IB
Union Calendar No. 368
105TH CONGRESS
2D SESSION
H. R. 3736
[Report No. 105–657]
To amend the Immigration and Nationality Act to make changes relating
to H–1B nonimmigrants.
IN THE HOUSE OF REPRESENTATIVES
APRIL 28, 1998
Mr. SMITH of Texas introduced the following bill; which was referred to the
Committee on the Judiciary
JULY 29, 1998
Additional sponsors: Mr. THORNBERRY, Mr. CAMPBELL, and Mr. SPRATT
JULY 29, 1998
Reported with an amendment, committed to the Committee of the Whole
House on the State of the Union, and ordered to be printed
[Strike out all after the enacting clause and insert the part printed in italic]
[For text of introduced bill, see copy of bill as introduced on April 28, 1998]
A BILL
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.
This Act may be cited as the ‘‘Workforce Improvement
and Protection Act of 1998’’.
SEC. 2. TEMPORARY INCREASE IN SKILLED FOREIGN WORK-
ERS; TEMPORARY REDUCTION IN H–2B NON-
IMMIGRANTS.
Section 214(g) of the Immigration and Nationality
Act (8 U.S.C. 1184(g)) is amended—
(1) by amending paragraph (1)(A) to read as
follows:
‘‘(A) under section 101(a)(15)(H)(i)(b), subject
to paragraph (5), may not exceed—
‘‘(i) 95,000 in fiscal year 1998;
‘‘(ii) 105,000 in fiscal year 1999;
‘‘(iii) 115,000 in fiscal year 2000; and
‘‘(iv) 65,000 in fiscal year 2001 and any
subsequent fiscal year; or’’;
(2) by amending paragraph (1)(B) to read as
follows:
‘‘(B) under section 101(a)(15)(H)(ii)(b) may not
exceed—
‘‘(i) 36,000 in fiscal year 1998;
‘‘(ii) 26,000 in fiscal year 1999;
‘‘(iii) 16,000 in fiscal year 2000; and
‘‘(iv) 66,000 in fiscal year 2001 and any
subsequent fiscal year.’’;
(3) in paragraph (4), by striking ‘‘years.’’ and
inserting ‘‘years, except that, with respect to each
such nonimmigrant issued a visa or otherwise pro-
vided nonimmigrant status in each of fiscal years
1998, 1999, and 2000 in excess of 65,000 (per fiscal
year), the period of authorized admission as such a
nonimmigrant may not exceed 4 years.’’; and
(4) by adding at the end the following:
‘‘(5) The total number of aliens described in section
212(a)(5)(C) who may be issued visas or otherwise provided
nonimmigrant status during any fiscal year (beginning
with fiscal year 1999) under section 101(a)(15)(H)(i)(b)
may not exceed 5,000.’’.
SEC. 3. PROTECTION AGAINST DISPLACEMENT OF UNITED
STATES WORKERS.
(a) IN GENERAL.—Section 212(n)(1) of the Immigra-
tion and Nationality Act (8 U.S.C. 1182(n)(1)) is amended
by inserting after subparagraph (D) the following:
‘‘(E)(i) Except as provided in clause (iv), the
employer has not laid off or otherwise displaced and
will not lay off or otherwise displace, within the pe-
riod beginning 6 months before and ending 90 days
following the date of filing of the application or dur-
ing the 90 days immediately preceding and following
the date of filing of any visa petition supported by
the application, any United States worker (as defined
in paragraph (3)) (including a worker whose services
are obtained by contract, employee leasing, temporary
help agreement, or other similar means) who has sub-
stantially equivalent qualifications and experience in
the specialty occupation, and in the area of employ-
ment, for which H–1B nonimmigrants are sought or
in which they are employed.
‘‘(ii) Except as provided in clause (iii), in the
case of an employer that employs an H–1B non-
immigrant, the employer shall not place the non-
immigrant with another employer where—
‘‘(I) the nonimmigrant performs his or her
duties in whole or in part at one or more work-
sites owned, operated, or controlled by such other
employer; and
‘‘(II) there are indicia of an employment
relationship between the nonimmigrant and such
other employer.
‘‘(iii) Clause (ii) shall not apply to an employ-
er’s placement of an H–1B nonimmigrant with an-
other employer if the other employer has executed an
attestation that it satisfies and will satisfy the condi-
tions described in clause (i) during the period de-
scribed in such clause.
‘‘(iv) This subparagraph shall not apply to an
application filed by an employer that is an institu-
tion of higher education (as defined in section
1201(a) of the Higher Education Act of 1965), or a
related or affiliated nonprofit entity, if the applica-
tion relates solely to aliens who—
‘‘(I) the employer seeks to employ—
‘‘(aa) as a researcher on a project for
which not less than 50 percent of the fund-
ing is provided, for a limited period of
time, through a grant or contract with an
entity other than the employer; or
‘‘(bb) as a professor or instructor under
a contract that expires after a limited pe-
riod of time; and
‘‘(II) have attained a master’s or higher de-
gree (or its equivalent) in a specialty the specific
knowledge of which is required for the intended
employment.’’.
(b) DEFINITIONS.—
(1) IN GENERAL.—Section 212(n) of the Immi-
gration and Nationality Act (8 U.S.C. 1182(n)) is
amended by adding at the end the following:
‘‘(3) For purposes of this subsection:
‘‘(A) The term ‘H–1B nonimmigrant’ means an
alien admitted or provided status as a nonimmigrant
described in section 101(a)(15)(H)(i)(b).
‘‘(B) The term ‘lay off or otherwise displace’,
with respect to an employee—
‘‘(i) means to cause the employee’s loss of
employment, other than through a discharge for
cause, a voluntary departure, or a voluntary re-
tirement; and
‘‘(ii) does not include any situation in
which employment is relocated to a different geo-
graphic area and the employee is offered a
chance to move to the new location, with wages
and benefits that are not less than those at the
old location, but elects not to move to the new lo-
cation.
‘‘(C) The term ‘United States worker’ means—
‘‘(i) a citizen or national of the United
States;
‘‘(ii) an alien lawfully admitted for perma-
nent residence; or
‘‘(iii) an alien authorized to be employed by
this Act or by the Attorney General.’’.
(2) 
CONFORMING
AMENDMENTS.—Section
212(n)(1) of the Immigration and Nationality Act (8
U.S.C. 1182(n)(1)) is amended by striking ‘‘a non-
immigrant described in section 101(a)(15)(H)(i)(b)’’
each place such term appears and inserting ‘‘an H–
1B nonimmigrant’’.
SEC. 4. RECRUITMENT OF UNITED STATES WORKERS PRIOR
TO SEEKING NONIMMIGRANT WORKERS.
Section 212(n)(1) of the Immigration and Nationality
Act (8 U.S.C. 1182(n)(1)), as amended by section 3, is fur-
ther amended by inserting after subparagraph (E) the fol-
lowing:
‘‘(F)(i) The employer, prior to filing the applica-
tion, has taken, in good faith, timely and significant
steps to recruit and retain sufficient United States
workers in the specialty occupation for which H–1B
nonimmigrants are sought. Such steps shall have in-
cluded recruitment in the United States, using proce-
dures that meet industry-wide standards and offering
compensation that is at least as great as that required
to be offered to H–1B nonimmigrants under subpara-
graph (A), and offering employment to any United
States worker who applies and has the same quali-
fications as, or better qualifications than, any of the
H–1B nonimmigrants sought.
‘‘(ii) The conditions described in clause (i) shall
not apply to an employer with respect to the employ-
ment of an H–1B nonimmigrant who is described in
subparagraph (A), (B), or (C) of section 203(b)(1).’’.
SEC. 5. LIMITATION ON AUTHORITY TO INITIATE COM-
PLAINTS 
AND 
CONDUCT 
INVESTIGATIONS
FOR NON-H–1B-DEPENDENT EMPLOYERS.
(a) IN GENERAL.—Section 212(n)(2)(A) of the Immi-
gration and Nationality Act (8 U.S.C. 1182(n)(2)(A)) is
amended—
(1) in the second sentence, by striking the period
at the end and inserting the following: ‘‘, except that
the Secretary may only file such a complaint respect-
ing an H–1B-dependent employer (as defined in
paragraph (3)), and only if there appears to be a vio-
lation of an attestation or a misrepresentation of a
material fact in an application.’’; and
(2) by inserting after the second sentence the fol-
lowing: ‘‘Except as provided in subparagraph (F) (re-
lating to spot investigations during probationary pe-
riod), no investigation or hearing shall be conducted
with respect to an employer except in response to a
complaint filed under the previous sentence.’’.
(b) DEFINITIONS.—Section 212(n)(3) of the Immigra-
tion and Nationality Act (8 U.S.C. 1182(n)(2)), as added
by section 3, is amended—
(1) by redesignating subparagraphs (A), (B),
and (C) as subparagraphs (B), (C), and (E), respec-
tively;
(2) by inserting after ‘‘purposes of this sub-
section:’’ the following:
‘‘(A) The term ‘H–1B-dependent employer’
means an employer that—
‘‘(i)(I) has fewer than 21 full-time equiva-
lent employees who are employed in the United
States; and
(II) employs 4 or more H–1B non-
immigrants; or
‘‘(ii)(I) has at least 21 but not more than
150 full-time equivalent employees who are em-
ployed in the United States; and
(II) employs H–1B nonimmigrants in a
number that is equal to at least 20 percent of the
number of such full-time equivalent employees; or
‘‘(iii)(I) has at least 151 full-time equiva-
lent employees 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.
In applying this subparagraph, 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 treated as a single employer. Aliens em-
ployed under a petition for H–1B nonimmigrants
shall be treated as employees, and counted as non-
immigrants under section 101(a)(15)(H)(i)(b) under
this subparagraph.’’; and
(3) by inserting after subparagraph (C) (as so
redesignated) the following:
‘‘(D) The term ‘non-H–1B-dependent employer’
means an employer that is not an H–1B-dependent
employer.’’.
SEC. 6. INCREASED ENFORCEMENT AND PENALTIES.
(a) IN GENERAL.—Section 212(n)(2)(C) of the Immi-
gration and Nationality Act (8 U.S.C. 1182(n)(2)(C)) is
amended 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) or (1)(E), a substantial failure to meet a con-
dition of paragraph (1)(C), (1)(D), or (1)(F), or a mis-
representation of material fact in an application—
‘‘(I) the Secretary shall notify the Attorney Gen-
eral of such finding and may, in addition, impose
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 pe-
titions filed with respect to that employer under sec-
tion 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 Gen-
eral of such finding and may, in addition, impose
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 pe-
titions filed with respect to that employer under sec-
tion 204 or 214(c) during a period of at least 1 year
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 also has failed to meet a
condition of paragraph (1)(E)—
‘‘(I) the Secretary shall notify the Attorney Gen-
eral of such finding and may, in addition, impose
such other administrative remedies (including civil
monetary penalties in an amount not to exceed
$25,000 per violation) as the Secretary determines to
be appropriate; and
‘‘(II) the Attorney General shall not approve pe-
titions filed with respect to that employer under sec-
tion 204 or 214(c) during a period of at least 2 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 evi-
dences a violation of this subsection, or any rule or regula-
tion pertaining to this subsection, or because the employee
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.’’.
(b) PLACEMENT
OF H–1B NONIMMIGRANT
WITH
OTHER EMPLOYER.—Section 212(n)(2) of the Immigration
and Nationality Act (8 U.S.C. 1182(n)(2)) is amended by
adding at the end the following:
‘‘(E) Under regulations of the Secretary, the previous
provisions of this paragraph shall apply to a failure of an
other employer to comply with an attestation described in
paragraph (1)(E)(iii) in the same manner as they apply
to a failure to comply with a condition described in para-
graph (1)(E)(i).’’.
(c) SPOT INVESTIGATIONS DURING PROBATIONARY
PERIOD.—Section 212(n)(2) of the Immigration and Na-
tionality Act (8 U.S.C. 1182(n)(2)), as amended by sub-
section (b), is further amended by adding at the end the
following:
‘‘(F) The Secretary may, on a case-by-case basis, sub-
ject an employer to random investigations for a period of
up to 5 years, beginning on the date that the employer is
found by the Secretary to have committed a willful failure
to meet a condition of paragraph (1) or to have made a
misrepresentation of material fact in an application. The
preceding sentence shall apply to an employer regardless
of whether the employer is an H–1B-dependent employer
or a non-H–1B-dependent employer. The authority of the
Secretary under this subparagraph shall not be construed
to be subject to, or limited by, the requirements of subpara-
graph (A).’’.
SEC. 7. PROHIBITION ON IMPOSITION BY IMPORTING EM-
PLOYERS OF EMPLOYMENT CONTRACT PRO-
VISIONS VIOLATING PUBLIC POLICY.
Section 212(n)(2) of the Immigration and Nationality
Act (8 U.S.C. 1182(n)(2)), as amended by section (6), is
further amended by adding at the end the following:
‘‘(G) If the Secretary finds, after notice and oppor-
tunity for a hearing, that an employer who has submitted
an application under paragraph (1) has requested or re-
quired an alien admitted or provided status as a non-
immigrant pursuant to the application, as a condition of
the employment, to execute a contract containing a provi-
sion that would be considered void as against public policy
in the State of intended employment—
‘‘(i) the Secretary shall notify the Attorney Gen-
eral of such finding and may, in addition, impose
such other administrative remedies (including civil
monetary penalties in an amount not to exceed
$25,000 per violation) as the Secretary determines to
be appropriate; and
‘‘(ii) the Attorney General shall not approve pe-
titions filed by the employer under section 214(c) dur-
ing a period of not more than 10 years for H–1B
nonimmigrants to be employed by the employer.’’.
SEC. 8. IMPROVING COUNT OF H–1B AND H–2B NON-
IMMIGRANTS.
(a) ENSURING ACCURATE COUNT.—The Attorney Gen-
eral shall take such steps as are necessary to maintain an
accurate count of the number of aliens subject to the numer-
ical limitations of section 214(g)(1) of the Immigration and
Nationality Act who are issued visas or otherwise provided
nonimmigrant status.
(b) REVISION OF PETITION FORMS.—The Attorney
General shall take such steps as are necessary to revise the
forms used for petitions for visas or nonimmigrant status
under clause (i)(b) or (ii)(b) of section 101(a)(15)(H) of the
Immigration and Nationality Act so as to ensure that the
forms provide the Attorney General with sufficient informa-
tion to permit the Attorney General accurately to count the
number of aliens subject to the numerical limitations of sec-
tion 214(g)(1) of such Act who are issued visas or otherwise
provided nonimmigrant status.
(c) REPORTS.—Beginning with fiscal year 1999, the
Attorney General shall provide to the Congress not less than
4 times per year a report on—
(1) the numbers of individuals who were issued
visas or otherwise provided nonimmigrant status dur-
ing the preceding 3-month period under section
101(a)(15)(H)(i)(b) of the Immigration and Nation-
ality Act;
(2) the numbers of individuals who were issued
visas or otherwise provided nonimmigrant status dur-
ing the preceding 3-month period under section
101(a)(15)(H)(ii)(b) of such Act; and
(3) the countries of origin and occupations of,
educational levels attained by, and total compensa-
tion (including the value of all wages, salary, bonuses,
stock, stock options, and any other similar forms of
remuneration) paid to, individuals issued visas or
provided nonimmigrant status under such sections
during such period.
SEC. 9. GAO STUDY AND REPORT ON AGE DISCRIMINATION
IN THE INFORMATION TECHNOLOGY FIELD.
(a) STUDY.—The Comptroller General of the United
States shall conduct a study assessing age discrimination
in the information technology field. The study shall consider
the following:
(1) The prevalence of age discrimination in the
information technology workplace.
(2) The extent to which there is a difference,
based on age, in promotion and advancement; work-
ing hours; telecommuting; salary; and stock options,
bonuses, or other benefits.
(3) The relationship between rates of advance-
ment, promotion, and compensation to experience,
skill level, education, and age.
(4) Differences in skill level on the basis of age.
(b) REPORT.—Not later than October 1, 2000, the
Comptroller General of the United States shall submit to
the Committees on the Judiciary of the United States House
of Representatives and the Senate a report containing the
results of the study described in subsection (a). The report
shall include any recommendations of the Comptroller Gen-
eral concerning age discrimination in the information tech-
nology field.
SEC. 10. GAO LABOR MARKET STUDY AND REPORT.
(a) STUDY.—The Comptroller General of the United
States shall conduct a labor market study. The study shall
investigate and analyze the following:
(1) The overall shortage of available workers in
the high-technology, rapid-growth industries.
(2) The multiplier effect growth of high-tech-
nology industry on low-technology employment.
(3) The relative achievement rates of United
States and foreign students in secondary school in a
variety of subjects, including math, science, computer
science, English, and history.
(4) The relative performance, by subject area, of
United States and foreign students in postsecondary
and graduate schools as compared to secondary
schools.
(5) The labor market need for workers with in-
formation technology skills and the extent of the defi-
cit of such workers to fill high-technology jobs during
the 10-year period beginning on the date of the enact-
ment of this Act.
(6) Future training and education needs of com-
panies in the high-technology sector.
(7) Future training and education needs of
United States students to ensure that their skills at
various levels match the needs of the high-technology
and information technology sectors.
(8) An analysis of which particular skill sets are
in demand.
(9) The needs of the high-technology sector for
foreign workers with specific skills.
(10) The potential benefits of postsecondary edu-
cational institutions, employers, and the United
States economy from the entry of skilled professionals
in the fields of engineering and science.
(11) The effect on the high-technology labor mar-
ket of the downsizing of the defense sector, the increase
in productivity in the computer industry, and the de-
ployment of workers dedicated to the Year 2000
Project.
(b) REPORT.—Not later than October 1, 2000, the
Comptroller General of the United States shall submit to
the Committees on the Judiciary of the United States House
of Representatives and the Senate a report containing the
results of the study described in subsection (a).
SEC. 11. EFFECTIVE DATE.
The amendments made by this Act shall take effect on
the date of the enactment of this Act and shall apply to
applications filed with the Secretary of Labor on or after
30 days after the date of the enactment of this Act, except
that the amendments made by section 2 shall apply to ap-
plications filed with such Secretary before, on, or after the
date of the enactment of this Act.
Union Calendar No. 368
105TH CONGRESS
2D SESSION
H. R. 3736
[Report No. 105–657]
A BILL
To amend the Immigration and Nationality Act to
make changes relating to H–1B nonimmigrants.
JULY 29, 1998
Reported with an amendment, committed to the Commit-
tee of the Whole House on the State of the Union, and
ordered to be printed