I 

111TH CONGRESS 

2D SESSION H. R. 5397 

To amend the Immigration and Nationality Act to reform and reduce fraud 

and abuse in certain visa programs for aliens working temporarily in 

the United States, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 25, 2010 

Mr. PASCRELL (for himself, Ms. DELAURO, and Mr. ROHRABACHER) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Education and Labor, for 

a period to be subsequently determined by the Speaker, in each case for 

consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To amend the Immigration and Nationality Act to reform 

and reduce fraud and abuse in certain visa programs 

for aliens working temporarily in the United States, and 

for other purposes. 

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

5 ‘‘H–1B and L–1 Visa Reform Act of 2010’’. 


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

2 this Act is as follows: 

Sec. 1. Short title. 

TITLE I—H–1B VISA FRAUD AND ABUSE PROTECTIONS 

Subtitle A—H–1B Employer Application Requirements 

Sec. 101. Modification of application requirements. 

Sec. 102. New application requirements. 

Sec. 103. Application review requirements. 

Subtitle B—Investigation and Disposition of Complaints Against H–1B 

Employers 

Sec. 111. General modification of procedures for investigation and disposition. 

Sec. 112. Investigation, working conditions, and penalties. 

Sec. 113. Waiver requirements. 

Sec. 114. Initiation of investigations. 

Sec. 115. Information sharing. 

Sec. 116. Conforming amendment. 

Subtitle C—Other Protections 

Sec. 121. Posting available positions through the Department of Labor. 

Sec. 122. H–1B government authority and requirements. 

Sec. 123. Requirements for information for H–1B and L–1 nonimmigrants. 

Sec. 124. Additional Department of Labor employees. 

Sec. 125. Technical correction. 

Sec. 126. Application. 

TITLE II—L–1 VISA FRAUD AND ABUSE PROTECTIONS 

Sec. 201. Prohibition on outplacement of L–1 nonimmigrants. 

Sec. 202. L–1 employer petition requirements for employment at new offices. 

Sec. 203. Cooperation with Secretary of State. 

Sec. 204. Investigation and disposition of complaints against L–1 employers. 

Sec. 205. Wage rate and working conditions for L–1 nonimmigrant. 

Sec. 206. Penalties. 

Sec. 207. Prohibition on retaliation against L–1 nonimmigrants. 

Sec. 208. Reports on L–1 nonimmigrants. 

Sec. 209. Technical amendments. 

Sec. 210. Application. 

Sec. 211. Report on L–1 blanket petition process. 


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1 TITLE I—H–1B VISA FRAUD AND 

2 ABUSE PROTECTIONS 

3 Subtitle A—H–1B Employer 

4 Application Requirements 

5 SEC. 101. MODIFICATION OF APPLICATION REQUIRE6 MENTS. 

7 (a) GENERAL APPLICATION REQUIREMENTS.—Sub8 paragraph (A) of section 212(n)(1) of the Immigration 

9 and Nationality Act (8 U.S.C. 1182(n)(1)) is amended to 

10 read as follows: 

11 ‘‘(A) The employer— 

12 ‘‘(i) is offering and will offer to H–1B non13 immigrants, during the period of authorized 

14 employment for each H–1B nonimmigrant, 

15 wages that are determined based on the best in16 formation available at the time the application 

17 is filed and which are not less than the highest 

18 of— 

19 ‘‘(I) the locally determined prevailing 

20 wage level for the occupational classifica21 tion in the area of employment; 

22 ‘‘(II) the median average wage for all 

23 workers in the occupational classification 

24 in the area of employment; and 


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1 ‘‘(III) the median wage for skill level 

2 2 in the occupational classification found 

3 in the most recent Occupational Employ4 ment Statistics survey; and 

5 ‘‘(ii) will provide working conditions for 

6 such H–1B nonimmigrant that will not ad7 versely affect the working conditions of other 

8 workers similarly employed.’’. 

9 (b) INTERNET POSTING REQUIREMENT.—Subpara10 graph (C) of such section 212(n)(1) is amended— 

11 (1) by redesignating clause (ii) as subclause 

12 (II); 

13 (2) by striking ‘‘(i) has provided’’ and inserting 

14 the following: 

15 ‘‘(ii)(I) has provided’’; and 

16 (3) by inserting before clause (ii), as redesig17 nated by paragraph (2) of this subsection, the fol18 lowing: 

19 ‘‘(i) has posted on the Internet Web site 

20 described in paragraph (3), for at least 30 cal21 endar days, a detailed description of each posi22 tion for which a nonimmigrant is sought that 

23 includes a description of— 

24 ‘‘(I) the wages and other terms and 

25 conditions of employment; 


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1 ‘‘(II) the minimum education, train2 ing, experience, and other requirements for 

3 the position; and 

4 ‘‘(III) the process for applying for the 

5 position; and’’. 

6 (c) WAGE DETERMINATION INFORMATION.—Sub7 paragraph (D) of such section 212(n)(1) is amended by 

8 inserting ‘‘the wage determination methodology used 

9 under subparagraph (A)(i),’’ after ‘‘shall contain’’. 

10 (d) APPLICATION OF REQUIREMENTS TO ALL EM11 PLOYERS.— 

12 (1) NONDISPLACEMENT.—Subparagraph (E) of 

13 such section 212(n)(1) is amended— 

14 (A) in clause (i)— 

15 (i) by striking ‘‘90 days’’ both places 

16 it appears and inserting ‘‘180 days’’; and 

17 (ii) by striking ‘‘(i) In the case of an 

18 application described in clause (ii), the’’ 

19 and inserting ‘‘The’’; and 

20 (B) by striking clause (ii). 

21 (2) RECRUITMENT.—Subparagraph (G)(i) of 

22 such section 212(n)(1) is amended by striking ‘‘In 

23 the case of an application described in subparagraph 

24 (E)(ii), subject’’ and inserting ‘‘Subject’’. 


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1 (e) REQUIREMENT FOR WAIVER.—Subparagraph (F) 

2 of such section 212(n)(1) is amended to read as follows: 

3 ‘‘(F) The employer shall not place, outsource, 

4 lease, or otherwise contract for the services or place5 ment of H–1B nonimmigrants with another em6 ployer unless the employer of the alien has been 

7 granted a waiver under paragraph (2)(E).’’. 

8 SEC. 102. NEW APPLICATION REQUIREMENTS. 

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

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

11 clause (ii) of subparagraph (G) the following: 

12 ‘‘(H)(i) The employer has not advertised any 

13 available position specified in the application in an 

14 advertisement that states or indicates that— 

15 ‘‘(I) such position is only available to an 

16 individual who is or will be an H–1B non17 immigrant; or 

18 ‘‘(II) an individual who is or will be an H– 

19 1B nonimmigrant shall receive priority or a 

20 preference in the hiring process for such posi21 tion. 

22 ‘‘(ii) The employer has not solely recruited indi23 viduals who are or who will be H–1B nonimmigrants 

24 to fill such position. 


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1 ‘‘(I) If the employer employs 50 or more em2 ployees in the United States, the sum of the number 

3 of such employees who are H–1B nonimmigrants 

4 plus the number of such employees who are non5 immigrants described in section 101(a)(15)(L) may 

6 not exceed 50 percent of the total number of em7 ployees. 

8 ‘‘(J) If the employer, in such previous period as 

9 the Secretary shall specify, employed 1 or more H– 

10 1B nonimmigrants, the employer shall submit to the 

11 Secretary the Internal Revenue Service Form W–2 

12 Wage and Tax Statement filed by the employer with 

13 respect to the H–1B nonimmigrants for such pe14 riod.’’. 

15 SEC. 103. APPLICATION REVIEW REQUIREMENTS. 

16 (a) TECHNICAL AMENDMENT.—Section 212(n)(1) of 

17 the Immigration and Nationality Act (8 U.S.C. 

18 1182(n)(1)), as amended by section 102, is further 

19 amended in the undesignated paragraph at the end, by 

20 striking ‘‘The employer’’ and inserting the following: 

21 ‘‘(K) The employer.’’. 

22 (b) APPLICATION REVIEW REQUIREMENTS.—Sub23 paragraph (K) of such section 212(n)(1), as designated 

24 by subsection (a), is amended— 


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

2 of Labor’s Web site, without charge.’’ after ‘‘D.C.’’; 

3 (2) by striking ‘‘only for completeness’’ and in4 serting ‘‘for completeness and clear indicators of 

5 fraud or misrepresentation of material fact,’’; 

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

7 inserting ‘‘, presents clear indicators of fraud or 

8 misrepresentation of material fact, or is obviously in9 accurate’’; 

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

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

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

13 Secretary’s review of an application identifies clear 

14 indicators of fraud or misrepresentation of material 

15 fact, the Secretary may conduct an investigation and 

16 hearing in accordance with paragraph (2).’’. 

17 Subtitle B—Investigation and Dis18 position of Complaints Against 

19 H–1B Employers 

20 SEC. 111. GENERAL MODIFICATION OF PROCEDURES FOR 

21 INVESTIGATION AND DISPOSITION. 

22 Subparagraph (A) of section 212(n)(2) of the Immi23 gration and Nationality Act (8 U.S.C. 1182(n)(2)) is 

24 amended— 


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1 (1) by striking ‘‘(A) Subject’’ and inserting 

2 ‘‘(A)(i) Subject’’; 

3 (2) by striking ‘‘12 months’’ and inserting ‘‘24 

4 months’’; 

5 (3) by striking the last sentence; and 

6 (4) by adding at the end the following: 

7 ‘‘(ii)(I) Upon the receipt of such a com8 plaint, the Secretary may initiate an investiga9 tion to determine if such a failure or misrepre10 sentation has occurred. 

11 ‘‘(II) The Secretary may conduct surveys 

12 of the degree to which employers comply with 

13 the requirements of this subsection and may 

14 conduct annual compliance audits of employers 

15 that employ H–1B nonimmigrants. 

16 ‘‘(III) The Secretary shall— 

17 ‘‘(aa) conduct annual compliance au18 dits of not less than 1 percent of the em19 ployers that employ H–1B nonimmigrants 

20 during the applicable calendar year; 

21 ‘‘(bb) conduct annual compliance au22 dits of each employer with more than 100 

23 employees who work in the United States 

24 if more than 15 percent of such employees 

25 are H–1B nonimmigrants; and 


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1 ‘‘(cc) make available to the public an 

2 executive summary or report describing the 

3 general findings of the audits carried out 

4 pursuant to this subclause.’’. 

5 SEC. 112. INVESTIGATION, WORKING CONDITIONS, AND 

6 PENALTIES. 

7 Subparagraph (C) of section 212(n)(2) of the Immi8 gration and Nationality Act (8 U.S.C. 1182(n)(2)) is 

9 amended— 

10 (1) in clause (i)— 

11 (A) in the matter preceding subclause 

12 (I)— 

13 (i) by striking ‘‘a condition of para14 graph (1)(B), (1)(E), or (1)(F)’’ and in15 serting ‘‘a condition under subparagraph 

16 (A), (B), (C)(i), (E), (F), (G)(i)(I), (H), 

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

18 (ii) by striking ‘‘(1)(C)’’ and inserting 

19 ‘‘(1)(C)(ii)’’; and 

20 (B) in subclause (I)— 

21 (i) by striking ‘‘$1,000’’ and inserting 

22 ‘‘$2,000’’; and 

23 (ii) by striking ‘‘and’’ at the end; 


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1 (C) in subclause (II), by striking the pe2 riod at the end and inserting a semicolon and 

3 ‘‘and’’; 

4 (D) by adding at the end the following: 

5 ‘‘(III) an employer that violates such subpara6 graph (A) shall be liable to the employees harmed by 

7 such violations for lost wages and benefits.’’; and 

8 (2) in clause (ii)— 

9 (A) in subclause (I)— 

10 (i) by striking ‘‘may’’ and inserting 

11 ‘‘shall’’; and 

12 (ii) by striking ‘‘$5,000’’ and insert13 ing ‘‘$10,000’’; 

14 (B) in subclause (II), by striking the pe15 riod at the end and inserting a semicolon and 

16 ‘‘and’’; and 

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

18 ‘‘(III) an employer that violates such subpara19 graph (A) shall be liable to the employees harmed by 

20 such violations for lost wages and benefits.’’; and 

21 (3) in clause (iii)— 

22 (A) in the matter preceding subclause (I), 

23 by striking ‘‘90 days’’ both places it appears 

24 and inserting ‘‘180 days’’; 

25 (B) in subclause (I)— 


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1 (i) by striking ‘‘may’’ and inserting 

2 ‘‘shall’’; and 

3 (ii) by striking ‘‘and’’ at the end; 

4 (C) in subclause (II), by striking the pe5 riod at the end and inserting a semicolon and 

6 ‘‘and’’; and 

7 (D) by adding at the end the following: 

8 ‘‘(III) an employer that violates subparagraph 

9 (A) of such paragraph shall be liable to the employ10 ees harmed by such violations for lost wages and 

11 benefits.’’; 

12 (4) in clause (iv)— 

13 (A) by inserting ‘‘to take, fail to take, or 

14 threaten to take or fail to take, a personnel ac15 tion, or’’ before ‘‘to intimidate’’; 

16 (B) by inserting ‘‘(I)’’ after ‘‘(iv)’’; and 

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

18 ‘‘(II) An employer that violates this clause shall 

19 be liable to the employees harmed by such violation 

20 for lost wages and benefits.’’; and 

21 (5) in clause (vi)— 

22 (A) by amending subclause (I) to read as 

23 follows: 


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1 ‘‘(I) It is a violation of this clause for an em2 ployer who has filed an application under this sub3 section— 

4 ‘‘(aa) to require an H–1B nonimmigrant to 

5 pay a penalty for ceasing employment with the 

6 employer prior to a date agreed to by the non7 immigrant and the employer (the Secretary 

8 shall determine whether a required payment is 

9 a penalty, and not liquidated damages, pursu10 ant to relevant State law); and 

11 ‘‘(bb) to fail to offer to an H–1B non12 immigrant, during the nonimmigrant’s period of 

13 authorized employment, on the same basis, and 

14 in accordance with the same criteria, as the em15 ployer offers to United States workers, benefits 

16 and eligibility for benefits, including— 

17 ‘‘(AA) the opportunity to participate 

18 in health, life, disability, and other insur19 ance plans; 

20 ‘‘(BB) the opportunity to participate 

21 in retirement and savings plans; and 

22 ‘‘(CC) cash bonuses and noncash com23 pensation, such as stock options (whether 

24 or not based on performance).’’; and 


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1 (B) in subclause (III), by striking 

2 ‘‘$1,000’’ and inserting ‘‘$2,000’’. 

3 SEC. 113. WAIVER REQUIREMENTS. 

4 (a) IN GENERAL.—Subparagraph (E) of section 

5 212(n)(2) of the Immigration and Nationality Act (8 

6 U.S.C. 1182(n)(2)) is amended to read as follows: 

7 ‘‘(E)(i) The Secretary of Labor may waive the prohi8 bition in paragraph (1)(F) if the Secretary determines 

9 that the employer seeking the waiver has established 

10 that— 

11 ‘‘(I) the employer with whom the H–1B non12 immigrant would be placed has not displaced, and 

13 does not intend to displace, a United States worker 

14 employed by the employer within the period begin15 ning 180 days before and ending 180 days after the 

16 date of the placement of the nonimmigrant with the 

17 employer; 

18 ‘‘(II) the H–1B nonimmigrant will not be con19 trolled and supervised principally by the employer 

20 with whom the H–1B nonimmigrant would be 

21 placed; and 

22 ‘‘(III) the placement of the H–1B non23 immigrant is not essentially an arrangement to pro24 vide labor for hire for the employer with whom the 

25 H–1B nonimmigrant will be placed. 


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1 ‘‘(ii) The Secretary shall grant or deny a waiver 

2 under this subparagraph not later than 7 days after the 

3 Secretary receives the application for such waiver.’’. 

4 (b) REQUIREMENT FOR RULES.— 

5 (1) RULES FOR WAIVERS.—The Secretary of 

6 Labor shall promulgate rules, after notice and a pe7 riod for comment, for an employer to apply for a 

8 waiver under subparagraph (E) of section 212(n)(2) 

9 of such Act, as amended by subsection (a). 

10 (2) REQUIREMENT FOR PUBLICATION.—The 

11 Secretary of Labor shall submit to Congress and 

12 publish in the Federal Register and other appro13 priate media a notice of the date that rules required 

14 by paragraph (1) are published. 

15 SEC. 114. INITIATION OF INVESTIGATIONS. 

16 Subparagraph (G) of section 212(n)(2) of the Immi17 gration and Nationality Act (8 U.S.C. 1182(n)(2)) is 

18 amended— 

19 (1) in clause (i), by striking ‘‘if the Secretary’’ 

20 and all that follows and inserting ‘‘with regard to 

21 the employer’s compliance with the requirements of 

22 this subsection.’’; 

23 (2) in clause (ii), by striking ‘‘and whose iden24 tity’’ and all that follows through ‘‘failure or fail25 ures.’’ and inserting ‘‘the Secretary of Labor may 


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1 conduct an investigation into the employer’s compli2 ance with the requirements of this subsection.’’; 

3 (3) in clause (iii), by striking the last sentence; 

4 (4) by striking clauses (iv) and (v); 

5 (5) by redesignating clauses (vi), (vii), and (viii) 

6 as clauses (iv), (v), and (vi), respectively; 

7 (6) in clause (iv), as so redesignated, by strik8 ing ‘‘meet a condition described in clause (ii), unless 

9 the Secretary of Labor receives the information not 

10 later than 12 months’’ and inserting ‘‘comply with 

11 the requirements under this subsection, unless the 

12 Secretary of Labor receives the information not later 

13 than 24 months’’; 

14 (7) by amending clause (v), as so redesignated, 

15 to read as follows: 

16 ‘‘(v) The Secretary of Labor shall provide no17 tice to an employer of the intent to conduct an in18 vestigation. The notice shall be provided in such a 

19 manner, and shall contain sufficient detail, to permit 

20 the employer to respond to the allegations before an 

21 investigation is commenced. The Secretary is not re22 quired to comply with this clause if the Secretary de23 termines that such compliance would interfere with 

24 an effort by the Secretary to investigate or secure 

25 compliance by the employer with the requirements of 


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1 this subsection. A determination by the Secretary 

2 under this clause shall not be subject to judicial re3 view.’’; 

4 (8) in clause (vi), as so redesignated, by strik5 ing ‘‘An investigation’’ and all that follows through 

6 ‘‘the determination.’’ and inserting ‘‘If the Secretary 

7 of Labor, after an investigation under clause (i) or 

8 (ii), determines that a reasonable basis exists to 

9 make a finding that the employer has failed to com10 ply with the requirements under this subsection, the 

11 Secretary shall provide interested parties with notice 

12 of such determination and an opportunity for a 

13 hearing in accordance with section 556 of title 5, 

14 United States Code, not later than 120 days after 

15 the date of such determination.’’; and 

16 (9) by adding at the end the following: 

17 ‘‘(vii) If the Secretary of Labor, after a hear18 ing, finds a reasonable basis to believe that the em19 ployer has violated the requirements under this sub20 section, the Secretary shall impose a penalty under 

21 subparagraph (C).’’. 

22 SEC. 115. INFORMATION SHARING. 

23 Subparagraph (H) of section 212(n)(2) of the Immi24 gration and Nationality Act (8 U.S.C. 1182(n)(2)) is 

25 amended to read as follows: 


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1 ‘‘(H) The Director of United States Citizenship and 

2 Immigration Services shall provide the Secretary of Labor 

3 with any information contained in the materials submitted 

4 by employers of H–1B nonimmigrants as part of the adju5 dication process that indicates that the employer is not 

6 complying with visa program requirements for H–1B non7 immigrants. The Secretary may initiate and conduct an 

8 investigation and hearing under this paragraph after re9 ceiving information of noncompliance under this subpara10 graph.’’. 

11 SEC. 116. CONFORMING AMENDMENT. 

12 Subparagraph (F) of section 212(n)(2) of the Immi13 gration and Nationality Act (8 U.S.C. 1182) is amended 

14 by striking ‘‘The preceding sentence shall apply to an em15 ployer regardless of whether or not the employer is an H– 

16 1B-dependent employer.’’. 

17 Subtitle C—Other Protections 

18 SEC. 121. POSTING AVAILABLE POSITIONS THROUGH THE 

19 DEPARTMENT OF LABOR. 

20 (a) DEPARTMENT OF LABOR WEB SITE.—Paragraph 

21 (3) of section 212(n) of the Immigration and Nationality 

22 Act (8 U.S.C. 1182(n)) is amended to read as follows: 

23 ‘‘(3)(A) Not later than 90 days after the date of the 

24 enactment of the H–1B and L–1 Visa Reform Act of 

25 2010, the Secretary of Labor shall establish a searchable 


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1 Internet Web site for posting positions as required by 

2 paragraph (1)(C). Such Web site shall be available to the 

3 public without charge. 

4 ‘‘(B) The Secretary may work with private companies 

5 or nonprofit organizations to develop and operate the 

6 Internet Web site described in subparagraph (A). 

7 ‘‘(C) The Secretary may promulgate rules, after no8 tice and a period for comment, to carry out the require9 ments of this paragraph.’’. 

10 (b) REQUIREMENT FOR PUBLICATION.—The Sec11 retary of Labor shall submit to Congress and publish in 

12 the Federal Register and other appropriate media a notice 

13 of the date that the Internet Web site required by para14 graph (3) of section 212(n) of such Act, as amended by 

15 subsection (a), will be operational. 

16 (c) APPLICATION.—The amendments made by sub17 section (a) shall apply to an application filed on or after 

18 the date that is 30 days after the date described in sub19 section (b). 

20 SEC. 122. H–1B GOVERNMENT AUTHORITY AND REQUIRE21 MENTS. 

22 (a) IMMIGRATION DOCUMENTS.—Section 204 of the 

23 Immigration and Nationality Act (8 U.S.C. 1154) is 

24 amended by adding at the end the following: 


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1 ‘‘(l) EMPLOYER TO PROVIDE IMMIGRATION PAPER2 WORK EXCHANGED WITH FEDERAL AGENCIES.—Not 

3 later than 21 business days after receiving a written re4 quest from a former, current, or future employee or bene5 ficiary, an employer shall provide such employee or bene6 ficiary with the original (or a certified copy of the original) 

7 of all petitions, notices, and other written communication 

8 exchanged between the employer and the Department of 

9 Labor, the Department of Homeland Security, or any 

10 other Federal agency or department that is related to an 

11 immigrant or nonimmigrant petition filed by the employer 

12 for such employee or beneficiary.’’. 

13 (b) REPORT ON JOB CLASSIFICATION AND WAGE

14 DETERMINATIONS.—Not later than 1 year after the date 

15 of the enactment of this Act, the Comptroller General of 

16 the United States shall prepare a report analyzing the ac17 curacy and effectiveness of the Secretary of Labor’s cur18 rent job classification and wage determination system. The 

19 report shall— 

20 (1) specifically address whether the systems in 

21 place accurately reflect the complexity of current job 

22 types as well as geographic wage differences; and 

23 (2) make recommendations concerning nec24 essary updates and modifications. 


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1 SEC. 123. REQUIREMENTS FOR INFORMATION FOR H–1B 

2 AND L–1 NONIMMIGRANTS. 

3 Section 214 of the Immigration and Nationality Act 

4 (8 U.S.C. 1184) is amended by adding at the end the fol5 lowing: 

6 ‘‘(s) REQUIREMENTS FOR INFORMATION FOR H–1B 

7 AND L–1 NONIMMIGRANTS.— 

8 ‘‘(1) IN GENERAL.—Upon issuing a visa to an 

9 applicant for nonimmigrant status pursuant to sub10 paragraph (H)(i)(b) or (L) of section 101(a)(15) 

11 who is outside the United States, the issuing office 

12 shall provide the applicant with— 

13 ‘‘(A) a brochure outlining the obligations 

14 of the applicant’s employer and the rights of 

15 the applicant with regard to employment under 

16 Federal law, including labor and wage protec17 tions; 

18 ‘‘(B) the contact information for appro19 priate Federal agencies or departments that 

20 offer additional information or assistance in 

21 clarifying such obligations and rights; and 

22 ‘‘(C) a copy of the application submitted 

23 for the nonimmigrant under section 212(n) or 

24 the petition submitted for the nonimmigrant 

25 under subsection (c)(2)(A), as appropriate. 


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1 ‘‘(2) Upon the issuance of a visa to an applicant re2 ferred to in paragraph (1) who is inside the United States, 

3 the issuing officer of the Department of Homeland Secu4 rity shall provide the applicant with the material described 

5 in clauses (i), (ii), and (iii) of subparagraph (A).’’. 

6 SEC. 124. ADDITIONAL DEPARTMENT OF LABOR EMPLOY7 EES. 

8 (a) IN GENERAL.—The Secretary of Labor is author9 ized to hire 200 additional employees to administer, over10 see, investigate, and enforce programs involving non11 immigrant employees described in section 

12 101(a)(15)(H)(i)(B). 

13 (b) AUTHORIZATION OF APPROPRIATIONS.—There 

14 are authorized to be appropriated such sums as may be 

15 necessary to carry out this section. 

16 SEC. 125. TECHNICAL CORRECTION. 

17 Section 212 of the Immigration and Nationality Act 

18 is amended by redesignating the second subsection (t), as 

19 added by section 1(b)(2)(B) of the Act entitled ‘‘An Act 

20 to amend and extend the Irish Peace Process Cultural and 

21 Training Program Act of 1998’’ (Public Law 108–449 

22 (118 Stat. 3470)), as subsection (u). 


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1 SEC. 126. APPLICATION. 

2 Except as specifically otherwise provided, the amend3 ments made by this title shall apply to applications filed 

4 on or after the date of the enactment of this Act. 

5 TITLE II—L–1 VISA FRAUD AND 

6 ABUSE PROTECTIONS 

7 SEC. 201. PROHIBITION ON OUTPLACEMENT OF L–1 NON8 IMMIGRANTS. 

9 (a) IN GENERAL.—Subparagraph (F) of section 

10 214(c)(2) of the Immigration and Nationality Act (8 

11 U.S.C. 1184(c)(2)) is amended to read as follows: 

12 ‘‘(F)(i) Unless an employer receives a waiver under 

13 clause (ii), an employer may not employ an alien, for a 

14 cumulative period of more than 1 year, who— 

15 ‘‘(I) will serve in a capacity involving specialized 

16 knowledge with respect to an employer for purposes 

17 of section 101(a)(15)(L); and 

18 ‘‘(II) will be stationed primarily at the worksite 

19 of an employer other than the petitioning employer 

20 or its affiliate, subsidiary, or parent, including pur21 suant to an outsourcing, leasing, or other con22 tracting agreement.’’ 

23 ‘‘(ii) The Secretary of Homeland Security may grant 

24 a waiver of the requirements of clause (i) for an employer 

25 if the Secretary determines that the employer has estab26 lished that— 


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1 ‘‘(I) the employer with whom the alien referred 

2 to in clause (i) would be placed has not displaced 

3 and does not intend to displace a United States 

4 worker employed by the employer within the period 

5 beginning 180 days after the date of the placement 

6 of such alien with the employer; 

7 ‘‘(II) such alien will not be controlled and su8 pervised principally by the employer with whom the 

9 nonimmigrant would be placed; and 

10 ‘‘(III) the placement of the nonimmigrant is not 

11 essentially an arrangement to provide labor for hire 

12 for an unaffiliated employer with whom the non13 immigrant will be placed, rather than a placement in 

14 connection with the provision or a product or service 

15 for which specialized knowledge specific to the peti16 tioning employer is necessary. 

17 ‘‘(iii) The Secretary shall grant or deny a waiver 

18 under clause (ii) not later than 7 days after the date that 

19 the Secretary receives the application for the waiver.’’. 

20 (b) REGULATIONS.—The Secretary of Homeland Se21 curity shall promulgate rules, after notice and a period 

22 for comment, for an employer to apply for a waiver under 

23 subparagraph (F)(ii) of section 214(c)(2), as added by 

24 subsection (a). 


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1 SEC. 202. L–1 EMPLOYER PETITION REQUIREMENTS FOR 

2 EMPLOYMENT AT NEW OFFICES. 

3 Section 214(c)(2) of the Immigration and Nationality 

4 Act (8 U.S.C. 1184(c)(2)) is amended by adding at the 

5 end the following: 

6 ‘‘(G)(i) If the beneficiary of a petition under this 

7 paragraph is coming to the United States to open, or be 

8 employed in, a new office, the petition may be approved 

9 for up to 12 months only if— 

10 ‘‘(I) the alien has not been the beneficiary of 2 

11 or more petitions under this subparagraph during 

12 the immediately preceding 2 years; and 

13 ‘‘(II) the employer operating the new office 

14 has— 

15 ‘‘(aa) an adequate business plan; 

16 ‘‘(bb) sufficient physical premises to carry 

17 out the proposed business activities; and 

18 ‘‘(cc) the financial ability to commence 

19 doing business immediately upon the approval 

20 of the petition. 

21 ‘‘(ii) An extension of the approval period under clause 

22 (i) may not be granted until the importing employer sub23 mits an application to the Secretary of Homeland Security 

24 that contains— 

25 ‘‘(I) evidence that the importing employer 

26 meets the requirements of this subsection; 


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1 ‘‘(II) evidence that the beneficiary of the peti2 tion is eligible for nonimmigrant status under sec3 tion 101(a)(15)(L); 

4 ‘‘(III) a statement summarizing the original pe5 tition; 

6 ‘‘(IV) evidence that the importing employer has 

7 fully complied with the business plan submitted 

8 under clause (i)(I); 

9 ‘‘(V) evidence of the truthfulness of any rep10 resentations made in connection with the filing of 

11 the original petition; 

12 ‘‘(VI) evidence that the importing employer, for 

13 the entire period beginning on the date on which the 

14 petition was approved under clause (i), has been 

15 doing business at the new office through regular, 

16 systematic, and continuous provision of goods and 

17 services; 

18 ‘‘(VII) a statement of the duties the beneficiary 

19 has performed at the new office during the approval 

20 period under clause (i) and the duties the beneficiary 

21 will perform at the new office during the extension 

22 period granted under this clause; 

23 ‘‘(VIII) a statement describing the staffing at 

24 the new office, including the number of employees 

25 and the types of positions held by such employees; 


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1 ‘‘(IX) evidence of wages paid to employees; 

2 ‘‘(X) evidence of the financial status of the new 

3 office; and 

4 ‘‘(XI) any other evidence or data prescribed by 

5 the Secretary. 

6 ‘‘(iii) A new office employing the beneficiary of an 

7 L–1 petition approved under this paragraph shall do busi8 ness only through regular, systematic, and continuous pro9 vision of goods and services for the entire period for which 

10 the petition is sought. 

11 ‘‘(iv) Notwithstanding clause (ii), and subject to the 

12 maximum period of authorized admission set forth in sub13 paragraph (D), the Secretary of Homeland Security, in 

14 the Secretary’s discretion, may approve a subsequently 

15 filed petition on behalf of the beneficiary to continue em16 ployment at the office described in this subparagraph for 

17 a period beyond the initially granted 12-month period if 

18 the importing employer has been doing business at the 

19 new office through regular, systematic, and continuous 

20 provision of goods and services for the 6 months imme21 diately preceding the date of extension petition filing and 

22 demonstrates that the failure to satisfy any of the require23 ments described in those subclauses was directly caused 

24 by extraordinary circumstances, as determined by the Sec25 retary in the Secretary’s discretion.’’. 


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1 SEC. 203. COOPERATION WITH SECRETARY OF STATE. 

2 Section 214(c)(2) of the Immigration and Nationality 

3 Act (8 U.S.C. 1184(c)(2)), as amended by section 202, 

4 is further amended by adding at the end the following: 

5 ‘‘(H) For purposes of approving petitions under this 

6 paragraph, the Secretary of Homeland Security shall work 

7 cooperatively with the Secretary of State to verify the ex8 istence or continued existence of a company or office in 

9 the United States or in a foreign country.’’. 

10 SEC. 204. INVESTIGATION AND DISPOSITION OF COM11 PLAINTS AGAINST L–1 EMPLOYERS. 

12 Section 214(c)(2) of the Immigration and Nationality 

13 Act (8 U.S.C. 1184(c)(2)), as amended by sections 202 

14 and 203, is further amended by adding at the end the 

15 following: 

16 ‘‘(I)(i) The Secretary of Homeland Security may ini17 tiate an investigation of any employer that employs non18 immigrants described in section 101(a)(15)(L) with re19 gard to the employer’s compliance with the requirements 

20 of this subsection. 

21 ‘‘(ii) If the Secretary receives specific credible infor22 mation from a source who is likely to have knowledge of 

23 an employer’s practices, employment conditions, or com24 pliance with the requirements under this subsection, the 

25 Secretary may conduct an investigation into the employ26 er’s compliance with the requirements of this subsection. 


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1 The Secretary may withhold the identity of the source 

2 from the employer, and the source’s identity shall not be 

3 subject to disclosure under section 552 of title 5, United 

4 States Code. 

5 ‘‘(iii) The Secretary shall establish a procedure for 

6 any person desiring to provide to the Secretary informa7 tion described in clause (ii) that may be used, in whole 

8 or in part, as the basis for the commencement of an inves9 tigation described in such clause, to provide the informa10 tion in writing on a form developed and provided by the 

11 Secretary and completed by or on behalf of the person. 

12 ‘‘(iv) No investigation described in clause (ii) (or 

13 hearing described in clause (vi) based on such investiga14 tion) may be conducted with respect to information about 

15 a failure to comply with the requirements under this sub16 section, unless the Secretary receives the information not 

17 later than 24 months after the date of the alleged failure. 

18 ‘‘(v) Before commencing an investigation of an em19 ployer under clause (i) or (ii), the Secretary shall provide 

20 notice to the employer of the intent to conduct such inves21 tigation. The notice shall be provided in such a manner, 

22 and shall contain sufficient detail, to permit the employer 

23 to respond to the allegations before an investigation is 

24 commenced. The Secretary is not required to comply with 

25 this clause if the Secretary determines that to do so would 


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1 interfere with an effort by the Secretary to investigate or 

2 secure compliance by the employer with the requirements 

3 of this subsection. There shall be no judicial review of a 

4 determination by the Secretary under this clause. 

5 ‘‘(vi) If the Secretary, after an investigation under 

6 clause (i) or (ii), determines that a reasonable basis exists 

7 to make a finding that the employer has failed to comply 

8 with the requirements under this subsection, the Secretary 

9 shall provide the interested parties with notice of such de10 termination and an opportunity for a hearing in accord11 ance with section 556 of title 5, United States Code, not 

12 later than 120 days after the date of such determination. 

13 If such a hearing is requested, the Secretary shall make 

14 a finding concerning the matter by not later than 120 days 

15 after the date of the hearing. 

16 ‘‘(vii) If the Secretary, after a hearing, finds a rea17 sonable basis to believe that the employer has violated the 

18 requirements under this subsection, the Secretary shall 

19 impose a penalty under subparagraph (L). 

20 ‘‘(viii)(I) The Secretary may conduct surveys of the 

21 degree to which employers comply with the requirements 

22 under this section. 

23 ‘‘(II) The Secretary shall— 

24 ‘‘(aa) conduct annual compliance audits of not 

25 less than 1 percent of the employers that employ 


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1 nonimmigrants described in section 101(a)(15)(L) 

2 during the applicable fiscal year; 

3 ‘‘(bb) conduct annual compliance audits of each 

4 employer with more than 100 employees who work 

5 in the United States if more than 15 percent of such 

6 employees are nonimmigrants described in 

7 101(a)(15)(L); and 

8 ‘‘(cc) make available to the public an executive 

9 summary or report describing the general findings of 

10 the audits carried out pursuant to this subclause.’’. 

11 SEC. 205. WAGE RATE AND WORKING CONDITIONS FOR L– 

12 1 NONIMMIGRANT. 

13 (a) IN GENERAL.—Section 214(c)(2) of the Immigra14 tion and Nationality Act (8 U.S.C. 1184(c)(2)), as amend15 ed by section 202, 203, and 204, is further amended by 

16 adding at the end the following: 

17 ‘‘(J)(i) An employer that employs a nonimmigrant 

18 described in section 101(a)(15)(L) for a cumulative period 

19 of time in excess of 1 year shall— 

20 ‘‘(I) offer such nonimmigrant, during the period 

21 of authorized employment, wages, based on the best 

22 information available at the time the application is 

23 filed, which are not less than the highest of— 


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1 ‘‘(aa) the locally determined prevailing 

2 wage level for the occupational classification in 

3 the area of employment; 

4 ‘‘(bb) the median average wage for all 

5 workers in the occupational classification in the 

6 area of employment; and 

7 ‘‘(cc) the median wage for skill level 2 in 

8 the occupational classification found in the 

9 most recent Occupational Employment Statis10 tics survey; and 

11 ‘‘(II) provide working conditions for such non12 immigrant that will not adversely affect the working 

13 conditions of workers similarly employed. 

14 ‘‘(ii) If an employer, in such previous period specified 

15 by the Secretary of Homeland Security, employed 1 or 

16 more such nonimmigrants, the employer shall provide to 

17 the Secretary of Homeland Security the Internal Revenue 

18 Service Form W–2 Wage and Tax Statement filed by the 

19 employer with respect to such nonimmigrants for such pe20 riod. 

21 ‘‘(iii) It is a failure to meet a condition under this 

22 subparagraph for an employer who has filed a petition to 

23 import 1 or more aliens as nonimmigrants described in 

24 section 101(a)(15)(L)— 


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1 ‘‘(I) to require such a nonimmigrant to pay a 

2 penalty for ceasing employment with the employer 

3 before a date mutually agreed to by the non4 immigrant and the employer; or 

5 ‘‘(II) to fail to offer to such a nonimmigrant, 

6 during the nonimmigrant’s period of authorized em7 ployment, on the same basis, and in accordance with 

8 the same criteria, as the employer offers to United 

9 States workers, benefits and eligibility for benefits, 

10 including— 

11 ‘‘(aa) the opportunity to participate in 

12 health, life, disability, and other insurance 

13 plans; 

14 ‘‘(bb) the opportunity to participate in re15 tirement and savings plans; and 

16 ‘‘(cc) cash bonuses and noncash compensa17 tion, such as stock options (whether or not 

18 based on performance). 

19 ‘‘(iv) The Secretary of Homeland Security shall de20 termine whether a required payment under clause (iii)(I) 

21 is a penalty (and not liquidated damages) pursuant to rel22 evant State law.’’. 

23 (b) REGULATIONS.—The Secretary of Homeland Se24 curity shall promulgate rules, after notice and a period 

25 of comment, to implement the requirements of subparaVerDate Mar 15 2010 23:21 May 26, 2010 Jkt 089200 PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 E:\BILLS\H5397.IH H5397

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1 graph (J) of section 214(c)(2) of the Immigration and Na2 tionality Act (8 U.S.C. 1184(c)(2)), as added by sub3 section (a). In promulgating these rules, the Secretary 

4 shall take into consideration any special circumstances re5 lating to intracompany transfers. 

6 SEC. 206. PENALTIES. 

7 Section 214(c)(2) of the Immigration and Nationality 

8 Act (8 U.S.C. 1184(c)(2)), as amended by sections 202, 

9 203, 204, and 205, is further amended by adding at the 

10 end the following: 

11 ‘‘(K)(i) If the Secretary of Homeland Security finds, 

12 after notice and an opportunity for a hearing, a failure 

13 by an employer to meet a condition under subparagraph 

14 (F), (G), (J), or (L) or a misrepresentation of material 

15 fact in a petition to employ 1 or more aliens as non16 immigrants described in section 101(a)(15)(L)— 

17 ‘‘(I) the Secretary shall impose such administrative 

18 remedies (including civil monetary penalties in an amount 

19 not to exceed $2,000 per violation) as the Secretary deter20 mines to be appropriate; 

21 ‘‘(II) the Secretary may not, during a period of at 

22 least 1 year, approve a petition for that employer to em23 ploy 1 or more aliens as such nonimmigrants; and 


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1 ‘‘(III) in the case of a violation of subparagraph (J) 

2 or (L), the employer shall be liable to the employees 

3 harmed by such violation for lost wages and benefits. 

4 ‘‘(ii) If the Secretary finds, after notice and an oppor5 tunity for a hearing, a willful failure by an employer to 

6 meet a condition under subparagraph (F), (G), (J), or (L) 

7 or a willful misrepresentation of material fact in a petition 

8 to employ 1 or more aliens as nonimmigrants described 

9 in section 101(a)(15)(L)— 

10 ‘‘(I) the Secretary shall impose such adminis11 trative remedies (including civil monetary penalties 

12 in an amount not to exceed $10,000 per violation) 

13 as the Secretary determines to be appropriate; 

14 ‘‘(II) the Secretary may not, during a period of 

15 at least 2 years, approve a petition filed for that em16 ployer to employ 1 or more aliens as such non17 immigrants; and 

18 ‘‘(III) in the case of a violation of subparagraph 

19 (J) or (L), the employer shall be liable to the em20 ployees harmed by such violation for lost wages and 

21 benefits.’’. 

22 SEC. 207. PROHIBITION ON RETALIATION AGAINST L–1 

23 NONIMMIGRANTS. 

24 Section 214(c)(2) of the Immigration and Nationality 

25 Act (8 U.S.C. 1184(c)(2)), as amended by section 202, 


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1 203, 204, 205, and 206, is further amended by adding 

2 at the end the following: 

3 ‘‘(L)(i) It is a violation of this subparagraph for an 

4 employer who has filed a petition to import 1 or more 

5 aliens as nonimmigrants described in section 

6 101(a)(15)(L) to take, fail to take, or threaten to take 

7 or fail to take, a personnel action, or to intimidate, threat8 en, restrain, coerce, blacklist, discharge, or discriminate 

9 in any other manner against an employee because the em10 ployee— 

11 ‘‘(I) has disclosed information that the em12 ployee reasonably believes evidences a violation of 

13 this subsection, or any rule or regulation pertaining 

14 to this subsection; or 

15 ‘‘(II) cooperates or seeks to cooperate with the 

16 requirements of this subsection, or any rule or regu17 lation pertaining to this subsection. 

18 ‘‘(ii) In this subparagraph, the term ‘employee’ in19 cludes— 

20 ‘‘(I) a current employee; 

21 ‘‘(II) a former employee; and 

22 ‘‘(III) an applicant for employment.’’. 


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1 SEC. 208. REPORTS ON L–1 NONIMMIGRANTS. 

2 Section 214(c)(8) of the Immigration and Nationality 

3 Act (8 U.S.C. 1184(c)(8)) is amended by inserting ‘‘(L),’’ 

4 after ‘‘(H),’’. 

5 SEC. 209. TECHNICAL AMENDMENTS. 

6 Section 214(c)(2) of the Immigration and Nationality 

7 Act (8 U.S.C. 1184(c)(2)) is amended by striking ‘‘Attor8 ney General’’ each place it appears and inserting ‘‘Sec9 retary of Homeland Security’’. 

10 SEC. 210. APPLICATION. 

11 The amendments made by sections 201 through 207 

12 shall apply to applications filed on or after the date of 

13 the enactment of this Act. 

14 SEC. 211. REPORT ON L–1 BLANKET PETITION PROCESS. 

15 (a) REQUIREMENT FOR REPORT.—Not later than 6 

16 months after the date of the enactment of this Act, the 

17 Inspector General of the Department of Homeland Secu18 rity shall submit to the appropriate committees of Con19 gress a report regarding the use of blanket petitions under 

20 section 214(c)(2)(A) of the Immigration and Nationality 

21 Act (8 U.S.C. 1184(c)(2)(A)). Such report shall assess the 

22 efficiency and reliability of the process for reviewing such 

23 blanket petitions, including whether the process includes 

24 adequate safeguards against fraud and abuse. 


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1 (b) APPROPRIATE COMMITTEES OF CONGRESS.—In 

2 this section the term ‘‘appropriate committees of Con3 gress’’ means— 

4 (1) the Committee on Homeland Security and 

5 Governmental Affairs of the Senate; 

6 (2) the Committee on the Judiciary of the Sen7 ate; 

8 (3) the Committee on Homeland Security of the 

9 House of Representatives; and 

10 (4) the Committee on the Judiciary of the 

11 House of Representatives. 

Æ 


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