I 

108TH CONGRESS 

2D SESSION H. R. 5413 

To amend the Immigration and Nationality Act to provide greater protections 

to domestic and foreign workers under the H–1B nonimmigrant worker 

program. 

IN THE HOUSE OF REPRESENTATIVES 

NOVEMBER 19, 2004 

Mr. PASCRELL introduced the following bill; which was referred to the 

Committee on the Judiciary 

A BILL 

To amend the Immigration and Nationality Act to provide 

greater protections to domestic and foreign workers 

under the H–1B nonimmigrant worker program. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. WAGE DETERMINATION. 

4 (a) CHANGE IN MINIMUM WAGES.—Section 

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

6 U.S.C. 1182(n)(1)(A)) is amended to read as follows: 

7 ‘‘(A) The employer— 

8 ‘‘(i) is offering and will offer during the 

9 period of authorized employment to aliens ad-
2 

•HR 5413 IH 

1 mitted or provided status as an H–1B non2 immigrant wages that are at least— 

3 ‘‘(I) the locally determined prevailing 

4 wage level for the occupational classifica5 tion in the area of employment; 

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

7 workers in the occupational classification 

8 in the area of employment; or 

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

10 two in the occupational classification found 

11 in the most recent Occupational Employ12 ment Statistics survey; 

13 whichever is greatest, based on the best infor14 mation available as of the time of filing of the 

15 application; and 

16 ‘‘(ii) will provide working conditions for 

17 such nonimmigrant that will not adversely af18 fect the working conditions of workers similarly 

19 employed.’’. 

20 The wage determination methodology used under 

21 clause (i) shall be submitted with the application. 

22 (b) PROVISION OF W–2 FORMS.—Section 212(n)(1) 

23 of such Act (8 U.S.C. 1182(n)(1)) is amended by adding 

24 at the end the following new subparagraph: 
3 

•HR 5413 IH 

1 ‘‘(H) If the employer employed, in such pre2 vious period as the Secretary shall specify, one or 

3 more H–1B nonimmigrants, the application shall be 

4 accompanied by the Internal Revenue Service Form 

5 W–2 Wage and Tax Statement filed by the employer 

6 with respect to such nonimmigrants for such pe7 riod.’’. 

8 SEC. 2. GOOD FAITH RECRUITMENT REQUIREMENT. 

9 (a) EXTENDING TIME PERIOD FOR NO DISPLACE10 MENT.—Section 212(n) of the Immigration and Nation11 ality Act (8 U.S.C. 1182(n)) is amended— 

12 (1) in paragraph (1)(E)(i), by striking ‘‘90 

13 days’’ and inserting ‘‘180 days’’ each place it ap14 pears; and 

15 (2) in paragraph (2)(C)(iii), in the matter be16 fore subclause (I), by striking ‘‘90 days’’ and insert17 ing ‘‘180 days’’ each place it appears . 

18 (b) REQUIRING ACTIVE REQUIREMENT.—Section 

19 212(n)(1)(G)(i)(I) of such Act (8 U.S.C. 

20 1182(n)(1)(G)(i)(I)) is amended by inserting ‘‘actively’’ 

21 before ‘‘recruit’’. 

22 (c) PROHIBITION OF OUTPLACEMENT.—Section 

23 212(n)(1)(F) of the Immigration and Nationality Act (8 

24 U.S.C. 1182(n)(1)(F)) is amended to read as follows: 
4 

•HR 5413 IH 

1 ‘‘(F) An employer shall not place, out-source, 

2 lease, or otherwise contract for the placement of an 

3 alien admitted or provided status as an H–1B non4 immigrant with another employer, regardless of 

5 whether or not such other employer is an H–1B-de6 pendent employer.’’. 

7 SEC. 3. LABOR ENFORCEMENT. 

8 (a) CENTRALIZATION OF ADMINISTRATIVE AND EN9 FORCEMENT FUNCTIONS.—Section 212(n)(2) of the Im10 migration and Nationality Act (8 U.S.C. 1182(n)(2)) is 

11 amended by adding at the end the following new subpara12 graph: 

13 ‘‘(I) The Secretary shall be responsible under this 

14 paragraph for investigations of wage complaints, as well 

15 as investigations of allegations of fraud in the filing of 

16 applications under this subsection.’’. 

17 (b) AUDITS.—Section 212(n)(2)(A) of the Immigra18 tion and Nationality Act (8 U.S.C. 1182(n)(2)(A)) is 

19 amended by adding at the end the following new sen20 tences: ‘‘In addition, the Secretary may conduct surveys 

21 of the level of compliance by employers with the provisions 

22 and requirements of this subsection and may conduct an23 nual compliance audits in the case of employers that em24 ploy H–1B nonimmigrants. In the case of an employer 

25 that employs H–1B nonimmigrants that represent 15 per-
5 

•HR 5413 IH 

1 cent or more of the total number of individuals employed 

2 by the employer, the Secretary shall conduct annual com3 pliance audits of such employer.’’. 

4 SEC. 4. MAKING H–1B NONIMMIGRANT PETITIONER FEE 

5 PERMANENT. 

6 (a) IN GENERAL.—Section 214(c)(9)(A) of the Immi7 gration and Nationality Act (8 U.S.C. 1184(c)(9)(A)), in 

8 the matter immediately preceding clause (i), is amended 

9 by striking ‘‘October 1, 2003’’. 

10 (b) EFFECTIVE DATE.—The amendment made by 

11 subsection (a) shall apply to petitions filed beginning on 

12 or after January 1 of the year beginning after the date 

13 of the enactment of this Act. 

14 SEC. 5. PRIVATE RIGHT OF ACTION. 

15 Section 212(n)(2) of the Immigration and Nationality 

16 Act (8 U.S.C. 1182(n)(2)) is amended by adding at the 

17 end the following new subparagraph: 

18 ‘‘(I) In addition to any other remedies available under 

19 this paragraph, a person who is harmed by a violation by 

20 an employer of a requirement of this subsection may bring 

21 a civil action against the employer in any court of com22 petent jurisdiction for damages or other appropriate re23 lief.’’. 

Æ