II

105TH CONGRESS

2D SESSION S. 1878

To amend the Immigration and Nationality Act to authorize a temporary

increase in the number of skilled foreign workers admitted to the United

States, to improve efforts to recruit United States workers in lieu of

foreign workers, and to enforce labor conditions regarding nonimmigrant

aliens.

IN THE SENATE OF THE UNITED STATES

MARCH 27, 1998

Mr. KENNEDY (for himself and Mrs. FEINSTEIN) 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 authorize

a temporary increase in the number of skilled foreign

workers admitted to the United States, to improve efforts

to recruit United States workers in lieu of foreign workers, and to enforce labor conditions regarding nonimmigrant aliens.

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 ‘‘High-Tech Immigra5 tion and United States Worker Protection Act’’.
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1 SEC. 2. TEMPORARY INCREASE IN SKILLED FOREIGN

2 WORKERS.

3 Section 214(g)(1) of the Immigration and Nationality

4 Act (8 U.S.C. 1184(g)(1)) is amended to read:

5 ‘‘(g)(1) The total number of aliens who may be issued

6 visas or otherwise provided nonimmigrant status during

7 any fiscal year—

8 ‘‘(A) under section 101(a)(15)(H)(i)(b), may

9 not exceed—

10 ‘‘(i) 90,000 in each of fiscal years 1998,

11 1999, and 2000, or

12 ‘‘(ii) 65,000 in fiscal year 2001 or any fis13 cal year thereafter,

14 except that in each of fiscal years 1999 through

15 2000, not more than 5,000 of the visas or grants of

16 status may be provided to aliens described in section

17 212(a)(5)(C); and

18 ‘‘(B) under section 101(a)(15)(H)(ii)(b), may

19 not exceed—

20 ‘‘(i) 41,000 in each of fiscal years 1998,

21 1999, and 2000, or

22 ‘‘(ii) 66,000 in fiscal year 2001 or any fis23 cal year thereafter.’’.
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1 SEC. 3. GAO STUDY AND REPORT ON LABOR MARKET

2 NEEDS.

3 (a) STUDY.—The Comptroller General of the United

4 States shall conduct a study assessing labor market needs

5 for workers with high technology skills and the extent to

6 which job openings requiring workers with high technology

7 skills are likely to be unfilled in each of the fiscal years

8 2001 through 2006.

9 (b) REPORT.—Not later than October 1, 2000, the

10 Comptroller General shall submit a report containing the

11 results of the study described in subsection (a) to the

12 Committees on the Judiciary of the House of Representa13 tives and the Senate. The report shall also address the

14 effect on the high technology labor market of the follow15 ing:

16 (1) The downsizing of the defense sector.

17 (2) The increase in productivity in the com18 puter industry.

19 (3) The redeployment of workers dedicated to

20 year 2000 projects.

21 SEC. 4. INVESTMENT IN TRAINING HIGH TECHNOLOGY

22 WORKERS.

23 (a) IN GENERAL.—There is established in the De24 partment of Labor a $100,000,000 fund to assist United

25 States workers to obtain skills that employers indicate are

26 in short supply as evidenced by filings of Labor Condition
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1 Applications filed for aliens described in section

2 101(a)(15)(H)(i)(b) of the Immigration and Nationality

3 Act, of which not less than 85 percent shall be available

4 for the activities described in subsection (b).

5 (b) LOAN PROGRAM.—

6 (1) IN GENERAL.—There is established in the

7 Department of Labor a program to provide individ8 uals with loans to obtain training necessary for em9 ployment in those occupations which are in high de10 mand as evidenced by filings of Labor Condition Ap11 plications by employers for aliens described in sec12 tion 101(a)(15)(H)(i)(b) of the Immigration and

13 Nationality Act. This loan program shall be adminis14 tered from the funds referred to in section

15 212(n)(3)(B). Loans provided under this section

16 shall not exceed $10,000 a person.

17 (2) PROGRAM REQUIREMENTS.—The Secretary

18 of Labor shall establish criteria for implementing the

19 loan program described in subsection (a), which in20 clude the following:

21 (A) QUALIFICATIONS OF INDIVIDUALS.—

22 The loan program shall provide that individuals

23 receiving a loan under this section—

24 (i) have sufficient education or experi25 ence to enable them to qualify for employ-
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1 ment in high technology industries with

2 limited additional training;

3 (ii) are of working age and are United

4 States citizens or qualified aliens described

5 in section 431 of the Personal Responsibil6 ity and Work Reconciliation Act of 1996

7 (8 U.S.C. 1641); and

8 (iii) repay the loan in full not later

9 than 4 years after completing the training

10 for which the individual received the loan.

11 (B) CERTIFICATION.—

12 (i) FISCAL YEARS 1999–2001.—For

13 each of fiscal years 1999 through 2001,

14 the loan program shall be available only for

15 training courses that the Secretary of

16 Labor has certified as appropriate to ob17 tain employment in high technology indus18 tries in the United States.

19 (ii) FISCAL YEAR 2002 AND THERE20 AFTER.—For fiscal year 2002, and each

21 fiscal year thereafter, the loan program

22 shall be available only for training courses

23 certified by the Secretary of Labor as ap24 propriate to fill the occupations which are

25 in high demand as evidenced by filings of
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1 Labor Condition Applications by employers

2 for aliens described in section

3 101(a)(15)(H)(i)(b) of the Immigration

4 and Nationality Act.

5 (C) OTHER CRITERIA.—The Secretary of

6 Labor shall establish such other criteria as the

7 Secretary determines to be appropriate with re8 spect to certifying courses that qualify for the

9 loan program, identifying individuals who qual10 ify for loans under the program, and carrying

11 out the provisions of this section.

12 (c) LABOR DEPARTMENT GRANT PROGRAM TO CRE13 ATE REGIONAL SKILLS ALLIANCES.—

14 (1) IN GENERAL.—The Secretary of Labor, in

15 consultation with the Secretary of Commerce and

16 the Secretary of Education, shall provide ‘‘seed’’

17 grants to eligible entities described in subsection (b)

18 to assist such entities in creating Regional Skills Al19 liances. The purpose of these Regional Skills Alli20 ances will be to help industry organize the labor

21 market to better meet their needs by—

22 (A) improving the job skills of American

23 workers necessary for employment in specific

24 industries and occupations; and/or
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1 (B) assessing and developing strategies to

2 address critical skills needs at the local, State,

3 regional, and national levels.

4 (2) ELIGIBLE ENTITIES.—

5 (A) IN GENERAL.—An eligible entity de6 scribed in this subsection is a consortium that

7 consists of, but is not limited to, 2 or more of

8 the following:

9 (i) Employers.

10 (ii) Labor organizations.

11 (iii) State and local governments.

12 (iv) Private Industry Councils or suc13 cessor entities.

14 (v) Postsecondary educational institu15 tions.

16 (vi) Nonprofit organizations that rep17 resent businesses or industries.

18 (vii) Nonprofit training organizations.

19 (B) ADDITIONAL REQUIREMENT.—To the

20 maximum extent practicable, each business, or21 ganization, or government that forms an eligible

22 entity under paragraph (1) shall be located in

23 the same geographic region of the United

24 States.
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1 (3) MAXIMUM AMOUNT AND TIMING OF

2 GRANTS.—The amount of a grant provided to an eli3 gible entity under paragraph (1) may not exceed

4 $2,000,000 for an 18-month grant period and may

5 be provided to that eligible entity only for a maxi6 mum of 2 such grant periods.

7 (4) APPLICATION.—The Secretary may not pro8 vide a grant under paragraph (1) to an eligible en9 tity unless such entity submits to the Secretary an

10 application containing such information as the Sec11 retary may reasonably require.

12 (5) USE OF AMOUNTS.—In carrying out the

13 program described in paragraph (1), the eligible en14 tity may, to the extent that such activities build on

15 and supplement activities already underway as op16 posed to duplicating or substituting for current ac17 tivities, provide for—

18 (A) an identification of local, State, re19 gional, and national skills needs;

20 (B) an assessment of the extent to which

21 United States workers are being educated and

22 trained in needed critical skills;

23 (C) the development of strategies to better

24 focus existing training and education invest25 ments on rapidly expanding occupations;
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1 (D) the provision of improved occupational

2 information and projections;

3 (E) an assessment of training and job skill

4 needs for specific industries;

5 (F) development of a sequence of skill

6 standards that are benchmarked to advanced

7 industry practices for specific industries;

8 (G) development of curriculum and train9 ing methods;

10 (H) identification and development of

11 training providers;

12 (I) development of apprenticeship pro13 grams; and

14 (J) development of training programs for

15 dislocated workers.

16 (6) ADDITIONAL CRITERIA FOR GRANTS.—In

17 making grants under this subsection, the Secretary

18 shall—

19 (A) use a peer review process to award

20 grants;

21 (B) give preference to the extent to which

22 applications provide funds from non-Federal

23 sources to match Federal funds; and

24 (C) give preference to applications that

25 demonstrate significant collaboration with
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1 major stakeholders in the State and local work2 force development system, particularly Private

3 Councils and labor organizations.

4 (7) NATIONAL ALLIANCE FOR HIGH-TECH5 NOLOGY SKILLS.—The grants for Regional Skills al6 liances will be complemented by the establishment of

7 a National Alliance for High-Technology Skills

8 which shall consist of national representatives from

9 government, industry, labor organizations, and edu10 cation. The purpose of the National Alliance will be

11 to develop and recommend strategies to the Presi12 dent for the education and training of American

13 workers to meet the demand for high-technology

14 skills.

15 (8) DEFINITION.—For purposes of this sub16 section, the term ‘‘Secretary’’ means the Secretary

17 of Labor.

18 SEC. 5. ENFORCEMENT OF LABOR CONDITIONS FOR NON19 IMMIGRANTS.

20 Section 212(n) of the Immigration and Nationality

21 Act (8 U.S.C. 1182(n)) is amended—

22 (1) in paragraph (2)(A), by striking the first

23 sentence and inserting the following: ‘‘The Secretary

24 shall conduct an investigation where there is reason25 able cause to believe that an employer has made a
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1 misrepresentation of a material fact on a labor con2 dition attestation or has failed to comply with the

3 terms and conditions of an application submitted

4 under paragraph (1) or with the provisions of this

5 section or any rule or regulation pertaining to this

6 section. The Secretary shall establish a process for

7 the receipt, investigation, and disposition of com8 plaints or other cases of noncompliance with this

9 section.’’;

10 (2) in paragraph (2)(C), by inserting ‘‘, or that

11 the employer failed to cooperate in the conduct of

12 the Secretary’s investigation or has intimidated, dis13 charged, or otherwise discriminated against any per14 son because that person has asserted a right or has

15 cooperated in an investigation under this paragraph’’

16 after ‘‘a material fact in an application’’;

17 (3) by inserting after paragraph (2)(D) the fol18 lowing:

19 ‘‘(E) Any alien admitted to the United States

20 as a nonimmigrant described in section

21 101(a)(15)(H)(i)(b) of this Act who files a complaint

22 pursuant to this subsection and is otherwise eligible

23 to remain and work in the United States, shall be

24 allowed to seek other employment in the United
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1 States for the duration of that alien’s authorized ad2 mission, provided that—

3 ‘‘(i) the complaint results in finding by the

4 Secretary of Labor of a failure by the employer

5 to meet the conditions in paragraph (2)(C), and

6 ‘‘(ii) the alien notifies the Immigration and

7 Naturalization Service of the name and address

8 of his new employer.’’;

9 (4) by striking clause (i) of paragraph (2)(C)

10 and inserting the following:

11 ‘‘(i) the Secretary shall notify the Attorney

12 General of such finding and may, in addition,

13 impose such other administrative remedies as

14 the Secretary determines to be appropriate, as15 sess civil money penalties in an amount not to

16 exceed $10,000 for each violation, with such

17 penalties to be deposited for use in the loan

18 program established under section 4 of the

19 High-Tech Immigration and United States

20 Worker Protection Act.’’;

21 (5) in paragraph (2), by adding at the end the

22 following new subparagraph:

23 ‘‘(E) The Secretary may issue subpoenas re24 quiring the attendance and testimony of witnesses or

25 the production of any records, books, papers, or doc-
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1 uments in connection with any investigation or hear2 ing, conducted under this paragraph. In conducting

3 a hearing, the Secretary may administer oaths, ex4 amine witnesses, and receive evidence. For the pur5 pose of any hearing or investigation provided for in

6 this paragraph, the authority contained in sections 9

7 and 10 of the Federal Trade Commission Act (15

8 U.S.C. 49 and 50), relating to the attendance of wit9 nesses and the production of books, papers, and doc10 uments, shall apply.’’; and

11 (6) by adding at the end the following new

12 paragraph:

13 ‘‘(3)(A) The Secretary of Labor shall require

14 payment of a fee by the employer for each position

15 for which an application is filed under this sub16 section. The fee shall be in an amount prescribed by

17 the Secretary of Labor, and shall be paid to the De18 partment of Labor.

19 ‘‘(B)(i) Such fee shall be used only—

20 ‘‘(I) to defray the cost of processing labor

21 condition applications and for personnel and

22 other costs directly associated with administer23 ing and enforcing the requirements applicable

24 to aliens described in section

25 101(a)(15)(H)(i)(b), including the collection,
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1 safeguarding, and accounting for fees collected

2 pursuant to and funds obligated or expended

3 pursuant to this subsection; and

4 ‘‘(II) to endow the loan program and pro5 vide grants established under section 4 of the

6 High-Tech Immigration and United States

7 Worker Protection Act.

8 ‘‘(ii) During the period ending September 30,

9 2001, such fee shall not exceed $250 for each posi10 tion.

11 ‘‘(iii) Not less than $5,000,000 of the funds col12 lected from the fee authorized under this paragraph

13 shall be available for the purposes described in this

14 subsection and shall cover the costs to the Depart15 ment of Labor of conducting regular, random audits

16 relating to the attestations under this subsection and

17 of engaging in other enforcement activities in con18 nection with this subsection.

19 ‘‘(iv) Fees collected under this paragraph shall

20 be available to the Department of Labor, without re21 gard to appropriation Acts and without fiscal year

22 limitation, to supplement funds otherwise available

23 to the Department of Labor.

24 ‘‘(v) It shall be unlawful for an employer to re25 quire, as a condition of employment by such em-
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1 ployer, that the fee prescribed under this paragraph,

2 or any part of the fee, be paid directly or indirectly

3 by the alien whose services are being sought.

4 ‘‘(vi) Any person or entity that is determined,

5 after notice and opportunity for an administrative

6 hearing, to have violated clause (v) shall be subject

7 to a civil penalty of $5,000 for each violation, to an

8 administrative order requiring the payment of any

9 fee described in this paragraph, and to disqualifica10 tion for 1 year from petitioning for foreign skilled

11 temporary workers under this subsection.

12 ‘‘(vii) Any amount determined to have been

13 paid, directly or indirectly, toward the filing fee de14 scribed in paragraph (3)(A) by the alien whose serv15 ices were sought, shall be repaid from the fund to

16 such alien.’’.

17 SEC. 6. RECRUITMENT OF UNITED STATES WORKERS

18 PRIOR TO SEEKING NONIMMIGRANT WORK19 ERS.

20 (a) IN GENERAL.—Section 212(n)(1) of the Immi21 gration and Nationality Act (8 U.S.C. 1182(n)(1)) is

22 amended by inserting at the end the following new sub23 paragraph:

24 ‘‘(E)(i) The employer, prior to filing the appli25 cation, has taken timely, significant, and effective
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1 steps to recruit and retain sufficient United States

2 workers in the specialty occupation in which the

3 nonimmigrant whose services are being sought will

4 be employed. Such steps include good faith recruit5 ment in the United States using procedures that

6 meet industry-wide standards offering compensation

7 as required by subparagraph (A) and offering of em8 ployment to any qualified United States worker ap9 plicant or such good faith recruitment must other10 wise be unsuccessful.

11 ‘‘(ii) The recruitment requirements of this sub12 paragraph shall not apply to aliens with extraor13 dinary ability, aliens who are outstanding professors

14 and researchers, and certain multinational executives

15 and managers described in section 203(b)(1).’’.

16 (b) WAGE COMPARABILITY.—Section

17 212(n)(1)(A)(i)(I) of such Act is amended by inserting

18 ‘‘(including wages, benefits, and all other compensation)’’

19 after ‘‘actual wage level’’.

20 SEC. 7. NONDISPLACEMENT OF UNITED STATES WORKERS.

21 Section 212(n) of the Immigration and Nationality

22 Act (8 U.S.C. 1182(n)), as amended by section 5, is

23 amended by adding at the end the following new para24 graph:

25 ‘‘(4)(A) The employer—
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1 ‘‘(i) has not, within the 6-month period

2 prior to the filing of the application, laid off or

3 otherwise displaced any United States worker

4 (as defined in subparagraph (B), including a

5 worker obtained by contract, employee leasing,

6 temporary help agreement, or other similar

7 basis, who has substantially equivalent quali8 fications and experience in the occupation clas9 sification for the position in which the non10 immigrant is intended to be (or is) employed;

11 and

12 ‘‘(ii) will not lay off or otherwise knowingly

13 displace, during the 90-day period following the

14 filing of the application, or during the 90-day

15 period immediately preceding and following the

16 filing of any visa petition supported by the ap17 plication, any United States worker, including

18 any worker obtained by contract, who has sub19 stantially equivalent qualifications and experi20 ence in the occupation classification for the po21 sition in which the nonimmigrant is intended to

22 be (or is) employed.

23 ‘‘(B) For purposes of this subsection, the term

24 ‘United States worker’ means—
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1 ‘‘(i) a citizen or national of the United

2 States;

3 ‘‘(ii) an alien lawfully admitted to the

4 United States for permanent residence; or

5 ‘‘(iii) an alien authorized to be employed

6 by this Act or by the Attorney General.

7 ‘‘(C) For purposes of this subparagraph, the

8 term ‘laid off’, with respect to an employee, means

9 the employee’s loss of employment, other than a dis10 charge for cause or a voluntary departure or vol11 untary retirement. The term ‘laid off’ does not apply

12 to any case in which employment is relocated to a

13 different geographic area and the affected employee

14 is offered a chance to move to the new location with

15 the same wages and benefits but elects not to move

16 to the new location.’’.

17 SEC. 8. LIMITATION ON PERIOD OF AUTHORIZED ADMIS18 SION.

19 Section 214(g)(4) of the Immigration and Nationality

20 Act is amended by striking ‘‘6 years’’ and inserting ‘‘3

21 years’’.

22 SEC. 9. APPLICABILITY TO EXECUTIVE AGENCIES.

23 Section 212(n)(1) of the Immigration and Nationality

24 Act (8 U.S.C. 1182(n)(1)), as amended by adding at the

25 end the following new sentence: ‘‘Notwithstanding any
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1 other provision of this Act, or any other law, the Secretary

2 shall have authority to require executive agencies as de3 fined in 5 U.S.C. 105 to comply with this section, and

4 such agencies shall be subject to the regulations of the

5 Secretary promulgated pursuant to this section.’’.

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