 of such Act (8 U.S.C. 1182(n)(1)) is amended by inserting 

3 after subparagraph (G) the following new subparagraph: 

4 ‘‘(H) If the employer employed, in such pre5 vious period as the Secretary shall specify, one or 

6 more H–1B nonimmigrants, the application shall be 

7 accompanied by the Internal Revenue Service Form 

8 W–2 Wage and Tax Statement filed by the employer 

9 with respect to such nonimmigrants for such pe10 riod.’’. 

11 (c) EFFECTIVE DATE.—The amendments made by 

12 this section shall apply to applications filed on or after 

13 the date of the enactment of this Act. 

14 SEC. 3. GOOD FAITH RECRUITMENT REQUIREMENT. 

15 (a) EXTENDING TIME PERIOD FOR NO DISPLACE16 MENT.—Section 212(n) of the Immigration and Nation17 ality Act (8 U.S.C. 1182(n)) is amended— 

18 (1) in paragraph (1)(E)(i), by striking ‘‘90 

19 days’’ and inserting ‘‘180 days’’ each place it ap20 pears; and 

21 (2) in paragraph (2)(C)(iii), in the matter be22 fore subclause (I), by striking ‘‘90 days’’ and insert23 ing ‘‘180 days’’ each place it appears. 

24 (b) REQUIRING ACTIVE RECRUITMENT.—Section 

25 212(n)(1)(G)(i)(I) of such Act (8 U.S.C. 


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1 1182(n)(1)(G)(i)(I)) is amended by inserting ‘‘actively’’ 

2 before ‘‘recruit’’. 

3 (c) PROHIBITION OF OUTPLACEMENT.—Section 

4 212(n) of such Act (8 U.S.C. 1182(n)) is amended— 

5 (1) by amending subparagraph (F) of para6 graph (1) to read as follows: 

7 ‘‘(F) The employer shall not place, out-source, 

8 lease, or otherwise contract for the placement of an 

9 alien admitted or provided status as an H–1B non10 immigrant with another employer, regardless of 

11 whether or not such other employer is an H–1B-de12 pendent employer.’’; and 

13 (2) by striking subparagraph (E) of paragraph 

14 (2). 

15 (d) EFFECTIVE DATE.—The amendments made by 

16 this section shall apply to applications filed on or after 

17 the date of the enactment of this Act, except that the 

18 amendments made by subsection (a) shall not apply to dis19 placements for periods occurring more than 90 days before 

20 such date. 

21 SEC. 4. H–1B EMPLOYER REQUIREMENTS. 

22 (a) PUBLIC LISTING OF AVAILABLE POSITIONS.— 

23 (1) LISTING OF AVAILABLE POSITIONS.—Sec24 tion 212(n)(1)(C) of such Act is amended— 


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1 (A) in clause (i), by striking ‘‘(i) has pro2 vided’’ and inserting the following: 

3 ‘‘(ii)(I) has provided’’; 

4 (B) by redesignating clause (ii) as sub5 clause (II); and 

6 (C) by inserting before clause (ii), as re7 designated, the following: 

8 ‘‘(i) has advertised the job availability on 

9 the list described in paragraph (6), for at least 

10 30 calendar days; and’’. 

11 (2) LIST MAINTAINED BY THE DEPARTMENT OF

12 LABOR.—Section 212(n) of such Act, is amended by 

13 adding at the end the following: 

14 ‘‘(6)(A) Not later than 90 days after the date of the 

15 enactment of this paragraph, the Secretary of Labor shall 

16 establish a list of available jobs, which shall be publicly 

17 accessible without charge— 

18 ‘‘(i) on a website maintained by the Department 

19 of Labor, which website shall be searchable by— 

20 ‘‘(I) the name, city, State, and zip code of 

21 the employer; 

22 ‘‘(II) the date on which the job is expected 

23 to begin; 

24 ‘‘(III) the title and description of the job; 

25 and 


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1 ‘‘(IV) the State and city (or county) at 

2 which the work will be performed; and 

3 ‘‘(ii) at each 1-stop center created under the 

4 Workforce Investment Act of 1998 (Public Law 

5 105–220). 

6 ‘‘(B) Each available job advertised on the list shall 

7 include— 

8 ‘‘(i) the employer’s full legal name; 

9 ‘‘(ii) the address of the employer’s principal 

10 place of business; 

11 ‘‘(iii) the employer’s city, State and zip code; 

12 ‘‘(iv) the employer’s Federal Employer Identi13 fication Number; 

14 ‘‘(v) the phone number, including area code and 

15 extension, as appropriate, of the hiring official or 

16 other designated official of the employer; 

17 ‘‘(vi) the e-mail address, if available, of the hir18 ing official or other designated official of the em19 ployer; 

20 ‘‘(vii) the wage rate to be paid for the position 

21 and, if the wage rate in the offer is expressed as a 

22 range, the bottom of the wage range; 

23 ‘‘(viii) whether the rate of pay is expressed on 

24 an annual, monthly, biweekly, weekly, or hourly 

25 basis; 


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1 ‘‘(ix) a statement of the expected hours per 

2 week that the job will require; 

3 ‘‘(x) the date on which the job is expected to 

4 begin; 

5 ‘‘(xi) the date on which the job is expected to 

6 end, if applicable; 

7 ‘‘(xii) the number of persons expected to be em8 ployed for the job; 

9 ‘‘(xiii) the job title; 

10 ‘‘(xiv) the job description; 

11 ‘‘(xv) the city and State of the physical location 

12 at which the work will be performed; and 

13 ‘‘(xvi) a description of a process by which a 

14 United States worker may submit an application to 

15 be considered for the job. 

16 ‘‘(C) The Secretary of Labor may charge a nominal 

17 filing fee to employers who advertise available jobs on the 

18 list established under this paragraph to cover expenses for 

19 establishing and administering the requirements under 

20 this paragraph. 

21 ‘‘(D) The Secretary may promulgate rules, after no22 tice and a period for comment— 

23 ‘‘(i) to carry out the requirements of this para24 graph; and 


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1 ‘‘(ii) that require employers to provide other in2 formation in order to advertise available jobs on the 

3 list.’’. 

4 (3) EFFECTIVE DATE.—Paragraph (1) shall 

5 take effect for applications filed at least 30 days 

6 after the creation of the list described in paragraph 

7 (2). 

8 (b) H–1B NONIMMIGRANTS NOT ADMITTED FOR

9 JOBS ADVERTISED OR OFFERED ONLY TO H–1B NON10 IMMIGRANTS.—Section 212(n)(1) of such Act, as amended 

11 by this Act, is further amended— 

12 (1) by inserting after subparagraph (H) the fol13 lowing: 

14 ‘‘(I)(i) The employer has not advertised the 

15 available jobs specified in the application in an ad16 vertisement that states or indicates that— 

17 ‘‘(I) the job or jobs are only available to 

18 persons who are or who may become H–1B 

19 nonimmigrants; or 

20 ‘‘(II) persons who are or who may become 

21 H–1B nonimmigrants shall receive priority or a 

22 preference in the hiring process. 

23 ‘‘(ii) The employer has not only recruited per24 sons who are, or who may become, H–1B non25 immigrants to fill the job or jobs.’’; and 


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1 (2) in the undesignated paragraph at the end, 

2 by striking ‘‘The employer’’ and inserting the fol3 lowing: 

4 ‘‘(J) The employer’’. 

5 (c) LIMIT ON PERCENTAGE OF H–1B EMPLOYEES.— 

6 Section 212(n)(1) of such Act, as amended by this section, 

7 is further amended by inserting after subparagraph (J) 

8 the following: 

9 ‘‘(K) If the employer employs not less than 50 

10 employees in the United States, not more than 50 

11 percent of such employees are H–1B non12 immigrants.’’. 

13 (d) IMMIGRATION DOCUMENTS.—Section 204 of such 

14 Act (8 U.S.C. 1154) is amended by adding at the end the 

15 following: 

16 ‘‘(l) EMPLOYER TO SHARE ALL IMMIGRATION PA17 PERWORK EXCHANGED WITH FEDERAL AGENCIES.—Not 

18 later than 10 working days after receiving a written re19 quest from a former, current, or future employee or bene20 ficiary, an employer shall provide the employee or bene21 ficiary with the original (or a certified copy of the original) 

22 of all petitions, notices, and other written communication 

23 exchanged between the employer and the Department of 

24 Labor, the Department of Homeland Security, or any 

25 other Federal agency that is related to an immigrant or 


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1 nonimmigrant petition filed by the employer for the em2 ployee or beneficiary.’’. 

3 SEC. 5. REMOVAL OF EXEMPTION FROM H–1B NUMERICAL 

4 LIMITATION FOR CERTAIN ALIENS. 

5 (a) IN GENERAL.—Section 214(g)(5) of the Immi6 gration and Nationality Act (8 U.S.C. 1184(g)(5)) is 

7 amended— 

8 (1) in subparagraph (A), by adding ‘‘or’’ after 

9 the semicolon; 

10 (2) in subparagraph (B), by striking ‘‘; or’’ and 

11 inserting a period; and 

12 (3) by striking subparagraph (C). 

13 (b) EFFECTIVE DATE.—The amendments made by 

14 subsection (a) shall apply to the issuance of a visa (or 

15 other provision of status) under section 

16 101(a)(15)(H)(i)(B) of the Immigration and Nationality 

17 Act (8 U.S.C. 1101(a)(15)(H)(i)(B)) on or after the first 

18 day of the first fiscal year beginning after the date of the 

19 enactment of this Act. 

20 SEC. 6. REQUIREMENT OF A DEGREE FROM CERTAIN INSTI21 TUTIONS FOR H–1B SPECIALITY OCCUPATION 

22 NONIMMIGRANTS. 

23 (a) IN GENERAL.—Section 214(i)(2) of the Immigra24 tion and Nationality Act (8 U.S.C. 1184(i)(2)) is amend25 ed— 


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1 (1) in subparagraph (A), by adding ‘‘or’’ at the 

2 end; 

3 (2) in subparagraph (B), by inserting ‘‘, from 

4 a bona fide educational institution in the United 

5 States or from an educational institution that is at 

6 least equivalent to such an institution in the United 

7 States,’’ after ‘‘paragraph (1)(B)’’; 

8 (3) in subparagraph (B), by striking ‘‘, or’’ and 

9 inserting a period; and 

10 (4) by striking subparagraph (C). 

11 (b) EFFECTIVE DATE.—The amendments made by 

12 subsection (a) shall apply to applications filed on or after 

13 the date of the enactment of this Act. 

14 SEC. 7. LABOR ENFORCEMENT. 

15 (a) CENTRALIZATION OF ADMINISTRATIVE AND EN16 FORCEMENT FUNCTIONS.—Section 212(n)(2) of the Im17 migration and Nationality Act (8 U.S.C. 1182(n)(2)) is 

18 amended by adding at the end the following new subpara19 graph: 

20 ‘‘(J) The Secretary shall be responsible under this 

21 paragraph for investigations of wage complaints, as well 

22 as investigations of allegations of fraud in the filing of 

23 applications under this subsection.’’. 

24 (b) AUDITS.—Section 212(n)(2)(A) of such Act (8 

25 U.S.C. 1182(n)(2)(A)) is amended by adding at the end 


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1 the following: ‘‘In addition, the Secretary may conduct 

2 surveys of the level of compliance by employers with the 

3 provisions and requirements of this subsection and may 

4 conduct annual compliance audits in the case of employers 

5 that employ H–1B nonimmigrants. In the case of an em6 ployer that employs H–1B nonimmigrants that represent 

7 15 percent or more of the total number of individuals em8 ployed by the employer, the Secretary shall conduct annual 

9 compliance audits of such employer.’’. 

10 (c) PENALTIES.—Section 212(n)(2)(C) of such Act 

11 is amended— 

12 (1) in clause (i)(I), by striking ‘‘$1,000’’ and 

13 inserting ‘‘$2,000’’; 

14 (2) in clause (ii)(I), by striking ‘‘$5,000’’ and 

15 inserting ‘‘$10,000’’; and 

16 (3) in clause (vi)(III), by striking ‘‘$1,000’’ and 

17 inserting ‘‘$2,000’’. 

18 SEC. 8. WHISTLEBLOWER PROTECTIONS. 

19 Section 212(n)(2)(C)(iv) of the Immigration and Na20 tionality Act (8 U.S.C. 1182(n)(2)(C)(iv)) is amended— 

21 (1) by inserting ‘‘take, fail to take, or threaten 

22 to take or fail to take, a personnel action, or’’ before 

23 ‘‘to intimidate’’; and 

24 (2) by adding at the end the following: ‘‘An em25 ployer that violates this clause shall be liable to the 


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1 employees harmed by such violation for lost wages 

2 and benefits.’’. 

3 SEC. 9. APPLICATION OF NONDISPLACEMENT REQUIRE4 MENT TO ALL H–1B EMPLOYERS. 

5 (a) IN GENERAL.—Section 212(n)(1)(E)(ii) of the 

6 Immigration and Nationality Act (8 U.S.C. 

7 1182(n)(1)(E)(ii)) is amended by striking ‘‘an H–1B de8 pendent employer (as defined in paragraph (3))’’ and in9 serting ‘‘an employer that employs H–1B non10 immigrants’’. 

11 (b) EFFECTIVE DATE.—The amendments made by 

12 this section shall apply to applications filed on or after 

13 the date of the enactment of this Act. 

Æ 


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