Issue Substance Bill Section

Establishment of new nonimmigrant agricultural worker program: visa categories A new temporary foreign worker visa program is created for aliens coming to the U.S. to perform full-time agricultural work in two categories: A W-3 visa for agricultural work to be performed by a “contract agricultural worker” with a written contract that specifies the wages, benefits, and working conditions of such full-time employment in an agricultural occupation with a “designated agricultural employer” for a specified period of time; and A W-4 visa for agricultural workers who have an offer of full-time employment in an agricultural occupation and who will work on an “at-will” basis with a designated agricultural employer.

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Establishment of new nonimmigrant agricultural worker program: designated agricultural employers (DAE) In order to be able to hire workers in the new nonimmigrant agricultural worker program, employers must apply to the Department of Agriculture (USDA) for certification as a “designated agricultural employer” (DAE), a newly created status.

DAE status is valid for 3 years and may be renewed.

DAEs must pay a registration fee (to be established later). 2232

Establishment of new nonimmigrant agricultural worker program: annual numerical limit (cap) In the first 5 years of the program, the annual limit (or “cap”) will be 112,333 plus any numerical adjustment made by USDA (and also made in consultation with DOL) based on various factors, which include: a demonstrated shortage of agricultural workers; the level of unemployment and underemployment of agricultural workers during the preceding fiscal year; the number of applications for blue card status; the number of blue card visa applications approved; the number of nonimmigrant agricultural workers sought by employers during the preceding fiscal year; the estimated number of U.S. workers, including blue card workers, who worked in agriculture during the preceding fiscal year; the number of nonimmigrant agricultural workers issued a visa in the most recent fiscal year who remain in the U.S. in compliance with the terms of their visas; the number of U.S. workers who accepted jobs offered by employers using the Electronic Job Registry during the preceding fiscal year; any growth or contraction of the U.S. agricultural industry that has increased or decreased the demand for agricultural workers; and any changes in the real wages paid to agricultural workers in the U.S. indicating a shortage or surplus of agricultural labor.

Special note about the annual cap: Although the language of S. 744 states that the level of visas will be 112,333 plus adjustments in the first 5 years, multiple news reports and analysis from major agricultural industry groups suggest the cap will be 337,000 in years 3, 4, and 5 of the program.

After 6 years, the USDA, in consultation with DOL, will establish the annual cap each fiscal year based on the same listed factors.

The annual allocation shall be evenly allocated among the 4 quarters of the fiscal year unless USDA determines an alternative allocation would better accommodate the seasonal demand for visas. Any unused visas from one quarter roll over to the next quarter of the same fiscal year.

Emergency procedures: The USDA shall establish, by regulation, procedures for immediately adjusting an annual allocation for labor shortages. 2232

Establishment of new nonimmigrant agricultural worker program: status and admissions period for workers A nonimmigrant agricultural worker visa is valid for an initial period of 3 years and may be renewed for one additional 3-year period.

A worker who has been admitted to the U.S. for 2 consecutive 3-year terms may not renew status as a nonimmigrant agricultural worker unless the worker: returns to a residence outside the U.S. for 3 months; and seeks to reenter the U.S. under the terms of the program.

A nonimmigrant agricultural worker will lose status if: after the completion of the contract with a DAE, the worker is not employed in agricultural employment by a DAE; or as an at-will worker, the worker is not continuously employed by a DAE in agricultural employment as an at-will agricultural worker.

A nonimmigrant agricultural worker may not be unemployed for more than 60 days. A waiver of this requirement is available if unemployment lasts more than 60 days due to injury or natural disaster.

Contract workers may seek and accept employment from any DAE after termination of the original work contract with the original DAE. If a contract worker voluntarily abandons employment or is terminated for cause, the worker: may not accept subsequent employment without departing the U.S. and reentering with a new offer of employment; and is not entitled to the 75 percent payment guarantee.

An at-will worker may seek employment as an at-will agricultural worker with any other DAE.

Employment of nonimmigrant agricultural workers is not limited to a geographical area or type of agricultural employment.

Nonimmigrant agricultural workers may only work with DAEs.

A spouse or child of a nonimmigrant agricultural worker is not entitled to a visa or any immigration status by virtue of the relationship to the worker.

A spouse or child of a nonimmigrant agricultural worker may be provided status as a nonimmigrant agricultural worker if the spouse or child is independently qualified for such status.

Nonimmigrant agricultural workers are not eligible for any program of financial assistance under federal law (whether through grant, loan, guarantee, or otherwise) on the basis of financial need. 2232

Establishment of new nonimmigrant agricultural worker program: employer responsibilities and recruitment of U.S. workers At least 45 days before the date of need, a DAE must file a petition making certain attestations including the number of workers requested and information about the job opening and evidence of offers of employment to U.S. workers.

At least 60 days before the date of need, employers must submit information about the job opportunity to the local office of the state workforce agency (SWA) and authorize the posting on the appropriate DOL electronic job registry for 45 days. Employers must keep a record of all eligible, able, willing, and qualified U.S. workers who apply for agricultural employment for those positions.

Employers are required to hire U.S. workers who are equally or better qualified than nonimmigrant workers and who will be available at the time and place of need and who apply during the 45-day recruitment period. However, the employer may offer the job to a nonimmigrant agricultural worker instead of an alien in blue card status (BCS) if the worker: was previously employed by the employer as an H–2A worker; worked for the employer for 3 years during the most recent 4-year period; and the employer will pay the worker the adverse-effect wage rate under subsection (f)(5)(b) of this section.

Employers must provide U.S. workers the same wages and working conditions as nonimmigrant workers, with the exception of housing (outlined below in this section).

Employers are prohibited from displacing a U.S. worker employed by the employer, other than for good cause, during the period of employment and 30 days preceding it.

Employers may not use nonimmigrant agricultural workers to replace workers on strike or who are being locked out in the course of a labor dispute.

Employers must guarantee contract workers the hourly equivalent of at least 75 percent of the work days of the total period of employment, beginning with the first work day after the arrival of the worker and ending on the expiration date specified in the job offer.

If, before the work contract ends, an employer no longer requires the services of a contract worker for reasons beyond the employer’s control (such as any form of natural disaster, including a flood, hurricane, freeze, earthquake, fire, drought, plant or animal disease or pest infestation, or regulatory drought), the employer: may terminate the worker’s employment; shall fulfill the employment guarantee for the work days that have elapsed from the first work day to the termination of employment; shall make efforts to transfer the worker to other comparable employment acceptable to the worker; and if such a transfer does not take place, shall provide return transportation.

If the job is not covered by a state workers’ compensation law, the employer must provide insurance covering injury and disease arising out of the job at no cost to the worker. The benefits of the coverage must be at least equal to those provided by the state workers’ compensation law for comparable employment.

The employer may not employ a nonimmigrant agricultural worker for employment that is not agricultural.

The employer can only make deductions from wages that are authorized by law and are reasonable and customary in the occupation and area of employment.

With certain exceptions, a DAE shall provide a nonimmigrant agricultural worker with housing at no cost to the worker. The employer may provide a reasonable housing allowance, and must make a good faith effort to help the worker find housing. If the employer arranges for the worker public housing that requires direct payment, the employer shall pay the landlord directly. An allowance can only be given to contract workers if the governor of the state certifies adequate housing is available in the area of employment.

The amount of the allowance must be equal to the average fair market rental value for existing housing in the area.

An allowance is not required for workers who reside outside of the U.S. if their place of residence is within normal commuting distance and the job site is within 50 miles of an international land border of the U.S.

Employers may not collect deposits from workers for housing-related incidentals such as bedding.

Employers may require workers to reimburse for damages caused to housing that did not result from normal wear and tear.

For contract workers, the employer may choose to either provide daily transportation or reimburse the worker for the cost of daily transportation from the worker’s living quarters to the place of employment.

Contract and at-will workers shall be reimbursed by their first employer for the cost of the worker’s transportation and subsistence from the worker’s place of origin to the location of first employment. The amount of reimbursement provided to the worker shall not exceed the lesser of: the actual cost to the worker of the transportation and subsistence involved; or the most economical and reasonable common carrier transportation charges and subsistence costs for the distance involved.

If a contract worker completes at least 27 months with a single DAE, such employer must reimburse the worker for the cost of the worker’s transportation and subsistence from the place of employment to the worker’s foreign residence. 2232

Establishment of new nonimmigrant agricultural worker program: wage rates Nonimmigrant agricultural workers must be paid the higher of the federal, state, or local minimum wage, or the (newly created) statutorily specified wage rates in this section.

If an employer pays a “piece” rate or other incentive method and requires one or more minimum productivity standards as a condition of job retention, such standards must be specified in the job offer and be no more than those which have been normally required (at the time of the employer’s first application for designated employer status) by other employers for the activity in the geographic area of the job, unless USDA approves a higher standard.

Workers must be assigned to one of the following occupational classifications as defined by Bureau of Labor Statistics: First-Line Supervisors of Farming, Fishing, and Forestry Workers (45–1011). Animal Breeders (45–2021). Graders and Sorters, Agricultural Products (45–2041). Agricultural Equipment Operator (45–2091). Farmworkers and Laborers, Crop, Nursery, and Greenhouse (45–2092). Farmworkers, Farm, Ranch and Aquacultural Animals (45–2093). Classifications apply if the worker performed activities in the occupation for at least 75 percent of the time in a semiannual employment period.

Wage rates for these job categories are specified in this section for the calendar years of 2014–2016.

USDA will increase wages in subsequent years (after calendar year 2016) by an amount equal to: 1.5 percent, if the percentage increase in the Employment Cost Index for wages and salaries during the previous calendar year, as calculated by the Bureau of Labor Statistics (BLS), is less than 1.5 percent; or the percentage increase in the Employment Cost Index, if such percentage increase is between 1.5 percent and 2.5 percent; or 2.5 percent, if the percentage increase in the Employment Cost Index is greater than 2.5 percent.

The adverse effect wage rates in effect on April 15, 2013, will remain in effect until the H-2A program expires.

Employers are exempt from paying FICA and FUTA taxes on nonimmigrant agricultural workers.

With the exception of providing housing, employers seeking to hire U.S. workers shall offer the U.S. workers not less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to nonimmigrant agricultural workers.

No job offer may impose on U.S. workers any restrictions or obligations that will not be imposed on the employer’s nonimmigrant agricultural workers.

New wage rates may be established for the “Special Procedures Industry”, which includes: sheep herding and goat herding; itinerant commercial beekeeping and pollination; open range production of livestock; itinerant animal shearing; and custom combining industries.

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Establishment of new nonimmigrant agricultural worker program: worker protections, enforcement, and dispute resolution Nonimmigrant agricultural workers shall not be denied any right or remedy under any federal, state, or local labor or employment law applicable to U.S. workers engaged in agricultural employment.

Nonimmigrant agricultural workers shall be considered migrant agricultural workers for purposes of the Migrant and Seasonal Agricultural Worker Protection Act (AWPA).

Nonimmigrant agricultural workers are considered to be in LPR status for purposes of establishing eligibility for legal services under the Legal Services Corporation Act on matters relating to wages, housing, transportation, and other employment rights (similar to current law in H-2A context).

Federal Mediation and Conciliation Service (FMCS) is available to workers and employers without charge.

If a nonimmigrant agricultural worker files a complaint under § 504 of the AWPA, not later than 60 days after the filing, a party to the action may file a request to FMCS to assist the parties in reaching a satisfactory resolution of all issues involving all parties to the dispute. Upon filing the request and giving of notice to the parties, the parties shall attempt mediation within a 90-day period. The FMCS may conduct mediation or other nonbinding dispute resolution activities for a period not to exceed 90 days beginning on the date on which it receives a request for assistance unless the parties agree to an extension of such period. $500,000 is appropriated to the FMCS for each fiscal year to carry out these activities. The Director of the FMCS is authorized to conduct the mediation or other dispute resolution activities from any other account containing amounts available to the Director; and to reimburse such account with the appropriated amounts.

If all parties agree, a private mediator may be employed as an alternative to FMCS.

Nonimmigrant agricultural workers are also entitled to the rights granted to other classes of aliens under INA §§ 242(h) and 245E.

Agreements by nonimmigrant agricultural workers to waive or modify any rights or protections under this section are considered void or contrary to public policy except as provided in a collective bargaining agreement with a bona fide labor organization.

DOL shall establish a new process for receipt, investigation, and disposition of complaints based on the failure to meet a condition or employer misrepresentation of a material fact on a petition.

Any aggrieved person or organization, including bargaining representatives, may file a complaint within one year.

DOL shall conduct an investigation to determine if reasonable cause exists.

If DOL finds a DAE failed to meet a condition or a made a material misrepresentation of fact in a petition, DOL shall notify the USDA of such finding and may impose other administrative remedies against the DAE (including civil money penalties in an amount not to exceed $1,000 per violation) as DOL determines to be appropriate; and USDA may disqualify the DAE for one year.

If DOL finds, after notice and opportunity for hearing, a willful failure to meet a condition or a willful misrepresentation of a material fact in a registration or petition, DOL shall notify the USDA of such finding and may impose such other administrative remedies against the DAE (including civil money penalties in an amount not to exceed $5,000 per violation) as DOL determines to be appropriate; DOL may seek appropriate legal or equitable relief; and USDA may disqualify the DAE for a period of 2 years.

If DOL finds an employer displaced a U.S. worker during the period of employment specified on the petition or during the 30 days preceding such period of employment as the result of a willful failure to meet a condition or because of a willful misrepresentation of a material fact in a registration or petition: DOL may impose administrative remedies (including civil money penalties in an amount not to exceed $15,000 per violation) as DOL determines to be appropriate; and USDA may disqualify the DAE for 3 years.

If DOL finds an employer failed to pay the require wage level, or provide the housing allowance, transportation, subsistence reimbursement, or guarantee of employment required, DOL shall assess payment of back wages or other required benefits. The amount shall be equal to the difference between the amount that should have been paid and the amount that actually was paid to such worker.

No more than $90,000 in penalties can be assessed with respect to a petition.

Workers may not simultaneously pursue an administrative complaint through DOL and file a civil action.

Any settlement reached through mediation or from a complaint filed with DOL will preclude any right of action arising from the same facts unless specifically provided in the settlement agreement.

DOL is not precluded from compliance investigations under any other labor law.

The employer may not intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner discriminate against an employee, including a former employee or an applicant for employment, because the employee: has disclosed information to the employer, or to any other person, that the employee reasonably believes shows a violation; or cooperates or seeks to cooperate in an investigation or other proceeding concerning the employer’s compliance with any rule or regulation under this section.

USDA must monitor the movement of W-3 and W-4 workers with E-Verify and a new electronic monitoring system to be established no later than 2 years after the effective date of the nonimmigrant agricultural program. (The new monitoring system is to be based on the SEVIS and SEVIS II tracking system administered by Immigration and Customs Enforcement.) 2232

H-2A visa for nonimmigrant agricultural workers: sunset provision The H-2A program expires one year after the effective date of the regulations for the new nonimmigrant agricultural program, but an employer may continue to employ an H-2A worker for the shorter of 10 months or the time specified in the petition. 2233

New visa category for executives and managers A new nonimmigrant visa category is created for executives and managers who are principally stationed abroad but are employed by a firm or corporation or an affiliate or subsidiary thereof operating in the U.S.

Nonimmigrants in this category are permitted to enter the U.S. for 90 days or less to oversee and observe U.S. operations of related companies and establish strategic objectives.

Nonimmigrants in this category cannot receive a salary from U.S. source, except for travel and other basic services.

Employer associations may be liable for violations under certain circumstances. 4603

New visa category for employees of multinational corporations A new nonimmigrant visa category is created for employees of multinational corporations.

Nonimmigrants in this category are permitted to enter the U.S. to observe the operations of a related U.S. company and participate in select leadership and development training activities for a period not to exceed 180 days.

Nonimmigrants in this category cannot receive a salary from a U.S. source, except for travel and other basic services. 4603

B visa: honoraria payments for academics and performers Rules on nonimmigrants in the B visa category receiving “honoraria” payments are clarified.

Honoraria payments will be permitted to beneficiaries for brief visits for: “a usual academic activity or activities” at an institution of higher education or nonprofit or governmental research organization; or for “performance, appearance and participation in United States based programming” with a media entity.

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New B visa category: humanitarian visas A new subcategory in the nonimmigrant B visa category is created for nonimmigrants participating in relief operations in response to a federal or state declared emergency or disaster.

The alien may stay in the U.S. performing such work for a period of up to 90 days.

The alien must have been employed in a foreign country by one employer for not less than one year prior to the date of admission. 4605

New B visa category: common carriers A new subcategory in the nonimmigrant B visa category is created permitting workers with specialized knowledge to perform maintenance on common carriers if equipment or machinery is manufactured outside the U.S.

Nonimmigrants in this subcategory may not receive income from a U.S. source unless for travel and other basic services.

An alien admitted in this visa category must pay a fee of $500 (in addition to any fee assessed to cover the costs of processing an application under this subsection). 4606

E, F, H, L, O, P, V, and W visa programs: dual-intent The law is amended so that an F-1 visa can be considered “dual intent” if the F-1 beneficiary is pursuing a bachelor’s or graduate degree. An alien in a “dual intent” nonimmigrant category may be the beneficiary of an immigrant petition without prejudicing the acquisition or maintenance of his or her nonimmigrant status.

E, F-1, F-2, H-1B, H-1C, L, O, P, V, and W nonimmigrant visa categories are statutorily designated as “dual-intent” visas. Many of these visa categories are already considered dual-intent, but the INA and applicable federal regulations may be silent or unclear on the matter.

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E visa category for treaty traders and treaty investors The nonimmigrant E visa category for Treaty Traders (E-1) and Treaty Investors (E-2) who enter the U.S. in pursuance of a treaty of commerce and navigation that the U.S. is party to, is expanded to include bilateral investment treaties and free trade agreements.

A new E-4 visa category is created for workers in specialty occupations pursuant to a free trade agreement, for countries other than Chile, Singapore, or Australia. For E-4 visas, employers must file a labor condition application with DOL under INA §212(t).

A new E-5 visa category is created for workers in specialty occupations from the Republic of Korea and for whom an employer has filed a labor condition application with DOL under INA §212(t).

“Specialty occupations” in the E-4 and E-5 contexts means any job that requires a college degree or its equivalent.

The numerical limit on E-4 and E-5 categories is “5,000 per fiscal year for each country with which the United States has entered into a Free Trade Agreement.”

A new E-6 visa category with an annual limit of 10,500 is created for workers who: have at least a high school education or its equivalent, and have at least 2 years of work experience in an occupation which requires at least 2 years of training or experience, in the last 5 years, and are from a sub-Saharan African country under § 104 of the African Growth and Opportunity Act or a country designated as a beneficiary country for purposes of the Caribbean Basin Economic Recovery Act.

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E-3 visa for Australians: expanded for Irish nationals 10,500 additional E-3 visas are made available for permitting nationals of Ireland to work temporarily in the U.S. if: the worker has at least a high school education or its equivalent, or within 5 years, has at least 2 years of work experience in an occupation which requires at least 2 years of training or experience.

No bachelor’s degree is required for the E-3 visa for Irish nationals. The E-3 visa for Irish nationals is distinct from the E-3 for Australians, who must possess a bachelor’s degree.

The E-3 visa for Irish nationals may be renewed indefinitely in 2-year increments (same as current law for Australians).

Spouses of Irish E-3 beneficiaries may be authorized to work in the U.S., but children of E-3 beneficiaries are not (same as current law for Australians).

Certain existing grounds of ineligibility for admission to the U.S. under INA §§ 212(a)(6), (7), and (9), including the mandatory 3- and 10-year bars to admission to the U.S. for prior unlawful presence in the U.S. exceeding 6 and 12 months, respectively, are waived under this section for qualifying Irish nationals.

10,500 E-3 visas (under current law) are still reserved for Australians. 4403

H-2B visa: returning worker exemption A new returning-worker exemption is created and valid for 5 years, specifying that nonimmigrant workers granted H-2B visas in fiscal year 2013 will not count against the H-2B annual limit (cap) of 66,000 during the fiscal years (FY) of 2014 through 2018. As a result, if the maximum of 66,000 visas is reached in 2013, during 2014-2018, the number of H-2B visas granted could be as many as 132,000 (but the number granted could only reach 132,000 if the annual cap is reached and if every H-2B worker granted a visa in 2013 reapplies and is granted a visa).

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H-2B visa: prevailing wage Currently the H-2B prevailing wage is set by DHS and DOL regulations. The wage is set either by: an applicable Davis-Bacon or Service Contract Act wage, or the wage of a controlling collective bargaining agreement; the arithmetic mean (average) wage in the occupation and local area; or an approved private survey.

This section uses broader language than current regulations, setting the H-2B wage under S.744 as the greater of: the actual wage level paid by the employer to other employees with similar experience and qualifications for the position; or the prevailing wage level for the occupational classification of the position in the geographic area of the employment, based on the best information available at the time of filing the application. “Best information available” means: a controlling collective bargaining agreement or federal contract wage, if applicable; if there is no applicable wage paid to other similarly situated employees, the wage level commensurate with the experience, training, and supervision required for the job based on Bureau of Labor Statistics (BLS) data; or if BLS data are not available, a legitimate and recent private survey of the wages paid for such positions in the metropolitan statistical area.

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H-2B visa: displacement of U.S. workers An employer wanting to hire an H-2B worker will now have to certify and attest that the employer did not displace and will not displace a U.S. worker employed by the employer in the same metropolitan statistical area 90 days before hiring the H-2B worker until the end of the period the H-2B worker is needed. 4602

H-2B visa: transportation costs Employers will now be required by law to pay transportation and reasonable subsistence costs during the period of travel for H-2B nonimmigrants, from: the place of recruitment to the place of the nonimmigrant’s employment; and the place of employment to the nonimmigrant’s place of permanent residence or a subsequent worksite.

Under current H-2B regulations, H-2B employers are only required to pay for the nonimmigrant’s outbound travel if the employer dismisses the nonimmigrant prior to the end of the certified period of employment. 4602

H-2B visa: labor certification fee There is a new $500 fee for any employer filing an H-2B labor certification with DOL. 4602

H-2B visa: forestry A new definition of forestry work is created by this section.

Employers of H-2B forestry workers must conduct additional recruitment efforts: advertising at employment or job-placement events, such as job fairs; placing the job opportunity with the SWA and working with SWA to identify qualified and available U.S. workers; advertising in appropriate media, including local radio stations and commonly used, reputable Internet job-search sites; and such other recruitment efforts as the SWA considers appropriate for the sector or positions for which H–2B nonimmigrants would be considered.

H–2B employers are required to file a (newly created) separate application for temporary employment certification and petition for each state in which the employer plans to employ H–2B nonimmigrants in forestry for 7 days or longer. DOL will review and certify or deny the petitions.

Under this new process, before DOL can certify a petition, the SWA must submit a report to DOL certifying that: the employer has complied with all the additional recruitment requirements and that there is legitimate demand for the employment of H–2B nonimmigrants in each of those states; or the employer has amended the application by removing or making appropriate modifications with respect to the states in which the recruitment/legitimate demand criteria have not been met. The report must make a formal determination that nationals of the U.S. are not qualified or available to fill the employment opportunities offered by the employer.

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H-1B visa: annual numerical limit The H-1B annual numerical limit (cap) rises from 65,000 to a minimum of 115,000, with a maximum of 180,000, fluctuating according to an employer-demand formula.

The limit of available H-1B visas may not increase if the national occupational unemployment rate for “Management, Professional, and Related Occupations”, as published monthly by BLS, averages 4.5 percent or greater over the preceding 12-month period.

Additional H-1B visas reserved for workers possessing at least a master’s degree from a U.S. university rises from 20,000 (under current law) to 25,000, and adds a new requirement that the master’s degree or higher be in a science, technology, engineering, and mathematics (STEM) field (specifically in computer and information sciences and support services, engineering, mathematics and statistics, biological and biomedical sciences, or physical sciences).

The total number of cap-subject visas increases to 205,000 (180,000 + 25,000). Current law permits 85,000 (65,000 + 20,000).

Cap-exempt H-1B petitions for nonprofit and research institutions remain unlimited (no change from current law). 4101

H-1B visa: prevailing wage Current wage Level 1 is eliminated from existing 4-level prevailing wage scale, creating a new 3-level wage scale. DOL survey data establishes H-1B wage levels, by occupation and local area: Level 1 is “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.” Level 2 is “the mean of wages surveyed” (average wage of all workers in an occupation in a local area). Level 3 is “the mean of the highest two-thirds of wages surveyed.”

If the employer is an H-1B dependent employer (i.e., if more than 15 percent of the employer’s workforce possesses an H-1B visa) the employer must: offer each H-1B nonimmigrant a wage that is not less than the Level 2 wage level; and provide working conditions for H-1B nonimmigrants that will not adversely affect the working conditions of other workers similarly employed.

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H-1B visa: prevailing wage for educational, nonprofit, research, and governmental entities If the employer of an H-1B nonimmigrant worker is an institution of higher education, or a related or affiliated nonprofit entity; or a nonprofit research or governmental research organization; the prevailing wage level is calculated based on wages earned by employees at such institutions and organizations in the area of employment. (Under current law, all employers use the applicable prevailing wage, which is calculated by occupation and local area, and includes all workers in a given occupation.)

The governmental survey providing prevailing wage levels must provide at least 4 levels of wages commensurate with experience, education, and the level of supervision.

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.

For institutions of higher education, only teaching positions and research positions may be paid using this special educational wage level. 4211

H-1B visa: worker mobility If an H-1B worker’s employment relationship is terminated before the visa expires, the worker has 60 days to find a new sponsoring employer. (Current law does not permit periods of unemployment.) 4103

H-1B visa: recruitment of U.S. workers Updates rules for employers regarding the recruitment of U.S. workers before hiring on H-1B worker: All H-1B employers must post job openings online for 30 days on a newly created DOL website; all employers must conduct “good faith recruitment” of U.S. workers (currently, only “H-1B dependent” employers must attest to conducting good faith recruitment of U.S. workers); and if the employer is an H-1B “skilled worker dependent employer” (a newly created classification meaning that 15% or more of an employer’s employees in Occupational Information Network Database Job Zone 4 and 5 occupations possess H-1B visas), the employer must offer the job to any equally or better-qualified U.S. worker who applies.

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H-1B visa: nondisplacement An H-1B employer in the new “skilled worker dependent” classification must attest that it has not and will not displace a U.S. worker employed by the employer for 90 days before and after filing the visa petition.

H-1B employers who are not considered “skilled worker dependent employers” are not subject to 90-day nondisplacement attestation unless: the employer is filing the H–1B petition with the intent or purpose of displacing a specific U. S. worker from the position to be occupied by the beneficiary of the petition; or workers are displaced who: provide services, in whole or in part, at one or more worksites owned, operated, or controlled by a federal, state, or local government entity, other than a public institution of higher education, that directs and controls the work of the H–1B worker; or are employed as public school kindergarten, elementary, middle school, or secondary school teachers.

The H-1B “dependent employer” will now have to attest that it did not and will not displace a U.S. worker employed by the employer for 180 days before or after filing the visa petition (an increase from 90 days under current law). 4211

H-1B visa: outplacement Non-H-1B dependent firms may outplace H-1B workers (place them with another employer) if they pay a $500 fee per worker; but H-1B dependent firms are prohibited from outplacement.

Outplacement is permitted if a firm is nonprofit education or research institution, or “primarily a health care business and is petitioning for a physician, a nurse, or a physical therapist or a substantially equivalent health care occupation” and if the firm pays the $500 fee. 4211

H-1B visa: dependent employers The same regulatory definition of an “H-1B dependent employer” at 20 CFR § 655.736(a)(1) is codified in statute.

However, this section clarifies that “intending immigrants” shall not count toward the H-1B dependent calculation. 4211

H-1B visa: skilled worker dependent employers H–1B “skilled worker dependent employer” is defined as: an employer (other than nonprofit education and research institutions) that employs H-1B nonimmigrants in the U.S. in a number that in total is equal to at least 15 percent of the number of its full-time equivalent employees in the U.S. employed in occupations contained within Occupational Information Network Database (O*NET) Job Zones 4 and 5. “Intending immigrants” shall not count toward the H-1B skilled worker dependent calculation.

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H-1B and L-1 visa: “intending immigrants” defined A new concept of “intending immigrant” is created. An intending immigrant is a nonimmigrant who intends to work and reside permanently in the U.S., as shown by: a pending or approved application for a labor certification filed by a covered employer; or a pending or approved immigrant status petition filed by a covered employer. A “covered employer” is: an employer that has filed immigrant status petitions for not less than 90 percent of current employees who were the beneficiaries of applications for labor certification that were approved during the 1-year period ending 6 months before the filing of an application or petition for which the number of intending immigrants is relevant.

4211

H-1B: new Labor Condition Application attestation and reporting requirements The law on H-1B Labor Condition Applications (LCA) is amended to require new employer attestations regarding recruitment and discrimination.

The employer must now attest on the LCA that it has not advertised any available position specified in the relevant job application in an advertisement that states or indicates that: such position is only available to an individual who is or will be an H–1B nonimmigrant or an alien participating in optional practical training (OPT) through the F-1 visa program for international students; or an individual who is or will be an H–1B nonimmigrant or participant in such OPT will receive priority or a preference in the hiring process for such position.

The employer must attest on the LCA that it has not solely recruited individuals who are or who will be H–1B nonimmigrants or participants in OPT (through the F-1 visa program) to fill a position.

The employer must attest to complying with newly created limits on the total number of H-1B and L visa nonimmigrants that a for-profit employer may employ in its workforce.

If a for-profit employer employs 50 or more employees in the U.S., the sum of the number of nonimmigrant employees with H-1B and L visas may not exceed: 75 percent of the total number of employees, for fiscal year 2015; 65 percent of the total number of employees, for fiscal year 2016; and 50 percent of the total number of employees, for each fiscal year after fiscal year 2016.

“Intending immigrants” are not counted as H-1B or L visa nonimmigrant employees for the purposes of this determination. 501(c)(3) nonprofit educational and research employers are exempt from these limits. Under a newly created requirement, employers must submit to DHS an annual report that includes the IRS W–2 tax form filed by the employer for each H–1B nonimmigrant employed by the employer during the previous year.

4213

H-1B visa: review of Labor Condition Applications The standard of review for LCAs are changed from current law, which allows DOL to review an LCA “only for completeness and obvious inaccuracies.” Under this section DOL may review an LCA “for completeness and evidence of fraud or misrepresentation of material fact.”

Under this section DOL must now certify the LCA unless it “presents evidence of fraud or misrepresentation of material fact, or is obviously inaccurate.” This provision changes current law, which requires that DOL certify the LCA unless it “is incomplete or obviously inaccurate.”

Under this section DOL must review and make a determination on an LCA within 14 days, an increase from the 7 days required under current law.

Under current law, DOL must conduct an investigation “if there is reasonable cause to believe…a failure or misrepresentation has occurred [on an LCA].” This section modifies the investigative authority of DOL when reviewing an LCA, granting DOL discretionary investigative authority which allows DOL to conduct an investigation and a hearing if DOL’s “review of an application identifies evidence of fraud or misrepresentation of material fact.”

Under current law, an employer must wait until an H-1B LCA petition has been certified by DOL before submitting an I-129 Petition for Nonimmigrant Worker to USCIS. This section amends the law to allow employers to submit the I–129 to DHS before receiving the approved H-1B LCA from DOL. However, the I-129 petition may not be approved by DHS until the LCA has been approved. 4214

H-1B visa: procedures for investigation and disposition of complaints A dedicated toll-free number and publicly available Internet website is created to accept the submission of complaints in the H-1B program.

Regulations must be issued requiring for-profit employers to “inform their employees of such toll-free number and Internet website and of their right to file complaints.”

The statute of limitations on complaints from aggrieved parties regarding violations on an LCA increases from 12 to 24 months.

DOL no longer must show “reasonable cause” before DOL may investigate a complaint (new language states DOL “may initiate an investigation”).

DOL granted new authority to conduct voluntary surveys of the degree to which employers comply with LCA requirements.

New provisions require that DOL: conduct annual compliance audits of each employer with more than 100 employees who work in the U.S. if more than 15 percent of employees are H–1B nonimmigrants; and make an executive summary or report describing the general findings of the audits available to the public.

DOL’s Inspector General must now report on DOL’s efforts to enforce the requirements in this section one year after enactment and every five years thereafter, to the Committee on the Judiciary and the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on the Judiciary and the Committee on Education and the Workforce of the House of Representatives. 4221

H-1B visa: investigations, working conditions, and penalties The fine for a failure to meet a condition, a substantial failure to meet a condition on an LCA, or a misrepresentation of material fact on an LCA increases to $2,000 from $1,000 under current law. New employer liability: an employer is liable for lost wages and benefits to any employee harmed by those LCA violations.

The fine for a willful failure to meet a condition or a willful misrepresentation of material fact on an LCA increases to $10,000 (from $5,000 under current law). New employer liability: an employer is liable for lost wages and benefits to any employee harmed by those LCA violations.

The period that a U.S. worker cannot be displaced as a result of a failure to meet an LCA condition or a willful misrepresentation of a material fact increases to 180 days before and after the filing of a related petition (from 90 days under current law). Administrative remedies are mandatory (versus discretionary under current law). New employer liability: an employer is liable for lost wages and benefits to any employee harmed by those LCA violations.

Under the expanded anti-employer retaliation protection in this section, employers may not “take, or threaten to take, a personnel action” against employees for disclosing evidence of a violation in this section or cooperating with an investigation.

Under a newly created rule, employers may not fail to offer H-1B nonimmigrant workers the same benefits and eligibility for benefits, including the opportunity to participate in the following: health, life, disability, and other insurance plans; retirement and savings plans; and cash bonuses and noncash compensation, such as stock options (whether or not based on performance). Violation of this section is subject to a (newly created) $2,000 fine.

The fine for requiring an H–1B nonimmigrant to pay a penalty for ceasing employment with the employer prior to a date agreed upon by both parties increases to $2,000 from $1,000 under current law. 4222

H-1B visa: initiation of investigations The current requirement that, in order for DOL to conduct an H-1B investigation, DOL must have reasonable cause to initiate the investigation and must certify that reasonable cause exists, is eliminated.

The current requirement that DOL know the identity of the person who has provided credible information about a possible violation is eliminated. DOL authority is also expanded to apply to issues of compliance with an LCA, not just the “alleged failure or failures” regarding an LCA.

The current provision prohibiting DOL employees from filing complaints regarding an LCA is eliminated, thus permitting them to file complaints.

The statute of limitations for filing a complaint about an LCA increases to 24 months after the date of the alleged failure (from 12 months under current law). 4223

H-1B visa: information sharing Under a new requirement, USCIS must provide DOL with information submitted by employers as part of the adjudication process if anything indicates the employer is not complying with H-1B program requirements. DOL may initiate and conduct an investigation after receiving information about noncompliance. This section does not prevent DOL from taking actions related to wage and hour and workplace safety laws.

DOL is required to facilitate the posting of H-1B job descriptions on the website of the state labor or workforce agency for the state in which the position will be primarily located, at the same time the job is posted on DOL’s website. 4224

H-1B and L-1 visas: transparency and reporting Requirements for reporting in USCIS annual H-1B nonimmigrant characteristics report expand to include additional data on H-1B, their employers, and the makeup of the workforces of H-1B employers.

This section requires the creation of a new characteristics report on the L-1 visa (similar to the existing one on H-1B) that includes data on L-1 employers and the makeup of the workforces of L-1 employers.

Responsibility to publish the H-1B and new L-1 characteristics reports and deliver it to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives, shifts from USCIS to the new Bureau of Immigration and Labor Market Research. 4225

H-1B: posting available positions through DOL No later than 90 days after enactment, DOL must establish a searchable, free, and public website for posting H-1B positions.

DOL may work with private companies and nonprofit organizations to develop and operate the website.

DOL must submit to Congress and publish in the Federal Register a notice of the date the website will be operational.

Employers must begin using the website 30 days after the website becomes operational. 4231

H-1B and L-1 visas: information for workers Under a new requirement, the office issuing the H-1B visa to an applicant outside of the U.S. must provide the applicant with: a brochure outlining the obligations of the applicant’s employer and the rights of the applicant with regard to employment under federal law, including labor and wage protections; and the contact information for appropriate federal agencies or departments that offer additional information or assistance in clarifying such obligations and rights.

Upon approval of an application for H-1B or L-1 status, the same information and materials must be provided to the applicant by DHS if the applicant is inside the U.S. or by DOS if the applicant is outside of the U.S.

Under a new requirement, employers must provide a beneficiary of an LCA or L-1 status with copies of all applications and petitions filed by the employer with DOL and DHS on behalf of the beneficiary. The employer may redact any financial or proprietary information.

The Comptroller General must prepare a new report on job classification and wage determinations within one year of enactment. The report must analyze the accuracy and effectiveness of the Secretary of Labor’s current job classification and wage determination system. The report shall: specifically address whether the systems in place accurately reflect the complexity of current job types as well as geographic wage differences; and make recommendations concerning necessary updates and modifications.

4232

H-1B and L-1 visas: new filing fees for dependent employers New filing fees must be paid by H-1B/L-1 dependent employers as follows: For each fiscal year beginning in fiscal year 2015, $5,000 for applicants that employ 50 or more employees in the U.S. and more than 30 percent, but less than 50 percent of the applicant’s employees are H–1B or L nonimmigrants. For each of the fiscal years 2015 through 2017, $10,000 for applicants that employ 50 or more employees in the U.S. and more than 50 percent, but less than 75 percent of the applicant’s employees are H–1B or L nonimmigrants.

“Intending immigrants” in H-1B or L visa status are not counted as H-1B or L nonimmigrant employees in this calculation.

Fees collected shall be deposited in the Comprehensive Immigration Reform Trust Fund.

501(c)(3) nonprofit educational and research employers are exempt from these fees. 4233

H-1B visa: applicability of amendments and requirements Amendments made to the H-1B program in this subtitle only apply to applications filed on or after the date of the enactment of this act.

Amendments made regarding H-1B nondisplacement and recruitment rules shall not apply to any application or petition filed by an employer on behalf of an existing employee. 4236

H-1C visa for nonimmigrant nurses in health professional shortage areas: program reauthorization The H-1C visa program for nonimmigrant nurses in health professional shortage areas, ended by law on December 20, 2009, is permanently reauthorized, with two main modifications: the H-1C annual visa cap is reduced from 500 to 300, and an additional 3-year extension of validity period is added; making a total of 6 years permitted (up from the current maximum of 3 years).

4212

H-1C visa for nonimmigrant nurses in health professional shortage areas: worker mobility If an H-1C worker’s employment relationship is terminated before the visa becomes expires, the H-1C worker has 60 days to find a new sponsoring employer (current law does not permit periods of unemployment). 4212

H-4 visa for spouses and children of H-1B visa nonimmigrants Spouses of H-1B beneficiaries who possess H-4 visas may be employed (currently, H-4 visa beneficiaries may not be employed).

DOS may request that DHS “suspend employment authorizations…to nationals of a foreign country that does not permit reciprocal employment to nationals of the United States who are accompanying or following to join the employment-based nonimmigrant husband or wife of such spouse to be employed in such foreign country based on that status.” 4102

J-1 visa for exchange visitors: seafood processing in Alaska The DOS will no longer ban J-1 Summer Work Travel program participants from being employed in seafood processing occupations in Alaska. 4408

L-1 visa for intracompany transferees: outplacement This section modifies rules on outplacement of L-1 visa beneficiaries.

Firms must pay a $500 fee on every outplaced employee

Outplacement is prohibited unless: the L-1 beneficiary will not be controlled or supervised principally by the subsequent employer; and the placement is not essentially a labor for hire arrangement.

Employers with more than 15% of their workforce on L-1 status are prohibited from all outplacement, outsourcing, leasing, or otherwise contracting of L-1 workers. 4301

L-1 visa for intracompany transferees: new offices This section modifies rules governing employees sent to the U.S. as an executive or manager (under an L-1 visa) to establish a new office (i.e., a subsidiary or affiliate company) for the foreign employer.

Under a new requirement, an L-1 new office applicant must not have been the beneficiary of 2 or more new office petitions during the immediately preceding 2 years.

For extension of the L-1 under this section, additional evidence is required to prove compliance with the business plan and to prove that business is being conducted at the new office. 4302

L-1 visa for intracompany transferees: verifying existence of foreign companies DHS will cooperate with DOS to “verify the existence or continued existence of a company or office in the United States or in a foreign country.” Some cooperation between DHS and DOS on this already exists and it is not clear what types of additional “cooperation” this section would require.

4303

H-1B and L-1 visa for intracompany transferees: workforce limitation For the first time, there are limits on the total number of H-1B and L visa nonimmigrants a for-profit employer may have in its workforce.

If a for-profit employer employs 50 or more employees in the U.S., the sum of the number of nonimmigrant employees with H-1B and L visas may not exceed: 75 percent of the total number of employees, for fiscal year 2015; 65 percent of the total number of employees, for fiscal year 2016; and 50 percent of the total number of employees, for each fiscal year after fiscal year 2016.

“Intending immigrants” are not counted as H-1B or L visa employees for the purposes of this determination. 4304

H-1B and L-1 visa: filing fees For-profit employers must pay a new filing fee based on percentage of H-1B and L visa nonimmigrants in the employer’s workforce. Current law requires a $500 antifraud fee (for all petitions), and if an employer has 50 or more employees in the U.S. and more than 50 percent of its U.S. employees have H-1B, L-1A or L-1B nonimmigrant status, an additional fee of $2,000 is required for H-1B petitions and $2,250 for L-1A and L-1B petitions.

The new filing fees are as follows: For each fiscal year beginning in 2014, $5,000 per L visa applicant if: the employer has 50 or more employees in the U.S., and if more than 30 percent but less than 50 percent of the employees are H-1B or L nonimmigrants. For each of the fiscal years 2014 through 2017, $10,000 per L visa applicant if: the employer has 50 or more employees in the U.S., and if more than 50 percent but less than 75 percent of the employees are H-1B or L nonimmigrants. “Intending immigrants” are not counted as H-1B or L visa employees for the purposes of this determination.



L-1 visa for intracompany transferees: complaints against employers DHS has new authority to initiate an investigation of any employer of L-1 nonimmigrants with regard to the employer’s compliance with new L-1 requirements.

DHS must have received specific credible information from a source likely to have knowledge of an employer’s practices, employment conditions, or compliance with the requirements.

DHS may withhold the identity of a source from an employer and the identity of such source shall not be subject to disclosure.

DHS shall establish a procedure for any person desiring to provide to it with information that may be used to start an investigation.

No investigation (or hearing based on such investigation) may be conducted with respect to information about a failure to comply with L-1 requirements unless DHS receives the information within 24 months after the date of the alleged failure.

Before commencing an investigation DHS shall provide notice to the employer of the intent to conduct such investigation. The notice required shall be provided in such a manner, and shall contain sufficient detail, to permit the employer to respond to the allegations before an investigation begins. DHS is not required to comply with this clause if it determines that to do so would interfere with an effort to investigate or secure compliance by the employer.

No judicial review of a determination by DHS is available under this section.

If after an investigation DHS determines that there is a reasonable basis to make a finding that the employer failed to comply with L-1 requirements, DHS shall provide the interested parties with notice of such determination, and an opportunity for a hearing, no later than 120 days after the date of such determination. DHS must make a finding concerning the matter within 120 days after the date of the hearing.

If after a hearing DHS finds a reasonable basis to believe that the employer has violated the L-1 requirements, DHS shall impose a penalty under subparagraph K (§ 4307).

DHS may conduct voluntary surveys regarding the degree to which employers comply with new L-1 requirements.

DHS shall conduct annual compliance audits of each employer with more than 100 employees who work in the U.S. if more than 15 percent of such employees are nonimmigrants in the L category, and make an executive summary or report describing the general findings available to the public. 4306

L-1 visa for intracompany transferees: penalties for violators New penalties are instituted for employers who violate L-1 rules.

If an employer fails to meet a condition or a makes a misrepresentation of material fact in a petition to employ L-1 nonimmigrants, DHS shall impose such administrative remedies (including civil monetary penalties in an amount not to exceed $2,000 per violation) as DHS determines to be appropriate. An employer found in violation is prohibited from employing L-1 nonimmigrants for at least one year; and the employer shall be liable to the employees harmed for lost wages and benefits.

For a willful failure by an employer or a willful misrepresentation of material fact in a petition to employ L-1 nonimmigrants, DHS shall impose such administrative remedies (including civil monetary penalties in an amount not to exceed $10,000 per violation) as DHS determines to be appropriate. An employer found in violation is prohibited from employing L-1 nonimmigrants for at least 2 years; and the employer shall be liable to the employees harmed for lost wages and benefits.

4307

L-1 visa for intracompany transferees: prohibition on retaliation Under new rules in this section, an employer who has filed a petition for an L-1 nonimmigrant may not take, or fail to take, or threaten to take or fail to take, a personnel action, or to intimidate, threaten, restrain, coerce, blacklist, discharge, or discriminate in any other manner against an employee because the employee: discloses information the employee reasonably believes is evidence a violation of L-1 rules; or cooperates or seeks to cooperate with an investigation of alleged noncompliance with L-1 rules.

4308

P-1 visa for athletes Ski instructors may now be granted either P-1 or H-2B visas (currently they are ineligible for a P-1).

P-1A visa is valid for 5 years with a maximum duration of 10 years (reflecting no change from current law), and is not subject to an annual numerical limit. 4601

V visa for spouses and children of legal permanent residents Eligibility for V nonimmigrant visas expands from spouses and children of LPRs (under current law) to also include unmarried sons or daughters of U.S. citizens or of LPRs, and married sons or daughters of U.S. citizens who are 31 years old or younger: beneficiaries are eligible for work authorization (same as current law), and visa validity ends 30 days after a denial of an immigrant visa petition or adjustment of status application.

Eligibility expands to siblings of U.S. citizens and married sons or daughters of U.S. citizens who are older than 31. Such beneficiaries would: not be authorized to work; have admission limited to 60 days per fiscal year; cannot earn points for a merit-based visa while in this status.

2309

Bureau of Immigration and Labor Market Research A new Bureau of Immigration and Labor Market Research is established “as an independent statistical agency within” USCIS.

The head of the bureau will be a commissioner, appointed by the president, by and with the advice and consent of the Senate.

Duties of the commissioner are: To devise and publish a methodology in the Federal Register (and provide an opportunity for public comment) regarding the calculation of the number of W-1 nonimmigrant visas (W-1 visas are newly created by S.744; see discussion of § 4702 below). To determine and to publish in the Federal Register the annual change to the numerical limitation for the new W-1 visa program. With respect to the W-1 visa program, to supplement the recruitment methods employers may use to attract U.S. workers and current nonimmigrant aliens. With respect to the W-1 visa program, to devise a methodology subject to publication in the Federal Register (and an opportunity for public comment) to designate shortage occupations in Occupational Information Network Database (O*NET) Job Zone 1, 2, and 3 occupations. Such methodology must designate Alaskan seafood processing in Zones 1, 2, and 3 as shortage occupations. With respect to the W-1 visa program, to designate shortage occupations in any Zone 1, 2, or 3 occupation, and publish such occupations in the Federal Register. Alaskan seafood processing in Zones 1, 2, and 3 must be designated as shortage occupations. With respect to the W-1 visa program, to conduct a survey once every 3 months of the unemployment rate of Zone 1, 2, and 3 occupations that are construction occupations in each metropolitan statistical area (MSA). To study and report to Congress on employment-based immigrant and nonimmigrant visa programs in the U.S. and to make annual recommendations to improve such programs. To carry out any functions required to perform the duties described in (1) through (7). The employees of the bureau shall have the expertise necessary to identify labor shortages in the U.S. and make recommendations to the commissioner on the impact of immigrant and nonimmigrant aliens on labor markets in the U.S.; including expertise in the areas of economics, labor markets, demographics and methods of recruitment of U.S. workers.

The Secretary of Commerce, the Director of the Bureau of the Census, the Secretary of Labor, and the Commissioner of the Bureau of Labor Statistics shall provide data to the commissioner; conduct appropriate surveys; and assist the commissioner in preparing recommendations.

$20 million is appropriated from U.S. Treasury to establish the bureau.

Fees from the new W-1 visa program shall be used to establish and fund the bureau, and the Secretary may establish other fees for the sole purpose of funding the W-1 visa program, including the bureau, that are related to the hiring of alien workers. 4701

New W-1 nonimmigrant visa category for nonagricultural occupations A new W-1 visa category is created for workers having a foreign residence who will come to the U.S. temporarily to perform services or labor for a “registered” nonagricultural employer in a “registered” position.

A new W-2 visa category is created for accompanying spouses and children of W-1 visa beneficiaries. 4702

New W-1 nonimmigrant visa: admission W-1 nonimmigrants must be “hired by a registered employer in a registered position in a location that is not an excluded geographic location.”

Spouses and minor children of W-1 beneficiaries and admitted with W-2 visas may be employed in the U.S. during the period of admission of the principal W-1 beneficiary and will be provided with an employment authorization document or other appropriate work permit.

A W-1 applicant must be “certified”, provided that the applicant: is not inadmissible under the INA; passes a criminal background check; agrees to accept only registered positions in the U.S.; and meets other criteria as established by the DHS.

W-1 nonimmigrants must report to initial place of employment in a registered position not later than 14 days after admission to the U.S.

W-1 visa status is valid for initial period of 3 years and may be renewed for additional 3-year periods. (No maximum limit of 3-year periods is specified.)

A W-1 beneficiary must not be unemployed for more than 60 days at a time, and must depart the U.S. if unable to secure new employment in that time. 4703

New W-1 nonimmigrant visa: registered employers Employers who wish to hire W-1 nonimmigrants must apply to DHS to become a registered employer. The application must include: documentation to establish that the employer is a bona-fide employer; the employer’s federal tax ID number; and the number of W-1 nonimmigrants the employer estimates it will employ annually.

If fraud is suspected, DHS may refer an application to the Fraud Detection and National Security Directorate of USCIS.

The employer application will be denied if after notice and opportunity for a hearing, it is determined that the employer: submitted an application that knowingly misrepresented a material fact, made a fraudulent statement, or failed to comply with the terms of such attestations; failed to cooperate in the audit process; had been convicted of a trafficking offense; had within 2 years prior to the date of the application: committed any hazardous occupation orders violation resulting in injury or death under the child labor provisions; been assessed a civil money penalty for any repeated or willful violation of minimum wage provisions; or incurred a civil money penalty for any willful violation of overtime provisions; had within 2 years prior to the date of application received a final adjudication for a willful violation or repeated serious violations involving injury or death: under § 5 of the Occupational Health and Safety (OSH) Act of 1970; of any standard, rule, or order promulgated pursuant to § 6 of the OSH Act of 1970; or of a plan approved under § 18 of the OSH Act of 1970.

If DHS denies an employer’s application, the employer will remain ineligible to become a registered employer for a length of time to be determined by DHS, but the period of ineligibility will last no more than 3 years. However any employer convicted of any human trafficking offense under state or territorial law shall be permanently ineligible to be a registered employer.

Approved applications for registered employers are valid for renewable 3-year terms.

Employer will pay a fee (in an amount to be determined later) for the initial application and application for renewal.

Employer must submit an annual report that demonstrates the employer has provided the wages and working conditions the employer agreed to provide to its employees.

A registered employer may not place, outsource, lease, or otherwise contract for the services or placement of a W-1 nonimmigrant employee with another employer if more than 15 percent of the employer’s employees are W-1 nonimmigrants. 4703

New W-1 nonimmigrant visa: registered positions Registered employers must apply to DHS to designate a position as a “registered” position for a W-1 nonimmigrant. In the application, the employer-applicant must attest to the following: the number of full-time equivalent employees of the employer; the occupational category, as classified by DOL, for which the registered position is sought; whether the occupation for which the registered position is sought is a shortage occupation; paying the required wage level, which will be the greater of: the actual wage level paid by the employer to other employees with similar experience and qualifications for the position; or the prevailing wage level for the occupational classification of the position in the MSA of the employment, as determined by the Secretary, based on the best information available at the time of filing the application. that the working conditions of W-1 nonimmigrants will not adversely affect the working conditions of other workers employed in similar positions; that the employer has carried out the required recruiting activities; that there is no qualified U.S. worker who has applied for the position and who is ready, willing, and able to fill the position; that there is no strike, lockout, or work stoppage in the course of a labor dispute in the occupation at the place of employment at which the W-1 nonimmigrant will be employed (if such strike, lockout, or work stoppage occurs following submission of the application, the employer will provide notification in accordance with all applicable regulations); and that the employer has not laid off and will not lay off a U.S. worker during the period beginning 90 days prior to and ending 90 days after the date the employer files an application, unless the employer has notified such U.S. worker of the position and documented the legitimate reasons that such U.S. worker is not qualified or available for the position. A U.S. worker is not considered to be “laid off” for the purposes of this provision, if at the time such worker’s employment is terminated, the worker is not employed in the same occupation and in the same MSA where the registered position is located.

The prevailing wage for a registered position is determined by: a controlling collective bargaining agreement (CBA) or federal contract wage, if applicable; if there is no applicable wage CBA or federal contract wage, the wage level commensurate with the experience, training, and supervision required for the job based on Bureau of Labor Statistics (BLS) data; or if no BLS-determined wage is available, a legitimate and recent private survey of the wages paid for such positions in the MSA.

The term for a registered position begins on the date of approval and ends on the earlier of the date the employer’s status as a registered employer is terminated; 3 years after the date of such approval; or upon proper termination of the registered position by the employer.

A registry of approved registered positions for which DHS has issued a permit will be created and be accessible on a website. State workforce agencies (SWA) shall be linked to the registry and provide access to it through the website maintained by the SWA. Each position will be available for viewing on the registry as long as it is validly registered. The registry will indicate if each registered position is filled or unfilled. If a W-1 nonimmigrant’s employment in a registered position ends, the registry must post the position for 10 calendar days, noting that it is unfilled (unless the job is filled by a U.S. worker before the end of the 10-day period).

An occupation is eligible to be a registered position if it is an O*NET Job Zone 1, Zone 2, or Zone 3 occupation and is not an “excluded” occupation. An occupation is excluded if the Occupational Outlook Handbook published by BLS (or a similar successor publication) classifies the occupation as requiring a bachelor’s degree or higher level of education; or if the occupation is in the field of computer operation, computer programming, or computer repair.

DOL shall publish the eligible occupations on an ongoing basis on a publicly available website.

If a W-1 nonimmigrant’s employment in a registered position ends, the employer may fill that vacancy by hiring a U.S. worker; or after the 10-calendar day posting period ends, by hiring a W-1 nonimmigrant; or a “certified alien.”

When a W-1 nonimmigrant commences employment in a registered position for a registered employer, the employer shall pay a registration fee in an amount determined by the Secretary (to fund the operation of the W visa program), as well as an additional fee (to fund operation of the bureau), as follows: a fee of $1,750 if the employer is a small business (defined as 25 or fewer full-time equivalent employees) and more than 50 percent but less than 75 percent of the employees are not U.S. workers; a fee of $3,500 if the employer is a small business and more than 75 percent of the employees of the registered employer are not U.S. workers; or a fee of $3,500 if the employer is not a small business and more than 15 percent but less than 30 percent of the employees are not U.S. workers.

A registered employer may not be required to pay additional registration fees other than what is required in S. 744 if the employer is a small business.

DHS may not approve an application for a registered position if the employer is not a small business and 30 percent or more of the employees are not U.S. workers.

No application for a registered position filed by a registered employer for an eligible occupation may be approved if the position is located in an MSA that has an unemployment rate that is more than 8.5 percent as reported in the most recent month preceding the date that the application is submitted, unless: the commissioner has identified the eligible occupation as a shortage occupation; or DHS approves the registered position under the special allocation provisions.

4703

New W-1 nonimmigrant visa: recruitment of workers for W-1 visa jobs A position may not be a registered position unless the registered employer advertises the position for 30 days, including the wage range, location, and proposed start date: on the Internet website maintained by the DOL for the purpose of such advertising; with the SWA where the position will be located; and except as provided for in certain situations, carries out not less than 3 of the described recruiting activities. The 30-day periods required on DOL and SWA websites may occur at the same time.

Required recruiting activities for a position shall consist of any combination of the following as defined by DHS: advertising such position at job fairs; advertising such position on the employer’s external website; advertising such position on job search websites advertising such position using presentations or postings at vocational, career technical schools, community colleges, high schools, or other educational or training sites; posting such position with trade associations; utilizing a search firm to seek applicants for such position; advertising such position through recruitment programs with placement offices at vocational schools, career technical schools, community colleges, high schools, or other educational or training sites; advertising such position through advertising or postings with local libraries, journals, or newspapers; seeking a candidate for such position through an employee referral program with incentives; advertising such position on radio or television; advertising such position through advertising, postings, or presentations with newspapers, websites, job fairs, or community events targeted to constituencies designed to increase employee diversity; advertising such position through career day presentations at local high schools or community organizations; providing in-house training; providing third-party training; advertising such position through recruitment, educational, or other cooperative programs offered by the employer and a local economic development authority; advertising such position twice in the Sunday advertisements in the primary daily circulation newspaper in the area; and/or any other recruitment activities determined to be appropriate to be added by the commissioner of the bureau.

4703

New W-1 nonimmigrant visa: annual numerical limit Except for additional specially allocated registered positions, the maximum number of registered positions that may be admitted as W-1 nonimmigrants is 20,000 in the first year the program is established, 35,000 in the second year, 55,000 in the third year, and 75,000 in the fourth year.

After the fourth year, the annual limit will be equal to the sum of the sum of the number of registered positions available for the preceding year; and the product of the number of registered positions available for the preceding year; multiplied by an index that is the sum of the following calculated amounts and assigned weights – i.e., will be equal to (number of registered positions the preceding year) + (number of registered positions the preceding year X the sum of the 4-part index below): the number of registered positions that registered employers applied to have approved for the preceding year minus the number of registered positions approved for the preceding year; divided by the number of registered positions approved for the preceding year (20 percent weight); the number of registered positions the commissioner recommends be available for the current year minus the number of registered positions available for the preceding year; divided by the number of registered positions available for the preceding year (20 percent weight); the number of unemployed U.S. workers for the preceding year minus the number of unemployed U.S. workers for the current year; divided by the number of unemployed U.S. workers for the preceding year (30 percent weight); and the number of job openings as set out in the Job Openings and Labor Turnover Survey (JOLTS) of the BLS for the current year minus such number of job openings for the preceding year; divided by the number of such job openings for the preceding year (30 percent weight).

The number of registered positions calculated under this formula for a 12-month period may not be less than 20,000 nor more than 200,000.

Every year 50 percent of registered positions are allocated for the first 6 months of the year and the remaining 50 percent are allocated for the following 6 months. During the second, third, and fourth months of each 6-month period, one-third of the number of registered positions allocated for such period shall be approved only for a registered employer that is a small business. Any such registered positions not approved for small businesses during these months shall be available for any registered employer during the last 2 months of the 6-month period.

No more than 33 percent of the registered positions made available for a year may be granted to perform work in a construction occupation. The number of registered positions granted to perform work in a construction occupation may not exceed 15,000 in any year and 7,500 for any 6-month period.

A registered employer may not hire a certified alien for a registered position to perform work in a construction occupation if the unemployment rate for construction occupations in the corresponding occupational job zone in that MSA is more than 8.5 percent. The unemployment rate shall be determined using the most recent survey taken by the bureau; or if a survey by the bureau is not available, using a recent and legitimate private survey.

In addition to the number of registered positions made under the formula described, DHS shall make available for the year an additional number of registered positions for shortage occupations in a particular MSA.

In addition to the number of registered positions made under the formula or for shortage occupations, DHS also has the authority to make an additional number of special allocations of registered positions for the year available to specific registered employers if: the maximum number of registered positions available have been approved for the year and none remains available; or a registered employer is located in an MSA that has an unemployment rate that is more than 8.5 percent as reported in the most recent month preceding the date that the application is submitted.

Hiring a W-1 nonimmigrant for a special allocation position requires an employer to conduct additional recruitment of U.S. workers and to pay a higher prevailing wage. The registered employer must have carried out at least 7 of the recruiting activities listed in the section. If an employer hires a W-1 nonimmigrant who is not an initial W-1 nonimmigrant entering the U.S. for initial employment, the employer must conduct only 3 of the recruitment activities listed in the section. Any registered employer registering any position under the special allocation authority must post the position, including the wage range, location, and initial date of employment, for not less than 30 days on the website maintained by DOL and with the SWA of the state where the position will be located. An initial W-1 nonimmigrant entering the U.S. for initial employment pursuant to a special allocation position may not be paid less than the greater of the Level 4 wage set out in the Foreign Labor Certification Data Center Online Wage Library (or similar successor website) maintained by DOL for such occupation in the MSA or the mean of the highest two-thirds of wages surveyed for the occupation in the MSA. Employers are not required to pay the higher wage level to workers who are already in W-1 nonimmigrant status.

Each registered position made available for a year under a special allocation shall reduce by one the number of registered positions made available under the normal W-1 visa cap for the following year or the earliest possible year for which a registered position is available. Additional allocations of positions made for “Animal Production Subsectors” shall not be reduced by any registered position made available under a special allocation.

In addition to the number of registered positions made available for a year, DHS shall make additional registered positions available for the year for occupations designated by DOL as “Animal Production Subsectors.” The numerical limitation for such additional registered positions shall be no more than 10 percent of the annual numerical limit. 4703

New W-1 nonimmigrant visa: workers’ rights A W-1 nonimmigrant may terminate employment with a registered employer for any reason and seek and accept employment with another registered employer in any other registered position within the terms and conditions of the nonimmigrant’s visa.

A registered employer may promote a W-1 nonimmigrant if the W-1 nonimmigrant has been employed with that employer for at least 12 months. Such a promotion shall not increase the total number of registered positions available to that employer.

A W-1 nonimmigrant shall not be denied any right or any remedy under federal, state, or local labor or employment law that would be applicable to a U.S. worker in a similar position because of the alien’s status as a nonimmigrant worker.

A W-1 nonimmigrant may not be required to waive any substantive rights or protections under this Act.

A W-1 nonimmigrant is prohibited from being treated as an independent contractor under any federal or state law: no person, including an employer or labor contractor and any persons who are affiliated with or contract with an employer or labor contractor, may treat a W-1 nonimmigrant as an independent contractor; however, this may not be construed to prevent registered employers who operate as independent contractors from employing W-1 nonimmigrants.

Fees related to the hiring of a W-1 nonimmigrant worker required to be paid by the employer may not be deducted from the wages or other compensation paid to a W-1 nonimmigrant.

The cost of round trip transportation from a W-1 nonimmigrant’s home to the location of a registered position and the cost of obtaining a foreign passport are not required to be paid by the employer.

An employer shall comply with all applicable federal, state, and local tax laws with respect to each W-1 nonimmigrant employed. (It is not yet clear which taxes will be applicable to W-1 nonimmigrants and which ones will not.)

It shall be unlawful for an employer of a W-1 nonimmigrant to intimidate, threaten, restrain, coerce, retaliate, discharge, or in any other manner discriminate against an employee or former employee because the employee or former employee: discloses information to the employer or any other person that the employee or former employee reasonably believes demonstrates a violation of this section; or cooperates or seeks to cooperate in an investigation or other proceeding concerning compliance with the requirements of this section.

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New W-1 nonimmigrant visa: complaints, enforcement, and penalties DHS shall establish a process for the receipt, investigation, and disposition of complaints by an aggrieved applicant, employee, or nonimmigrant (or a person acting on behalf of such applicant, employee, or nonimmigrant) with respect to: the failure of a registered employer to meet a condition; or the layoff or nonhiring of a U.S. worker.

DHS will promulgate regulations for the receipt, investigation, and disposition of complaints by an aggrieved W-1 nonimmigrant. No investigation or hearing shall be conducted on a complaint concerning a violation under this section unless the complaint was filed no later than 6 months after the date of such violation. DHS shall conduct an investigation under this subsection if there is reasonable basis to believe that a violation of this section has occurred. No later than 30 days after a complaint is filed, DHS shall determine if there is reasonable cause to find such a violation. No later than 60 days after DHS makes a determination of reasonable basis, DHS shall issue a notice to the interested parties and offer an opportunity for a hearing on the complaint, in accordance with § 556 of title 5, U.S. Code. No later than 60 days after the date of a hearing under this paragraph, DHS shall make a finding on the matter.

A complainant who prevails in an action under this subsection with respect to a claim related to wages or compensation for employment shall be entitled to an award of reasonable attorney’s fees and costs.

A complainant who files a frivolous complaint for an improper purpose under this subsection shall be liable for the reasonable attorney’s fees and costs of the person named in the complaint.

DHS may bring an action in any court of competent jurisdiction: to seek remedial action, including injunctive relief; to recover the damages; or to ensure compliance with provisions on retaliation and discrimination.

The rights and remedies provided to W-1 nonimmigrants are in addition to any other contractual or statutory rights and remedies of workers, and are not intended to alter or affect such rights and remedies.

If after notice and an opportunity for a hearing, DHS finds a violation, DHS may impose administrative remedies and penalties, including: back wages; benefits; and civil monetary penalties.

DHS may impose, as a civil penalty: a fine of no more than $2,000 per violation per affected worker and $4,000 per violation per affected worker for each subsequent violation; if the violation was willful, a fine of no more than $5,000 per violation per affected worker; and if the violation was willful and if in the course of such violation a U.S. worker was harmed, a fine of no more than $25,000 per violation per affected worker; or for knowingly failing to materially comply with the terms of representations made in petitions, applications, certifications, or attestations under this section: a fine of no more than $4,000 per aggrieved worker; and upon the occasion of a third offense of failure to comply with representations, a fine of no more than $5,000 per affected worker and designation as an ineligible employer, recruiter, or broker for purposes of any immigrant or nonimmigrant program.

Any person or employer who knowingly misrepresents the number of full-time equivalent employees they employ or the number of their employees who are U.S. workers for the purpose of reducing a fee or circumventing the annual cap shall be fined up to $25,000 or imprisoned no more than one year, or both.

DHS shall monitor the movement of W-1 nonimmigrants in registered positions through the E-Verify system; and a new electronic monitoring system. DHS, through USCIS, shall implement a new electronic monitoring system to monitor the presence and employment of W-1 nonimmigrants, including a requirement that registered employers update the system when W-1 nonimmigrants start and end employment in registered positions. The new system shall be modeled on the Student and Exchange Visitor Information System (SEVIS) and SEVIS II tracking system of U.S. Immigration and Customs Enforcement. The new system shall interact with the DOL job registry to ensure that DHS designates and updates approved registered positions as being filled or unfilled.

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