S.744 Immigration bill - Sec. 4211: MODIFICATION OF APPLICATION REQUIREMENTS

    (a) General Application Requirements-

      (1) WAGE RATES-

        (A) IN GENERAL- Section 212(n)(1)(A) (8 U.S.C. 1182(n)(1)(A)) is amended--

          (i) clause (i)--

            (I) in the matter preceding subclause (I), by inserting `if the employer is not an H-1B-dependent employer,' before `is offering';

            (II) in subclause (I), by striking `question, or' and inserting `question; or';

            (III) in subclause (II), by striking `employment,' and inserting `employment;' and

            (IV) in the undesignated material following subclause (II), by striking `application, and' and inserting `application;'; and

          (ii) by striking clause (ii) and inserting the following:

        `(ii) if the employer is an H-1B-dependent employer, is offering and will offer to H-1B nonimmigrants, during the period of authorized employment for each H-1B nonimmigrant, wages that are not less than the level 2 wages set out in subsection (p); and

        `(iii) will provide working conditions for H-1B nonimmigrants that will not adversely affect the working conditions of other workers similarly employed.'.

      (2) STRENGTHENING THE PREVAILING WAGE SYSTEM-

        (A) IN GENERAL- Section 212(p) (8 U.S.C. 1182(p)) is amended to read as follows:

    `(p) Computation of Prevailing Wage Level-

      `(1) IN GENERAL-

        `(A) SURVEYS- For employers of nonimmigrants admitted pursuant to section 101(a)(15)(H)(i)(b), the Secretary of Labor shall make available to employers a governmental survey to determine the prevailing wage for each occupational classification by metropolitan statistical area in the United States. Such survey, or other survey approved by the Secretary of Labor, shall provide 3 levels of wages commensurate with experience, education, and level of supervision. Such wage levels shall be determined as follows:

          `(i) The first level shall be the mean of the lowest two-thirds of wages surveyed, but in no case less than 80 percent of the mean of the wages surveyed.

          `(ii) The second level shall be the mean of wages surveyed.

          `(iii) The third level shall be the mean of the highest two-thirds of wages surveyed.

        `(B) EDUCATIONAL, NONPROFIT, RESEARCH, AND GOVERNMENTAL ENTITIES- In computing the prevailing wage level for an occupational classification in an area of employment for purposes of section 203(b)(1)(D) and subsections (a)(5)(A), (n)(1)(A)(i)(II), and (t)(1)(A)(i)(II) of this section in the case of an employee of--

          `(i) an institution of higher education, or a related or affiliated nonprofit entity; or

          `(ii) a nonprofit research organization or a governmental research organization;

        the prevailing wage level shall only take into account employees at such institutions and organizations in the area of employment.

      `(2) PAYMENT OF PREVAILING WAGE- The prevailing wage level required to be paid pursuant to section 203(b)(1)(D) and subsections (a)(5)(A), (n)(1)(A)(i)(II), and (t)(1)(A)(i)(II) of this section shall be 100 percent of the wage level determined pursuant to those sections.

      `(3) PROFESSIONAL ATHLETE- With respect to a professional athlete (as defined in subsection (a)(5)(A)(iii)(II)) when the job opportunity is covered by professional sports league rules or regulations, the wage set forth in those rules or regulations shall be considered as not adversely affecting the wages of United States workers similarly employed and be considered the prevailing wage.

      `(4) WAGES FOR H-2B EMPLOYEES-

        `(A) IN GENERAL- The wages paid to H-2B nonimmigrants employed by the employer will be the greater of--

          `(i) the actual wage level paid by the employer to other employees with similar experience and qualifications for such position; or

          `(ii) the prevailing wage level for the occupational classification of the position in the geographic area of the employment, based on the best information available as of the time of filing the application.

        `(B) BEST INFORMATION AVAILABLE- In subparagraph (A), the term `best information available', with respect to determining the prevailing wage for a position, means--

          `(i) a controlling collective bargaining agreement or Federal contract wage, if applicable;

          `(ii) if there is no applicable wage under clause (i), the wage level commensurate with the experience, training, and supervision required for the job based on Bureau of Labor Statistics data; or

          `(iii) if the data referred to in clause (ii) is not available, a legitimate and recent private survey of the wages paid for such positions in the metropolitan statistical area.'.

      (3) WAGES FOR EDUCATIONAL, NONPROFIT, RESEARCH, AND GOVERNMENTAL ENTITIES- Section 212 is amended by adding at the end the following:

    `(v) Determination of Prevailing Wage- In the case of a nonprofit institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)), a related or affiliated nonprofit entity, a nonprofit research organization, or a Governmental research organization, the Secretary of Labor shall determine such wage levels as follows:

      `(1) If the Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision.

      `(2) If an existing government survey has only 2 levels, 2 intermediate levels may be created by dividing by 3, the difference between the 2 levels offered, adding the quotient thus obtained to the first level and subtracting that quotient from the second level .

      `(3) For institutions of higher education, only teaching positions and research positions may be paid using this special educational wage level.'.

    (b) Internet Posting Requirement- Section 212(n)(1)(C) (8 U.S.C. 1182(n)(1)(C)) is amended--

      (1) by redesignating clause (ii) as subclause (II);

      (2) by striking `(i) has provided' and inserting the following:

        `(ii)(I) has provided'; and

      (3) by striking `sought, or' and inserting `sought; or';

      (4) by inserting before clause (ii), as redesignated by paragraph (2), the following:

        `(i) has advertised on the Internet website maintained by the Secretary of Labor for the purpose of such advertising, for at least 30 calendar days, a detailed description of each position for which a nonimmigrant is sought that includes a description of--

          `(I) the wage ranges and other terms and conditions of employment;

          `(II) the minimum education, training, experience, and other requirements for the position; and

          `(III) the process for applying for the position; and'.

    (c) Application of Requirements to All Employers-

      (1) NONDISPLACEMENT- Section 212(n)(1)(E) (8 U.S.C. 1182(n)(1)(E)) is amended to read as follows:

      `(E)(i)(I) Subject to subclause (II), in the case of an application filed by an employer that is not an H-1B-dependent employer, 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 employer who is not an H-1B-dependent employer shall not be subject to clause (i) if the number of United States workers employed by such employer in the same job zone as the H-1B nonimmigrant has not decreased during the 1-year period ending on the date of the labor condition application filed by the employer.

      `(ii)(I) In the case of an application filed by an H-1B-dependent employer, 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 180 days before and ending 180 days after the date of the 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 regulations are first promulgated to carry out this subparagraph, and before by an H-1B-dependent employer (as defined in paragraph (3)) or by an employer that has been found, on or after the date of the enactment of the American Competitiveness and Workforce Improvement Act of 1998, under paragraph (2)(C) or (5) to have committed a willful failure or misrepresentation during the 5-year period preceding the filing of the application.

      `(iii) In this subparagraph, the term` job zone' means a zone assigned to an occupation by--

        `(I) the Occupational Information Network Database (O*NET) on the date of the enactment of this Act; or

        `(II) such Database or a similar successor database, as designated by the Secretary of Labor, after the date of the enactment of this Act.'.

      (2) RECRUITMENT- Section 212(n)(1)(G) (8 U.S.C. 1182(n)(1)(G)) is amended to read as follows:

      `(G) An employer, prior to filing the application--

        `(i) has advertised the job on an Internet website maintained by the Secretary of Labor for the purpose of such advertising;

        `(ii) has offered the job to any United States worker who applies and is equally or better qualified for the job for which the nonimmigrant or nonimmigrants is or are sought; and

        `(iii) if the employer is an H-1B-dependent employer, has taken good faith steps to recruit, in the United States using procedures 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 subparagraph (A), United States workers for the job for which the nonimmigrant or nonimmigrants is or are sought.'.

    (d) Outplacement- Section 212(n)(1)(F) (8 U.S.C. 1182(n)(1)(F)) is amended to read as follows:

        `(F)(i) An H-1B-dependent employer may not place, outsource, lease, or otherwise contract for the services or placement of an H-1B nonimmigrant employee.

        `(ii) An employer that is not an H-1B-dependent employer and not described in paragraph (3)(A)(i) may not place, outsource, lease, or otherwise contract for the services or placement of an H-1B nonimmigrant employee unless the employer pays a fee of $500.

        `(iii) A fee collected under clause (ii) shall be deposited in the Comprehensive Immigration Reform Trust Fund established under section 6 of the Border Security, Economic Opportunity, and Immigration Modernization Act.'.

    (e) H-1B-dependent Employer Defined- Section 212(n)(3) (8 U.S.C. 1182(n)(3)) is amended to read as follows:

    `(3)(A) For purposes of complying with the requirements related to outplacement of an employee, the term `H-1B-dependent employer' means an employer that--

      `(i) is not a nonprofit institution of higher education, a nonprofit research organization, or an employer whose primary line of business is healthcare and who is petitioning for a physician, a nurse, or physical therapist or a substantially equivalent healthcare occupation; and

      `(ii)(I) in the case of an employer that has 25 or fewer full-time equivalent employees who are employed in the United States, employs more than 7 H-1B nonimmigrants;

      `(II) in the case of an employer that has at least 26 but not more than 50 full-time equivalent employees who are employed in the United States, employs more than 12 H-1B nonimmigrant; or

      `(III) in the case of an employer that has at least 51 full-time equivalent employees who are employed in the United States, 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) In determining the number of employees who are H-1B nonimmigrants under subparagraph (A)(ii), an intending immigrant employee shall not count toward such number'.

    (f) Intending Immigrants Defined- Section 101(a) (8 U.S.C. 1101(a)) is amended by adding at the end the following:

      `(53)(A) The term `intending immigrant' means, with respect to the number of aliens employed by an employer, an alien who intends to work and reside permanently in the United States, as evidenced by--

        `(i) for a covered employer, an approved application for a labor certification or an application that has been pending for longer than 1 year; or

        `(ii) a pending or approved immigrant status petition filed for such alien.

      `(B) In this paragraph:

        `(i) The term `covered employer' means an employer of an alien that, during the 1-year period ending on the date the employer files an application for the labor certification for such alien, has filed an immigrant status petition for not less than 90 percent of the aliens for whom the employer filed an application for a labor certification during such period. Labor certification applications that have been pending for longer than 1 year may be treated for this calculation as if the employer filed an immigrant status petition

        `(ii) The term `labor certification' means an employment certification under section 212(a)(5)(A).

        `(iii) The term `immigrant status petition' means a petition filed under paragraph (1), (2), or (3) of section 203(b).

      `(C) Notwithstanding any other provision of law, for all--

        `(i) calculations under this Act of the number of aliens admitted pursuant to subparagraph (H)(i)(b) or (L) of paragraph (15) an intending immigrant shall be counted as an alien lawfully admitted for permanent residence and shall not be counted as an employee admitted pursuant to such a subparagraph; and

        `(ii) determinations of the number of employees or United States workers employed by an employer, all of the employees in 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 counted.'.

4211
MODIFICATION OF APPLICATION REQUIREMENTS