I 

110TH CONGRESS 

2D SESSION H. R. 5630 

To modify certain requirements with respect to H–1B nonimmigrants. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 13, 2008 

Ms. GIFFORDS introduced the following bill; which was referred to the 

Committee on the Judiciary 

A BILL 

To modify certain requirements with respect to H–1B 

nonimmigrants. 

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 ‘‘Innovation Employ5 ment Act’’. 

6 SEC. 2. NUMERICAL LIMITATIONS. 

7 Section 214(g)(1)(A)(vii) of the Immigration and Na8 tionality Act (8 U.S.C. 1184(g)(1)(A)(vii)) is amended to 

9 read as follows: 

10 ‘‘(vii) 130,000 in fiscal year 2008 and each 

11 succeeding fiscal year, except that in fiscal 


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1 years 2010 through 2015, if such limitation is 

2 reached in the previous fiscal year, such limita3 tion shall equal the greater of 180,000 and the 

4 limitation applicable for the previous fiscal year 

5 increased by 20 percent; or’’. 

6 SEC. 3. EXEMPTION FROM NUMERICAL LIMITATION FOR 

7 CERTAIN NONIMMIGRANTS. 

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

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

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

11 (2) in subparagraph (C), by striking the period 

12 at the end and inserting a semicolon; and 

13 (3) by adding at the end the following: 

14 ‘‘(D) has earned a master’s or higher degree 

15 from a United States institution of higher education 

16 (as defined in section 101(a) of the Higher Edu17 cation Act of 1965 (20 U.S.C. 1001(a)) in a field of 

18 science, technology, engineering, or mathematics and 

19 with respect to whom the petitioning employer re20 quires such education as a condition for the employ21 ment; or 

22 ‘‘(E) has earned a master’s or higher degree (or 

23 its equivalent) from an institution of higher edu24 cation outside of the United States in a field of 

25 science, technology, engineering, or mathematics and 


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1 with respect to whom the petitioning employer re2 quires such education as a condition for the employ3 ment, until the number of aliens who are exempted 

4 from such numerical limitations under this subpara5 graph during a fiscal year exceeds 20,000.’’. 

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

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

8 Act (8 U.S.C. 1182(n)(1)) is amended by inserting after 

9 subparagraph (G) the following: 

10 ‘‘(H) The employer has not advertised the avail11 able jobs specified in the application in an advertise12 ment that states or indicates that— 

13 ‘‘(i) the job or jobs are only available to 

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

15 nonimmigrants; or 

16 ‘‘(ii) persons who are or who may become 

17 H–1B nonimmigrants shall receive priority or a 

18 preference in the hiring process. 

19 ‘‘(I) If the employer employs not less than 50 

20 employees in the United States, not more than 50 

21 percent of such employees are H–1B non22 immigrants.’’. 


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1 SEC. 5. H–1B GOVERNMENT AUTHORITY AND REQUIRE2 MENTS. 

3 (a) SAFEGUARDS AGAINST FRAUD AND MISREPRE4 SENTATION IN APPLICATION REVIEW PROCESS.—Section 

5 212(n)(1) of the Immigration and Nationality Act (8 

6 U.S.C. 1182(n)(1)) is amended, in the matter following 

7 subparagraph (I) (as inserted by section 3 of this Act)— 

8 (1) by inserting ‘‘and through the Department 

9 of Labor’s website, without charge.’’ after ‘‘D.C.’’; 

10 (2) by inserting ‘‘, clear indicators of fraud, 

11 misrepresentation of material fact,’’ after ‘‘complete12 ness’’; 

13 (3) by striking or ‘‘obviously inaccurate’’ and 

14 inserting ‘‘presents clear indicators of fraud or mis15 representation of material fact, or is obviously inac16 curate’’; 

17 (4) by striking ‘‘within 7 days of’’ and inserting 

18 ‘‘not later than 14 days after’’; and 

19 (5) by adding at the end the following: ‘‘If the 

20 Secretary’s review of an application identifies clear 

21 indicators of fraud or misrepresentation of material 

22 fact, the Secretary may conduct an investigation and 

23 hearing under paragraph (2).’’. 

24 (b) INVESTIGATIONS BY DEPARTMENT OF LABOR.— 

25 Section 212(n)(2) of such Act is amended— 

26 (1) in subparagraph (A)— 


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1 (A) by striking ‘‘12 months’’ and inserting 

2 ‘‘24 months’’; and 

3 (B) by striking ‘‘The Secretary shall con4 duct’’ and all that follows and inserting ‘‘Upon 

5 the receipt of such a complaint, the Secretary 

6 may initiate an investigation to determine if 

7 such a failure or misrepresentation has oc8 curred.’’; 

9 (2) in subparagraph (C)(i)— 

10 (A) by striking ‘‘a condition of paragraph 

11 (1)(B), (1)(E), or (1)(F)’’ and inserting ‘‘a con12 dition under subparagraph (B), (C)(i), (E), (F), 

13 (H), (I), or (J) of paragraph (1)’’; and 

14 (B) by striking ‘‘(1)(C)’’ and inserting 

15 ‘‘(1)(C)(ii)’’; 

16 (3) in subparagraph (G)— 

17 (A) in clause (i), by striking ‘‘if the Sec18 retary’’ and all that follows and inserting ‘‘with 

19 regard to the employer’s compliance with the 

20 requirements of this subsection.’’; 

21 (B) in clause (ii), by striking ‘‘and whose 

22 identity’’ and all that follows through ‘‘failure 

23 or failures.’’ and inserting ‘‘the Secretary of 

24 Labor may conduct an investigation into the 


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1 employer’s compliance with the requirements of 

2 this subsection.’’; 

3 (C) in clause (iii), by striking the last sen4 tence; 

5 (D) by striking clauses (iv) and (v); 

6 (E) by redesignating clauses (vi), (vii), and 

7 (viii) as clauses (iv), (v), and (vi), respectively; 

8 (F) in clause (iv), as redesignated, by 

9 striking ‘‘meet a condition described in clause 

10 (ii), unless the Secretary of Labor receives the 

11 information not later than 12 months’’ and in12 serting ‘‘comply with the requirements under 

13 this subsection, unless the Secretary of Labor 

14 receives the information not later than 24 

15 months’’; 

16 (G) by amending clause (v), as redesig17 nated, to read as follows: 

18 ‘‘(v) The Secretary of Labor shall pro19 vide notice to an employer of the intent to 

20 conduct an investigation. The notice shall 

21 be provided in such a manner, and shall 

22 contain sufficient detail, to permit the em23 ployer to respond to the allegations before 

24 an investigation is commenced. The Sec25 retary is not required to comply with this 


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1 clause if the Secretary determines that 

2 such compliance would interfere with an 

3 effort by the Secretary to investigate or se4 cure compliance by the employer with the 

5 requirements of this subsection. A deter6 mination by the Secretary under this 

7 clause shall not be subject to judicial re8 view.’’; 

9 (H) in clause (vi), as redesignated, by 

10 striking ‘‘An investigation’’ and all that follows 

11 through ‘‘the determination.’’ and inserting ‘‘If 

12 the Secretary of Labor, after an investigation 

13 under clause (i) or (ii), determines that a rea14 sonable basis exists to make a finding that the 

15 employer has failed to comply with the require16 ments under this subsection, the Secretary shall 

17 provide interested parties with notice of such 

18 determination and an opportunity for a hearing 

19 in accordance with section 556 of title 5, 

20 United States Code, not later than 120 days 

21 after the date of such determination.’’; and 

22 (I) by adding at the end the following: 

23 ‘‘(vii) If the Secretary of Labor, after 

24 a hearing, finds a reasonable basis to be25 lieve that the employer has violated the reVerDate Aug 31 2005 22:20 Mar 15, 2008 Jkt 069200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H5630.IH H5630

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1 quirements under this subsection, the Sec2 retary may impose a penalty under sub3 paragraph (C).’’; and 

4 (4) by striking subparagraph (H). 

5 (c) INFORMATION SHARING BETWEEN DEPARTMENT

6 OF LABOR AND DEPARTMENT OF HOMELAND SECU7 RITY.—Section 212(n)(2) of such Act, as amended by this 

8 section, is further amended by inserting after subpara9 graph (G) the following: 

10 ‘‘(H) The Director of United States Citi11 zenship and Immigration Services shall provide 

12 the Secretary of Labor with any information 

13 contained in the materials submitted by H–1B 

14 employers as part of the adjudication process 

15 that indicates that the employer is not com16 plying with H–1B visa program requirements. 

17 The Secretary may initiate and conduct an in18 vestigation and hearing under this paragraph 

19 after receiving information of noncompliance 

20 under this subparagraph.’’. 

21 (d) AUDITS.—Section 212(n)(2)(A) of such Act, as 

22 amended by this section, is further amended by adding 

23 at the end the following: ‘‘The Secretary may conduct sur24 veys of the degree to which employers comply with the re25 quirements under this subsection and may conduct annual 


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1 compliance audits of employers that employ H–1B non2 immigrants. The Secretary shall conduct annual compli3 ance audits of not less than 1 percent of the employers 

4 that employ H–1B nonimmigrants during the applicable 

5 calendar year.’’ 

6 (e) PENALTIES.—Section 212(n)(2)(C) of such Act, 

7 as amended by this section, is further amended— 

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

9 inserting ‘‘$2,000’’; 

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

11 inserting ‘‘$10,000’’; and 

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

13 inserting ‘‘$2,000’’. 

14 (f) INFORMATION PROVIDED TO H–1B NON15 IMMIGRANTS UPON VISA ISSUANCE.—Section 212(n) of 

16 such Act, as amended by this section, is further amended 

17 by inserting after paragraph (2) the following: 

18 ‘‘(3)(A) Upon issuing an H–1B visa to an ap19 plicant outside the United States, the issuing office 

20 shall provide the applicant with— 

21 ‘‘(i) a brochure outlining the employer’s 

22 obligations and the employee’s rights under 

23 Federal law, including labor and wage protec24 tions; and 


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1 ‘‘(ii) the contact information for Federal 

2 agencies that can offer more information or as3 sistance in clarifying employer obligations and 

4 workers’ rights. 

5 ‘‘(B) Upon the issuance of an H–1B visa to an 

6 alien inside the United States, the officer of the De7 partment of Homeland Security shall provide the ap8 plicant with— 

9 ‘‘(i) a brochure outlining the employer’s 

10 obligations and the employee’s rights under 

11 Federal law, including labor and wage protec12 tions; and 

13 ‘‘(ii) the contact information for Federal 

14 agencies that can offer more information or as15 sistance in clarifying employer’s obligations and 

16 workers’ rights.’’. 

17 SEC. 6. WHISTLEBLOWER PROTECTIONS. 

18 Section 212(n)(2)(C)(iv) of the Immigration and Na19 tionality Act (8 U.S.C. 1182(n)(2)(C)(iv)) is amended— 

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

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

22 ‘‘to intimidate’’; and 

23 (2) by adding at the end the following: ‘‘An em24 ployer that violates this clause shall be liable to the 


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1 employees harmed by such violation for lost com2 pensation, including back pay.’’. 

Æ 


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