Calendar No. 335

105TH CONGRESS

2D SESSION S. 1723

A BILL

To amend the Immigration and Nationality Act to

opportunities for American students and workers.nel and by expanding educational and traininginstitutions of higher education to skilled personincreasing the access of United States firms andassist the United States to remain competitive by

APRIL 2, 1998

Reported with an amendment
II

Calendar No. 335

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, Mr.

SPECTER, Mr. GRAMS, Mr. BROWNBACK, Mr. THURMOND, Mr.

SANTORUM, Mr. ASHCROFT, Mr. SMITH of Oregon, and Mr. HAGEL) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

APRIL 2, 1998

Reported by Mr. HATCH, with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

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.
2

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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’’.

6 (b) REFERENCES IN ACT.—Except as otherwise spe7 cifically provided in this Act, whenever in this Act an

8 amendment or repeal is expressed as an amendment to

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

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

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

12 SEC. 2. FINDINGS.

13 Congress makes the following findings:

14 (1) American companies today are engaged in

15 fierce competition in global markets.

16 (2) Companies across America are faced with

17 severe high skill labor shortages that threaten their

18 competitiveness.

19 (3) The National Software Alliance, a consor20 tium of concerned government, industry, and aca21 demic leaders that includes the United States Army,

22 Navy, and Air Force, has concluded that ‘‘The sup23 ply of computer science graduates is far short of the

24 number needed by industry.’’. The Alliance con-
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1 cludes that the current severe understaffing could

2 lead to inflation and lower productivity.

3 (4) The Department of Labor projects that the

4 United States economy will produce more than

5 130,000 information technology jobs in each of the

6 next 10 years, for a total of more than 1,300,000.

7 (5) Between 1986 and 1995, the number of

8 bachelor’s degrees awarded in computer science de9 clined by 42 percent. Therefore, any short-term in10 creases in enrollment may only return the United

11 States to the 1986 level of graduates and take sev12 eral years to produce these additional graduates.

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

14 Information Technology Association of America esti15 mates that there are more than 340,000 unfilled po16 sitions for highly skilled information technology

17 workers in American companies.

18 (7) The Hudson Institute estimates that the

19 unaddressed shortage of skilled workers throughout

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

21 drop in the growth rate of GDP. That translates

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

23 nearly $1,000 for every American.

24 (8) It is necessary to deal with the current situ25 ation with both short-term and long-term measures.
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1 (9) In fiscal year 1997, United States compa2 nies and universities reached the cap of 65,000 on

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

4 the fiscal year. In fiscal year 1998 the cap is ex5 pected to be reached as early as May if Congress

6 takes no action. And it will be hit earlier each year

7 until backlogs develop of such a magnitude as to

8 prevent United States companies and researchers

9 from having any timely access to skilled foreign-born

10 professionals.

11 (10) It is vital that more American young peo12 ple be encouraged and equipped to enter technical

13 fields, such as mathematics, engineering, and com14 puter science.

15 (11) If American companies cannot find home16 grown talent, and if they cannot bring talent to this

17 country, a large number are likely to move key oper18 ations overseas, sending those and related American

19 jobs with them.

20 (12) Inaction in these areas will carry signifi21 cant consequences for the future of American com22 petitiveness around the world and will seriously un23 dermine efforts to create and keep jobs in the

24 United States.
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1 SEC. 3. INCREASED ACCESS TO SKILLED PERSONNEL FOR

2 UNITED STATES COMPANIES AND UNIVER3 SITIES.

4 (a) ESTABLISHMENT OF H1–C NONIMMIGRANT CAT5 EGORY.—

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

7 U.S.C. 1101(a)(15)(H)(i)) is amended—

8 (A) by inserting ‘‘and other than services

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

10 (O) or (P)’’; and

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

12 the following: ‘‘, or (c) who is coming tempo13 rarily to the United States to perform labor as

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

15 the alien qualifies for the exemption from the

16 grounds of inadmissibility described in section

17 212(a)(5)(C)’’.

18 (2) TRANSITION RULE.—Any petition filed

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

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

21 of the Immigration and Nationality Act on behalf of

22 an alien described in the amendment made by para23 graph (1)(B) shall, on and after that date, be treat24 ed as a petition filed under section

25 101(a)(15)(H)(i)(c) of that Act, as added by para26 graph (1).
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1 (b) ANNUAL CEILINGS FOR H1–B AND H1–C WORK2 ERS.—

3 (1) AMENDMENT OF THE INA.—Section

4 214(g)(1) (8 U.S.C. 1184(g)(1)) is amended to read

5 as follows:

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

7 visas or otherwise provided nonimmigrant status during

8 any fiscal year—

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

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

11 1997, may not exceed 65,000,

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

13 2 times the number of aliens issued visas or

14 otherwise provided nonimmigrant status be15 tween October 1, 1997, and March 31, 1998,

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

17 the number determined for fiscal year 1998

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

19 number of unused visas under subparagraph

20 (B) for the fiscal year preceding the applicable

21 fiscal year, and

22 ‘‘(iv) for fiscal year 2000 and each applica23 ble fiscal year thereafter, may not exceed the

24 number determined for fiscal year 1998 under

25 such section, minus 10,000, plus the number of
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1 unused visas under subparagraph (B) for the

2 fiscal year preceding the applicable fiscal year,

3 plus the number of unused visas under subpara4 graph (C) for the fiscal year preceding the ap5 plicable fiscal year;

6 ‘‘(B) under section 101(a)(15)(H)(ii)(b), begin7 ning with fiscal year 1992, may not exceed 66,000;

8 or

9 ‘‘(C) under section 101(a)(15)(H)(i)(c), begin10 ning with fiscal year 1999, may not exceed 10,000.

11 For purposes of determining the ceiling under subpara12 graph (A) (iii) and (iv), not more than 25,000 of the un13 used visas under subparagraph (B) may be taken into ac14 count for any fiscal year.’’.

15 (2) TRANSITION PROCEDURES.—Any visa

16 issued or nonimmigrant status otherwise accorded to

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

18 101(a)(15)(H) of the Immigration and Nationality

19 Act pursuant to a petition filed during fiscal year

20 1998 but approved on or after October 1, 1998,

21 shall be counted against the applicable ceiling in sec22 tion 214(g)(1) of that Act for fiscal year 1998 (as

23 amended by paragraph (1) of this subsection), ex24 cept that, in the case where counting the visa or the

25 other granting of status would cause the applicable
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1 ceiling for fiscal year 1998 to be exceeded, the visa

2 or grant of status shall be counted against the appli3 cable ceiling for fiscal year 1999.

4 SEC. 4. EDUCATION AND TRAINING IN SCIENCE AND TECH5 NOLOGY.

6 (a) DEGREES IN MATHEMATICS, COMPUTER

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

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

9 1070c et seq.) is amended—

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

11 1070c(b)(1))—

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

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

14 fiscal year 1999’’; and

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

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

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

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

19 before the period; and

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

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

22 SCIENCE, AND ENGINEERING.

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

24 made available to carry out this section under section

25 415A(b)(1) for a fiscal year, the Secretary shall make al-
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1 lotments to States to enable the States to pay not more

2 than 50 percent of the amount of grants awarded to low3 income students in the States.

4 ‘‘(b) USE OF GRANTS.—Grants awarded under this

5 section shall be used by the students for attendance on

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

7 a program of study leading to an associate, baccalaureate

8 or graduate degree in mathematics, computer science, or

9 engineering.

10 ‘‘(c) COMPARABILITY.—The Secretary shall make al11 lotments and grants shall be awarded under this section

12 in the same manner, and under the same terms and condi13 tions, as—

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

15 are awarded under this subpart (other than this sec16 tion); and

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

18 (b) DATA BANK; TRAINING.—

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

20 shall—

21 (A) establish or improve a data bank on

22 the Internet that facilitates—

23 (i) job searches by individuals seeking

24 employment in the field of technology; and
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1 (ii) the matching of individuals pos2 sessing technology credentials with employ3 ment in the field of technology; and

4 (B) provide training in information tech5 nology to unemployed individuals who are seek6 ing employment.

7 (2) AUTHORIZATION OF APPROPRIATIONS.—

8 There are authorized to be appropriated for fiscal

9 year 1999 and each of the 4 succeeding fiscal

10 years—

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

12 (1)(A); and

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

14 (1)(B).

15 SEC. 5. INCREASED ENFORCEMENT PENALTIES AND IM16 PROVED OPERATIONS.

17 (a) INCREASED PENALTIES FOR VIOLATIONS OF H1–

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

19 1182(n)(2)(C)) is amended—

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

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

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

23 or a willful misrepresentation of a material fact in

24 an application—’’; and
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1 (2) in clause (i), by striking ‘‘$1,000’’ and in2 serting ‘‘$5,000’’.

3 (b) SPOT INSPECTIONS DURING PROBATIONARY PE4 RIOD.—Section 212(n)(2) (8 U.S.C. 1182(n)(2)) is

5 amended—

6 (1) by redesignating subparagraph (D) as sub7 paragraph (E); and

8 (2) by inserting after subparagraph (C) the fol9 lowing:

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

11 basis, subject an employer to random inspections for a pe12 riod of up to five years beginning on the date that such

13 employer is found by the Secretary of Labor to have en14 gaged in a willful failure to meet a condition of subpara15 graph (A), or a misrepresentation of material fact in an

16 application.’’.

17 (c) EXPEDITED REVIEWS AND DECISIONS.—Section

18 214(c)(2)(C) (8 U.S.C. 1184(c)(2)(C)) is amended by in19 serting ‘‘or section 101(a)(15)(H)(i)(b)’’ after ‘‘section

20 101(a)(15)(L)’’.

21 (d) DETERMINATIONS ON LABOR CONDITION APPLI22 CATIONS TO BE MADE BY ATTORNEY GENERAL.—

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

24 (8 U.S.C. 1101(a)(15)(H)(i)(b)) is amended by

25 striking ‘‘with respect to whom’’ and all that follows
12

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

2 respect to whom the Attorney General determines

3 that the intending employer has filed with the Attor4 ney General’’.

5 (2) CONFORMING AMENDMENTS.—Section

6 212(n) (8 U.S.C. 1182(n)(1)) is amended—

7 (A) in paragraph (1)—

8 (i) in the first sentence, by striking

9 ‘‘Secretary of Labor’’ and inserting ‘‘Attor10 ney General’’;

11 (ii) in the sixth and eighth sentences,

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

13 each place it appears;

14 (iii) in the ninth sentence, by striking

15 ‘‘Secretary of Labor’’ and inserting ‘‘Attor16 ney General’’;

17 (iv) by amending the tenth sentence

18 to read as follows: ‘‘Unless the Attorney

19 General finds that the application is in20 complete or obviously inaccurate, the At21 torney General shall provide the certifi22 cation described in section

23 101(a)(15)(H)(i)(b) and adjudicate the

24 nonimmigrant visa petition.’’; and
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1 (v) by inserting in full measure mar2 gin after subparagraph (D) the following

3 new sentence: ‘‘Such application shall be

4 filed with the employer’s petition for a

5 nonimmigrant visa for the alien, and the

6 Attorney General shall transmit a copy of

7 such application to the Secretary of

8 Labor.’’; and

9 (B) in the first sentence of paragraph

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

11 ‘‘Secretary of Labor’’.

12 (e) PREVAILING WAGE CONSIDERATIONS.—Section

13 101(a) (8 U.S.C. 1101(a)) is amended by adding at the

14 end the following:

15 ‘‘(50) The term ‘prevailing wage’ means the follow16 ing:

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

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

19 1931 (commonly known as the Davis-Bacon Act (40

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

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

22 shall be the rate required under such Acts.

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

24 prevailing wage determined under the Acts referred
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1 to in subparagraph (A), the prevailing wage shall

2 be—

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

4 the extent feasible, by adding the wage paid to

5 workers similarly employed in the area of in6 tended employment and dividing the total by

7 the number of such workers, except that the

8 wage set forth in the application shall be con9 sidered as meeting the prevailing wage standard

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

11 wages; or

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

13 collective bargaining agreement, the wage rate

14 set forth in the agreement shall be considered

15 as not adversely affecting the wages of United

16 States workers similarly employed and shall be

17 considered the ‘prevailing wage’.

18 ‘‘(C) A prevailing wage determination made

19 pursuant to this section shall not permit an em20 ployer to pay a wage lower than that required under

21 any other Federal, State, or local law.

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

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

24 having substantially comparable jobs in the oc25 cupational category in the area of intended em-
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1 ployment, except that, if no such workers are

2 employed by employers other than the employer

3 applicant in the area of intended employment,

4 the term ‘similarly employed’ means—

5 ‘‘(I) having jobs requiring a substan6 tially similar level of skills within the area

7 of intended employment; or

8 ‘‘(II) if there are no substantially

9 comparable jobs in the area of intended

10 employment, having substantially com11 parable jobs with employers outside of the

12 area of intended employment.

13 ‘‘(ii) The term ‘substantially comparable

14 jobs’ means jobs with substantially comparable

15 employers, taking into account size, profit or

16 nonprofit classification, start-up or mature

17 business operations, the specific industry, public

18 or private sector, status as an academic institu19 tion, or other defining characteristics which the

20 employer can demonstrate result in a distinct

21 wage scale from the industry at large.

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

23 be construed to require separate average rates

24 of wage taking into account such factors as

25 years of experience, academic degree, edu-
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1 cational institution attended, grade point aver2 age, publications or other distinctions, personal

3 traits deemed essential to job performance, spe4 cialized training or skills, competitive market

5 factors, or any other factors typically considered

6 by employers within the industry.

7 ‘‘(iv) Employers may use either govern8 ment or nongovernment published surveys, in9 cluding industry, region, or statewide wage sur10 veys, to determine the prevailing wage, which

11 shall be considered correct and valid where the

12 employer has maintained a copy of the survey

13 information.’’.

14 (f) POSTING REQUIREMENT.—Section

15 212(n)(1)(C)(ii) (8 U.S.C. 1182(n)(1)(C)(ii)) is amended

16 to read as follows:

17 ‘‘(ii) if there is no such bargaining rep18 resentative, has provided notice of filing to the

19 employer’s employees in the occupational classi20 fication through such methods as physical post21 ing in a conspicuous location at the employer’s

22 place of business, or electronic posting through

23 an internal job bank, or electronic notification

24 available to employees in the occupational clas25 sification.’’.
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1 SEC. 6. ANNUAL REPORTS ON H1–B VISAS.

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

3 adding at the end the following:

4 ‘‘(3) Using data from petitions for visas issued

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

6 General shall annually submit the following reports

7 to Congress:

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

9 aliens who were provided nonimmigrant status

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

11 previous quarter and who were subject to the

12 numerical ceiling for the fiscal year established

13 under section 214(g)(1).

14 ‘‘(B) Annual reports on the occupations

15 and compensation of aliens provided non16 immigrant status under such section during the

17 previous fiscal year.’’.

18 SEC. 7. LIMITATION ON PER COUNTRY CEILING WITH RE19 SPECT TO EMPLOYMENT-BASED IMMI20 GRANTS.

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

22 1152(a)) is amended by adding at the end the following

23 new paragraph:

24 ‘‘(5) RULES FOR EMPLOYMENT-BASED IMMI25 GRANTS.—
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1 ‘‘(A) EMPLOYMENT-BASED IMMIGRANTS

2 NOT SUBJECT TO PER COUNTRY LIMITATION IF

3 ADDITIONAL VISAS AVAILABLE.—If the total

4 number of visas available under paragraph (1),

5 (2), (3), (4), or (5) of section 203(b) for a cal6 endar quarter exceeds the number of qualified

7 immigrants who may otherwise be issued such

8 visas, the visas made available under that para9 graph shall be issued without regard to the nu10 merical limitation under paragraph (2) of this

11 subsection during the remainder of the calendar

12 quarter.

13 ‘‘(B) LIMITING FALL ACROSS FOR CERTAIN

14 COUNTRIES SUBJECT TO SUBSECTION (e).—In

15 the case of a foreign state or dependent area to

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

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

18 maximum number of visas that may be made

19 available to immigrants of the state or area

20 under section 203(b) consistent with subsection

21 (e) (determined without regard to this para22 graph), in applying subsection (e) all visas shall

23 be deemed to have been required for the classes

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

25 (b) CONFORMING AMENDMENTS.—
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1 (1) Section 202(a)(2) (8 U.S.C. 1152(a)(2)) is

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

3 inserting ‘‘paragraphs (3), (4), and (5)’’.

4 (2) Section 202(e)(3) (8 U.S.C. 1152(e)(3)) is

5 amended by striking ‘‘the proportion of the visa

6 numbers’’ and inserting ‘‘except as provided in sub7 section (a)(5), the proportion of the visa numbers’’.

8 (c) ONE-TIME PROTECTION UNDER PER COUNTRY

9 CEILING.—Notwithstanding section 214(g)(4) of the Im10 migration and Nationality Act, any alien who—

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

12 a nonimmigrant described in section

13 101(a)(15)(H)(i) of that Act;

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

15 section 204(a) for a preference status under para16 graph (1), (2), or (3) of section 203(b); and

17 (3) would be subject to the per country limita18 tions applicable to immigrants under those para19 graphs but for this subsection,

20 may apply for and the Attorney General may grant an

21 extension of such nonimmigrant status until the alien’s

22 application for adjustment of status has been processed

23 and a decision made thereon.
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1 SEC. 8. ACADEMIC HONORARIA.

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

3 at the end the following new subsection:

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

5 may accept an honorarium payment and associated inci6 dental expenses for a usual academic activity or activities,

7 as defined by the Attorney General in consultation with

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

9 an institution of higher education (as defined in section

10 1201(a) of the Higher Education Act of 1965) or other

11 nonprofit entity and is made for services conducted for

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

13 SECTION 1. SHORT TITLE; REFERENCES IN ACT.

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

15 ‘‘American Competitiveness Act’’.

16 (b) REFERENCES IN ACT.—Except as otherwise spe17 cifically provided in this Act, whenever in this Act an

18 amendment or repeal is expressed as an amendment to or

19 a repeal of a provision, the reference shall be deemed to be

20 made to the Immigration and Nationality Act (8 U.S.C.

21 1101 et seq.).

22 SEC. 2. FINDINGS.

23 Congress makes the following findings:

24 (1) American companies today are engaged in

25 fierce competition in global markets.
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1 (2) Companies across America are faced with se2 vere high skill labor shortages that threaten their com3 petitiveness.

4 (3) The National Software Alliance, a consor5 tium of concerned government, industry, and aca6 demic leaders that includes the United States Army,

7 Navy, and Air Force, has concluded that ‘‘The supply

8 of computer science graduates is far short of the num9 ber needed by industry.’’. The Alliance concludes that

10 the current severe understaffing could lead to infla11 tion and lower productivity.

12 (4) The Department of Labor projects that the

13 United States economy will produce more than

14 130,000 information technology jobs in each of the

15 next 10 years, for a total of more than 1,300,000.

16 (5) Between 1986 and 1995, the number of bach17 elor’s degrees awarded in computer science declined

18 by 42 percent. Therefore, any short-term increases in

19 enrollment may only return the United States to the

20 1986 level of graduates and take several years to

21 produce these additional graduates.

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

23 Information Technology Association of America esti24 mates that there are more than 340,000 unfilled posi-
22

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1 tions for highly skilled information technology work2 ers in American companies.

3 (7) The Hudson Institute estimates that the

4 unaddressed shortage of skilled workers throughout the

5 United States economy will result in a 5-percent drop

6 in the growth rate of GDP. That translates into ap7 proximately $200,000,000,000 in lost output, nearly

8 $1,000 for every American.

9 (8) It is necessary to deal with the current situa10 tion with both short-term and long-term measures.

11 (9) In fiscal year 1997, United States companies

12 and universities reached the cap of 65,000 on H–1B

13 temporary visas a month before the end of the fiscal

14 year. In fiscal year 1998 the cap is expected to be

15 reached as early as May if Congress takes no action.

16 And it will be hit earlier each year until backlogs de17 velop of such a magnitude as to prevent United States

18 companies and researchers from having any timely

19 access to skilled foreign-born professionals.

20 (10) It is vital that more American young people

21 be encouraged and equipped to enter technical fields,

22 such as mathematics, engineering, and computer

23 science.

24 (11) If American companies cannot find home25 grown talent, and if they cannot bring talent to this
23

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1 country, a large number are likely to move key oper2 ations overseas, sending those and related American

3 jobs with them.

4 (12) Inaction in these areas will carry signifi5 cant consequences for the future of American competi6 tiveness around the world and will seriously under7 mine efforts to create and keep jobs in the United

8 States.

9 SEC. 3. INCREASED ACCESS TO SKILLED PERSONNEL FOR

10 UNITED STATES COMPANIES AND UNIVER11 SITIES.

12 (a) ESTABLISHMENT OF H1–C NONIMMIGRANT CAT13 EGORY.—

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

15 U.S.C. 1101(a)(15)(H)(i)) is amended—

16 (A) by inserting ‘‘and other than services

17 described in clause (c)’’ after ‘‘subparagraph (O)

18 or (P)’’; and

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

20 the following: ‘‘, or (c) who is coming tempo21 rarily to the United States to perform labor as

22 a health care worker, other than a physician, in

23 a specialty occupation described in section

24 214(i)(1), who meets the requirements of the oc25 cupation specified in section 214(i)(2), who
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1 qualifies for the exemption from the grounds of

2 inadmissibility described in section 212(a)(5)(C),

3 and with respect to whom the Attorney General

4 certifies that the intending employer has filed

5 with the Attorney General an application under

6 section 212(n)(1).’’.

7 (2) CONFORMING AMENDMENTS.—

8 (A) Section 212(n)(1) is amended by insert9 ing ‘‘or (c)’’ after ‘‘section 101(a)(15)(H)(i)(b)’’

10 each place it appears.

11 (B) Section 214(i) is amended by inserting

12 ‘‘or (c)’’ after ‘‘section 101(a)(15)(H)(i)(b)’’ each

13 place it appears.

14 (3) TRANSITION RULE.—Any petition filed prior

15 to the date of enactment of this Act, for issuance of

16 a visa under section 101(a)(15)(H)(i)(b) of the Immi17 gration and Nationality Act on behalf of an alien de18 scribed in the amendment made by paragraph (1)(B)

19 shall, on and after that date, be treated as a petition

20 filed under section 101(a)(15)(H)(i)(c) of that Act, as

21 added by paragraph (1).

22 (b) ANNUAL CEILINGS FOR H1–B AND H1–C WORK23 ERS.—
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1 (1) AMENDMENT OF THE INA.—Section

2 214(g)(1) (8 U.S.C. 1184(g)(1)) is amended to read as

3 follows:

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

5 visas or otherwise provided nonimmigrant status during

6 any fiscal year—

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

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

9 1997, may not exceed 65,000,

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

11 95,000,

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

13 the number determined for fiscal year 1998

14 under such section, minus 10,000, plus the num15 ber of unused visas under subparagraph (B) for

16 the fiscal year preceding the applicable fiscal

17 year, and

18 ‘‘(iv) for fiscal year 2000, and each applica19 ble fiscal year thereafter through fiscal year

20 2002, may not exceed the number determined for

21 fiscal year 1998 under such section, minus

22 10,000, plus the number of unused visas under

23 subparagraph (B) for the fiscal year preceding

24 the applicable fiscal year, plus the number of un-
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1 used visas under subparagraph (C) for the fiscal

2 year preceding the applicable fiscal year;

3 ‘‘(B) under section 101(a)(15)(H)(ii)(b), begin4 ning with fiscal year 1992, may not exceed 66,000; or

5 ‘‘(C) under section 101(a)(15)(H)(i)(c), begin6 ning with fiscal year 1999, may not exceed 10,000.

7 For purposes of determining the ceiling under subpara8 graph (A) (iii) and (iv), not more than 20,000 of the unused

9 visas under subparagraph (B) may be taken into account

10 for any fiscal year.’’.

11 (2) TRANSITION PROCEDURES.—Any visa issued

12 or nonimmigrant status otherwise accorded to any

13 alien under clause (i)(b) or (ii)(b) of section

14 101(a)(15)(H) of the Immigration and Nationality

15 Act pursuant to a petition filed during fiscal year

16 1998 but approved on or after October 1, 1998, shall

17 be counted against the applicable ceiling in section

18 214(g)(1) of that Act for fiscal year 1998 (as amended

19 by paragraph (1) of this subsection), except that, in

20 the case where counting the visa or the other granting

21 of status would cause the applicable ceiling for fiscal

22 year 1998 to be exceeded, the visa or grant of status

23 shall be counted against the applicable ceiling for fis24 cal year 1999.
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1 SEC. 4. EDUCATION AND TRAINING IN SCIENCE AND TECH2 NOLOGY.

3 (a) DEGREES IN MATHEMATICS, COMPUTER SCIENCE,

4 AND ENGINEERING.—Subpart 4 of part A of title IV of the

5 Higher Education Act of 1965 (20 U.S.C. 1070c et seq.)

6 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 fis11 cal 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 to

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

16 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 allot23 ments to States to enable the States to pay not more than

24 50 percent of the amount of grants awarded to low-income

25 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 a

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

4 program of study leading to an associate, baccalaureate or

5 graduate degree in mathematics, computer science, or engi6 neering.

7 ‘‘(c) COMPARABILITY.—The Secretary shall make allot8 ments and grants shall be awarded under this section in

9 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 the

19 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 years—

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

8 (1)(A); and

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

10 (1)(B).

11 SEC. 5. INCREASED ENFORCEMENT PENALTIES AND IM12 PROVED OPERATIONS.

13 (a) INCREASED PENALTIES FOR VIOLATIONS OF H1–

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

15 1182(n)(2)(C)) is amended—

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

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

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

19 or a willful misrepresentation of a material fact in

20 an application—’’; and

21 (2) in clause (i), by striking ‘‘$1,000’’ and in22 serting ‘‘$5,000’’.

23 (b) SPOT INSPECTIONS DURING PROBATIONARY PE24 RIOD.—Section 212(n)(2) (8 U.S.C. 1182(n)(2)) is amend25 ed—
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1 (1) by redesignating subparagraph (D) as sub2 paragraph (E); and

3 (2) by inserting after subparagraph (C) the fol4 lowing:

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

6 basis, subject an employer to random inspections for a pe7 riod of up to five years beginning on the date that such

8 employer is found by the Secretary of Labor to have engaged

9 in a willful failure to meet a condition of subparagraph

10 (A), or a misrepresentation of material fact in an applica11 tion.’’.

12 (c) LAYOFF PROTECTION FOR UNITED STATES WORK13 ERS.—Section 212(n)(2) (8 U.S.C. 1182(n)(2)), as amended

14 by subsection (b), is further amended by adding at the end

15 the following:

16 ‘‘(F)(i) If the Secretary finds, after notice

17 and opportunity for a hearing, a willful failure

18 to meet a condition in paragraph (1) or a willful

19 misrepresentation of a material fact in an appli20 cation, in the course of which the employer has

21 replaced a United States worker with a non22 immigrant described in section 101(a)(15)(H)(i)

23 (b) or (c) within the 6-month period prior to, or

24 within 90 days following, the filing of the appli25 cation—
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1 ‘‘(I) the Secretary shall notify the At2 torney General of such finding, and may, in

3 addition, impose such other administrative

4 remedies (including civil monetary pen5 alties in an amount not to exceed $25,000

6 per violation) as the Secretary determines

7 to be appropriate; and

8 ‘‘(II) the Attorney General shall not

9 approve petitions filed with respect to the

10 employer under section 204 or 214(c) dur11 ing a period of at least 2 years for aliens

12 to be employed by the employer.

13 ‘‘(ii) For purposes of this subparagraph:

14 ‘‘(I) The term ‘replace’ means the em15 ployment of the nonimmigrant at the spe16 cific place of employment and in the spe17 cific employment opportunity from which a

18 United States worker with substantially

19 equivalent qualifications and experience in

20 the specific employment opportunity has

21 been laid off.

22 ‘‘(II) The term ‘laid off ’, with respect

23 to an individual, means the individual’s

24 loss of employment other than a discharge

25 for inadequate performance, violation of
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1 workplace rules, cause, voluntary departure,

2 voluntary retirement, or the expiration of a

3 grant, contract, or other agreement. The

4 term ‘laid off’ does not include any situa5 tion in which the individual involved is of6 fered, as an alternative to such loss of em7 ployment, a similar employment oppor8 tunity with the same employer at the equiv9 alent or higher compensation and benefits

10 as the position from which the employee

11 was discharged, regardless of whether or not

12 the employee accepts the offer.

13 ‘‘(III) The term ‘United States worker’

14 means—

15 ‘‘(aa) a citizen or national of the

16 United States;

17 ‘‘(bb) an alien who is lawfully ad18 mitted for permanent residence; or

19 ‘‘(cc) an alien authorized to be

20 employed by this Act or by the Attor21 ney General.’’.

22 (d) EXPEDITED REVIEWS AND DECISIONS.—Section

23 214(c)(2)(C) (8 U.S.C. 1184(c)(2)(C)) is amended by insert24 ing ‘‘or section 101(a)(15)(H)(i)(b)’’ after ‘‘section

25 101(a)(15)(L)’’.
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1 (e) DETERMINATIONS ON LABOR CONDITION APPLICA2 TIONS TO BE MADE BY ATTORNEY GENERAL.—

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

4 (8 U.S.C. 1101(a)(15)(H)(i)(b)) is amended by strik5 ing ‘‘with respect to whom’’ and all that follows

6 through ‘‘with the Secretary’’ and inserting ‘‘with re7 spect to whom the Attorney General determines that

8 the intending employer has filed with the Attorney

9 General’’.

10 (2) CONFORMING AMENDMENTS.—Section 212(n)

11 (8 U.S.C. 1182(n)(1)) is amended—

12 (A) in paragraph (1)—

13 (i) in the first sentence, by striking

14 ‘‘Secretary of Labor’’ and inserting ‘‘Attor15 ney General’’;

16 (ii) in the sixth and eighth sentences,

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

18 each place it appears;

19 (iii) in the ninth sentence, by striking

20 ‘‘Secretary of Labor’’ and inserting ‘‘Attor21 ney General’’;

22 (iv) by amending the tenth sentence to

23 read as follows: ‘‘Unless the Attorney Gen24 eral finds that the application is incomplete

25 or obviously inaccurate, the Attorney Gen-
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1 eral shall provide the certification described

2 in section 101(a)(15)(H)(i)(b) and adju3 dicate the nonimmigrant visa petition.’’;

4 and

5 (v) by inserting in full measure mar6 gin after subparagraph (D) the following

7 new sentence: ‘‘Such application shall be

8 filed with the employer’s petition for a non9 immigrant visa for the alien, and the Attor10 ney General shall transmit a copy of such

11 application to the Secretary of Labor.’’; and

12 (B) in the first sentence of paragraph

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

14 ‘‘Secretary of Labor’’.

15 (f) PREVAILING WAGE CONSIDERATIONS.—Section 101

16 (8 U.S.C. 1101) is amended by adding at the end the follow17 ing new subsection:

18 ‘‘(i)(1) In computing the prevailing wage level for an

19 occupational classification in an area of employment for

20 purposes of section 212(n)(1)(A)(i)(II) and section

21 212(a)(5)(A) in the case of an employee of—

22 ‘‘(A) an institution of higher education (as de23 fined in section 1201(a) of the Higher Education Act

24 of 1965), or a related or affiliated nonprofit entity,

25 or
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1 ‘‘(B) a nonprofit or Federal research institute or

2 agency,

3 the prevailing wage level shall only take into account em4 ployees at such institutions, entities, and agencies in the

5 area of employment.

6 ‘‘(2) With respect to a professional athlete (as defined

7 in section 212(a)(5)(A)(iii)(II)) when the job opportunity

8 is covered by professional sports league rules or regulations,

9 the wage set forth in those rules or regulations shall be con10 sidered as not adversely affecting the wages of United States

11 workers similarly employed and be considered the prevail12 ing wage.

13 ‘‘(3) To determine the prevailing wage, employers may

14 use either government or nongovernment published surveys,

15 including industry, region, or statewide wage surveys, to

16 determine the prevailing wage, which shall be considered

17 correct and valid if the survey was conducted in accordance

18 with generally accepted industry standards and the em19 ployer has maintained a copy of the survey information.’’.

20 (g) POSTING REQUIREMENT.—Section

21 212(n)(1)(C)(ii) (8 U.S.C. 1182(n)(1)(C)(ii)) is amended to

22 read as follows:

23 ‘‘(ii) if there is no such bargaining rep24 resentative, has provided notice of filing in the

25 occupational classification through such methods
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1 as physical posting in a conspicuous location, or

2 electronic posting through an internal job bank,

3 or electronic notification available to employees

4 in the occupational classification.’’.

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

6 Section 212(n) (8 U.S.C. 1182(n)) is amended by add7 ing at the end the following:

8 ‘‘(3) Using data from petitions for visas issued

9 under section 101(a)(15)(H)(i)(b), the Attorney Gen10 eral shall annually submit the following reports to

11 Congress:

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

13 aliens who were provided nonimmigrant status

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

15 previous quarter and who were subject to the nu16 merical ceiling for the fiscal year established

17 under section 214(g)(1).

18 ‘‘(B) Annual reports on the occupations and

19 compensation of aliens provided nonimmigrant

20 status under such section during the previous fis21 cal year.’’.

22 SEC. 7. STUDY AND REPORT ON HIGH-TECHNOLOGY LABOR

23 MARKET NEEDS.

24 (a) STUDY.—The National Science Foundation shall

25 oversee the National Academy of Sciences in establishing
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1 a government-industry panel, including representatives

2 from academia, government, and business, to conduct a

3 study, using sound analytical methods, to assess the labor

4 market needs for workers with high technology skills during

5 the 10-year period beginning on the date of enactment of

6 this Act. The study shall focus on the following issues:

7 (1) The future training and education needs of

8 the high-technology sector over that 10-year period,

9 including projected job growth for high-technology

10 issues.

11 (2) Future training and education needs of

12 United States students to ensure that their skills, at

13 various levels, are matched to the needs of the high

14 technology and information technology sector over

15 that 10-year period.

16 (3) An analysis of progress made by educators,

17 employers, and government entities to improve the

18 teaching and educational level of American students

19 in the fields of math, science, computer, and engineer20 ing since 1998.

21 (4) An analysis of the number of United States

22 workers currently or projected to work overseas in

23 professional, technical, and managerial capacities.

24 (5) The following additional issues:
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1 (A) The need by the high-technology sector

2 for foreign workers with specific skills.

3 (B) The potential benefits gained by the

4 universities, employers, and economy of the

5 United States from the entry of skilled profes6 sionals in the fields of science and engineering.

7 (C) The extent to which globalization has

8 increased since 1998.

9 (D) The needs of the high-technology sector

10 to localize United States products and services

11 for export purposes in light of the increasing

12 globalization of the United States and world

13 economy.

14 (E) An examination of the amount and

15 trend of high technology work that is out-sourced

16 from the United States to foreign countries.

17 (b) REPORT.—Not later than October 1, 2000, the Na18 tional Science Foundation shall submit a report containing

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

20 Committees on the Judiciary of the House of Representa21 tives and the Senate.

22 (c) AVAILABILITY OF FUNDS.—Funds available to the

23 National Science Foundation shall be made available to

24 carry out this section.
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1 SEC. 8. LIMITATION ON PER COUNTRY CEILING WITH RE2 SPECT TO EMPLOYMENT-BASED IMMIGRANTS.

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

4 1152(a)) is amended by adding at the end the following

5 new paragraph:

6 ‘‘(5) RULES FOR EMPLOYMENT-BASED IMMI7 GRANTS.—

8 ‘‘(A) EMPLOYMENT-BASED IMMIGRANTS NOT

9 SUBJECT TO PER COUNTRY LIMITATION IF ADDI10 TIONAL VISAS AVAILABLE.—If the total number

11 of visas available under paragraph (1), (2), (3),

12 (4), or (5) of section 203(b) for a calendar quar13 ter exceeds the number of qualified immigrants

14 who may otherwise be issued such visas, the visas

15 made available under that paragraph shall be

16 issued without regard to the numerical limita17 tion under paragraph (2) of this subsection dur18 ing the remainder of the calendar quarter.

19 ‘‘(B) LIMITING FALL ACROSS FOR CERTAIN

20 COUNTRIES SUBJECT TO SUBSECTION (e).—In

21 the case of a foreign state or dependent area to

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

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

24 maximum number of visas that may be made

25 available to immigrants of the state or area

26 under section 203(b) consistent with subsection
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1 (e) (determined without regard to this para2 graph), in applying subsection (e) all visas shall

3 be deemed to have been required for the classes

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

5 (b) CONFORMING AMENDMENTS.—

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

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

8 inserting ‘‘paragraphs (3), (4), and (5)’’.

9 (2) Section 202(e)(3) (8 U.S.C. 1152(e)(3)) is

10 amended by striking ‘‘the proportion of the visa num11 bers’’ and inserting ‘‘except as provided in subsection

12 (a)(5), the proportion of the visa numbers’’.

13 (c) ONE-TIME PROTECTION UNDER PER COUNTRY

14 CEILING.—Notwithstanding section 214(g)(4) of the Immi15 gration and Nationality Act, any alien who—

16 (1) as of the date of enactment of this Act is a

17 nonimmigrant described in section 101(a)(15)(H)(i)

18 of that Act;

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

20 section 204(a) for a preference status under para21 graph (1), (2), or (3) of section 203(b); and

22 (3) would be subject to the per country limita23 tions applicable to immigrants under those para24 graphs but for this subsection,
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1 may apply for and the Attorney General may grant an ex2 tension of such nonimmigrant status until the alien’s appli3 cation for adjustment of status has been processed and a

4 decision made thereon.

5 SEC. 9. ACADEMIC HONORARIA.

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

7 at the end the following new subsection:

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

9 may accept an honorarium payment and associated inci10 dental expenses for a usual academic activity or activities,

11 as defined by the Attorney General in consultation with the

12 Secretary of Education, if such payment is offered by an

13 institution of higher education (as defined in section

14 1201(a) of the Higher Education Act of 1965) or other non15 profit entity and is made for services conducted for the bene16 fit of that institution or entity.’’.