II 

110TH CONGRESS 

1ST SESSION S. 1397 

To increase the allocation of visas for certain highly skilled workers and 

to reduce fraud and abuse in certain visa programs for aliens working 

temporarily in the United States. 

IN THE SENATE OF THE UNITED STATES 

MAY 15, 2007 

Mr. LIEBERMAN (for himself, Mr. HAGEL, Ms. CANTWELL, and Mr. 

VOINOVICH) introduced the following bill; which was read twice and referred to the Committee on the Judiciary 

A BILL 

To increase the allocation of visas for certain highly skilled 

workers and to reduce fraud and abuse in certain visa 

programs for aliens working temporarily in the United 

States. 

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; TABLE OF CONTENTS. 

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

5 ‘‘Skilled Worker Immigration and Fairness Act’’. 

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

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 


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Sec. 2. H–1B visas. 

Sec. 3. Employment-based immigration. 

Sec. 4. H–1B visa fraud and abuse protections. 

1 SEC. 2. H–1B VISAS. 

2 (a) EXEMPTIONS TO NUMERICAL LIMITATIONS.— 

3 (1) IN GENERAL.—Section 214(g)(5) of the Im4 migration and Nationality Act (8 U.S.C. 1184(g)(5)) 

5 is amended— 

6 (A) in subparagraph (C), by striking ‘‘until 

7 the number of aliens who are exempted from 

8 such numerical limitation during such year ex9 ceeds 20,000.’’ and inserting ‘‘or has been 

10 awarded a medical specialty certification based 

11 on post-doctoral training and experience in the 

12 United States; or’’; and 

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

14 ‘‘(D) has earned a masters or higher de15 gree in science, technology, engineering, or 

16 mathematics from an institution of higher edu17 cation outside of the United States.’’. 

18 (2) APPLICABILITY.—The amendments made 

19 by paragraph (1) shall apply to— 

20 (A) any petition or visa application pend21 ing on the date of the enactment of this Act; 

22 and 

23 (B) any petition or visa application filed on 

24 or after such date. 


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1 (b) MARKET-BASED VISA LIMITS.—Section 214(g) of 

2 such Act (8 U.S.C. 1184(g)), as amended by subsection 

3 (a), is further amended— 

4 (1) in paragraph (1)— 

5 (A) in the matter preceding subparagraph 

6 (A), by striking ‘‘(beginning with fiscal year 

7 1992)’’; and 

8 (B) in subparagraph (A), by striking 

9 clauses (i) through (vii) and inserting the fol10 lowing: 

11 ‘‘(i) 115,000 in fiscal year 2007; and 

12 ‘‘(ii) in fiscal year 2008, and in each sub13 sequent fiscal year, the greater of— 

14 ‘‘(I) 115,000; or 

15 ‘‘(II) the number calculated under 

16 paragraph (9);’’; 

17 (2) in paragraph (8)— 

18 (A) in subparagraph (B), by striking 

19 clause (iv); and 

20 (B) by striking subparagraph (D); 

21 (3) by redesignating paragraphs (9), (10), and 

22 (11) as paragraphs (10), (11), and (12), respec23 tively; and 

24 (4) by inserting after paragraph (8) the fol25 lowing: 


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1 ‘‘(9) If the numerical limitation under paragraph 

2 (1)(A)— 

3 ‘‘(A) is reached during a given fiscal year, the 

4 numerical limitation under paragraph (1)(A) for the 

5 subsequent fiscal year shall be equal to the lesser 

6 of— 

7 ‘‘(i) 120 percent of the numerical limita8 tion for the given fiscal year; or 

9 ‘‘(ii) 180,000; and 

10 ‘‘(B) is not reached during a given fiscal year, 

11 the numerical limitation under paragraph (1)(A) for 

12 the subsequent fiscal year shall be equal to the nu13 merical limitation for the given fiscal year.’’. 

14 SEC. 3. EMPLOYMENT-BASED IMMIGRATION. 

15 (a) IN GENERAL.—Section 201(b)(1) of the Immi16 gration and Nationality Act (8 U.S.C. 1151(b)(1)) is 

17 amended by adding at the end the following: 

18 ‘‘(F) Aliens who have earned a master’s or 

19 higher degree from an accredited university in the 

20 United States. 

21 ‘‘(G) Aliens who— 

22 ‘‘(i) have earned an advanced degree in 

23 science, technology, engineering, or mathe24 matics; and 


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1 ‘‘(ii) have been working in a related field 

2 in the United States under a nonimmigrant visa 

3 during the 3-year period preceding their appli4 cation for an immigrant visa under section 

5 203(b). 

6 ‘‘(H) Aliens who— 

7 ‘‘(i) are described in subparagraph (A) or 

8 (B) of section 203(b)(1); or 

9 ‘‘(ii) have received a national interest waiv10 er under section 203(b)(2)(B). 

11 ‘‘(I) The immediate relatives of an alien who is 

12 admitted as an employment-based immigrant under 

13 section 203(b).’’. 

14 (b) ADJUSTMENT OF STATUS FOR EMPLOYMENT15 BASED IMMIGRANTS.— 

16 (1) IN GENERAL.—Section 245 of the Immigra17 tion and Nationality Act (8 U.S.C. 1255) is amend18 ed by adding at the end the following: 

19 ‘‘(n) ADJUSTMENT OF STATUS TO EMPLOYMENT20 BASED IMMIGRANT.— 

21 ‘‘(1) ELIGIBILITY.—An alien, and any eligible 

22 dependents of such alien, may file an application for 

23 adjustment of status with the Secretary of Home24 land Security, whether or not an employment-based 


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1 immigrant visa is immediately available at the time 

2 the application is filed, if— 

3 ‘‘(A) a petition filed under subparagraph 

4 (E) or (F) of section 204(a)(1) on behalf of the 

5 alien has been approved; or 

6 ‘‘(B) in the discretion of the Secretary, the 

7 adjudication of such petition is pending. 

8 ‘‘(2) VISA AVAILABILITY.—An application filed 

9 under paragraph (1) may not be approved until the 

10 appropriate employment-based immigrant visa be11 comes available under section 203(b). 

12 ‘‘(3) FEES.—If an employment-based immi13 grant visa is not available on the date on which an 

14 application is filed under paragraph (1), a supple15 mental fee of $500 shall be paid on behalf of the 

16 beneficiary of such application. Such fee may not be 

17 charged with respect to any dependent accom18 panying or following to join such beneficiary. 

19 ‘‘(o) EXTENSION OF EMPLOYMENT AUTHORIZATION

20 AND ADVANCED PAROLE DOCUMENT.—The Secretary of 

21 Homeland Security— 

22 ‘‘(1) shall issue a 3-year employment authoriza23 tion and 3-year advanced parole document to any 

24 beneficiary of an application for adjustment of staVerDate Aug 31 2005 01:15 May 17, 2007 Jkt 059200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1397.IS S1397

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1 tus if a petition has been filed or is pending under 

2 subparagraph (E) or (F) of section 204(a)(1); and 

3 ‘‘(2) may adjust fees assessed under this sec4 tion in accordance to the 3-year period of validity as5 signed to the employment authorization or advanced 

6 parole documents issued under subparagraph (1).’’. 

7 (2) USE OF FEES.—Section 286 of such Act (8 

8 U.S.C. 1356) is amended— 

9 (A) in subsection (m), by striking ‘‘provi10 sions of law, all adjudication fees’’ and inserting 

11 ‘‘provision of law, all adjudication fees and the 

12 fees collected under section 245(n)(3)’’; and 

13 (B) in subsection (n)— 

14 (i) by striking ‘‘All deposits’’ and in15 serting the following: ‘‘(1) Except as pro16 vided in paragraph (2), all deposits’’; and 

17 (ii) by adding at the end the fol18 lowing: 

19 ‘‘(2) All deposits in the Immigration Examinations 

20 Fee Account that were originally collected under section 

21 245(n)(3) shall be used to clear security background check 

22 delays.’’. 

23 (c) APPLICABILITY.—The amendments made by sub24 sections (a) and (b) shall apply to any visa application— 


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1 (1) pending on the date of the enactment of 

2 this Act; or 

3 (2) filed on or after such date. 

4 SEC. 4. H–1B VISA FRAUD AND ABUSE PROTECTIONS. 

5 (a) PROHIBITION AGAINST ADVERTISING EXCLU6 SIVELY TO H–1B NONIMMIGRANTS.—Section 212(n)(1) 

7 of the Immigration and Nationality Act (8 U.S.C. 

8 1182(n)(1)) is amended— 

9 (1) by redesignating subparagraph (G) as sub10 paragraph (H); 

11 (2) by inserting after subparagraph (H), as re12 designated, the following: 

13 ‘‘(I) The employer has not advertised the avail14 able jobs specified in the application in an advertise15 ment that states or indicates that— 

16 ‘‘(i) the jobs are only available to persons 

17 who are, or may become, H–1B nonimmigrants; 

18 or 

19 ‘‘(ii) persons will receive priority or pref20 erence in the hiring process because they are, or 

21 may become, H–1B nonimmigrants.’’; and 

22 (3) in the undesignated paragraph at the end, 

23 by striking ‘‘The employer’’ and inserting the fol24 lowing: 

25 ‘‘(K) The employer’’. 


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1 (b) LIMIT ON PERCENTAGE OF H–1B EMPLOYEES.— 

2 Section 212(n)(1) of such Act, as amended by this section, 

3 is further amended by inserting after subparagraph (I), 

4 as added by subsection (a)(1), the following: 

5 ‘‘(J) If the employer employs 50 or more em6 ployees in the United States, not more than 50 per7 cent of such employees are H–1B nonimmigrants.’’. 

8 (c) SAFEGUARDS AGAINST FRAUD AND MISREPRE9 SENTATION IN APPLICATION REVIEW PROCESS.—Section 

10 212(n)(1)(K) of such Act, as designated by subsection 

11 (a)(2), is amended— 

12 (1) by inserting ‘‘, clear indicators of fraud, 

13 misrepresentation of material fact,’’ after ‘‘complete14 ness’’; 

15 (2) by striking ‘‘or obviously inaccurate’’ and 

16 inserting ‘‘, presents clear indicators of fraud or 

17 misrepresentation of material fact, or is obviously in18 accurate’’; and 

19 (3) 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 (d) INVESTIGATIONS BY DEPARTMENT OF LABOR.— 

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


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1 (1) in subparagraph (A), by striking ‘‘12 

2 months’’ and all that follows and inserting ‘‘24 

3 months after the date of the failure or misrepresen4 tation, respectively. Upon the receipt of such a com5 plaint, the Secretary may initiate an investigation to 

6 determine if such a failure or misrepresentation has 

7 occurred.’’; 

8 (2) in subparagraph (C)(i)— 

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

10 (1)(B), (1)(E), or (1)(F)’’ and inserting ‘‘a con11 dition under subparagraph (B), (C), (E), (F), 

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

13 (B) by striking ‘‘paragraph (1)(C), (1)(D), 

14 or (1)(G)(i)(I)’’ and inserting ‘‘subparagraph 

15 (C), (D) or (G)(i)(I) of paragraph (1)’’; 

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 under 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 

2 under 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’’ and all that follows 

10 and inserting ‘‘comply with the requirements 

11 under this subsection, unless the Secretary of 

12 Labor receives the information not later than 

13 24 months after the date of the alleged fail14 ure.’’; 

15 (G) by amending clause (v), as redesig16 nated, to read as follows: 

17 ‘‘(v) The Secretary of Labor shall provide notice to 

18 an employer of the intent to conduct an investigation. The 

19 notice shall be provided in such a manner, and shall con20 tain sufficient detail, to permit the employer to respond 

21 to the allegations before an investigation is commenced. 

22 The Secretary is not required to comply with this clause 

23 if the Secretary determines that such compliance would 

24 interfere with an effort by the Secretary to investigate the 

25 employer or secure the employer’s compliance with this 


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1 subsection. A determination by the Secretary under this 

2 clause is not subject to judicial review.’’; 

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

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

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

6 the Secretary of Labor, after an investigation 

7 under clause (i) or (ii), determines that a rea8 sonable basis exists to make a finding that the 

9 employer has failed to comply with the require10 ments under this subsection, the Secretary shall 

11 provide interested parties with notice of such 

12 determination and an opportunity for a hearing 

13 in accordance with section 556 of title 5, 

14 United States Code, not later than 120 days 

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

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

17 ‘‘(vii) If the Secretary of Labor, after a hearing, finds 

18 a reasonable basis to believe that the employer has violated 

19 a requirement under this subsection, the Secretary may 

20 impose a penalty under subparagraph (C).’’; 

21 (4) by redesignating subparagraph (I) as sub22 paragraph (J). 

23 (e) ADDITIONAL DEPARTMENT OF LABOR EMPLOY24 EES.— 


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

2 authorized to hire 200 additional employees to ad3 minister, oversee, investigate, and enforce programs 

4 involving H–1B nonimmigrant workers. 

5 (2) AUTHORIZATION OF APPROPRIATIONS.— 

6 There are authorized to be appropriated such sums 

7 as may be necessary to carry out this subsection. 

8 (f) SCHEDULE OF FEES.—Section 214(c)(12)(C) of 

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

10 1184(c)(12)(C)) is amended by striking ‘‘$500’’ and in11 serting ‘‘$1,000’’. 

12 (g) INFORMATION SHARING BETWEEN DEPARTMENT

13 OF LABOR AND DEPARTMENT OF HOMELAND SECU14 RITY.—Section 212(n)(2) of such Act, as amended by this 

15 section, is further amended by inserting after subpara16 graph (H) the following: 

17 ‘‘(I) If any information contained in the materials 

18 submitted by employers of H–1B nonimmigrants as part 

19 of the adjudication process indicates that the employer is 

20 not complying with the requirements under this sub21 section, the Director of United States Citizenship and Im22 migration Services shall provide such information to the 

23 Secretary of Labor. The Secretary may initiate and con24 duct an investigation and hearing under this paragraph 

25 after receiving such information.’’. 


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1 (h) AUDITS.—Section 212(n)(2)(A) of such Act, as 

2 amended by this section, is further amended by adding 

3 at the end the following: ‘‘The Secretary may conduct sur4 veys regarding the degree to which employers comply with 

5 the requirements under this subsection and may conduct 

6 annual compliance audits of employers of H–1B non7 immigrants. The Secretary shall conduct annual compli8 ance audits of not less than 1 percent of the employers 

9 of H–1B nonimmigrants during the applicable calendar 

10 year. The Secretary shall conduct annual compliance au11 dits of each employer with more than 100 employees who 

12 work in the United States if more than 15 percent of such 

13 employees are H–1B nonimmigrants.’’. 

14 (i) PENALTIES.—Section 212(n)(2)(C) of such Act, 

15 as amended by this section, is further amended— 

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

17 inserting ‘‘$2,000’’; 

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

19 inserting ‘‘$10,000’’; and 

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

21 inserting ‘‘$2,000’’. 

22 (j) INFORMATION PROVIDED TO H–1B NON23 IMMIGRANTS UPON VISA ISSUANCE.—Section 212(n) of 

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

25 by adding at the end the following: 


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1 ‘‘(6)(A) Upon providing H–1B nonimmigrant status 

2 to an alien in the United States, the office processing the 

3 petition for such status shall provide the applicant with— 

4 ‘‘(i) a brochure outlining the employer’s obliga5 tions and the employee’s rights under Federal law, 

6 including labor and wage protections; and 

7 ‘‘(ii) the contact information for Federal agen8 cies that can offer more information or assistance in 

9 clarifying employer obligations and workers’ rights. 

10 ‘‘(B) Upon issuing an H–1B nonimmigrant visa to 

11 an alien outside the United States, the officer of the De12 partment of State shall provide the applicant with the 

13 items described in clauses (i) and (ii) of subparagraph 

14 (A).’’. 

Æ 


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