II 

109TH CONGRESS 

1ST SESSION S. 1918 

To amend the Immigration and Nationality Act to address the demand 

for foreign workers. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 25, 2005 

Mr. HAGEL 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 address 

the demand for foreign workers. 

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 ‘‘Strengthening America’s Workforce Act of 2005’’. 

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

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 

TITLE I—WILLING WORKER PROGRAM 

Sec. 101. Willing workers. 

Sec. 102. Recruitment of United States workers. 

Sec. 103. Admission of willing workers. 
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Sec. 104. Worker protections. 

Sec. 105. Notification of employee rights. 

Sec. 106. Portability. 

Sec. 107. Spouses and children of willing workers. 

Sec. 108. Petitions by employer groups and unions. 

Sec. 109. Processing time for petitions. 

Sec. 110. Terms of admission. 

Sec. 111. Number of visas issued. 

Sec. 112. Immigration Study Commission. 

Sec. 113. Change of status. 

Sec. 114. Adjustment of status to lawful permanent resident. 

Sec. 115. Grounds of inadmissibility. 

Sec. 116. Petition fees. 

Sec. 117. Definitions. 

Sec. 118. Collective bargaining agreements. 

Sec. 119. Report on wage determination. 

Sec. 120. Ineligibility for certain nonimmigrant status. 

Sec. 121. Investigations by Department of Homeland Security during labor disputes. 

Sec. 122. Protection of witnesses. 

Sec. 123. Document fraud. 

TITLE II—NONIMMIGRANT VISAS FOR HIGHLY EDUCATED AND 

SKILLED WORKERS 

Sec. 201. Exemption of nonimmigrants with advanced degrees from numerical 

limits. 

Sec. 202. Aliens not subject to numerical limitations on employment-based immigrants. 

TITLE III—FOREIGN STUDENT WORK AUTHORIZATION 

Sec. 301. Off campus work authorization for foreign students. 

1 TITLE I—WILLING WORKER 

2 PROGRAM 

3 SEC. 101. WILLING WORKERS. 

4 (a) H–2B WORKERS.—Section 101(a)(15)(H)(ii)(b) 

5 of the Immigration and Nationality Act (8 U.S.C. 

6 1101(a)(15)(H)(ii)(b)) is amended— 

7 (1) by inserting ‘‘subject to section 212(v),’’ be8 fore ‘‘having a residence’’; and 
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1 (2) by striking ‘‘temporary service or labor’’ 

2 and inserting ‘‘short-term service or labor, lasting 

3 not more than 9 months’’. 

4 (b) H–2C WORKERS.—Section 101(a)(15)(H)(ii)(b) 

5 of the Immigration and Nationality Act (8 U.S.C. 

6 1101(a)(15)(H)(ii)(b)) is amended by striking ‘‘profes7 sion; or’’ and inserting ‘‘profession, or (c) subject to sec8 tion 212(v), who is coming temporarily to the United 

9 States to perform labor or services, other than those occu10 pation classifications covered under the provisions of 

11 clause (i)(b), (ii)(a), or (ii)(b) of this subparagraph or sub12 paragraph (L), (O), or (P), for a United States employer, 

13 if United States workers qualified to perform such labor 

14 or service cannot be identified; or’’. 

15 SEC. 102. RECRUITMENT OF UNITED STATES WORKERS. 

16 Section 212 of the Immigration and Nationality Act 

17 (8 U.S.C. 1182) is amended— 

18 (1) by redesignating subsection (t) (as added by 

19 section 1(b)(2) of Public Law 108–449 (118 Stat. 

20 3470)) as subsection (u); and 

21 (2) by adding at the end the following: 

22 ‘‘(v)(1) An employer that seeks to employ an alien 

23 described in clause (ii)(b) or (ii)(c) of section 

24 101(a)(15)(H) shall, with respect to an alien described in 

25 such clause (ii)(b), 14 days prior to filing an application 
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1 under paragraph (3), and with respect to an alien de2 scribed in such clause (ii)(c), 30 days prior to filing an 

3 application under paragraph (3), take the following steps 

4 to recruit United States workers for the position for which 

5 the nonimmigrant worker is sought: 

6 ‘‘(A) Submit a copy of the job opportunity, in7 cluding a description of the wages and other terms 

8 and conditions of employment, to the United States 

9 Employment Services within the Department of 

10 Labor (ES), which shall provide the employers with 

11 an acknowledgment of receipt of the documentation 

12 provided to the ES in accordance with this subpara13 graph. 

14 ‘‘(B) Authorize the ES to post the job oppor15 tunity on ‘America’s Job Bank’ and local job banks, 

16 and with unemployment agencies and other labor re17 ferral and recruitment sources pertinent to the job 

18 in question. 

19 ‘‘(C) Authorize the ES to notify the central of20 fice of the State Federation of Labor in the State 

21 in which the job is located. 

22 ‘‘(D) Post the availability of the job opportunity 

23 for which the employer is seeking a worker in con24 spicuous locations at the place of employment for all 

25 employees to see. 
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1 ‘‘(E) Advertise, with respect to an alien de2 scribed in such clause (ii)(b), for at least 3 consecu3 tive days, and for an alien described in such clause 

4 (ii)(c), for at least 10 consecutive days, the avail5 ability of the job opportunity for which the employer 

6 is seeking a worker in a publication with the highest 

7 circulation in the labor market that is likely to be 

8 patronized by a potential worker. 

9 ‘‘(F) Based on recommendations by the local 

10 job service, advertise the availability of the job op11 portunity in professional, trade, or ethnic publica12 tions that are likely to be patronized by a potential 

13 worker. 

14 ‘‘(2) An employer that seeks to employ an alien de15 scribed in clause (ii)(b) or (ii)(c) of section 101(a)(15)(H) 

16 shall— 

17 ‘‘(A) have offered the job to any United States 

18 worker who applies and is qualified for the job for 

19 which the nonimmigrant worker is sought and who 

20 is available at the time of need; and 

21 ‘‘(B) be required to maintain, for at least 1 

22 year after the employment relationship is termi23 nated, documentation of recruitment efforts and re24 sponses received prior to the filing of the employer’s 

25 application with the Secretary of Labor, including 
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1 resumes, applications, and, if applicable, tests of 

2 United States workers who applied and were not 

3 hired for the job the employer seeks to fill with a 

4 nonimmigrant worker.’’. 

5 SEC. 103. ADMISSION OF WILLING WORKERS. 

6 (a) APPLICATION TO THE SECRETARY OF LABOR.— 

7 Section 212(v) of the Immigration and Nationality Act (8 

8 U.S.C. 1182(v)), as added by section 102, is amended by 

9 adding after paragraph (2) the following: 

10 ‘‘(3) An employer that seeks to fill a position with 

11 an alien described in clause (ii)(b) or (ii)(c) of section 

12 101(a)(15)(H), shall file with the Secretary of Labor an 

13 application attesting that— 

14 ‘‘(A) the employer is offering and will offer dur15 ing the period of authorized employment to aliens 

16 admitted or provided status as a nonimmigrant de17 scribed in clause (ii)(b) or (ii)(c) of section 

18 101(a)(15)(H), wages that are at least— 

19 ‘‘(i) the actual wage level paid by the em20 ployer to all other individuals with similar expe21 rience and qualifications for the specific em22 ployment in question; or 

23 ‘‘(ii) the prevailing wage level for the occu24 pational classification in the area of employ25 ment, taking into account experience and skill 
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1 levels of employees, which level may be deter2 mined through private, independent wage sur3 veys, 

4 whichever is greater, based on the best information avail5 able at the time of the filing of the application, and for 

6 purposes of clause (ii) the prevailing wage level shall be, 

7 if the job opportunity is covered by a collective bargaining 

8 agreement between a union and the employer, the wage 

9 rate set forth in the collective bargaining agreement, or 

10 if the job opportunity is not covered by a collective bar11 gaining agreement between a union and the employer, and 

12 it is in an occupation that is covered by a wage determina13 tion under a provision of subchapter IV of chapter 31 of 

14 title 40, United States Code, the appropriate statutory 

15 wage determination; 

16 ‘‘(B) the employer will offer the same wages, 

17 benefits, and working conditions for such non18 immigrant as those provided to United States work19 ers similarly employed in the same occupation and 

20 the same place of employment; 

21 ‘‘(C) there is not a strike, lockout, or labor dis22 pute in the occupational classification at the place of 

23 employment (including any concerted activity to 

24 which section 7 of the National Labor Relations Act 

25 (29 U.S.C. 157) applies); 
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1 ‘‘(D) the employer will abide by all applicable 

2 laws and regulations relating to the right of workers 

3 to join or organize a union; 

4 ‘‘(E) the employer has provided notice of the 

5 filing of the application to the bargaining represent6 ative, if any, of the employer’s employees in the oc7 cupational classification at the place of employment 

8 or, if there is no such bargaining representative, has 

9 posted notice of the filing in conspicuous locations at 

10 the place of employment for all employees to see for 

11 not less than 10 business days for an alien described 

12 in clause (ii)(b) of section 101(a)(15)(H) and for not 

13 less than 25 business days for an alien described in 

14 clause (ii)(c) of such section; 

15 ‘‘(F) the employer (including its officers, rep16 resentatives, agents, or attorneys) has not required 

17 the applicant to pay any fee or charge for preparing 

18 the application and submitting it to the Secretary of 

19 Labor, the Secretary of Homeland Security, or the 

20 Secretary of State; 

21 ‘‘(G) the requirements for the job opportunity 

22 represent the employer’s actual minimum require23 ments for that job and the employer will not hire 

24 nonimmigrant workers with less training or experi25 ence; 
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1 ‘‘(H) the employer, within the 60 days prior to 

2 the filing of the application and the 60 days fol3 lowing the filing, has not laid off, and will not lay4 off, any United States worker employed by the em5 ployer in any similar position at the place of employ6 ment; 

7 ‘‘(I) the employer, prior to the filing of the ap8 plication, has complied with the recruitment require9 ments in accordance with paragraph (1); and 

10 ‘‘(J) no job offer may impose on United States 

11 workers any restrictions or obligations that will not 

12 be imposed by an employer on a nonimmigrant 

13 worker described in clause (ii)(b) or (ii)(c) of section 

14 101(a)(15)(H).’’. 

15 (b) ACCOMPANIED BY JOB OFFER.—Section 212(v) 

16 of the Immigration and Nationality Act (8 U.S.C. 

17 1182(v)), as amended by subsection (a), is further amend18 ed by adding after paragraph (3) the following: 

19 ‘‘(4) Each application filed under paragraph (3) shall 

20 be accompanied by— 

21 ‘‘(A) a copy of the job offer describing the 

22 wages and other terms and conditions of employ23 ment; 
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1 ‘‘(B) a statement of the minimum education, 

2 training, experience, and requirements for the job 

3 opportunity in question; 

4 ‘‘(C) copies of the documentation submitted to 

5 the United States Employment Services within the 

6 Department of Labor to recruit United States work7 ers in accordance with paragraph (1); 

8 ‘‘(D) copies of the advertisements to recruit 

9 United States workers placed in publications in ac10 cordance with paragraph (1); and 

11 ‘‘(E) a copy of the acknowledgment of receipt 

12 provided to the employer by the ES in accordance 

13 with paragraph (1)(A).’’. 

14 (c) INCOMPLETE APPLICATIONS; RETENTION OF AP15 PLICATION; FILING OF PETITION.—Section 212(v) of the 

16 Immigration and Nationality Act (8 U.S.C. 1182(v)), as 

17 amended by subsection (b), is further amended by adding 

18 after paragraph (4) the following: 

19 ‘‘(5) The Secretary of Labor shall review the applica20 tion and requisite documents filed in accordance with 

21 paragraphs (3) and (4) for completeness and accuracy, 

22 and if deficiencies are found, the Secretary of Labor shall 

23 notify the employer and provide the employer with an op24 portunity to address such deficiencies. 
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1 ‘‘(6) A copy of the application and requisite docu2 ments filed with the Secretary of Labor in accordance with 

3 paragraphs (3) and (4) shall be retained by the employer 

4 in a public access file at the employer’s headquarters or 

5 principal place of employment of the alien for the duration 

6 of the employment relationship and for 1 year after the 

7 termination of that employment relationship. 

8 ‘‘(7) Upon the approval of an application by the Sec9 retary of Labor, an employer who seeks to employ an alien 

10 described in clause (ii)(b) or (ii)(c) of section 

11 101(a)(15)(H) shall file a petition as required under sec12 tion 214(c)(1) with the Bureau of Citizenship and Immi13 gration Services within the Department of Homeland Se14 curity. 

15 ‘‘(8) Upon finalization of the visa processing, the Sec16 retary of Homeland Security shall issue each alien who 

17 obtains legal status under clause (ii)(b) or (ii)(c) of section 

18 101(a)(15)(H) with a counterfeit-resistant visa and a doc19 ument of authorization, both of which meet all the require20 ments established by the Secretary of Homeland Security 

21 for travel documents and reflects the benefits and status 

22 set forth in this subsection.’’. 

23 SEC. 104. WORKER PROTECTIONS. 

24 Section 212(v) of the Immigration and Nationality 

25 Act (8 U.S.C. 1182(v)), as amended by section 103, is 
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1 further amended by adding after paragraph (8) the fol2 lowing: 

3 ‘‘(9)(A) Nothing in this subsection shall be construed 

4 to limit the rights of an employee under a collective bar5 gaining agreement or other employment contract. 

6 ‘‘(B) An alien admitted or otherwise provided status 

7 under clause (ii)(b) or (ii)(c) of section 101(a)(15)(H) 

8 shall not be denied any right or any remedy under Fed9 eral, State, or local labor or employment law that is appli10 cable to a United States worker employed in a similar po11 sition with the employer because of the status of the alien 

12 as a nonimmigrant worker. 

13 ‘‘(C) It shall be unlawful for an employer who has 

14 filed a petition for a nonimmigrant worker described in 

15 clause (ii)(b) or (ii)(c) of section 101(a)(15)(H) to intimi16 date, threaten, restrain, coerce, blacklist, discharge, or in 

17 any other manner discriminate against an employee (in18 cluding a former employee) because the employee— 

19 ‘‘(i) disclosed information, to the employer or to 

20 any other person, that the employee reasonably be21 lieves evidences a violation of this subsection or any 

22 rule or regulation pertaining to this subsection; or 

23 ‘‘(ii) because the employee cooperates or seeks 

24 to cooperate in a government investigation or other 

25 proceeding concerning the employer’s compliance 
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1 with the requirements of this subsection or any rule 

2 or regulation pertaining to this subsection. 

3 ‘‘(D) The Secretary of Labor and the Secretary of 

4 Homeland Security shall establish a process under which 

5 a nonimmigrant worker described in clause (ii)(b) or 

6 (ii)(c) of section 101(a)(15)(H) who files a complaint re7 garding a violation of this subsection, or any other rule 

8 or regulation pertaining to this subsection and is otherwise 

9 eligible to remain and work in the United States may be 

10 allowed to seek other appropriate employment in the 

11 United States for a period not to exceed the maximum 

12 period of stay authorized for that nonimmigrant classifica13 tion.’’. 

14 SEC. 105. NOTIFICATION OF EMPLOYEE RIGHTS. 

15 Section 214(c), of the Immigration and Nationality 

16 Act (8 U.S.C. 1184(c)) is amended by adding at the end 

17 the following: 

18 ‘‘(13) An employer that employs an alien de19 scribed in clause (ii)(b) or (ii)(c) of section 

20 101(a)(15)(H) shall provide such alien with the 

21 same notification of the alien’s rights and remedies 

22 under Federal, State, and local laws that the em23 ployer is required to provide to United States work24 ers and, upon request of the United States worker, 

25 make available to United States employees a copy of 
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1 the attested application submitted by the employer 

2 regarding that alien to the Secretary of Labor and 

3 the application by the employer regarding that alien 

4 submitted to the Secretary of Homeland Security.’’. 

5 SEC. 106. PORTABILITY. 

6 Section 212(v) of the Immigration and Nationality 

7 Act (8 U.S.C. 1182(v)), as amended by section 104, is 

8 further amended by adding after paragraph (9) the fol9 lowing: 

10 ‘‘(10)(A) Except as provided in subparagraph (C), 

11 any alien admitted or otherwise provided status as a non12 immigrant described in section 101(a)(15)(H)(ii)(c) may 

13 change employers only after the alien has been employed 

14 by the petitioning employer for at least 3 months from 

15 the date of admission or the date such status was other16 wise acquired. 

17 ‘‘(B) Except as provided in subparagraph (C), any 

18 alien admitted or otherwise provided status as a non19 immigrant described in section 101(a)(15)(H)(ii)(b) shall 

20 be prohibited from changing employers after the alien has 

21 been employed by the petitioning employer. 

22 ‘‘(C) The 3-month employment requirement in sub23 paragraph (A) may be waived (without loss of status dur24 ing the period of the waiver) for a nonimmigrant described 

25 in section 101(a)(15)(H)(ii)(c) and the employment re-
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1 quirement in subparagraph (B) may be waived (without 

2 loss of status during the period of the waiver) for a non3 immigrant described in section 101(a)(15)(H)(ii)(b) in cir4 cumstances where— 

5 ‘‘(i) the alien began and continued the employ6 ment in good faith but the employer violated a term 

7 or condition of sponsorship of the alien under this 

8 Act or violated any other law or regulation relating 

9 to the employment of the alien; or 

10 ‘‘(ii) the personal circumstances of the alien 

11 changed so as to require a change of employer, in12 cluding family, medical, or humanitarian reasons, a 

13 disability, or other factor rendering the alien unable 

14 to perform the job. 

15 ‘‘(D) If a waiver under subparagraph (C) is sought, 

16 the application shall be accompanied by such evidence to 

17 warrant the approval of such waiver. 

18 ‘‘(E) A nonimmigrant alien admitted or otherwise 

19 provided status as a nonimmigrant described in clause 

20 (ii)(b) or (ii)(c) of section 101(a)(15)(H) may accept new 

21 employment with a new employer upon the filing by the 

22 new employer of a new application on behalf of such alien 

23 as provided under paragraph (3). Employment authoriza24 tion shall continue until the new petition is adjudicated. 

25 If the new petition is denied, the alien’s right to work as 
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1 established by this subsection shall cease. The alien’s right 

2 to work, if any, established by any other provision of law, 

3 shall not be affected by the denial of such new applica4 tion.’’. 

5 SEC. 107. SPOUSES AND CHILDREN OF WILLING WORKERS. 

6 Section 212(v) of the Immigration and Nationality 

7 Act (8 U.S.C. 1182(v)), as amended by section 106, is 

8 further amended by adding after paragraph (10) the fol9 lowing: 

10 ‘‘(11) A spouse or child of a nonimmigrant worker 

11 described in clause (ii)(b) or (ii)(c) of section 

12 101(a)(15)(H) shall be eligible for derivative status by ac13 companying or following to join the alien.’’. 

14 SEC. 108. PETITIONS BY EMPLOYER GROUPS AND UNIONS. 

15 Section 214(c)(1) of the Immigration and Nationality 

16 Act (8 U.S.C. 1184(c)(1)) is amended— 

17 (1) by inserting after the first sentence the fol18 lowing: ‘‘In the case of an alien or aliens described 

19 in clause (ii)(b) or (ii)(c) of section 101(a)(15)(H), 

20 the petition may be filed by an associated or affili21 ated group of employers that have multiple openings 

22 for similar employment on behalf of the individual 

23 employers or by a union or union consortium. The 

24 petition, if approved, will be valid for employment in 

25 the described positions for the member employers, 
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1 the union, or union consortium, provided the em2 ploying entity has complied with all applicable re3 cruitment requirements and paid the requisite peti4 tion fees.’’; and 

5 (2) by adding at the end the following: ‘‘Noth6 ing in this paragraph shall be construed to permit 

7 a recruiting entity or job shop to petition for an 

8 alien described in clause (ii)(b) or (ii)(c) of section 

9 101(a)(15)(H).’’. 

10 SEC. 109. PROCESSING TIME FOR PETITIONS. 

11 Section 214(c) of the Immigration and Nationality 

12 Act (8 U.S.C. 1184(c)), as amended by section 105, is 

13 further amended by adding at the end the following: 

14 ‘‘(14) The Secretary of Labor shall review the appli15 cation filed under section 212(v)(3) for completeness and 

16 accuracy and issue a determination with regard to the ap17 plication not later than 21 days after the date on which 

18 the application was filed. 

19 ‘‘(15) The Secretary of Homeland Security shall es20 tablish a process for reviewing and completing adjudica21 tions upon petitions filed under this subsection with re22 spect to nonimmigrant workers described in clause (ii)(b) 

23 or (ii)(c) of section 101(a)(15)(H) and derivative applica24 tions associated with these petitions, not later than 60 

25 days after the completed petition has been filed.’’. 
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1 SEC. 110. TERMS OF ADMISSION. 

2 Section 214(g) of the Immigration and Nationality 

3 Act (8 U.S.C. 1184(g)) is amended by adding at the end 

4 the following: 

5 ‘‘(9) In the case of a nonimmigrant described in sec6 tion 101(a)(15)(H)(ii)(b), the initial period of authorized 

7 admission shall be for not more than 9 months from the 

8 date of application for admission in such status in any 

9 1-year period. No nonimmigrant described in such section 

10 may be admitted for a total period that exceeds 36 months 

11 in a 4-year period. 

12 ‘‘(10) In the case of a nonimmigrant described in sec13 tion 101(a)(15)(H)(ii)(c), the initial period of authorized 

14 admission shall be for not more than 2 years. The em15 ployer may petition for extensions of such status for an 

16 additional period of not more than 2 years. No non17 immigrant described in such section shall be admitted for 

18 a total period that exceeds 4 years. 

19 ‘‘(11)(A) The limitations described in paragraphs (9) 

20 and (10) with respect to the duration of authorized stay 

21 shall not apply to any nonimmigrant alien previously 

22 issued a visa or otherwise provided nonimmigrant status 

23 under section 101(a)(15)(H)(ii)(c) on whose behalf a peti24 tion has been filed under section 204(b) to accord the alien 

25 immigrant status under section 203(b), or an application 

26 for adjustment of status has been filed under section 245 
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1 to accord the alien status under section 203(b), if 365 

2 days or more have elapsed since— 

3 ‘‘(i) the filing of a labor certification application 

4 on behalf of the alien (if such certification is re5 quired for the alien to obtain status under section 

6 203(b)); or 

7 ‘‘(ii) the filing of the petition under section 

8 204(a). 

9 ‘‘(B) The Secretary of Homeland Security shall ex10 tend the stay of an alien who qualifies for an exemption 

11 under subparagraph (A) in 1-year increments until such 

12 time as a final decision is made— 

13 ‘‘(i) to deny the application described in sub14 paragraph (A)(i), or, in a case in which such appli15 cation is granted, to deny a petition described in 

16 subparagraph (A)(ii) filed on behalf of the alien pur17 suant to such grant; 

18 ‘‘(ii) to deny the petition described in subpara19 graph (A)(ii); or 

20 ‘‘(iii) to grant or deny the alien’s application for 

21 an immigrant visa or for adjustment of status to 

22 that of an alien lawfully admitted for permanent res23 idence. 
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1 ‘‘(C) An alien who was granted Deferred Mandatory 

2 Departure status under section 245C may qualify for an 

3 exemption under subparagraph (A).’’. 

4 SEC. 111. NUMBER OF VISAS ISSUED. 

5 Section 214(g) of the Immigration and Nationality 

6 Act (8 U.S.C. 1184(g)) is amended— 

7 (1) in paragraph (1), by amending subpara8 graph (B) to read as follows: 

9 ‘‘(B)(i) under section 101(a)(15)(H)(ii)(b) 

10 may not exceed 100,000 in each fiscal year fol11 lowing the fiscal year in which the final regula12 tions implementing the amendments made by 

13 the Strengthening America’s Workforce Act of 

14 2005 are published; and 

15 ‘‘(ii) under section 101(a)(15)(H)(ii)(c) 

16 may not exceed 250,000 in each fiscal year fol17 lowing the fiscal year in which the final regula18 tions implementing the amendments made by 

19 the Strengthening America’s Workforce Act of 

20 2005 are published.’’; and 

21 (2) in paragraph (2), by striking ‘‘of paragraph 

22 (1) shall’’ and inserting the following: ‘‘under para23 graph (1)— 
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1 ‘‘(A) shall not apply to aliens previously 

2 granted Mandatory Deferred Departure under 

3 section 245C; and 

4 ‘‘(B) shall’’. 

5 SEC. 112. IMMIGRATION STUDY COMMISSION. 

6 (a) ESTABLISHMENT.—On the date that is 3 years 

7 after the date of enactment of this Act, there shall be es8 tablished a commission, to be known as the Immigration 

9 Study Commission (referred to in this section as the 

10 ‘‘Commission’’) to review the impact of this Act on the 

11 national security of the United States, the national econ12 omy, and families, and to make recommendations to Con13 gress. 

14 (b) MEMBERSHIP.— 

15 (1) IN GENERAL.—The Commission shall be 

16 composed of 12 members, of which— 

17 (A) 3 members shall be appointed by the 

18 majority leader of the Senate; 

19 (B) 3 members shall be appointed by the 

20 minority leader of the Senate; 

21 (C) 3 members shall be appointed by the 

22 Speaker of the House of Representatives; and 

23 (D) 3 members shall be appointed by the 

24 minority leader of the House of Representa25 tives. 
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1 (2) QUALIFICATIONS.—The Commission mem2 bers shall represent the public and private sectors 

3 and have expertise in areas that would best inform 

4 the work of the Commission, including national secu5 rity experts, economists, sociologists, worker rep6 resentatives, business representatives, and immigra7 tion lawyers. 

8 (3) CHAIRPERSON.—The chairperson of the 

9 Commission shall be a Commission member agreed 

10 upon by the majority and minority leaders of the 

11 Senate, and the Speaker and the minority leader of 

12 the House of Representatives. 

13 (4) COMPENSATION AND EXPENSES.—The 

14 members of the Commission shall not receive com15 pensation for the performance of services for the 

16 Commission, but shall be allowed travel expenses, in17 cluding per diem in lieu of subsistence, at rates au18 thorized for employees of agencies under subchapter 

19 I of chapter 57 of title 5, United States Code, while 

20 away from their homes or regular places of business 

21 in the performance of services for the Commission. 

22 (5) TERMS.—Each member shall be appointed 

23 for the life of the Commission. Any vacancy shall be 

24 filled by whomever initially appointed the member of 

25 that seat. 
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1 (c) ADMINISTRATIVE PROVISIONS.— 

2 (1) LOCATION.—The Commission shall be lo3 cated in a facility maintained by the Bureau of Citi4 zenship and Immigration Services. 

5 (2) DETAIL OF GOVERNMENT EMPLOYEES.— 

6 Any Federal Government employee may be detailed 

7 to the Commission without reimbursement, and such 

8 detail shall be without interruption or loss of civil 

9 service status or privilege. 

10 (3) INFORMATION FROM FEDERAL AGENCIES.— 

11 The Commission may secure directly from any Fed12 eral department or agency such information as the 

13 Commission considers necessary to carry out the 

14 provisions of this section. Upon request of the Com15 mission, the head of such department or agency 

16 shall furnish such information to the Commission. 

17 (4) HEARINGS.—The Commission may hold 

18 such hearings, sit and act at such times and places, 

19 take such testimony, and receive such evidence as 

20 the Commission considers advisable to carry out the 

21 objectives of this section, except that, to the extent 

22 possible, the Commission shall use existing data and 

23 research. 

24 (5) POSTAL SERVICES.—The Commission may 

25 use the United States mails in the same manner and 
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1 under the same conditions as other departments and 

2 agencies of the Federal Government. 

3 (d) REPORT.—Not later than 1 year after all of the 

4 members are appointed to the Commission, the Commis5 sion shall submit to Congress a preliminary report that 

6 summarizes the directions of the Commission and initial 

7 recommendations. Not later than 2 years after the Com8 mission members are appointed, the Commission shall 

9 submit to Congress a report that summarizes the findings 

10 of the Commission and make such recommendations as 

11 are consistent with this Act. 

12 (e) AUTHORIZATION OF APPROPRIATIONS.—There 

13 are authorized to be appropriated to the Bureau of Citi14 zenship and Immigration Services such sums as may be 

15 necessary to carry out this section. 

16 SEC. 113. CHANGE OF STATUS. 

17 Section 212(v) of the Immigration and Nationality 

18 Act (8 U.S.C. 1182(v)), as amended by section 107, is 

19 further amended by adding after paragraph (11) the fol20 lowing: 

21 ‘‘(12)(A) An alien admitted as a nonimmigrant or 

22 otherwise provided status under clause (ii)(b) or (ii)(c) of 

23 section 101(a)(15)(H) shall be eligible to obtain a change 

24 of status to another immigrant or nonimmigrant classi25 fication for which the alien may be eligible. 
25 

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1 ‘‘(B) An alien subject to Mandatory Deferred Depar2 ture under section 245C may not adjust to an immigrant 

3 classification under this section until after the earlier of— 

4 ‘‘(i) the consideration of all applications filed 

5 under section 201, 202, or 203 before the date of 

6 enactment of this paragraph; or 

7 ‘‘(ii) 8 years after the date of enactment of this 

8 paragraph. 

9 ‘‘(C) An alien may not adjust to an immigrant classi10 fication under this section until after the earlier of— 

11 ‘‘(i) the consideration of all applications filed 

12 under section 201, 202, or 203 before the date of 

13 enactment of this paragraph; or 

14 ‘‘(ii) 8 years after such date of enactment.’’. 

15 SEC. 114. ADJUSTMENT OF STATUS TO LAWFUL PERMA16 NENT RESIDENT. 

17 (a) EMPLOYMENT-BASED IMMIGRANT VISAS.—Sec18 tion 212(v) of the Immigration and Nationality Act (8 

19 U.S.C. 1182(v)), as amended by section 113, is further 

20 amended by adding after paragraph (12) the following: 

21 ‘‘(13)(A) Nonimmigrant aliens admitted or otherwise 

22 provided status under clause (ii)(b) or (ii)(c) of section 

23 101(a)(15)(H) shall be eligible for an employment-based 

24 immigrant visa pursuant to section 203(b)(3) and adjust25 ment of status pursuant to section 245. 
26 

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1 ‘‘(B) Pursuant to subparagraph (A), for purposes of 

2 adjustment of status under section 245(a) or issuance of 

3 an immigrant visa under section 203(b)(3), employment4 based immigrant visas shall be made available, without re5 gard to any numerical limitation imposed by section 201 

6 or 202, to an alien having nonimmigrant status described 

7 in clause (ii)(b) or (ii)(c) of section 101(a)(15)(H) upon 

8 the filing of a petition for such a visa by— 

9 ‘‘(i) the employer or any collective bargaining 

10 agent of the alien; or 

11 ‘‘(ii) the alien, provided the alien has been em12 ployed under such nonimmigrant status for at least 

13 3 years. 

14 ‘‘(C) The spouse or child of an alien granted status 

15 under clause (ii)(b) or (ii)(c) of section 101(a)(15)(H) 

16 shall be eligible as a derivative beneficiary for an immi17 grant visa and adjustment of status.’’. 

18 (b) DUAL INTENT.—Section 214(h) of the Immigra19 tion and Nationality Act (8 U.S.C. 1184(h)) is amended 

20 by inserting ‘‘(H)(ii)(b), (H)(ii)(c),’’ after ‘‘(H)(i)(b) or 

21 (c),’’. 

22 SEC. 115. GROUNDS OF INADMISSIBILITY. 

23 Section 212(v) of the Immigration and Nationality 

24 Act (8 U.S.C. 1182(v)), as amended by section 114(a), 
27 

•S 1918 IS

1 is further amended by adding after paragraph (13) the 

2 following: 

3 ‘‘(14) In determining the admissibility of an alien 

4 under clause (ii)(b) or (ii)(c) of section 101(a)(15)(H), 

5 violations of grounds of inadmissibility described in para6 graphs (5), (6)(A), (6)(B), (6)(C), (6)(G), (7), (9), and 

7 (10)(B) of section 212(a) committed prior to the applica8 tion under such section, or the approval of a change of 

9 status to a classification under such section shall not apply 

10 if the violation was committed before the date of introduc11 tion of the Strengthening America’s Workforce Act of 

12 2005.’’. 

13 SEC. 116. PETITION FEES. 

14 Section 212(v) of the Immigration and Nationality 

15 Act (8 U.S.C. 1182(v)), as amended by section 115, is 

16 further amended by adding after paragraph (14) the fol17 lowing: 

18 ‘‘(15)(A) An employer filing a petition for an alien 

19 described in section 101(a)(15)(H)(ii)(c) shall be required 

20 to pay a filing fee for each alien, based on the cost of 

21 carrying out the processing duties under this subsection, 

22 and a secondary fee of— 

23 ‘‘(i) $250, in the case of an employer employing 

24 25 employees or less; 
28 

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1 ‘‘(ii) $500, in the case of an employer employ2 ing between 26 and 150 employees; 

3 ‘‘(iii) $750, in the case of an employer employ4 ing between 151 and 500 employees; or 

5 ‘‘(iv) $1,000, in the case of an employer em6 ploying more than 500 employees. 

7 ‘‘(B) An employer filing a petition for an alien de8 scribed in section 101(a)(15)(H)(ii)(b) shall be required 

9 to pay a filing fee for each alien, based on the costs of 

10 carrying out the processing duties under this subsection, 

11 and a secondary fee of— 

12 ‘‘(i) $125, in the case of an employer employing 

13 25 employees or less; 

14 ‘‘(ii) $250, in the case of an employer employ15 ing between 26 and 150 employees; 

16 ‘‘(iii) $375, in the case of an employer employ17 ing between 151 and 500 employees; or 

18 ‘‘(iv) $500, in the case of an employer employ19 ing more than 500 employees. 

20 ‘‘(C) The fees collected under this paragraph shall be 

21 deposited into accounts within the Department of Home22 land Security, the Department of Labor, and the Depart23 ment of State, and allocated such that— 

24 ‘‘(i) 15 percent of the amounts received shall be 

25 made available to the Department of Homeland Se-
29 

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1 curity until expended to carry out the requirements 

2 related to processing petitions filed by employers for 

3 aliens described in clause (ii)(b) or (ii)(c) of section 

4 101(a)(15)(H); 

5 ‘‘(ii) 20 percent of the amounts received shall 

6 be made available to the Department of Labor until 

7 expended to— 

8 ‘‘(I) carry out the requirements related to 

9 processing attestations filed by employers for 

10 aliens described in clause (ii)(b) or (ii)(c) of 

11 section 101(a)(15)(H); and 

12 ‘‘(II) increase the funds available to the 

13 United States Employment Services to assist 

14 State employment service agencies in respond15 ing to employers and employees contacting such 

16 agencies as a result of paragraph (1); 

17 ‘‘(iii) 15 percent of the amounts received shall 

18 be made available to the Department of State until 

19 expended to carry out the requirements related to 

20 processing applications for visas by aliens under 

21 clause (ii)(b) or (ii)(c) of section 101(a)(15)(H); 

22 ‘‘(iv) 5 percent of the amounts received shall be 

23 made available for the performance of functions 

24 under section 212(t)(9)(F) as the Secretary of 

25 Labor and the Special Counsel of the Office of the 
30 

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1 Special Counsel for Immigration-Related Unfair 

2 Employment Practices within the Department of 

3 Justice may agree; 

4 ‘‘(v) 30 percent of the amounts received shall be 

5 made available to the Department of Homeland Se6 curity for implementation of border security meas7 ures; and 

8 ‘‘(vi) 15 percent of the amounts received shall 

9 be made available to the Department of Homeland 

10 Security for the employment eligibility confirmation 

11 program described in section 403(a) of the Illegal 

12 Immigration Reform and Immigrant Responsibility 

13 Act of 1996 (8 U.S.C. 1324a note).’’ 

14 SEC. 117. DEFINITIONS. 

15 Section 212(v) of the Immigration and Nationality 

16 Act (8 U.S.C. 1182(v)), as amended by section 116, is 

17 further amended by adding after paragraph (16) the fol18 lowing: 

19 ‘‘(16) In this subsection: 

20 ‘‘(A) The term ‘employer’ means any person or 

21 entity that employs workers in labor or services that 

22 are not agricultural, and shall not include recruiting 

23 entities or job shops. 

24 ‘‘(B) The term ‘job opportunity’ means a job 

25 opening for temporary full-time or part-time employ-
31 

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1 ment at a place in the United States to which 

2 United States workers can be referred. 

3 ‘‘(C)(i) The term ‘lays off’, with respect to a 

4 worker— 

5 ‘‘(I) means to cause the worker’s loss of 

6 employment, other than through a discharge for 

7 inadequate performance, violation of workplace 

8 rules, cause, voluntary departure, voluntary re9 tirement, contract impossibility, termination of 

10 the position or company, temporary layoffs due 

11 to weather, markets, or other temporary condi12 tions; but 

13 ‘‘(II) does not include any situation in 

14 which the worker is offered, as an alternative to 

15 such loss of employment, a similar employment 

16 opportunity with the same employer at equiva17 lent or higher compensation and benefits than 

18 the position from which the employee was dis19 charged, regardless of whether or not the em20 ployee accepts the offer. 

21 ‘‘(ii) Nothing in this subparagraph is intended 

22 to limit an employee’s rights under a collective bar23 gaining agreement or other employment contract. 

24 ‘‘(D) The term ‘United States worker’ means 

25 any worker, whether a United States citizen or na-
32 

•S 1918 IS

1 tional, a lawfully admitted permanent resident alien, 

2 or any other alien, who is authorized to work in the 

3 job opportunity within the United States, except an 

4 alien admitted or otherwise provided status under 

5 clause (ii)(b) or (ii)(c) of section 101(a)(15)(H).’’. 

6 SEC. 118. COLLECTIVE BARGAINING AGREEMENTS. 

7 Notwithstanding any other provision of law, the fact 

8 that an individual holds a visa as a nonimmigrant worker 

9 described in clause (ii)(b) or (ii)(c) of section 

10 101(a)(15)(H) of the Immigration and Nationality Act (8 

11 U.S.C. 1101(a)(15)(H)) shall not render that individual 

12 ineligible to qualify as an employee under the National 

13 Labor Relations Act (29 U.S.C. 151 et seq.) or to be pro14 tected under section 7 of that Act (29 U.S.C. 157). 

15 SEC. 119. REPORT ON WAGE DETERMINATION. 

16 Not later than 2 years after the date of enactment 

17 of this Act, the Bureau of Labor Statistics shall prepare 

18 and transmit to the Committees on Health, Education, 

19 Labor, and Pensions and the Judiciary of the Senate and 

20 the Committees on Education and the Workforce and the 

21 Judiciary of the House of Representatives, a report that 

22 addresses— 

23 (1) whether the employment of workers de24 scribed in clause (ii)(b) or (ii)(c) of section 

25 101(a)(15)(H) of the Immigration and Nationality 
33 

•S 1918 IS

1 Act (8 U.S.C. 1101(a)(15)(H)) in the United States 

2 workforce has impacted United States worker wages; 

3 (2) whether any changes should be made for a 

4 future wage system, based on factors that include an 

5 examination of the Occupational Employment Sys6 tem survey, its calculation of wage data based on 

7 skill and experience levels and difference among 

8 types of employers, including for profit, nonprofit, 

9 government, and nongovernment; 

10 (3) whether use of private, independent wage 

11 surveys would provide accurate and reliable criteria 

12 to determine wage rates; and 

13 (4) any other recommendations that are war14 ranted. 

15 SEC. 120. INELIGIBILITY FOR CERTAIN NONIMMIGRANT 

16 STATUS. 

17 (a) BAR TO FUTURE VISAS FOR CONDITION VIOLA18 TIONS.—Any alien who has status pursuant to section 

19 245B of the Immigration and Nationality Act, as added 

20 by title III, or clause (ii)(b) or (ii)(c) of section 

21 101(a)(15)(H) of the Immigration and Nationality Act (8 

22 U.S.C. 1101(a)(15)(H)), shall not be eligible in the future 

23 for such nonimmigrant status if the alien materially vio24 lates any term or condition of such status. 
34 

•S 1918 IS

1 (b) ALIENS UNLAWFULLY PRESENT.—Any alien who 

2 enters the United States after the date of enactment of 

3 this Act without being admitted or paroled shall be ineli4 gible for nonimmigrant status under clause (ii)(b) or 

5 (ii)(c) of section 101(a)(15)(H) of the Immigration and 

6 Nationality Act (8 U.S.C. 1101(a)(15)(H)). 

7 SEC. 121. INVESTIGATIONS BY DEPARTMENT OF HOME8 LAND SECURITY DURING LABOR DISPUTES. 

9 (a) IN GENERAL.—When information is received by 

10 the Department of Homeland Security concerning the em11 ployment of undocumented or unauthorized aliens, consid12 eration should be given to whether the information is 

13 being provided to interfere with the rights of employees 

14 to— 

15 (1) form, join, or assist labor organizations or 

16 to exercise their rights not to do so; 

17 (2) be paid minimum wages and overtime; 

18 (3) have safe work places; 

19 (4) receive compensation for work related inju20 ries; 

21 (5) be free from discrimination based on race, 

22 gender, age, national origin, religion, or handicap; or 

23 (6) retaliate against employees for seeking to 

24 vindicate those rights. 
35 

•S 1918 IS

1 (b) DETERMINATION OF LABOR DISPUTE.—When2 ever information received from any source creates a sus3 picion that an immigration enforcement action might in4 volve the Department of Homeland Security in a labor dis5 pute, a reasonable attempt should be made by Department 

6 of Homeland Security enforcement officers to determine 

7 whether a labor dispute is in progress. The information 

8 officer at the regional office of the National Labor Rela9 tions Board can supply status information on unfair labor 

10 practice charges or union election or decertification peti11 tions that are pending involving most private sector, non12 agricultural employers. Wage and hour information can be 

13 obtained from the Wage and Hour Division of the Depart14 ment of Labor or the State labor department. 

15 (c) RELEVANT QUESTIONS FOR INFORMANT.—In 

16 order to protect the Department of Homeland Security 

17 from unknowingly becoming involved in a labor dispute, 

18 persons who provide information to the Department of 

19 Homeland Security about the employer or employees in20 volved in the dispute should be asked— 

21 (1) their names; 

22 (2) whether there is a labor dispute in progress 

23 at the work site; 
36 

•S 1918 IS

1 (3) whether the person is or was employed at 

2 the work site in question (or by a union representing 

3 workers at the work site); 

4 (4) if applicable, whether the person is or was 

5 employed in a supervisory or managerial capacity or 

6 is related to anyone who is; 

7 (5) how the person came to know that the sub8 jects lacked legal authorization to work, as well as 

9 the source and reliability of the information con10 cerning the subject’s status; 

11 (6) whether the person had or is having a dis12 pute with the employer or the subjects of the infor13 mation; and 

14 (7) if the subjects of the information have 

15 raised complaints or grievances about hours, work16 ing conditions, discriminatory practices, or union 

17 representation or actions, or whether the subjects 

18 have filed workers’ compensation claims. 

19 (d) BICE REVIEW.—There is no prohibition for en20 forcing the Immigration and Nationality Act (8 U.S.C. 

21 1101 et seq.), even when there may be a labor dispute 

22 in progress, however, where it appears that information 

23 may have been provided in order to interfere with or to 

24 retaliate against employees for exercising their rights, no 

25 action should be taken on this information without review 
37 

•S 1918 IS

1 and approval by the Bureau of Immigration and Customs 

2 Enforcement. 

3 (e) ENFORCEMENT ACTION.—When enforcement ac4 tion is taken by the Department of Homeland Security 

5 and the Department determines that there is a labor dis6 pute in progress, or that information was provided to the 

7 Department of Homeland Security to retaliate against em8 ployees for exercising their employment rights, the lead 

9 immigration officer in charge of the Department of Home10 land Security enforcement team at the work site must en11 sure, to the extent possible, that any aliens who are ar12 rested or detained and are necessary for the prosecution 

13 of any violations are not removed from the country with14 out notifying the appropriate law enforcement agency that 

15 has jurisdiction over the violations. 

16 (f) INTERVIEWS.—Any arrangements for aliens to be 

17 held or interviewed by investigators or attorneys for the 

18 Department of Labor, the State labor department, the Na19 tional Labor Relations Board, or any other agencies or 

20 entities that enforce labor or employment laws will be de21 termined on a case-by-case basis. 

22 SEC. 122. PROTECTION OF WITNESSES. 

23 Chapter 8 of title II of the Immigration and Nation24 ality Act (8 U.S.C. 1321 et seq.) is amended by adding 

25 after section 280 the following: 
38 

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1 ‘‘STAY OF REMOVAL

2 ‘‘SEC. 280A. (a) An alien against whom removal pro3 ceedings have been initiated pursuant to chapter 4, who 

4 has filed a workplace claim or who is a material witness 

5 in any pending or anticipated proceeding involving a work6 place claim, shall be entitled to a stay of removal and to 

7 an employment authorized endorsement unless the De8 partment of Labor established by a preponderance of the 

9 evidence in proceedings before the immigration judge pre10 siding over that alien’s removal hearing— 

11 ‘‘(1) that— 

12 ‘‘(A) the Department of Homeland Secu13 rity initiated the alien’s removal proceeding for 

14 wholly independent reasons and not in any re15 spect based on, or as a result of, any informa16 tion provided to or obtained by the Department 

17 of Homeland Security from the alien’s em18 ployer, from any outside source, including any 

19 anonymous source, or as a result of the filing 

20 or prosecution of the workplace claim; and 

21 ‘‘(B) the workplace claim was filed with a 

22 bad-faith intent to delay or avoid the alien’s re23 moval; or 
39 

•S 1918 IS

1 ‘‘(2) that the alien has engaged in criminal con2 duct or is a threat to the national security of the 

3 United States. 

4 ‘‘(b) Any stay of removal or work authorization 

5 issued pursuant to subsection (a) shall remain valid and 

6 in effect at least during the pendency of the proceedings 

7 concerning such workplace claim. The Secretary of Home8 land Security shall extend such relief for a period of not 

9 longer than 3 additional years upon determining that— 

10 ‘‘(1) such relief would enable the alien asserting 

11 the workplace claim to be made whole; 

12 ‘‘(2) the deterrent goals of any statute under13 lying the workplace claim would thereby be served; 

14 or 

15 ‘‘(3) such extension would otherwise further the 

16 interests of justice. 

17 ‘‘(c) In this section— 

18 ‘‘(1) the term ‘workplace claim’ shall include 

19 any claim, charge, complaint, or grievance filed with 

20 or submitted to the employer, a Federal or State 

21 agency or court, or an arbitrator, to challenge an 

22 employer’s alleged civil or criminal violation of any 

23 legal or administrative rule or requirement affecting 

24 the terms or conditions of its workers’ employment 

25 or the hiring or firing of its workers; and 
40 

•S 1918 IS

1 ‘‘(2) the term ‘material witness’ means an indi2 vidual who presents an affidavit from an attorney 

3 prosecuting or defending the workplace claim or 

4 from the presiding officer overseeing the workplace 

5 claim attesting that, to the best of the affiant’s 

6 knowledge and belief, reasonable cause exists to be7 lieve that the testimony of the individual will be cru8 cial to the outcome of the workplace claim. 

9 ‘‘CONFIDENTIALITY OF IMMIGRATION INFORMATION

10 OBTAINED DURING ADMINISTRATIVE PROCEEDINGS

11 ‘‘SEC. 280B. (a) No officer or employee, including 

12 any former officer or employee, of any Federal or State 

13 administrative agency with jurisdiction over any employ14 er’s workplace shall disclose to the Department of Home15 land Security, or cause to be published in a manner that 

16 discloses to the Department of Homeland Security, any 

17 information concerning the immigration status of any 

18 worker obtained by that officer or employee in connection 

19 with the official duties of that officer or employee, and 

20 the Department of Homeland Security shall not, in any 

21 enforcement action or removal proceeding, use or rely 

22 upon, in whole or in part, any information so obtained. 

23 ‘‘(b) Any person who knowingly uses, publishes, or 

24 permits information to be used in violation of subsection 

25 (a) shall be fined not more than $10,000.’’. 
41 

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1 SEC. 123. DOCUMENT FRAUD. 

2 Section 274C(d)(3) of the Immigration and Nation3 ality Act (8 U.S.C. 1324c(d)(3)) is amended by inserting 

4 before ‘‘In applying this subsection’’ the following: ‘‘The 

5 civil penalties set forth in subparagraphs (A) and (B) shall 

6 be tripled in the case of any commercial enterprise that 

7 commits any violation of subsection (a) principally for 

8 commercial advantage or financial gain.’’. 

9 TITLE II—NONIMMIGRANT VISAS 

10 FOR HIGHLY EDUCATED AND 

11 SKILLED WORKERS 

12 SEC. 201. EXEMPTION OF NONIMMIGRANTS WITH AD13 VANCED DEGREES FROM NUMERICAL LIMITS. 

14 Section 214(g)(5) of the Immigration and Nationality 

15 Act (8 U.S.C. 1184(g)(5)) is amended— 

16 (1) by redesignating subparagraphs (A) and 

17 (B) as clauses (i) and (ii), respectively; and 

18 (2) by striking ‘‘who is employed’’ and inserting 

19 the following: ‘‘who— 

20 ‘‘(A) has earned an advanced degree in 

21 science, technology, engineering, or math from 

22 an accredited university in the United States; 

23 or 

24 ‘‘(B) is employed’’. 
42 

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1 SEC. 202. ALIENS NOT SUBJECT TO NUMERICAL LIMITA2 TIONS ON EMPLOYMENT-BASED IMMI3 GRANTS. 

4 (a) IN GENERAL.—Section 201(b)(1) of the Immi5 gration and Nationality Act (8 U.S.C. 1151(b)(1)) is 

6 amended by adding at the end the following: 

7 ‘‘(F) Aliens who have earned an advanced de8 gree in science, technology, engineering, or math and 

9 have been working in a related field in the United 

10 States under a nonimmigrant visa during the 3-year 

11 period preceding their application for an immigrant 

12 visa under section 203(b). 

13 ‘‘(G) Aliens described in subparagraph (A) or 

14 (B) of section 203(b)(1)(A) or who have received a 

15 national interest waiver under section 203(b)(2)(B). 

16 ‘‘(H) The immediate relatives of an alien who 

17 is admitted as an employment-based immigrant 

18 under section 203(b).’’. 

19 (b) APPLICABILITY.—The amendments made by sub20 section (a) shall apply to any visa application pending on 

21 the date of enactment of this Act and any visa application 

22 filed on or after such date of enactment. 
43 

•S 1918 IS

1 TITLE III—FOREIGN STUDENT 

2 WORK AUTHORIZATION 

3 SEC. 301. OFF CAMPUS WORK AUTHORIZATION FOR FOR4 EIGN STUDENTS. 

5 (a) IN GENERAL.—Aliens admitted as nonimmigrant 

6 students described in section 101(a)(15)(F) of the Immi7 gration and Nationality Act (8 U.S.C. 1101(a)(15)(F)) 

8 may be employed in an off-campus position unrelated to 

9 the alien’s field of study if— 

10 (1) the alien has enrolled full time at the edu11 cational institution and is maintaining good aca12 demic standing; 

13 (2) the employer provides the educational insti14 tution and the Secretary of Labor with an attesta15 tion that the employer— 

16 (A) has spent at least 21 days recruiting 

17 United States citizens to fill the position; and 

18 (B) will pay the alien and other similarly 

19 situated workers at a rate equal to not less 

20 than the greater of— 

21 (i) the actual wage level for the occu22 pation at the place of employment; or 

23 (ii) the prevailing wage level for the 

24 occupation in the area of employment; and 

25 (3) the alien will not be employed more than— 
44 

•S 1918 IS

1 (A) 20 hours per week during the aca2 demic term; or 

3 (B) 40 hours per week during vacation pe4 riods and between academic terms. 

5 (b) DISQUALIFICATION.—If the Secretary of Labor 

6 determines that an employer has provided an attestation 

7 under subsection (a)(2) that is materially false or has 

8 failed to pay wages in accordance with the attestation, the 

9 employer, after notice and opportunity for a hearing, shall 

10 be disqualified from employing an alien student under this 

11 section. 

Æ