H. R. 2738—37
‘‘(viii) It is a failure to meet a condition of paragraph (1)(A)
for an employer who has filed an attestation under this subsection
to fail to offer to a nonimmigrant under section 101(a)(15)(H)(i)(b1),
during the nonimmigrant’s period of authorized employment, bene-
fits and eligibility for benefits (including the opportunity to partici-
pate in health, life, disability, and other insurance plans; the oppor-
tunity to participate in retirement and savings plans; and cash
bonuses and non-cash 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 to United States
workers.
‘‘(D) If the Secretary of Labor finds, after notice and opportunity
for a hearing, that an employer has not paid wages at the wage
level specified in the attestation and required under paragraph
(1), the Secretary of Labor shall order the employer to provide
for payment of such amounts of back pay as may be required
to comply with the requirements of paragraph (1), whether or
not a penalty under subparagraph (C) has been imposed.
‘‘(E) The Secretary of Labor 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 on which the employer is found
by the Secretary of Labor to have committed a willful failure to
meet a condition of paragraph (1) or to have made a willful mis-
representation of material fact in an attestation. The authority
of the Secretary of Labor under this subparagraph shall not be
construed to be subject to, or limited by, the requirements of
subparagraph (A).
‘‘(F) Nothing in this subsection shall be construed as super-
seding or preempting any other enforcement-related authority under
this Act (such as the authorities under section 274B), or any other
Act.
‘‘(4) For purposes of this subsection:
‘‘(A) The term ‘area of employment’ means the area within
normal commuting distance of the worksite or physical location
where 
the 
work 
of 
the 
nonimmigrant 
under 
section
101(a)(15)(H)(i)(b1) is or will be performed. If such worksite
or location is within a Metropolitan Statistical Area, any place
within such area is deemed to be within the area of employ-
ment.
‘‘(B) In the case of an attestation with respect to one
or more nonimmigrants under section 101(a)(15)(H)(i)(b1) by
an employer, 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 substantially
equivalent qualifications and experience, and is located in the
same area of employment as the other job.
‘‘(C)(i) 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 retirement, or the expiration of a grant or con-
tract; but
H. R. 2738—38
‘‘(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
at equivalent or higher compensation and benefits than
the position from which the employee was discharged,
regardless of whether or not the employee accepts the
offer.
‘‘(ii) Nothing in this subparagraph is intended to limit
an employee’s rights under a collective bargaining agreement
or other employment contract.
‘‘(D) 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 refugee under section 207 of
this title, is granted asylum under section 208, or is an
immigrant otherwise authorized, by this Act or by the
Secretary of Homeland Security, to be employed.’’.
(c) SPECIAL RULE FOR COMPUTATION OF PREVAILING WAGE.—
Section 212(p)(1) of the Immigration and Nationality Act (8 U.S.C.
1182(p)(1)) is amended by striking ‘‘(n)(1)(A)(i)(II) and (a)(5)(A)’’
and inserting ‘‘(a)(5)(A), (n)(1)(A)(i)(II), and (t)(1)(A)(i)(II)’’.
(d) FEE.—
(1) IN GENERAL.—Section 214(c) of the Immigration and
Nationality Act (8 U.S.C. 1184(c)) is amended by adding at
the end the following:
‘‘(11)(A) Subject to subparagraph (B), the Secretary of Homeland
Security or the Secretary of State, as appropriate, shall impose
a fee on an employer who has filed an attestation described in
section 212(t)—
‘‘(i) in order that an alien may be initially granted non-
immigrant status described in section 101(a)(15)(H)(i)(b1); or
‘‘(ii) in order to satisfy the requirement of the second sen-
tence of subsection (g)(8)(C) for an alien having such status
to obtain certain extensions of stay.
‘‘(B) The amount of the fee shall be the same as the amount
imposed by the Secretary of Homeland Security under paragraph
(9), except that if such paragraph does not authorize such Secretary
to impose any fee, no fee shall be imposed under this paragraph.
‘‘(C) Fees collected under this paragraph shall be deposited
in the Treasury in accordance with section 286(s).’’.
(2) USE OF FEE.—Section 286(s)(1) of the Immigration and
Nationality Act (8 U.S.C. 1356(s)(1)) is amended by striking
‘‘section 214(c)(9).’’ and inserting ‘‘paragraphs (9) and (11) of
section 214(c).’’.
SEC. 403. LABOR DISPUTES.
Section 214(j) of the Immigration and Nationality Act (8 U.S.C.
1184(j)) is amended—
(1) by striking ‘‘(j)’’ and inserting ‘‘(j)(1)’’;
(2) by striking ‘‘this subsection’’ each place such term
appears and inserting ‘‘this paragraph’’; and
(3) by adding at the end the following:
‘‘(2) Notwithstanding any other provision of this Act except
section 212(t)(1), and subject to regulations promulgated by the
Secretary of Homeland Security, an alien who seeks to enter the
United States under and pursuant to the provisions of an agreement
H. R. 2738—39
listed in subsection (g)(8)(A), and the spouse and children of such
an alien if accompanying or following to join the alien, may be
denied admission as a nonimmigrant under subparagraph (E), (L),
or (H)(i)(b1) of section 101(a)(15) if there is in progress a labor
dispute in the occupational classification at the place or intended
place of employment, unless such alien establishes, pursuant to
regulations promulgated by the Secretary of Homeland Security
after consultation with the Secretary of Labor, that the alien’s
entry will not affect adversely the settlement of the labor dispute
or the employment of any person who is involved in the labor
dispute. Notice of a determination under this paragraph shall be
given as may be required by such agreement.’’.
SEC. 404. CONFORMING AMENDMENTS.
Section 214 of the Immigration and Nationality Act (8 U.S.C.
1184) is amended—
(1) in subsection (b), by striking ‘‘(other than a non-
immigrant described in subparagraph (H)(i), (L), or (V) of sec-
tion 101(a)(15))’’ and inserting ‘‘(other than a nonimmigrant
described in subparagraph (L) or (V) of section 101(a)(15), and
other than a nonimmigrant described in any provision of section
101(a)(15)(H)(i) except subclause (b1) of such section)’’;
(2) in subsection (c)(1), by striking ‘‘section 101(a)(15)(H),
(L), (O), or (P)(i)’’ and inserting ‘‘subparagraph (H), (L), (O),
or (P)(i) of section 101(a)(15) (excluding nonimmigrants under
section 101(a)(15)(H)(i)(b1))’’; and
(3) in subsection (h), by striking ‘‘(H)(i)’’ and inserting
‘‘(H)(i)(b) or (c)’’.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.