105TH CONGRESS
2D SESSION
H. R. 3736
AN ACT
To amend the Immigration and Nationality Act to
make changes relating to H–1B nonimmigrants.
105TH CONGRESS
2D SESSION
H. R. 3736
AN ACT
To amend the Immigration and Nationality Act to make
changes relating to H–1B nonimmigrants.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS; AMEND-
MENTS TO IMMIGRATION AND NATIONALITY
ACT.
(a) SHORT TITLE.—This Act may be cited as the
‘‘Temporary Access to Skilled Workers and H–1B Non-
immigrant Program Improvement Act of 1998’’.
(b) TABLE OF CONTENTS.—The table of contents of
this Act is as follows:
Sec. 1. Short title; table of contents; amendments to Immigration and National-
ity Act.
TITLE I—PROVISIONS RELATING TO H–1B NONIMMIGRANTS
Sec. 101. Temporary increase in access to temporary skilled personnel under
H–1B program.
Sec. 102. Protection against displacement of United States workers in case of
H–1B-dependent employers.
Sec. 103. Changes in enforcement and penalties.
Sec. 104. Collection and use of H–1B nonimmigrant fees for scholarships for
low-income math, engineering, and computer science students
and job training of United States workers.
Sec. 105. Computation of prevailing wage level.
Sec. 106. Improving count of H–1B and H–2B nonimmigrants.
Sec. 107. Report on older workers in the information technology field.
Sec. 108. Report on high technology labor market needs; reports on economic
impact of increase in H–1B nonimmigrants.
TITLE II—SPECIAL IMMIGRANT STATUS FOR CERTAIN NATO
CIVILIAN EMPLOYEES
Sec. 201. Special immigrant status for certain NATO civilian employees.
TITLE III—MISCELLANEOUS PROVISION
Sec. 301. Academic honoraria.
(c) AMENDMENTS TO IMMIGRATION AND NATIONAL-
ITY ACT.—Except as otherwise specifically provided in
this Act, whenever in this Act an amendment is expressed
in terms of an amendment to a section or other provision,
the reference shall be considered to be made to that sec-
tion or other provision of the Immigration and Nationality
Act (8 U.S.C. 1101 et seq.).
TITLE I—PROVISIONS RELATING
TO H–1B NONIMMIGRANTS
SEC. 101. TEMPORARY INCREASE IN ACCESS TO TEM-
PORARY SKILLED PERSONNEL UNDER H–1B
PROGRAM.
(a) TEMPORARY
INCREASE
IN
SKILLED
NON-
IMMIGRANT
WORKERS.—Paragraph (1)(A) of section
214(g) (8 U.S.C. 1184(g)) is amended to read as follows:
‘‘(A) under section 101(a)(15)(H)(i)(b), may
not exceed—
‘‘(i) 65,000 in each fiscal year before fiscal
year 1999;
‘‘(ii) 115,000 in fiscal year 1999;
‘‘(iii) 115,000 in fiscal year 2000;
‘‘(iv) 107,500 in fiscal year 2001; and
‘‘(v) 65,000 in each succeeding fiscal year;
or’’.
(b) EFFECTIVE DATES.—The amendment made by
subsection (a) applies beginning with fiscal year 1998.
SEC. 
102. 
PROTECTION 
AGAINST 
DISPLACEMENT 
OF
UNITED STATES WORKERS IN CASE OF H–1B-
DEPENDENT EMPLOYERS.
(a) PROTECTION AGAINST LAYOFF AND REQUIRE-
MENT FOR PRIOR RECRUITMENT OF UNITED STATES
WORKERS.—
(1) ADDITIONAL
STATEMENTS
ON
APPLICA-
TION.—Section 212(n)(1) (8 U.S.C. 1182(n)(1)) is
amended by inserting after subparagraph (D) the
following:
‘‘(E)(i) In the case of an application described
in clause (ii), the employer did not displace and will
not displace a United States worker (as defined in
paragraph (4)) employed by the employer within the
period beginning 90 days before and ending 90 days
after the date of filing of any visa petition supported
by the application.
‘‘(ii) An application described in this clause is
an application filed on or after the date final regula-
tions are first promulgated to carry out this sub-
paragraph, and before October 1, 2001, by an H–
1B-dependent employer (as defined in paragraph
(3)) or by an employer that has been found under
paragraph (2)(C) or (5) to have committed a willful
failure or misrepresentation on or after the date of
the enactment of this subparagraph. An application
is not described in this clause if the only H–1B non-
immigrants sought in the application are exempt H–
1B nonimmigrants.
‘‘(F) In the case of an application described in
subparagraph (E)(ii), the employer will not place the
nonimmigrant with another employer (regardless of
whether or not such other employer is an H–1B-de-
pendent employer) where—
‘‘(i) the nonimmigrant performs duties in
whole or in part at one or more worksites
owned, operated, or controlled by such other
employer; and
‘‘(ii) there are indicia of an employment re-
lationship between the nonimmigrant and such
other employer;
unless the employer has inquired of the other em-
ployer as to whether, and has no knowledge that,
within the period beginning 90 days before and end-
ing 90 days after the date of the placement of the
nonimmigrant with the other employer, the other
employer has displaced or intends to displace a
United States worker employed by the other em-
ployer.
‘‘(G)(i) In the case of an application described
in subparagraph (E)(ii), subject to clause (ii), the
employer, prior to filing the application—
‘‘(I) has taken good faith steps to recruit,
in the United States using procedures that
meet industry-wide standards and offering com-
pensation that is at least as great as that re-
quired to be offered to H–1B nonimmigrants
under subparagraph (A), United States workers
for the job for which the nonimmigrant or non-
immigrants is or are sought; and
‘‘(II) has offered the job to any United
States worker who applies and is equally or bet-
ter qualified for the job for which the non-
immigrant or nonimmigrants is or are sought.
‘‘(ii) The conditions described in clause (i) shall
not apply to an application filed with respect to the
employment of an H–1B nonimmigrant who is de-
scribed in subparagraph (A), (B), or (C) of section
203(b)(1).’’.
(2) NOTICE ON APPLICATION OF POTENTIAL LI-
ABILITY
OF
PLACING
EMPLOYERS.—Section
212(n)(1) (8 U.S.C. 1182(n)(1)) is amended by add-
ing at the end the following: ‘‘The application form
shall include a clear statement explaining the liabil-
ity under subparagraph (F) of a placing employer if
the other employer described in such subparagraph
displaces a United States worker as described in
such subparagraph.’’.
(3) CONSTRUCTION.—Section 212(n)(1) (8
U.S.C. 1182(n)(1)) is further amended by adding at
the end the following: ‘‘Nothing in subparagraph (G)
shall be construed to prohibit an employer from
using legitimate selection criteria relevant to the job
that are normal or customary to the type of job in-
volved, so long as such criteria are not applied in a
discriminatory manner.’’.
(b) H–1B-DEPENDENT
EMPLOYER
AND
OTHER
DEFINITIONS.—
(1) IN
GENERAL.—Section 212(n) (8 U.S.C.
1182(n)) is amended by adding at the end the fol-
lowing:
‘‘(3)(A) For purposes of this subsection, the term ‘H–
1B-dependent employer’ means an employer that—
‘‘(i)(I) has 25 or fewer full-time equivalent em-
ployees who are employed in the United States; and
(II) employs more than 7 H–1B nonimmigrants;
‘‘(ii)(I) has at least 26 but not more than 50
full-time equivalent employees who are employed in
the United States; and (II) employs more than 12
H–1B nonimmigrants; or
‘‘(iii)(I) has at least 51 full-time equivalent em-
ployees who are employed in the United States; and
(II) employs H–1B nonimmigrants in a number that
is equal to at least 15 percent of the number of such
full-time equivalent employees.
‘‘(B) For purposes of this subsection—
‘‘(i) the term ‘exempt H–1B nonimmigrant’
means an H–1B nonimmigrant who—
‘‘(I) receives wages (including cash bonuses
and similar compensation) at an annual rate
equal to at least $60,000; or
‘‘(II) has attained a master’s or higher de-
gree (or its equivalent) in a specialty related to
the intended employment; and
‘‘(ii) the term ‘nonexempt H–1B nonimmigrant’
means an H–1B nonimmigrant who is not an ex-
empt H–1B nonimmigrant.
‘‘(C) For purposes of subparagraph (A)—
‘‘(i) in computing the number of full-time equiv-
alent employees and the number of H–1B non-
immigrants, exempt H–1B nonimmigrants shall not
be taken into account during the longer of—
‘‘(I) the 6-month period beginning on the
date of the enactment of the Temporary Access
to Skilled Workers and H–1B Nonimmigrant
Program Improvement Act of 1998; or
‘‘(II) the period beginning on the date of
the enactment of the Temporary Access to
Skilled Workers and H–1B Nonimmigrant Pro-
gram Improvement Act of 1998 and ending on
the date final regulations are issued to carry
out this paragraph; and
‘‘(ii) any group treated as a single employer
under subsection (b), (c), (m), or (o) of section 414
of the Internal Revenue Code of 1986 shall be treat-
ed as a single employer.
‘‘(4) For purposes of this subsection:
‘‘(A) The term ‘area of employment’ means the
area within normal commuting distance of the work-
site or physical location where the work of the H–
1B nonimmigrant is or will be performed. If such
worksite or location is within a Metropolitan Statis-
tical Area, any place within such area is deemed to
be within the area of employment.
‘‘(B) In the case of an application with respect
to one or more H–1B nonimmigrants by an em-
ployer, the employer is considered to ‘displace’ a
United States worker from a job if the employer lays
off the worker from a job that is essentially the
equivalent of the job for which the nonimmigrant or
nonimmigrants is or are sought. A job shall not be
considered to be essentially equivalent of another job
unless it involves essentially the same responsibil-
ities, was held by a United States worker with sub-
stantially equivalent qualifications and experience,
and is located in the same area of employment as
the other job.
‘‘(C) The term ‘H–1B nonimmigrant’ means an
alien admitted or provided status as a nonimmigrant
described in section 101(a)(15)(H)(i)(b).
‘‘(D) The term ‘lays off’, with respect to a
worker—
‘‘(i) means to cause the worker’s loss of
employment, other than through a discharge for
inadequate performance, violation of workplace
rules, cause, voluntary departure, voluntary re-
tirement, or the expiration of a grant or con-
tract (other than a temporary employment con-
tract entered into in order to evade a condition
described in subparagraph (E) or (F) of para-
graph (1)); but
‘‘(ii) does not include any situation in
which the worker is offered, as an alternative to
such loss of employment, a similar employment
opportunity with the same employer (or, in the
case of a placement of a worker with another
employer under paragraph (1)(F), with either
employer described in such paragraph) at equiv-
alent or higher compensation and benefits than
the position from which the employee was dis-
charged, regardless of whether or not the em-
ployee accepts the offer.
‘‘(E) The term ‘United States worker’ means
an employee who—
‘‘(i) is a citizen or national of the United
States; or
‘‘(ii) is an alien who is lawfully admitted
for permanent residence, is admitted as a refu-
gee under section 207, is granted asylum under
section 208, or is an immigrant otherwise au-
thorized, by this Act or by the Attorney Gen-
eral, to be employed.’’.
(2) 
CONFORMING
AMENDMENTS.—Section
212(n)(1) (8 U.S.C. 1182(n)(1)) is amended by
striking ‘‘a nonimmigrant described in section
101(a)(15)(H)(i)(b)’’ each place it appears and in-
serting ‘‘an H–1B nonimmigrant’’.
(c) IMPROVED POSTING OF NOTICE OF APPLICA-
TION.—Section 
212(n)(1)(C)(ii) 
(8 
U.S.C.
1182(n)(1)(C)(ii)) is amended to read as follows:
‘‘(ii) if there is no such bargaining rep-
resentative, has provided notice of filing in the
occupational classification through such meth-
ods as physical posting in conspicuous locations
at the place of employment or electronic notifi-
cation to employees in the occupational classi-
fication for which H–1B nonimmigrants are
sought.’’.
(d) REQUIREMENTS RELATING TO BENEFITS.—
(1) IN
GENERAL.—Section 212(n)(1)(A) (8
U.S.C. 1182(n)(1)(A)) is amended—
(A) in clause (i), by striking ‘‘and’’ at the
end;
(B) in clause (ii), by striking the period at
the end and inserting ‘‘, and’’; and
(C) by adding at the end the following:
‘‘(iii) is offering and will offer to H–1B
nonimmigrants, during the period of authorized
employment, benefits and eligibility for benefits
(including the opportunity to participate in
health, life, disability, and other insurance
plans; the opportunity to participate in retire-
ment and savings plans; cash bonuses and
noncash compensation, such as stock options
(whether or not based on performance)) on the
same basis, and in accordance with the same
criteria, as the employer offers benefits and eli-
gibility for benefits to United States workers.’’.
(2) ORDERS TO PROVIDE BENEFITS.—Section
212(n)(2)(D) (8 U.S.C. 1182(n)(2)(D)) is amend-
ed—
(A) by inserting ‘‘or has not provided bene-
fits or eligibility for benefits as required under
such paragraph,’’ after ‘‘required under para-
graph (1),’’; and
(B) by inserting ‘‘or to provide such bene-
fits or eligibility for benefits’’ after ‘‘amounts of
back pay’’.
(e) EFFECTIVE DATES.—The amendments made by
subsections (a) and (c) apply to applications filed under
section 212(n)(1) of the Immigration and Nationality Act
on or after the date final regulations are issued to carry
out such amendments, and the amendments made by sub-
section (b) take effect on the date of the enactment of
this Act.
(f) REDUCTION
OF PERIOD
FOR PUBLIC COM-
MENT.—In first promulgating regulations to implement
the amendments made by this section in a timely manner,
the Secretary of Labor and the Attorney General may re-
duce to not less than 30 days the period of public comment
on proposed regulations.
SEC. 103. CHANGES IN ENFORCEMENT AND PENALTIES.
(a) INCREASED ENFORCEMENT AND PENALTIES.—
Section 212(n)(2)(C) (8 U.S.C. 1182(n)(2)(C)) is amend-
ed to read as follows:
‘‘(C)(i) If the Secretary finds, after notice and oppor-
tunity for a hearing, a failure to meet a condition of para-
graph (1)(B), (1)(E), or (1)(F), a substantial failure to
meet a condition of paragraph (1)(C), (1)(D), or
(1)(G)(i)(I), or a misrepresentation of material fact in an
application—
‘‘(I) the Secretary shall notify the Attorney
General of such finding and may, in addition, im-
pose such other administrative remedies (including
civil monetary penalties in an amount not to exceed
$1,000 per violation) as the Secretary determines to
be appropriate; and
‘‘(II) the Attorney General shall not approve
petitions filed with respect to that employer under
section 204 or 214(c) during a period of at least 1
year for aliens to be employed by the employer.
‘‘(ii) If the Secretary finds, after notice and oppor-
tunity for a hearing, a willful failure to meet a condition
of paragraph (1), a willful misrepresentation of material
fact in an application, or a violation of clause (iv)—
‘‘(I) the Secretary shall notify the Attorney
General of such finding and may, in addition, im-
pose such other administrative remedies (including
civil monetary penalties in an amount not to exceed
$5,000 per violation) as the Secretary determines to
be appropriate; and
‘‘(II) the Attorney General shall not approve
petitions filed with respect to that employer under
section 204 or 214(c) during a period of at least 2
years for aliens to be employed by the employer.
‘‘(iii) If the Secretary finds, after notice and oppor-
tunity for a hearing, a willful failure to meet a condition
of paragraph (1) or a willful misrepresentation of material
fact in an application, in the course of which failure or
misrepresentation the employer displaced a United States
worker employed by the employer within the period begin-
ning 90 days before and ending 90 days after the date
of filing of any visa petition supported by the applica-
tion—
‘‘(I) the Secretary shall notify the Attorney
General of such finding and may, in addition, im-
pose such other administrative remedies (including
civil monetary penalties in an amount not to exceed
$35,000 per violation) as the Secretary determines
to be appropriate; and
‘‘(II) the Attorney General shall not approve
petitions filed with respect to that employer under
section 204 or 214(c) during a period of at least 3
years for aliens to be employed by the employer.
‘‘(iv) It is a violation of this clause for an employer
who has filed an application under this subsection to in-
timidate, threaten, restrain, coerce, blacklist, discharge, or
in any other manner discriminate against an employee
(which term, for purposes of this clause, includes a former
employee and an applicant for employment) because the
employee has disclosed information to the employer, or to
any other person, that the employee reasonably believes
evidences a violation of this subsection, or any rule or reg-
ulation pertaining to this subsection, or because the em-
ployee cooperates or seeks to cooperate in an investigation
or other proceeding concerning the employer’s compliance
with the requirements of this subsection or any rule or
regulation pertaining to this subsection.
‘‘(v) The Secretary of Labor and the Attorney Gen-
eral shall devise a process under which an H–1B non-
immigrant who files a complaint regarding a violation of
clause (iv) and is otherwise eligible to remain and work
in the United States may be allowed to seek other appro-
priate employment in the United States for a period (not
to exceed the duration of the alien’s authorized admission
as such a nonimmigrant).
‘‘(vi) It is a violation of this clause for an employer
who has filed an application under this subsection to re-
quire an H–1B nonimmigrant to pay a penalty (as deter-
mined under State law) for ceasing employment with the
employer prior to a date agreed to by the nonimmigrant
and the employer. If the Secretary finds, after notice and
opportunity for a hearing, that an employer has committed
such a violation, the Secretary may impose a civil mone-
tary penalty of $1,000 for each such violation and issue
an administrative order requiring the return to the non-
immigrant of any amount required to be paid in violation
of this clause, or, if the nonimmigrant cannot be located,
requiring payment of any such amount to the general fund
of the Treasury.’’.
(b) USE OF ARBITRATION PROCESS FOR DISPUTES
INVOLVING QUALIFICATIONS OF UNITED STATES WORK-
ERS NOT HIRED.—
(1) IN
GENERAL.—Section 212(n) (8 U.S.C.
1182(n)), as amended by section 102(b), is further
amended by adding at the end the following:
‘‘(5)(A) This paragraph shall apply instead of sub-
paragraphs (A) through (E) of paragraph (2) in the case
of a violation described in subparagraph (B).
‘‘(B) The Attorney General shall establish a process
for the receipt, initial review, and disposition in accord-
ance with this paragraph of complaints respecting an em-
ployer’s failure to meet the condition of paragraph
(1)(G)(i)(II) or a petitioner’s misrepresentation of mate-
rial facts with respect to such condition. Complaints may
be filed by an aggrieved individual who has submitted a
resume or otherwise applied in a reasonable manner for
the job that is the subject of the condition. No proceeding
shall be conducted under this paragraph on a complaint
concerning such a failure or misrepresentation unless the
Attorney General determines that the complaint was filed
not later than 12 months after the date of the failure or
misrepresentation, respectively.
‘‘(C) If the Attorney General finds that a complaint
has been filed in accordance with subparagraph (B) and
there is reasonable cause to believe that such a failure or
misrepresentation described in such complaint has oc-
curred, the Attorney General shall initiate binding arbitra-