‘‘(ii) Nothing in this subparagraph is intended 
to limit an employee’s rights under a collective bar-
gaining agreement or other employment contract. 
‘‘(D) The term ‘United States worker’ means 
any worker, whether a United States citizen or na-
tional, a lawfully admitted permanent resident alien, 
or any other alien, who is authorized to work in the 
job opportunity within the United States, except an 
alien admitted or otherwise provided status under 
clauses (i)(b), (i)(d), (ii)(a), or (ii)(b) of section 
101(a)(15)(H), 
(L), 
(O), 
or 
(P) 
of 
section 
101(a)(15).’’. 
SEC. 317. COLLECTIVE BARGAINING AGREEMENTS. 
Notwithstanding any other provision of law, the fact 
that an individual holds a visa as a nonimmigrant worker 
described 
in 
clause 
(i)(d) 
or 
(ii)(b) 
of 
section 
101(a)(15)(H) of the Immigration and Nationality Act (8 
U.S.C. 1101(a)(15)(H)) shall not render that individual 
ineligible to qualify as an employee under the National 
Labor Relations Act (29 U.S.C. 151 et seq.) or to be pro-
tected under section 7 of that Act (29 U.S.C. 157). 
SEC. 318. INVESTIGATIONS BY DEPARTMENT OF HOME-
LAND SECURITY DURING LABOR DISPUTES. 
(a) IN GENERAL.—When information is received by 
the Department of Homeland Security concerning the em-
ployment of undocumented or unauthorized aliens, consid-
eration should be given to whether the information is 
being provided to interfere with the rights of employees 
to—
(1) form, join, or assist labor organizations or 
to exercise their rights not to do so; 
(2) be paid minimum wages and overtime; 
(3) have safe work places; 
(4) receive compensation for work related inju-
ries; 
(5) be free from discrimination based on race, 
gender, age, national origin, religion, or handicap; or 
(6) retaliate against employees for seeking to 
vindicate these rights. 
(b) DETERMINATION OF LABOR DISPUTE.—When-
ever information received from any source creates a sus-
picion that an immigration enforcement action might in-
volve the Department of Homeland Security in a labor dis-
pute, a reasonable attempt should be made by Department 
of Homeland Security enforcement officers to determine 
whether a labor dispute is in progress. The information 
officer at the regional office of the National Labor Rela-
tions Board can supply status information on unfair labor 
practice charges or union election or decertification peti-
tions that are pending involving most private sector, non-
agricultural employers. Wage and hour information can be 
obtained from the Wage and Hour Division of the Depart-
ment of Labor or the State labor department. 
(c) RELEVANT QUESTIONS
FOR INFORMANT.—In 
order to protect the Department of Homeland Security 
from unknowingly becoming involved in a labor dispute, 
persons who provide information to the Department of 
Homeland Security about the employer or employees in-
volved in the dispute should be asked—
(1) their names; 
(2) whether there is a labor dispute in progress 
at the worksite; 
(3) whether the person is or was employed at 
the worksite in question (or by a union representing 
workers at the worksite); 
(4) if applicable, whether the person is or was 
employed in a supervisory or managerial capacity or 
is related to anyone who is; 
(5) how the person came to know that the sub-
jects lacked legal authorization to work, as well as 
the source and reliability of the information con-
cerning the subject’s status; 
(6) whether the person had or is having a dis-
pute with the employer or the subjects of the infor-
mation; and
(7) if the subjects of the information have 
raised complaints or grievances about hours, work-
ing conditions, discriminatory practices, or union 
representation or actions, or whether the subjects 
have filed workers’ compensation claims. 
(d) BICE REVIEW.—There is no prohibition for en-
forcing the Immigration and Nationality Act (8 U.S.C. 
1101 et seq.), even when there may be a labor dispute 
in progress, however, where it appears that information 
may have been provided in order to interfere with or to 
retaliate against employees for exercising their rights, no 
action should be taken on this information without review 
and approval by the Bureau of Immigration and Customs 
Enforcement of the Department of Homeland Security. 
(e) ENFORCEMENT ACTION.—When enforcement ac-
tion is taken by the Department of Homeland Security 
and the Department determines that there is a labor dis-
pute in progress, or that information was provided to the 
Department of Homeland Security to retaliate against em-
ployees for exercising their employment rights, the lead 
immigration officer in charge of the Department of Home-
land Security enforcement team at the worksite must en-
sure, to the extent possible, that any aliens who are ar-
rested or detained and are necessary for the prosecution 
of any violations are not removed from the country with-
out notifying the appropriate law enforcement agency that 
has jurisdiction over the violations. 
(f) INTERVIEWS.—Any arrangements for aliens to be 
held or interviewed by investigators or attorneys for the 
Department of Labor, the State labor department, the Na-
tional Labor Relations Board, or any other agencies or 
entities that enforce labor or employment laws will be de-
termined on a case-by-case basis. 
SEC. 319. PROTECTION OF WITNESSES. 
Chapter 8 of title II of the Immigration and Nation-
ality Act (8 U.S.C. 1151 et seq.) is amended by adding 
after section 280 the following: 
‘‘STAY OF REMOVAL 
‘‘SEC. 280A. (a) An alien against whom removal pro-
ceedings have been initiated pursuant to chapter 4, who 
has filed a workplace claim or who is a material witness 
in any pending or anticipated proceeding involving a work-
place claim, shall be entitled to a stay of removal and to 
an employment authorized endorsement unless the De-
partment of Labor established by a preponderance of the 
evidence in proceedings before the immigration judge pre-
siding over that alien’s removal hearing that—
‘‘(1) the Department of Homeland Security ini-
tiated the alien’s removal proceeding for wholly inde-
pendent reasons and not in any respect based on, or 
as a result of, any information provided to or ob-
tained by the Department of Homeland Security 
from the alien’s employer, from any outside source, 
including any anonymous source, or as a result of 
the filing or prosecution of the workplace claim; and 
‘‘(2) the workplace claim was filed in a bad 
faith intent to delay or avoid the alien’s removal. 
‘‘(b) Any stay of removal or work authorization 
issued pursuant to subsection (a) shall remain valid and 
in effect at least during the pendency of the proceedings 
concerning such workplace claim. The Secretary of Home-
land Security shall extend such relief for a period of not 
longer than 3 additional years upon determining that—
‘‘(1) such relief would enable the alien asserting 
the workplace claim to be made whole; 
‘‘(2) the deterrent goals of any statute under-
lying the workplace claim would thereby be served; 
or 
‘‘(3) such extension would otherwise further the 
interests of justice. 
‘‘(c) In this section—
‘‘(1) the term ‘workplace claim’ shall include 
any claim, charge, complaint, or grievance filed with 
or submitted to the employer, a Federal or State 
agency or court, or an arbitrator, to challenge an 
employer’s alleged civil or criminal violation of any
legal or administrative rule or requirement affecting 
the terms or conditions of its workers’ employment, 
the treatment of workers, or the hiring or firing of 
its workers; and 
‘‘(2) the term ‘material witness’ means an indi-
vidual who presents an affidavit from an attorney 
prosecuting or defending the workplace claim or 
from the presiding officer overseeing the workplace 
claim attesting that, to the best of the affiant’s 
knowledge and belief, reasonable cause exists to be-
lieve that the testimony of the individual will be cru-
cial to the outcome of the workplace claim. 
‘‘CONFIDENTIALITY OF IMMIGRATION INFORMATION 
OBTAINED DURING ADMINISTRATIVE PROCEEDINGS 
‘‘SEC. 280B. (a) No officer or employee, including 
any former officer or employee, of any Federal or State 
administrative agency with jurisdiction over any employ-
er’s workplace shall disclose to the Department of Home-
land Security, or cause to be published in a manner that 
discloses to the Department of Homeland Security, any 
information concerning the immigration status of any 
worker obtained by that officer or employee in connection 
with the official duties of that officer or employee, and 
the Department of Homeland Security shall not, in any 
enforcement action or removal proceeding, use or rely 
upon, in whole or in part, any information so obtained.
‘‘(b) Any person who knowingly uses, publishes, or 
permits information to be used in violation of subsection 
(a) shall be fined not more than $10,000.’’. 
SEC. 320. DOCUMENT FRAUD. 
Section 274C(d)(3) of the Immigration and Nation-
ality Act (8 U.S.C. 1324c(d)(3)) is amended by inserting 
before ‘‘In applying this subsection’’ the following: ‘‘The 
civil penalties set forth in subparagraphs (A) and (B) shall 
be tripled in the case of any commercial enterprise that 
commits any violation of subsection (a) principally for 
commercial advantage or financial gain.’’. 
SEC. 321. CONTINUED APPLICATION OF BACKPAY REM-
EDIES. 
(a) IN GENERAL.—Section 274A(h) of the Immigra-
tion and Nationality Act (8 U.S.C. 1324a(h)) is amended 
by adding at the end the following: 
‘‘(4) BACKPAY REMEDIES.—Backpay or other 
monetary relief for unlawful employment practices 
shall not be denied to a present or former employee 
as a result of the employer’s or employee’s—
‘‘(A) failure to comply with the require-
ments of this section; or 
‘‘(B) violation of a provision of Federal law 
related to the employment verification system
described in subsection (b) in establishing or 
maintaining the employment relationship.’’. 
(b) EFFECTIVE DATE.—The amendment made by 
subsection (a) shall apply to any failure to comply or any 
violation that occurs prior to, on, or after the date of en-
actment of this Act. 
SEC. 322. UNFAIR IMMIGRATION-RELATED EMPLOYMENT 
PRACTICES. 
Section 274B of the Immigration and Nationality Act 
(8 U.S.C. 1324b) is amended—
(1) in subsection (a)(5)—
(A) by striking ‘‘Prohibition of intimida-
tion or retaliation.—It is also’’ and inserting 
‘‘Prohibition of intimidation, retaliation, or un-
lawful discrimination in employment.—
‘‘(A) IN GENERAL.—It is’’; and 
(B) by adding at the end the following: 
‘‘(B) PROHIBITION ON THREATS OF RE-
MOVAL.—It is an unfair immigration-related 
employment practice for any employer, directly 
or indirectly, to threaten any individual with re-
moval or any other adverse consequence or legal 
process pertaining to the immigration status or 
benefits of that individual for the purpose of—
‘‘(i) intimidating, pressuring, or coerc-
ing any such individual not to exercise any 
right protected by Federal or State labor 
or employment law, including section 7 of 
the National Labor Relations Act (29 
U.S.C. 157); or 
‘‘(ii) retaliating against any such indi-
vidual for having exercised, or having stat-
ed an intention to exercise, any such right. 
‘‘(C) PROHIBITION
ON
UNLAWFUL
DIS-
CRIMINATION.—It is an unfair immigration-re-
lated employment practice for any employer, ex-
cept to the extent specifically authorized or re-
quired by law, to discriminate in any term or 
condition of employment against any individual 
employed by such employer on the basis of the 
immigration status of such individual.’’; 
(2) in subsection (c)—
(A) in paragraph (2)—
(i) by striking ‘‘The’’ and inserting 
the following: 
‘‘(A) IN GENERAL.—The’’; and 
(ii) by adding at the end the fol-
lowing: 
‘‘(B) DISCLOSURES.—
‘‘(i) IN GENERAL.—The Special Coun-
sel shall not disclose to any government 
agency or employee, and shall not cause to 
be published in a manner that discloses to 
any government agency or employee, any 
information obtained in any manner by the 
Special Counsel concerning the immigra-
tion status of any individual who has filed 
a charge under this section or the identity 
of any individual or entity that is a party 
or witness to a proceeding brought pursu-
ant to such a charge. 
‘‘(ii) RELIANCE ON INFORMATION.—
The Department of Labor shall not rely, in 
whole or in part in any enforcement action 
or removal proceeding, upon any informa-
tion obtained as a result of the filing or 
prosecution of an unfair immigration-re-
lated employment practice charge. 
‘‘(C) VIOLATION.—Any person who knowingly 
uses, publishes, or permits information to be used in 
violation of subparagraph (B) shall be fined not 
more than $10,000.’’; and 
(B) by adding at the end the following:
‘‘(5) SPECIAL COUNSEL DEFINITION.—In this 
subsection, the term ‘Special Counsel’ includes indi-
viduals formerly appointed to the position of Special 
Counsel and any current or former employee of the 
Office of the Special Counsel.’’; 
(3) in subsection (d)(3), by striking ‘‘180 days’’ 
and inserting ‘‘1 year’’; 
(4) in subsection (g)(2)—
(A) in subparagraph (B)—
(i) in clause (iii), by inserting before 
the semicolon the following: ‘‘, or to make 
whole (including by requiring reinstate-
ment where appropriate) any individual 
who has been injured in his or her person 
or property by reason of any unfair immi-
gration-related employment practice’’; and 
(ii) in clause (iv)—
(I) in subclause (I), by striking 
‘‘not less than $250 and not more 
than $2,000’’ and inserting ‘‘not less 
than 
$500 
and 
not 
more 
than 
$4,000’’; 
(II) in subclause (II), by striking 
‘‘not less than $2,000 and not more 
than $5,000’’ and inserting ‘‘not less
than $4,000 and not more than 
$10,000’’; 
(III) in subclause (III), by strik-
ing ‘‘not less than $3,000 and not 
more than $10,000’’ and inserting 
‘‘not less than $6,000 and not more 
than $20,000’’; and 
(IV) by striking subclause (IV) 
and inserting the following: 
‘‘(IV) in the case of an unfair immi-
gration-related employment practice de-
scribed in subparagraph (B) or (C) of sub-
section (a)(5), if the person or entity has 
been found by a Federal or State agency 
or court of competent jurisdiction, at any 
time during the preceding 5 years, to have 
committed violations affecting 2 or more 
workers of any Federal or State statute 
proscribing workplace discrimination, re-
quiring the payment of wages or benefits, 
protecting the right to engage in concerted 
activities for the purpose of mutual aid or 
protection, or mandating the protection of 
worker safety of health, to pay a civil pen-
alty of not less than $5,000 and not more
than $20,000 for each individual discrimi-
nated against, and in addition, to pay a 
fine equivalent to the sum required to be 
paid 
to 
the 
individual 
discriminated 
against pursuant to clause (i).’’; and 
(B) in subparagraph (C)—
(i) by striking ‘‘two years’’ and insert-
ing ‘‘3 years’’; and 
(ii) by striking ‘‘or the payment to an 
individual of any backpay,’’; 
(5) in subsection (h), by striking ‘‘, if the losing 
party’s argument is without reasonable foundation 
in law and fact’’; 
(6) in subsection (j)(4), by striking ‘‘but only if 
the losing party’s argument is without reasonable 
foundation in law and fact’’; and 
(7) in subsection (l), by striking ‘‘Not later 
than 3 months after the date of enactment of this 
subsection’’ and inserting ‘‘Not later than 3 months 
after the date of the enactment of the S.O.L.V.E. 
Act of 2004’’. 
SEC. 323. TEMPORARY WORKERS PROGRAM COMMISSION. 
(a) ESTABLISHMENT OF COMMISSION.—
(1) ESTABLISHMENT.—There is established a 
commission to be known as the Temporary Worker
Programs Commission (hereafter in this section re-
ferred to as the ‘‘Commission’’). 
(2) PURPOSE.—The purpose of the Commission 
is to study the temporary worker programs created 
under this title, their effect on the security of the 
United States, the United States workforce, busi-
nesses, workers participating in such programs, and 
their countries of origin, and make recommendations 
to Congress with respect to such programs. 
(3) MEMBERSHIP OF COMMISSION.—
(A) COMPOSITION.—The Commission shall 
be composed of 14 members as follows: 
(i) 3 members shall be appointed by 
the Majority Leader of the Senate. 
(ii) 3 members shall be appointed by 
the Speaker of the United States House of 
Representatives. 
(iii) 3 members shall be appointed by 
the Minority Leader of the Senate. 
(iv) 3 members shall be appointed by 
the Minority Leader of the United States 
House of Representatives. 
(v) 1 member shall be a designee of 
the Secretary of Labor.
(vi) 1 member shall be a designee of 
the Secretary of Homeland Security. 
(B) QUALIFICATIONS OF MEMBERS.—
(i) APPOINTMENTS.—Persons who are 
appointed under subparagraph (A) shall be 
persons who have expertise in economics, 
demography, labor, business, immigration 
and immigration law, national security, or 
other pertinent qualifications or experience. 
(ii) OTHER CONSIDERATIONS.—In ap-
pointing Commission members, every effort 
shall be made to ensure that the mem-
bers—
(I) are representative of a broad 
cross-section of perspectives within 
the United States, including the pub-
lic and private sectors, academics, im-
migrant leaders and advocates, and 
law enforcement and security experts; 
and 
(II) provide fresh insights to ex-
amining the temporary worker pro-
grams. 
(4) PERIOD OF APPOINTMENT; VACANCIES.—
(A) IN GENERAL.—Members shall be ap-
pointed not later than 120 days after the enact-
ment of this Act and the appointment shall be 
for the life of the Commission. 
(B) VACANCIES.—Any vacancy in the 
Commission shall not affect its powers, but 
shall be filled in the same manner as the origi-
nal appointment. 
(5) INITIAL MEETING.— Not later than 60 days 
after the date on which all members of the Commis-
sion have been appointed, the Commission shall hold 
its first meeting. 
(6) MEETINGS.—The Commission shall meet at 
the call of the Chairperson. 
(7) CHAIRPERSON AND VICE CHAIRPERSON.—
The members of the Commission shall elect a chair-
person and vice chairperson from among the mem-
bers of the Commission. 
(8) QUORUM.—A majority of the members of 
the Commission shall constitute a quorum for the 
transaction of business. 
(9) VOTING.—Each member of the Commission 
shall be entitled to 1 vote, which shall be equal to 
the vote of every other member of the Commission.
(10) COMPENSATION
AND
EXPENSES.—The 
members of the Commission shall not receive com-
pensation for the performance of services for the 
Commission, but shall be allowed travel expenses, in-
cluding per diem in lieu of subsistence, at rates au-
thorized for employees of agencies under subchapter 
I of chapter 57 of title 5, United States Code, while 
away from their homes or regular places of business 
in the performance of services for the Commission. 
(11) STAFF.—The Chair, in accordance with 
rules agreed upon by the Commission, may appoint 
and fix the compensation of an executive director, 
staff members, and such other personnel as may be 
necessary to enable the Commission to carry out its 
functions, without regard to the provisions of title 5, 
United States Code, governing appointments in the 
competitive services, and without regard to the 
provisons of chapter 51 and subchapter III of chap-
ter 53 of such title, relating to classification and 
General Schedule pay rates, except that no rate of 
pay fixed under this paragraph may exceed the 
equivalent of that payable for a position at level V 
of the Executive Schedule under section 5316 of 
such title.
(12) DETAILEES.—Any Federal Government 
employee may be detailed to the Commission without 
reimbursement from the Commission, and such 
detailee shall retain the rights, status, and privileges 
of his or her regular employment without interrup-
tion. 
(13) CONSULTANT
SERVICES.—The Commis-
sion is authorized to procure the services of experts 
and consultants in accordance with section 3109 of 
title 5, United States Code, but at rates not to ex-
ceed the daily rate paid a person occupying a posi-
tion at level IV of the Executive Schedule under sec-
tion 5315 of title 5, United States Code. 
(b) ADMINISTRATIVE PROVISIONS.—
(1) INFORMATION FROM FEDERAL AGENCIES.—
The Commission may secure directly from any Fed-
eral department or agency such information, sugges-
tions, estimates, and statistics as the Commission 
considers necessary to carry out the provisions of 
this section. Upon request of the Commission, the 
head of such department or agency shall furnish 
such information to the Commission. 
(2) HEARINGS.—The Commission may hold 
such hearings, sit and act at such times and places, 
take such testimony, and receive such evidence as
the Commission considers advisable to carry out the 
objectives of this section, except that, to the extent 
possible, the Commission shall use existing data and 
research. The Commission shall provide all inter-
ested parties an opportunity for input regarding the 
duties into the fact-finding undertaken pursuant to 
their knowledge and expertise 
(3) POSTAL SERVICES.—The Commission may 
use the United States mails in the same manner and 
under the same conditions as departments and agen-
cies of the Federal Government. 
(4) ASSISTANCE FROM FEDERAL AGENCIES.—
The Administrator of General Services shall provide 
to the Commission on a reimbursable basis adminis-
trative support and other services for the perform-
ance of the Commission’s functions. The depart-
ments and agencies of the United States may pro-
vide to the Commission such services, funds, facili-
ties, staff, and other support services as they may 
determine advisable and as may be authorized by 
law. 
(c) REPORTS.—Not later than 3 years after all of the 
members are appointed to the Commission, the Commis-
sion shall submit to the Congress, the Secretary of Labor, 
and the Secretary of Homeland Security a preliminary re-
port that summarizes the directions of the Commission 
and initial recommendations. Not later than 5 years after 
the Commission members are appointed, the Commission 
shall submit to the Congress, the Secretary of Labor, and 
the Secretary of Homeland Security a report that contains 
the findings of the Commission and makes such rec-
ommendations as are consistent with the purpose and du-
ties of the Commission, including recommendations for 
legislative and administrative actions to implement the 
conclusions of the Commission. 
(d) DUTIES OF THE COMMISSION.—The Commission 
shall examine—
(1) the effect that the employment of workers 
described in clause (ii)(b) or (i)(d) of section 
101(a)(15)(H) of the Immigration and Nationality 
Act (8 U.S.C. 1101(a)(15)(H)) has on the national 
security of the United States, including the impact 
such programs have had on screening aliens seeking 
admission at the U.S. borders and ports of entry; 
(2) the effect that the employment of workers 
described in clause (ii)(b) or (i)(d) of section 
101(a)(15)(H) of the Immigration and Nationality 
Act (8 U.S.C. 1101(a)(15)(H)) has on the United 
States workforce, including the wages, employment 
and working conditions of United States workers;
whether actual shortages existed for the positions 
sought to be filled, alternative methods to address 
skill shortages, and whether the positions filled 
under the programs were actually temporary; 
(3) the effect that the employment of workers 
described in clause (ii)(b) or (i)(d) of section 
101(a)(15)(H) of the Immigration and Nationality 
Act (8 U.S.C. 1101(a)(15)(H)) has on United States 
businesses, including any alleviation of workforce 
shortages or creation of new jobs; 
(4) the effect that the employment of workers 
described in clause (ii)(b) or (i)(d) of section 
101(a)(15)(H) of the Immigration and Nationality 
Act (8 U.S.C. 1101(a)(15)(H)) has on such workers, 
including the wages and working conditions of such 
workers; 
(5) the effect that the employment of workers 
described in clause (ii)(b) or (i)(d) of section 
101(a)(15)(H) of the Immigration and Nationality 
Act (8 U.S.C. 1101(a)(15)(H)) has on the countries 
of origin of such workers, including the impact of re-
mittances, economic development, and brain drain 
on such countries; 
(6) the adequacy and accuracy of the current 
wage calculation system, and whether changes are