II

105TH CONGRESS

2D SESSION S. 1723

To amend the Immigration and Nationality Act to assist the United States

to remain competitive by increasing the access of United States firms

and institutions of higher education to skilled personnel and by expanding

educational and training opportunities for American students and

workers.

IN THE SENATE OF THE UNITED STATES

MARCH 6, 1998

Mr. ABRAHAM (for himself, Mr. HATCH, Mr. MCCAIN, Mr. DEWINE and Mr.

SPECTER) 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 assist

the United States to remain competitive by increasing

the access of United States firms and institutions of

higher education to skilled personnel and by expanding

educational and training opportunities for American students and 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; REFERENCES IN ACT.

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

5 ‘‘American Competitiveness Act’’.
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1 (b) REFERENCES IN ACT.—Except as otherwise spe2 cifically provided in this Act, whenever in this Act an

3 amendment or repeal is expressed as an amendment to

4 or a repeal of a provision, the reference shall be deemed

5 to be made to the Immigration and Nationality Act (8

6 U.S.C. 1101 et seq.).

7 SEC. 2. FINDINGS.

8 Congress makes the following findings:

9 (1) American companies today are engaged in

10 fierce competition in global markets.

11 (2) Companies across America are faced with

12 severe high skill labor shortages that threaten their

13 competitiveness.

14 (3) The National Software Alliance, a consor15 tium of concerned government, industry, and aca16 demic leaders that includes the United States Army,

17 Navy, and Air Force, has concluded that ‘‘The sup18 ply of computer science graduates is far short of the

19 number needed by industry.’’. The Alliance con20 cludes that the current severe understaffing could

21 lead to inflation and lower productivity.

22 (4) The Department of Labor projects that the

23 United States economy will produce more than

24 130,000 information technology jobs in each of the

25 next 10 years, for a total of more than 1,300,000.
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1 (5) Between 1986 and 1995, the number of

2 bachelor’s degrees awarded in computer science de3 clined by 42 percent. Therefore, any short-term in4 creases in enrollment may only return the United

5 States to the 1986 level of graduates and take sev6 eral years to produce these additional graduates.

7 (6) A study conducted by Virginia Tech for the

8 Information Technology Association of America esti9 mates that there are more than 340,000 unfilled po10 sitions for highly skilled information technology

11 workers in American companies.

12 (7) The Hudson Institute estimates that the

13 unaddressed shortage of skilled workers throughout

14 the United States economy will result in a 5-percent

15 drop in the growth rate of GDP. That translates

16 into approximately $200,000,000,000 in lost output,

17 nearly $1,000 for every American.

18 (8) It is necessary to deal with the current situ19 ation with both short-term and long-term measures.

20 (9) In fiscal year 1997, United States compa21 nies and universities reached the cap of 65,000 on

22 H–1B temporary visas a month before the end of

23 the fiscal year. In fiscal year 1998 the cap is ex24 pected to be reached as early as May if Congress

25 takes no action. And it will be hit earlier each year
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1 until backlogs develop of such a magnitude as to

2 prevent United States companies and researchers

3 from having any timely access to skilled foreign-born

4 professionals.

5 (10) It is vital that more American young peo6 ple be encouraged and equipped to enter technical

7 fields, such as mathematics, engineering, and com8 puter science.

9 (11) If American companies cannot find home10 grown talent, and if they cannot bring talent to this

11 country, a large number are likely to move key oper12 ations overseas, sending those and related American

13 jobs with them.

14 (12) Inaction in these areas will carry signifi15 cant consequences for the future of American com16 petitiveness around the world and will seriously un17 dermine efforts to create and keep jobs in the

18 United States.

19 SEC. 3. INCREASED ACCESS TO SKILLED PERSONNEL FOR

20 UNITED STATES COMPANIES AND UNIVER21 SITIES.

22 (a) ESTABLISHMENT OF H1–C NONIMMIGRANT CAT23 EGORY.—

24 (1) IN GENERAL.—Section 101(a)(15)(H)(i) (8

25 U.S.C. 1101(a)(15)(H)(i)) is amended—
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1 (A) by inserting ‘‘and other than services

2 described in clause (c)’’ after ‘‘subparagraph

3 (O) or (P)’’; and

4 (B) by inserting after ‘‘section 212(n)(1)’’

5 the following: ‘‘, or (c) who is coming tempo6 rarily to the United States to perform labor as

7 a health care worker, other than a physician, if

8 the alien qualifies for the exemption from the

9 grounds of inadmissibility described in section

10 212(a)(5)(C)’’.

11 (2) TRANSITION RULE.—Any petition filed

12 prior to the date of enactment of this Act, for

13 issuance of a visa under section 101(a)(15)(H)(i)(b)

14 of the Immigration and Nationality Act on behalf of

15 an alien described in the amendment made by para16 graph (1)(B) shall, on and after that date, be treat17 ed as a petition filed under section

18 101(a)(15)(H)(i)(c) of that Act, as added by para19 graph (1).

20 (b) ANNUAL CEILINGS FOR H1–B AND H1–C WORK21 ERS.—

22 (1) AMENDMENT OF THE INA.—Section

23 214(g)(1) (8 U.S.C. 1184(g)(1)) is amended to read

24 as follows:
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1 ‘‘(g)(1) The total number of aliens who may be issued

2 visas or otherwise provided nonimmigrant status during

3 any fiscal year—

4 ‘‘(A) under section 101(a)(15)(H)(i)(b)—

5 ‘‘(i) for each of fiscal years 1992 through

6 1997, may not exceed 65,000,

7 ‘‘(ii) for fiscal year 1998, may not exceed

8 2 times the number of aliens issued visas or

9 otherwise provided nonimmigrant status be10 tween October 1, 1997, and March 31, 1998,

11 ‘‘(iii) for fiscal year 1999, may not exceed

12 the number determined for fiscal year 1998

13 under such section, minus 10,000, plus the

14 number of unused visas under subparagraph

15 (B) for the fiscal year preceding the applicable

16 fiscal year, and

17 ‘‘(iv) for fiscal year 2000 and each applica18 ble fiscal year thereafter, may not exceed the

19 number determined for fiscal year 1998 under

20 such section, minus 10,000, plus the number of

21 unused visas under subparagraph (B) for the

22 fiscal year preceding the applicable fiscal year,

23 plus the number of unused visas under subpara24 graph (C) for the fiscal year preceding the ap25 plicable fiscal year;
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1 ‘‘(B) under section 101(a)(15)(H)(ii)(b), begin2 ning with fiscal year 1992, may not exceed 66,000;

3 or

4 ‘‘(C) under section 101(a)(15)(H)(i)(c), begin5 ning with fiscal year 1999, may not exceed 10,000.

6 For purposes of determining the ceiling under subpara7 graph (A) (iii) and (iv), not more than 25,000 of the un8 used visas under subparagraph (B) may be taken into ac9 count for any fiscal year.’’.

10 (2) TRANSITION PROCEDURES.—Any visa

11 issued or nonimmigrant status otherwise accorded to

12 any alien under clause (i)(b) or (ii)(b) of section

13 101(a)(15)(H) of the Immigration and Nationality

14 Act pursuant to a petition filed during fiscal year

15 1998 but approved on or after October 1, 1998,

16 shall be counted against the applicable ceiling in sec17 tion 214(g)(1) of that Act for fiscal year 1998 (as

18 amended by paragraph (1) of this subsection), ex19 cept that, in the case where counting the visa or the

20 other granting of status would cause the applicable

21 ceiling for fiscal year 1998 to be exceeded, the visa

22 or grant of status shall be counted against the appli23 cable ceiling for fiscal year 1999.
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1 SEC. 4. EDUCATION AND TRAINING IN SCIENCE AND TECH2 NOLOGY.

3 (a) DEGREES IN MATHEMATICS, COMPUTER

4 SCIENCE, AND ENGINEERING.—Subpart 4 of part A of

5 title IV of the Higher Education Act of 1965 (20 U.S.C.

6 1070c et seq.) is amended—

7 (1) in section 415A(b)(1) (20 U.S.C.

8 1070c(b)(1))—

9 (A) by striking ‘‘$105,000,000 for fiscal

10 year 1993’’ and inserting ‘‘$155,000,000 for

11 fiscal year 1999’’; and

12 (B) by inserting ‘‘, of which the amount in

13 excess of $25,000,000 for each fiscal year that

14 does not exceed $50,000,000 shall be available

15 to carry out section 415F for the fiscal year’’

16 before the period; and

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

18 ‘‘SEC. 415F. DEGREES IN MATHEMATICS, COMPUTER

19 SCIENCE, AND ENGINEERING.

20 ‘‘(a) ALLOTMENTS AND GRANTS.—From amounts

21 made available to carry out this section under section

22 415A(b)(1) for a fiscal year, the Secretary shall make al23 lotments to States to enable the States to pay not more

24 than 50 percent of the amount of grants awarded to low25 income students in the States.
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1 ‘‘(b) USE OF GRANTS.—Grants awarded under this

2 section shall be used by the students for attendance on

3 a full-time basis at an institution of higher education in

4 a program of study leading to an associate, baccalaureate

5 or graduate degree in mathematics, computer science, or

6 engineering.

7 ‘‘(c) COMPARABILITY.—The Secretary shall make al8 lotments and grants shall be awarded under this section

9 in the same manner, and under the same terms and condi10 tions, as—

11 ‘‘(1) the Secretary makes allotments and grants

12 are awarded under this subpart (other than this sec13 tion); and

14 ‘‘(2) are not inconsistent with this section.’’.

15 (b) DATA BANK; TRAINING.—

16 (1) IN GENERAL.—The Secretary of Labor

17 shall—

18 (A) establish or improve a data bank on

19 the Internet that facilitates—

20 (i) job searches by individuals seeking

21 employment in the field of technology; and

22 (ii) the matching of individuals pos23 sessing technology credentials with employ24 ment in the field of technology; and
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1 (B) provide training in information tech2 nology to unemployed individuals who are seek3 ing employment.

4 (2) AUTHORIZATION OF APPROPRIATIONS.—

5 There are authorized to be appropriated for fiscal

6 year 1999 and each of the 4 succeeding fiscal

7 years—

8 (A) $8,000,000 to carry out paragraph

9 (1)(A); and

10 (B) $10,000,000 to carry out paragraph

11 (1)(B).

12 SEC. 5. INCREASED ENFORCEMENT PENALTIES AND IM13 PROVED OPERATIONS.

14 (a) INCREASED PENALTIES FOR VIOLATIONS OF H1–

15 B OR H1–C PROGRAM.—Section 212(n)(2)(C) (8 U.S.C.

16 1182(n)(2)(C)) is amended—

17 (1) by striking ‘‘a failure to meet’’ and all that

18 follows through ‘‘an application—’’ and inserting ‘‘a

19 willful failure to meet a condition in paragraph (1)

20 or a willful misrepresentation of a material fact in

21 an application—’’; and

22 (2) in clause (i), by striking ‘‘$1,000’’ and in23 serting ‘‘$5,000’’.
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1 (b) SPOT INSPECTIONS DURING PROBATIONARY PE2 RIOD.—Section 212(n)(2) (8 U.S.C. 1182(n)(2)) is

3 amended—

4 (1) by redesignating subparagraph (D) as sub5 paragraph (E); and

6 (2) by inserting after subparagraph (C) the fol7 lowing:

8 ‘‘(D) The Secretary of Labor may, on a case-by-case

9 basis, subject an employer to random inspections for a pe10 riod of up to five years beginning on the date that such

11 employer is found by the Secretary of Labor to have en12 gaged in a willful failure to meet a condition of subpara13 graph (A), or a misrepresentation of material fact in an

14 application.’’.

15 (c) EXPEDITED REVIEWS AND DECISIONS.—Section

16 214(c)(2)(C) (8 U.S.C. 1184(c)(2)(C)) is amended by in17 serting ‘‘or section 101(a)(15)(H)(i)(b)’’ after ‘‘section

18 101(a)(15)(L)’’.

19 (d) DETERMINATIONS ON LABOR CONDITION APPLI20 CATIONS TO BE MADE BY ATTORNEY GENERAL.—

21 (1) IN GENERAL.—Section 101(a)(15)(H)(i)(b)

22 (8 U.S.C. 1101(a)(15)(H)(i)(b)) is amended by

23 striking ‘‘with respect to whom’’ and all that follows

24 through ‘‘with the Secretary’’ and inserting ‘‘with

25 respect to whom the Attorney General determines
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1 that the intending employer has filed with the Attor2 ney General’’.

3 (2) CONFORMING AMENDMENTS.—Section

4 212(n) (8 U.S.C. 1182(n)(1)) is amended—

5 (A) in paragraph (1)—

6 (i) in the first sentence, by striking

7 ‘‘Secretary of Labor’’ and inserting ‘‘Attor8 ney General’’;

9 (ii) in the sixth and eighth sentences,

10 by inserting ‘‘of Labor’’ after ‘‘Secretary’’

11 each place it appears;

12 (iii) in the ninth sentence, by striking

13 ‘‘Secretary of Labor’’ and inserting ‘‘Attor14 ney General’’;

15 (iv) by amending the tenth sentence

16 to read as follows: ‘‘Unless the Attorney

17 General finds that the application is in18 complete or obviously inaccurate, the At19 torney General shall provide the certifi20 cation described in section

21 101(a)(15)(H)(i)(b) and adjudicate the

22 nonimmigrant visa petition.’’; and

23 (v) by inserting in full measure mar24 gin after subparagraph (D) the following

25 new sentence: ‘‘Such application shall be
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1 filed with the employer’s petition for a

2 nonimmigrant visa for the alien, and the

3 Attorney General shall transmit a copy of

4 such application to the Secretary of

5 Labor.’’; and

6 (B) in the first sentence of paragraph

7 (2)(A), by striking ‘‘Secretary’’ and inserting

8 ‘‘Secretary of Labor’’.

9 (e) PREVAILING WAGE CONSIDERATIONS.—Section

10 101(a) (8 U.S.C. 1101(a)) is amended by adding at the

11 end the following:

12 ‘‘(50) The term ‘prevailing wage’ means the follow13 ing:

14 ‘‘(A) If the job opportunity is subject to a wage

15 determination in the area under the Act of March 3,

16 1931 (commonly known as the Davis-Bacon Act (40

17 U.S.C. 276a et seq.)), or the Service Contract Act

18 of 1965 (41 U.S.C. 351 et seq.), the prevailing wage

19 shall be the rate required under such Acts.

20 ‘‘(B) If the job opportunity is not covered by a

21 prevailing wage determined under the Acts referred

22 to in subparagraph (A), the prevailing wage shall

23 be—

24 ‘‘(i) the rate of wages to be determined, to

25 the extent feasible, by adding the wage paid to
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1 workers similarly employed in the area of in2 tended employment and dividing the total by

3 the number of such workers, except that the

4 wage set forth in the application shall be con5 sidered as meeting the prevailing wage standard

6 if it is within 5 percent of the average rate of

7 wages; or

8 ‘‘(ii) if the job opportunity is covered by a

9 collective bargaining agreement, the wage rate

10 set forth in the agreement shall be considered

11 as not adversely affecting the wages of United

12 States workers similarly employed and shall be

13 considered the ‘prevailing wage’.

14 ‘‘(C) A prevailing wage determination made

15 pursuant to this section shall not permit an em16 ployer to pay a wage lower than that required under

17 any other Federal, State, or local law.

18 ‘‘(D) For purposes of this section:

19 ‘‘(i) The term ‘similarly employed’ means

20 having substantially comparable jobs in the oc21 cupational category in the area of intended em22 ployment, except that, if no such workers are

23 employed by employers other than the employer

24 applicant in the area of intended employment,

25 the term ‘similarly employed’ means—
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1 ‘‘(I) having jobs requiring a substan2 tially similar level of skills within the area

3 of intended employment; or

4 ‘‘(II) if there are no substantially

5 comparable jobs in the area of intended

6 employment, having substantially com7 parable jobs with employers outside of the

8 area of intended employment.

9 ‘‘(ii) The term ‘substantially comparable

10 jobs’ means jobs with substantially comparable

11 employers, taking into account size, profit or

12 nonprofit classification, start-up or mature

13 business operations, the specific industry, public

14 or private sector, status as an academic institu15 tion, or other defining characteristics which the

16 employer can demonstrate result in a distinct

17 wage scale from the industry at large.

18 ‘‘(iii) The term ‘similarly employed’ shall

19 be construed to require separate average rates

20 of wage taking into account such factors as

21 years of experience, academic degree, edu22 cational institution attended, grade point aver23 age, publications or other distinctions, personal

24 traits deemed essential to job performance, spe25 cialized training or skills, competitive market
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1 factors, or any other factors typically considered

2 by employers within the industry.

3 ‘‘(iv) Employers may use either govern4 ment or nongovernment published surveys, in5 cluding industry, region, or statewide wage sur6 veys, to determine the prevailing wage, which

7 shall be considered correct and valid where the

8 employer has maintained a copy of the survey

9 information.’’.

10 (f) POSTING REQUIREMENT.—Section

11 212(n)(1)(C)(ii) (8 U.S.C. 1182(n)(1)(C)(ii)) is amended

12 to read as follows:

13 ‘‘(ii) if there is no such bargaining rep14 resentative, has provided notice of filing to the

15 employer’s employees in the occupational classi16 fication through such methods as physical post17 ing in a conspicuous location at the employer’s

18 place of business, or electronic posting through

19 an internal job bank, or electronic notification

20 available to employees in the occupational clas21 sification.’’.

22 SEC. 6. ANNUAL REPORTS ON H1–B VISAS.

23 Section 212(n) (8 U.S.C. 1182(n)) is amended by

24 adding at the end the following:
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1 ‘‘(3) Using data from petitions for visas issued

2 under section 101(a)(15)(H)(i)(b), the Attorney

3 General shall annually submit the following reports

4 to Congress:

5 ‘‘(A) Quarterly reports on the numbers of

6 aliens who were provided nonimmigrant status

7 under section 101(a)(15)(H)(i)(b) during the

8 previous quarter and who were subject to the

9 numerical ceiling for the fiscal year established

10 under section 214(g)(1).

11 ‘‘(B) Annual reports on the occupations

12 and compensation of aliens provided non13 immigrant status under such section during the

14 previous fiscal year.’’.

15 SEC. 7. LIMITATION ON PER COUNTRY CEILING WITH RE16 SPECT TO EMPLOYMENT-BASED IMMI17 GRANTS.

18 (a) SPECIAL RULES.—Section 202(a) (8 U.S.C.

19 1152(a)) is amended by adding at the end the following

20 new paragraph:

21 ‘‘(5) RULES FOR EMPLOYMENT-BASED IMMI22 GRANTS.—

23 ‘‘(A) EMPLOYMENT-BASED IMMIGRANTS

24 NOT SUBJECT TO PER COUNTRY LIMITATION IF

25 ADDITIONAL VISAS AVAILABLE.—If the total
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1 number of visas available under paragraph (1),

2 (2), (3), (4), or (5) of section 203(b) for a cal3 endar quarter exceeds the number of qualified

4 immigrants who may otherwise be issued such

5 visas, the visas made available under that para6 graph shall be issued without regard to the nu7 merical limitation under paragraph (2) of this

8 subsection during the remainder of the calendar

9 quarter.

10 ‘‘(B) LIMITING FALL ACROSS FOR CERTAIN

11 COUNTRIES SUBJECT TO SUBSECTION (e).—In

12 the case of a foreign state or dependent area to

13 which subsection (e) applies, if the total number

14 of visas issued under section 203(b) exceeds the

15 maximum number of visas that may be made

16 available to immigrants of the state or area

17 under section 203(b) consistent with subsection

18 (e) (determined without regard to this para19 graph), in applying subsection (e) all visas shall

20 be deemed to have been required for the classes

21 of aliens specified in section 203(b).’’.

22 (b) CONFORMING AMENDMENTS.—

23 (1) Section 202(a)(2) (8 U.S.C. 1152(a)(2)) is

24 amended by striking ‘‘paragraphs (3) and (4)’’ and

25 inserting ‘‘paragraphs (3), (4), and (5)’’.
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1 (2) Section 202(e)(3) (8 U.S.C. 1152(e)(3)) is

2 amended by striking ‘‘the proportion of the visa

3 numbers’’ and inserting ‘‘except as provided in sub4 section (a)(5), the proportion of the visa numbers’’.

5 (c) ONE-TIME PROTECTION UNDER PER COUNTRY

6 CEILING.—Notwithstanding section 214(g)(4) of the Im7 migration and Nationality Act, any alien who—

8 (1) as of the date of enactment of this Act is

9 a nonimmigrant described in section

10 101(a)(15)(H)(i) of that Act;

11 (2) is the beneficiary of a petition filed under

12 section 204(a) for a preference status under para13 graph (1), (2), or (3) of section 203(b); and

14 (3) would be subject to the per country limita15 tions applicable to immigrants under those para16 graphs but for this subsection,

17 may apply for and the Attorney General may grant an

18 extension of such nonimmigrant status until the alien’s

19 application for adjustment of status has been processed

20 and a decision made thereon.

21 SEC. 8. ACADEMIC HONORARIA.

22 Section 212 (8 U.S.C. 1182) is amended by adding

23 at the end the following new subsection:

24 ‘‘(p) Any alien admitted under section 101(a)(15)(B)

25 may accept an honorarium payment and associated inci-
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1 dental expenses for a usual academic activity or activities,

2 as defined by the Attorney General in consultation with

3 the Secretary of Education, if such payment is offered by

4 an institution of higher education (as defined in section

5 1201(a) of the Higher Education Act of 1965) or other

6 nonprofit entity and is made for services conducted for

7 the benefit of that institution or entity.’’.

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