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HR 4165 IH 101st CONGRESS 2d Session H. R. 4165 To amend the Immigration and Nationality Act with respect to employment-sponsored and independent immigration, and for other purposes. IN THE HOUSE OF REPRESENTATIVES March 1, 1990 Mr. SCHUMER introduced the following bill; which was referred to the Committee on the Judiciary A BILL To amend the Immigration and Nationality Act with respect to employment-sponsored and independent immigration, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the `Employment-Related Immigration Act of 1990'. SEC. 2. SEPARATE LEVELS FOR FAMILY-SPONSORED, EMPLOYMENT-SPONSORED, AND INDEPENDENT IMMIGRATION. (a) IN GENERAL- (1) Section 201 of the Immigration and Nationality Act (8 U.S.C. 1151) is amended to read as follows: `WORLDWIDE LEVEL OF IMMIGRATION `SEC. 201. (a) IN GENERAL- Exclusive of aliens described in subsection (b), aliens born in a foreign state or dependent area who may be issued immigrant visas or who may otherwise acquire the status of an alien lawfully admitted to the United States for permanent residence are limited to-- `(1) family-sponsored immigrants described in section 203(a) (or who are admitted under section 211(a) on the basis of a prior issuance of a visa to their accompanying parent under section 203(a)) in a number not to exceed in any fiscal year 216,000 and not to exceed in any of the first 3 quarters of any fiscal year 27 percent of the worldwide level under such subsection for all of such fiscal year; `(2) employment-sponsored immigrants described in section 203(b) (or who are admitted under section 211(a) on the basis of a prior issuance of a visa to their accompanying parent under section 203(b)), in a number not to exceed in any fiscal year 130,000 and not to exceed in any of the first 3 quarters of any fiscal year 27 percent of the worldwide level under such subsection for all of such fiscal year; and `(3) independent immigrants described in section 203(c) (or who are admitted under section 211(a) on the basis of a prior issuance of a visa to their accompanying parent under section 203(c)), in a number not to exceed in any fiscal year 83,000 and not to exceed in any of the first 3 quarters of any fiscal year 27 percent of the worldwide level under such subsection for all of such fiscal year. `(b) ALIENS NOT SUBJECT TO DIRECT NUMERICAL LIMITATIONS- The following aliens are not subject to the worldwide levels or numerical limitations of subsection (a): `(1)(A) Special immigrants described in section 101(a)(27). `(B) Aliens who are admitted under section 207 or whose status is adjusted under section 209. `(C) Aliens whose status is adjusted to permanent residence under section 210, 210A, or 245A. `(D) Aliens provided permanent resident status under section 249. `(2)(A)(i) Immediate relatives. For purposes of this clause, the term `immediate relative' means a child or spouse of a citizen of the United States or parent of a citizen of the United States who is at least 21 years of age. `(ii) Aliens admitted under section 211(a) on the basis of a prior issuance of a visa to their accompanying parent who is such an immediate relative. `(B) Aliens born to an alien lawfully admitted for permanent residence during a temporary visit abroad.'. (2) The item in the table of contents relating to section 201 of such Act is amended to read as follows: `Sec. 201. Worldwide level of immigration.'. (b) PER COUNTRY IMMIGRATION LEVELS- (1) IN GENERAL- Section 202 of such Act (8 U.S.C. 1152) is amended-- (A) in subsection (a)-- (i) by striking `(a) No person' and inserting `(a)(1) Except as specifically provided in paragraph (2) and in sections 101(a)(27), 201(b)(2)(A)(i), and 203, no person', (ii) by striking `, except as specifically' and all that follows through `following fiscal year', and (iii) by adding at the end the following new paragraph: `(2) The total number of immigrant visas made available to natives of any single foreign state or dependent area under section 201(a)(1) (relating to family-sponsored immigrants) in any fiscal year may not exceed 19,000. `(3) The total number of immigrant visas made available to natives of any single foreign state or dependent area under paragraph (2) or (3) of section 201(a) (relating to employment-sponsored and independent immigrants) in any fiscal year may not exceed 10,000.'; (B) in subsection (b), by striking `the numerical limitation set forth in the proviso to subsection (a) of this section' each place it appears and inserting `a numerical level established under subsection (a)'; (C) in subsection (c)-- (i) by striking `other than' and all that follows through `section 201(b)' and inserting `other than a special immigrant, as defined in section 101(a)(27), or an alien described in section 201(b)(2)(A)(i)', and (ii) by striking `section 202(a)' and all that follows through the end and inserting `subsection (a)(1), to the foreign state'; and (D) by amending subsection (e) to read as follows: `(e) Whenever 95 percent of the maximum number of visas have been made available under subsection (a)(1) to natives of any single foreign state or to any dependent area, then in the next following fiscal year a number of visas, not to exceed the number specified in subsection (a)(1) for a foreign state or a dependent area, as the case may be, shall be made available and allocated for such state or such area for the same classes of aliens described in, and the same percentages specified in, paragraphs (1) through (4) of section 203(a).'. (2) TREATMENT OF HONG KONG AS FOREIGN STATE- In applying section 202 of the Immigration and Nationality Act for fiscal years beginning with fiscal year 1991, Hong Kong shall be treated as a foreign state, and not as a colony or other component or dependent area of a foreign state. SEC. 3. H-1 AND L-1 NONIMMIGRANTS. (a) H-1 CLASSIFICATIONS- (1) Section 101(a)(15)(H) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)) is amended-- (A) before clause (i), by striking `having a residence in a foreign country which he has no intention of abandoning', (B) by amending clause (i) to read as follows: `(i)(a) who is described in section 214(f)(1)(A) (relating to preeminent individuals), or (b) who is described in section 214(f)(1)(B) (relating to professionals);'; and (C) in clauses (ii) and (iii), by inserting `who has a residence in a foreign country which he has no intention of abandoning and' after `(ii)' and `(iii)', respectively. (2) Section 214 of such Act (8 U.S.C. 1184) is amended by adding at the end the following new subsection: `(f) CLASSIFICATION OF H-1 NONIMMIGRANTS- `(1) IN GENERAL- In the admission of aliens as (and change of status of aliens to that of) a nonimmigrant described in section 101(a)(15)(H)(i), aliens shall be classified as follows: `(A) PREEMINENT INDIVIDUALS- Aliens (other than aliens who are performing artists or employed in the performing arts and entertainment industry) who possess a degree of skill and achievement significantly above that ordinarily encountered in the individual's field of endeavor and who is widely recognized for such skill and achievement and who is coming temporarily to the United States to perform services requiring such skill. `(B) PROFESSIONALS- `(i) IN GENERAL- Aliens (other than aliens described in clause (ii)(I) for the period described in clause (ii)(II) who-- `(I) have completed the course of education described in clause (iii)(II) for a profession (as defined in clause (iii)), `(II) after passage of normal professional tests and requirements, are granted full state licenses to practice in a profession, or `(III) demonstrate the equivalent of the degree in education, extensive experience, training, or a combination thereof, and are in fact lawfully practicing at a professional level, are coming temporarily to the United States to practice as a member of the profession. `(ii) TEMPORARY CLASSIFICATION OF NURSES- `(I) IN GENERAL- Aliens who are coming temporarily to the United States to perform services as a registered nurse, who meet the qualifications described in section 212(m)(1), and with respect to whom the Secretary of Labor determines and certifies to the Attorney General that an unexpired attestation is on file and in effect under section 212(m)(2) for the facility for which the alien will perform the services. `(II) TEMPORARY PROVISION- Subclause (I) shall only apply to aliens for whom classification petitions are filed during the 5-year period beginning on September 1, 1990. `(iii) PROFESSION DEFINED- In clause (i), the term `profession' means an occupation that requires-- `(I) theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation, and `(II) completion of a specific course of education at an accredited college or university culminating in a baccalaureate or higher degree in a specific occupational specialty, where attainment of such degree or its equivalent is the minimum requirement for entry into the occupation in the United States, and includes a profession described in section 101(a)(32), but does not include nursing for any period before September 1, 1995. `(2) LIMITATIONS ON APPROVAL OF PETITIONS FOR PROFESSIONALS- `(A) IN GENERAL- No petition for classification of an alien as a nonimmigrant described in paragraph (1)(B)(i) shall be approved (whether initially or for a 2-year extension) unless the petition specifies the wage level to be paid the alien and attests that such wage level will not be less than (i) the wage or salary paid by the employer to other workers in the occupation with the same credentials and experience, or (ii) if there are no such other workers, the prevailing wage rate for the occupation and industry involved. `(B) ENFORCEMENT WITH RESPECT TO ATTESTATIONS- `(i) LIST OF ATTESTATIONS FILED- The Secretary of Labor shall compile and make available in a timely manner in Washington, D.C., a list of the attestations filed under subparagraph (A). `(ii) COMPLAINT PROCESS- The Secretary of Labor shall establish a process for the receipt, investigation, and disposition of complaints respecting a petitioner's misrepresentation in an attestation under subparagraph (A) of the wage or salary required to be paid or respecting the petitioner failure to pay wages or salary in accordance with such an attestation. Complaints may be filed by any aggrieved person or organization (including bargaining representatives). The Secretary shall conduct an investigation under this clause if there is reasonable cause to believe that a petitioner fails pay wages in accordance with the attestation. `(iii) RESPONSE- Under such process, the Secretary shall provide, within 180 days after the date such a complaint is filed, for a determination as to whether or not a basis exists for imposing a sanction under clause (iv). If the Secretary determines that such a basis exists, the Secretary shall provide for notice of such determination to the interested parties and an opportunity for a hearing on the complaint within 60 days after the date of the determination. `(iv) BACK PAY REMEDY- If the Secretary finds, after notice and opportunity for a hearing, that a petitioner has not paid wages in accordance with an attestation under subparagraph (A), the Secretary shall order the petitioner to provide for payment of such amounts of back pay as may be required to comply with such attestation, plus interest (at a prevailing rate specified by the Secretary). `(v) ADDITIONAL SANCTIONS FOR PATTERN OR PRACTICE VIOLATIONS- If the Secretary finds, after notice and opportunity for a hearing, that a petitioner has a pattern or practice of failing to pay wages in accordance with such an attestation, the Secretary shall impose a civil monetary penalty (in an amount not to exceed $5,000) for each violation. `(C) TREATMENT OF CERTAIN AREAS- `(i) IN GENERAL- If (and for so long as) the Secretary of Labor determines, with respect to a particular profession described in paragraph (1)(B)(i) in a particular region of the Department of Labor, that nonimmigrants described in section 101(a)(15)(H)(i)(b) in the profession comprise more than 1 percent of the members of such profession in the region-- `(I) the Secretary of Labor shall conduct consultations with industry representatives, organized labor, relevant organizations, to determine the impact of such nonimmigrants on the workforce, shall submit to Congress a report that includes recommendations concerning steps (such as training and nationwide job searches) to increase the number of nationals of the United States and immigrants in such profession in such region, and shall disseminate such recommendations to interested parties (such as students, vocational educators, employers, job placement agencies, and appropriate Federal and State agencies), and `(II) the requirements of clause (ii) shall apply to employers seeking to petition for such nonimmigrants for employment in such profession in such region. `(ii) REQUIREMENTS- In the case described in clause (i), a petition for approval of a petition for a nonimmigrant described in paragraph (1)(B)(i) shall not be approved unless the employer attests that-- `(I) the employment of the alien will not adversely affect wages and working conditions of employees similarly employed, `(II) the nonimmigrant will be paid the wage rate for employees similarly employed at the facility or by the employer, `(III) the employer is taking steps, appropriate to the industry involved (and taking into account the size of the employer), to recruit citizens of the United States and immigrants in such profession in the region (as determined through consultation described in clause (i)(I)), `(IV) there is not a strike or lockout in the course of a labor dispute and the employment of such an alien is not intended or designed to influence an election for a bargaining representative for employees similarly employed, and `(V) at the time of filing the petition, notice of the filing has been provided by the employer to the bargaining representative of the employees similarly employed, or where there is no such bargaining representative, notice of the filing has been provided to employees similarly employed by the employer through posting in conspicuous locations. `(iii) ENFORCEMENT WITH RESPECT TO ATTESTATIONS- `(I) LIST- The Secretary of Labor shall compile and make available for public examination in a timely manner in Washington, DC., a list identifying the employers who have filed petitions for which the requirements of clause (ii) apply and, for each such employer, a copy of the employer's attestation under clause (ii). `(II) COMPLAINT PROCESS- The Secretary of Labor shall establish a process for the receipt, investigation, and disposition of complaints respecting an employer's misrepresentation of material facts in an attestation under clause (ii). Complaints may be filed by any aggrieved person or organization (including bargaining representatives). The Secretary shall conduct an investigation under this subclause if there is reasonable cause to believe that an employer fails to meet conditions attested to. `(III) RESPONSE- Under such process, the Secretary shall provide, within 180 days after the date such a complaint is filed, for a determination as to whether or not a basis exists to make a finding described in subclause (IV). If the Secretary determines that such a basis exists, the Secretary shall provide for notice of such determination to the interested parties and an opportunity for a hearing on the complaint within 60 days after the date of the determination. `(IV) SANCTIONS- If the Secretary finds, after notice and opportunity for a hearing, that an employer has failed to meet a condition attested to or that there was a misrepresentation of material fact in the attestation, the Secretary shall notify the Attorney General of such finding and may, in addition, impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $1,000 per violation) as the Secretary determines to be appropriate, and the Attorney General shall not approve petitions filed with respect to that employer during a period of at least 1 year for aliens to be employed by the employer. `(V) ADDITIONAL REMEDY- In addition to the sanctions provided under subclause (IV), if the Secretary of Labor finds, after notice and opportunity for a hearing, that an employer has violated a term of an attestation relating to the payment of wages at a specified wage level, the Secretary shall order the employer to provide for payment of such amounts of back pay as may be required to comply with such attestation.'. (b) TERMS OF ADMISSION- Section 214 of such Act (8 U.S.C. 1184), as amended by subsection (a)(2), is amended-- (1) in subsection (b), by inserting `(other than a nonimmigrant described in subparagraph (H)(i) or (L) of section 101(a)(15))' after `Every alien', and (2) by adding at the end the following new subsection: `(g)(1) In the case of an alien in the status of a principal nonimmigrant described in subparagraph (H)(i) or (L) of section 101(a)(15)-- `(A) the initial period of admission in such status shall be for 3 years and the Attorney General may extend such period twice, for up to 2 years each, `(B) continuation of such status is contingent upon an annual certification by alien's employer that the alien continues to meet the requirements to maintain such status, and `(C) the alien, if described in section 101(a)(15)(H)(i), shall not be considered to have failed to maintain such status by changes in employment so long as such employment remains in the occupation for which the status was granted. `(2) In the case of an alien-- `(A) who is in nonimmigrant status under subparagraph (H) or (L) of section 101(a)(15) as the spouse or minor child of a principal nonimmigrant described in section 101(a)(15) (H)(i) or (L), after the date that labor certification has been issued under section 212(a)(14) with respect to the principal nonimmigrant and a petition for classification of the principal nonimmigrant as an employment-sponsored immigrant under paragraph (1) or (2) of section 203(b) has been filed with the Attorney General, or `(B) who is in preimmigrant status under section 245(f)(1) as the spouse or minor child of a preimmigrant described in such section, the Attorney General shall grant the alien authorization to engage in employment in the United States and provide to that alien an `employment authorized' endorsement or other appropriate work permit. `(3) The number of principal aliens who may be admitted (or otherwise provided) nonimmigrant status under section 101(a)(15)(H)(i)(b) in any fiscal year shall not exceed 100,000.'. (c) ADJUSTMENT OF STATUS- Section 245 of such Act (8 U.S.C. 1255) is amended by adding at the end the following new subsection: `(f)(1) In the case of an alien in the status of a principal nonimmigrant described in subparagraph (H)(i) or (L) of section 101(a)(15) for whom a petition under section 204(a) for classification of the alien as an employment-sponsored immigrant under paragraph (1) or (2) of section 203(b) is filed within 7 years after the date the alien was first granted such status, the Attorney General shall adjust the alien's status (and that of the spouse and minor children of any such alien) to that of a pre-immigrant until the date specified in paragraph (2) if the alien is in an occupation which the Secretary of Labor has determined (under a schedule) to be one for which there is a general shortage of qualified workers in the United States. `(2) Subject to paragraph (3), pre-immigrant status under paragraph (1) shall end upon the earliest of-- `(A) the date of issuance of an immigrant visa number under paragraph (3) or otherwise, `(B) the date that the Secretary of Labor determines (through revision of a schedule) that there no longer is a general shortage of qualified workers in the alien's occupation in the United States, `(C) the date the alien is no longer employed in the occupation for which pre-immigrant status was provided, or `(D) the date (specified by the Attorney General) after the alien's employer has failed to make an annual certification that the alien continues to be employed in such occupation. `(3)(A) For pre-immigrants for whom immigrant visa numbers are not otherwise made available before the end of the 3-year period beginning on the date pre-immigrant status was granted, notwithstanding the numerical limitations of sections 201 and 202, there shall be made available in each fiscal year not to exceed 10,000 immigrant visa numbers. `(B) Immigrant visa numbers made available under subparagraph (A) shall be issued in the order in which an application for such visa numbers is filed under this paragraph. `(C) Any pre-immigrant seeking a visa number under this paragraph may file an application with the Attorney General for such a number. The application shall be in such form as the Attorney General may by regulation prescribe. `(4) Each employer of an alien who is a principal nonimmigrant described in subparagraph (H)(i) or (L) of section 101(a)(15) or a pre-immigrant shall annually certify to the Attorney General, in a form and manner specified by the Attorney General-- `(A) the employment of the alien and the occupation in which the alien is employed, and `(B) in the case of nonimmigrants described in section 101(a)(15)(H)(i)(b), that the alien was and is being paid a wage or salary equal to (i) the wage or salary paid by the employer to other workers in the occupation with the same credentials and experience, or (ii) if there are no such other workers, the prevailing wage rate for the occupation and industry involved.'. (d) CHANGES IN STANDARDS FOR L-1 NONIMMIGRANTS-- (1) CLARIFICATION OF DEFINITIONS OF MANAGERIAL CAPACITY, AND EXECUTIVE CAPACITY- Section 214(g) of such Act (8 U.S.C. 1184(f)), as added by subsection (b), is amended by adding at the end the following new paragraph: `(4) In applying section 101(a)(15)(L): `(A) The term `managerial capacity' means an assignment within an organization in which the employee primarily-- `(i) manages the organization, or a department, subdivision, function, or component of the organization, `(ii) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization or department or subdivision of the organization, `(iii) if another employee or other employees are directly managed, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly managed, functions at a senior level within the organizational hierarchy or with respect to the function managed, and `(iv) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of his or her supervisory duties unless the employees supervised are professional. `(B) The term `executive capacity' means an assignment within an organization in which the employee primarily-- `(i) directs the management of the organization or a major component or function of the organization, `(ii) establishes the goals and policies of the organization, component, or function, `(iii) exercises wide latitude in discretionary decisionmaking, and `(iv) receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization. `(C) If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, the Attorney General shall take into account the reasonable needs of the organization, component, or function in light of the overall purpose and stage of development of the organization, component, or function. An individual shall not be considered not to be acting in a managerial or executive capacity (as previously defined) merely on the basis of the number of employees that the individual manages or has managed or directs or has directed.'. (2) PERIOD OF TIME FOR EXPERIENCE- Section 101(a)(15)(L) of such Act (8 U.S.C. 1101(a)(15)(L)) is amended by striking `immediately preceding' and inserting `within 3 years preceding'. (e) ESTABLISHMENT OF NONIMMIGRANT CLASSIFICATION FOR ARTISTS, ENTERTAINERS, AND ATHLETES- Section 101(a)(15) of such Act (8 U.S.C. 1101(a)(15)) is amended-- (1) by striking `or' at the end of subparagraph (M), (2) by striking the period at the end of subparagraph (N) and inserting `; or', and (3) by adding at the end the following new subparagraph: `(O) aliens who-- `(i) perform as artists, entertainers, or athletes, individually or as part of an entertainment group or team, or as necessary accompanying personnel (as determined by the Attorney General, in consultation with appropriate persons), `(ii) have a foreign residence which they have no intention of abandoning, and `(iii) seek to enter the United States temporarily and solely for the purpose of performing as such an artist, entertainer, or athlete or for accompanying and providing assistance necessary to such a performance, and the alien spouse and minor children of any such alien if accompanying him or following to join him.'. (f) CONFORMING AMENDMENTS- Section 212(m) of such Act (8 U.S.C. 1182(m)), as added by section 3(b) of the Immigration Nursing Relief Act of 1989, is amended-- (1) in paragraphs (1), (2), and (5), by striking `101(a)(15)(H)(i)(a)' each place it appears and inserting `214(f)(1)(B)(ii)', (2) by striking paragraph (4), and (3) by redesignating paragraph (5) as paragraph (4). SEC. 4. PREFERENCE SYSTEM FOR ADMISSION OF IMMIGRANTS. (a) IN GENERAL- (1) Section 203 of the Immigration and Nationality Act (8 U.S.C. 1153) is amended to read as follows: `ALLOCATION OF IMMIGRANT VISAS `SEC. 203. (a) PREFERENCE ALLOCATION FOR FAMILY CONNECTION IMMIGRANTS- Aliens subject to the worldwide level specified in section 201(a)(1) for family connection immigrants shall be allotted visas as follows: `(1) UNMARRIED SONS AND DAUGHTERS OF CITIZENS- Qualified immigrants who are the unmarried sons or daughters of citizens of the United States shall be allocated visas in a number not to exceed 25 percent of such worldwide level. `(2) SPOUSES AND UNMARRIED SONS AND UNMARRIED DAUGHTERS OF PERMANENT RESIDENT ALIENS- Qualified immigrants who are the spouses or unmarried sons or unmarried daughters of aliens lawfully admitted for permanent residence shall be allocated visas in a number not to exceed 32.5 percent of such worldwide level, plus any visas not required for the class specified in paragraph (1). `(3) MARRIED SONS AND DAUGHTERS OF CITIZENS- Qualified immigrants who are the married sons or married daughters of citizens of the United States shall be allocated visas in a number not to exceed 12.5 percent of such worldwide level, plus any visas not required for the classes specified in paragraphs (1) and (2). `(4) BROTHERS AND SISTERS OF CITIZENS- Qualified immigrants who are the brothers or sisters of citizens of the United States, if such citizens are at least 21 years of age, shall be allocated visas in a number not to exceed 30 percent of such worldwide level, plus any visas not required for the classes specified in paragraphs (1) through (3). `(b) PREFERENCE ALLOCATION FOR EMPLOYMENT-SPONSORED IMMIGRANTS- Aliens subject to the worldwide level specified in section 201(a)(2) for employment-sponsored immigrants in a fiscal year shall be allocated visas as follows: `(1) ALIENS WHO ARE PROFESSIONALS OF EXCEPTIONAL ABILITY- Visas shall be made available first, in a number not to exceed 60,000, to qualified immigrants who are members of the professions or who because of their exceptional ability in the sciences, arts, business, or education will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the professions, sciences, arts, business, or education are sought by an employer in the United States. The Attorney General may, when he deems it to be in the national interest, waive the requirement of the previous sentence that an alien's services be sought by an employer in the United States. `(2) MANAGERS AND EXECUTIVES- Visas shall be made available next, in a number not to exceed 30,000, plus any visas not required for the classes specified in paragraph (1), to qualified immigrants who, during the 3-year period preceding the time of application for admission or adjustment of status, have been employed continuously for one year by a firm or corporation or other legal entity and are coming to perform services in a managerial or executive capacity (as defined in section 214(g)(4)). `(3) OTHER SHORTAGE WORKERS- Subject to paragraph (4)(B), visas shall be made available next, in a number not to exceed 30,000, plus any visas not required for the classes specified in paragraphs (1) and (2), to qualified immigrants who are capable of performing specified labor, not of a temporary or seasonal nature, for which a shortage of qualified and willing persons exists in the United States. `(4) LABOR CERTIFICATION REQUIRED- An immigrant visa may not be issued to an immigrant under this subsection until the consular officer is in receipt of a determination made by the Secretary of Labor pursuant to the provisions of section 212(a)(14). The Secretary shall not issue such a determination unless, at the time of filing the request for labor certification, the employer has provided notice of the filing to the bargaining representative of the employees similarly employed, or where there is no such bargaining representative, notice of the filing has been provided to employees similarly employed by the employer through posting in conspicuous locations. `(c) PREFERENCE ALLOCATION FOR INDEPENDENT IMMIGRANTS- Aliens subject to the worldwide level specified in section 201(a)(3) for independent immigrants in a fiscal year shall be allocated visas as follows: `(1) EMPLOYMENT CREATION- Visas shall be made available first, in a number not to exceed 8,000, to any qualified immigrant who is seeking to enter the United States for the purpose of engaging in a new commercial enterprise which the alien has established and in which such alien has invested or, is actively in the process of investing-- `(A) capital, in an amount not less than $700,000, and which will benefit the United States economy and create full-time employment for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence (other than the spouse, sons, or daughters of such immigrant); or `(B) capital, in an amount not less than $350,000, in rural areas or in areas which have experienced persistently high unemployment, at the time of investment, of at least one and one-half times the national average rate, and which will benefit the United States economy and create full-time employment for not fewer than 5 United States citizens or aliens lawfully admitted for permanent residence (other than the spouse, sons, or daughters of such immigrant). Of the visas allocated under this paragraph in each fiscal year, 2,500 shall be available for aliens investors described in subparagraph (B). Special attention shall be given to such aliens in subparagraph (B) who have invested (or are actively in the process of investing) in rural areas with an unemployment rate, at the time of the investment, of at least one and one-half times the national average. For purposes of subparagraph (B), the term `rural area' means all territory of a State that is not within a metropolitan statistical area or the outer boundary of any city or town having a population of 20,000 or more based on the latest dicennial census of the United States. The Attorney General, in consultation with the Secretary of Labor and the Secretary of State, may prescribe regulations increasing the dollar amount of the investment necessary in subparagraph (A) for the issuance of a visa under this paragraph. `(2) DIVERSITY IMMIGRANTS- Visas authorized in any fiscal year under section 201(a)(3), less those required for issuance to the classes specified in paragraph (1), shall be made available in each fiscal year to qualified immigrants who are natives of foreign states and dependent areas in a region as follows: `(A) DETERMINATION OF PREFERENCE IMMIGRATION- The Attorney General shall determine, for the most recent previous 5-fiscal-year period for which data are available, the total number of aliens who are natives of each foreign state or dependent area and who are admitted or otherwise provided lawful permanent resident status and were subject to the numerical limitations of section 201(a). `(B) IDENTIFICATION OF HIGH-ADMISSION AND LOW-ADMISSION REGIONS AND HIGH-ADMISSION AND LOW-ADMISSION STATES- The Attorney General-- `(i) shall identify-- `(I) each region (each in this paragraph referred to as a `high-admission region') for which the total of the numbers determined under subparagraph (A) for states and areas in the region is greater than 1/6 of the total of all such numbers, and `(II) each other region (each in this paragraph referred to as a `low-admission region'); and `(ii) shall identify-- `(I) those foreign states and dependent areas for which the number determined under subparagraph (A) is greater than 25,000 (each such state and area in this paragraph referred to as a `high-admission state'), and `(II) other foreign states and areas (each such state and area in this paragraph referred to as a `low-admission state'). `(C) DETERMINATION OF PERCENTAGE OF WORLDWIDE IMMIGRATION ATTRIBUTABLE TO HIGH-ADMISSION REGIONS- The Attorney General shall determine the percentage of the total of the numbers determined under subparagraph (A) that are for foreign states and areas in high-admission regions. `(D) DETERMINATION OF REGIONAL POPULATIONS EXCLUDING HIGH-ADMISSION STATES AND RATIOS OF POPULATIONS OF REGIONS WITHIN LOW-ADMISSION REGIONS AND HIGH-ADMISSION REGIONS- The Attorney General shall determine-- `(i) based on available estimates for each region, the total population of each region not including the population of any high-admission state; `(ii) for each low-admission region, the ratio of the population of the region determined under clause (i) to the total of the populations determined under such clause for all the low-admission regions; and `(iii) for each high-admission region, the ratio of the population of the region determined under clause (i) to the total of the populations determined under such clause for all the high-admission regions. `(E) DISTRIBUTION OF VISAS- `(i) NO VISAS FOR NATIVES OF HIGH-ADMISSION STATES- The percentage of visas made available under this paragraph to natives of a high-admission state is 0. `(ii) FOR LOW-ADMISSION STATES IN LOW-ADMISSION REGIONS- Subject to clauses (iv) and (v), the percentage of visas made available under this paragraph to natives (other than natives of a high-admission state) in a low-admission region is the product of-- `(I) the percentage determined under subparagraph (C), and `(II) the population ratio for that region determined under subparagraph (D)(ii). `(iii) FOR LOW-ADMISSION STATES IN HIGH-ADMISSION REGIONS- Subject to clauses (iv) and (v), the percentage of visas made available under this paragraph to natives (other than natives of a high-admission state) in a high-admission region is the product of-- `(I) 100 percent minus the percentage determined under subparagraph (C), and `(II) the population ratio for that region determined under subparagraph (D)(iii). `(iv) REDISTRIBUTION OF UNUSED VISA NUMBERS- If the Secretary of State estimates that the number of immigrant visas issued to natives in any region for a fiscal year pursuant to this paragraph is less than the number of immigrant visas made available to such natives under this paragraph for the fiscal year, subject to clause (v), the excess visa numbers shall be made available to natives (other than natives of a high-admission state) of the other regions in proportion to the percentages otherwise specified in clauses (ii) and (iii). `(v) LIMITATION ON VISAS FOR NATIVES OF A SINGLE FOREIGN STATE OR DEPENDENT AREA- The percentage of visas made available under this paragraph to natives of any single foreign state (or dependent area) shall not exceed 7 percent. `(F) REGION DEFINED- For purposes of this paragraph, Northern Ireland shall be treated as a separate foreign state and each of the following shall be considered to be a separate region: `(i) Africa. `(ii) Asia. `(iii) Europe. `(iv) North America (other than Mexico). `(v) Oceania. `(vi) South America, Mexico, Central America, and the Caribbean. `(d) TREATMENT OF FAMILY MEMBERS- A spouse or child as defined in subparagraph (A), (B), (C), (D), or (E) of section 101(b)(1) shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, his spouse or parent. `(e) ORDER OF CONSIDERATION- (1) Immigrant visas made available under subsection (a), (b), or (c) (other than paragraph (2)) shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed with the Attorney General as provided in section 204(a). `(2)(A) Immigrant visa numbers made available under subsection (c)(2) (relating to diversity immigrants) in a fiscal year for natives of low-admission states shall be made available to qualified immigrants who have filed petitions under section 204(a)(1)(F) strictly in a random order established by the Secretary of State for the fiscal year involved. `(3) Waiting lists of applicants for visas under this section shall be maintained in accordance with regulations prescribed by the Secretary of State. `(f) PRESUMPTION- Every immigrant shall be presumed not to be described in subsection (a), (b), or (c) of this section, section 101(a)(27), or section 201(b)(2), until the immigrant establishes to the satisfaction of the consular officer and the immigration officer that the immigrant is so described. In the case of any alien claiming in his application for an immigrant visa to be described in section 201(b)(2) or in subsection (a), (b), or (c)(2) of this section, the consular officer shall not grant such status until he has been authorized to do so as provided by section 204. `(g) LISTS- For purposes of carrying out his responsibilities in the orderly administration of this section, the Secretary of State may make reasonable estimates of the anticipated numbers of visas to be issued during any quarter of any fiscal year within each of the categories under subsections (a), (b), and (c) and to rely upon such estimates in authorizing the issuance of visas. The Secretary of State shall terminate the registration of any alien who fails to apply for an immigrant visa within one year following notification to him of the availability of such visa, but the Secretary shall reinstate the registration of any such alien who establishes within 2 years following the date of notification of the availability of such visa that such failure to apply was due to circumstances beyond his control.'. (2) Nothing in this subsection may be construed as continuing the availability of visas under section 203(a)(7) of the Immigration and Nationality Act, as in effect before the date of enactment of this Act. (b) CHANGES IN PETITIONING PROCEDURE- Section 204(a)(1) of such Act (8 U.S.C. 1154(a)) is amended by striking `(a)(1)' and all that follows through the end and inserting the following: `(a)(1)(A) Any citizen of the United States claiming that an alien is entitled to classification by reason of a relationship described in paragraph (1), (3), or (4) of section 203(a) or to an immediate relative status under section 201(b)(2)(A)(i) may file a petition with the Attorney General for such classification. `(B) Any alien lawfully admitted for permanent residence claiming that an alien is entitled to a classification by reason of the relationship described in section 203(a)(2) may file a petition with the Attorney General for such classification. `(C) Any alien desiring to be classified under section 203(b) (or any person on behalf of such an alien) (relating to employment-sponsored immigrants) may file a petition with the Attorney General for such classification. `(D) Any person desiring and intending to employ within the United States an alien entitled to classification under paragraph (3) of section 203(b) (relating to shortage labor) may file a petition with the Attorney General for such classification. `(E) Any alien desiring to be classified under section 203(c)(1) (relating to investors) may file a petition with the Secretary of State for such classification. `(F)(i) Any alien desiring to be provided an immigrant visa under section 203(c)(2) (relating to diversity immigrants) may file a petition at the place and time determined by the Secretary of State. Only one such petition may be filed by an alien with respect to any petitioning period, and, if more than one petition is submitted, all such petitions submitted for the period by the alien shall be void. `(ii) The Secretary of State shall establish a fee for the filing of such petitions in an amount sufficient to cover the costs of processing such a petition under this subparagraph. `(iii) The Secretary of State shall designate a period for the filing of petitions under this subparagraph with respect to one or two fiscal years. Aliens who qualify under this subparagraph for an immigrant visa shall remain eligible to receive the visa only through the end of the specific fiscal year for which they were selected.'. (c) REVISION OF LABOR CERTIFICATION- (1) Paragraph (14) of section 212(a) of such Act (8 U.S.C. 1182(a)) is amended to read as follows: `(14) Aliens seeking to enter the United States to perform skilled labor unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that (A) there are not sufficient qualified workers (or equally qualified workers in the case of aliens who are members of the teaching profession or who have exceptional ability in the sciences, arts, business, or education) available in the United States for the positions in which the aliens will be employed; and (B) the employment of aliens in such positions will not adversely affect the wages and working conditions of workers in the United States. In making determinations under this paragraph, the Secretary of Labor may use labor market information without regard to the specific job opportunity for which certification is requested, but if such determination is adverse, the employer shall be permitted to submit evidence of individual recruitment efforts sufficient for the determination and certification. The Secretary may promulgate schedules for purposes of the administration of this paragraph, but such schedules shall only be promulgated by regulation and shall be reviewed and, as appropriate, revised not less often than once every 3 years and the Secretary shall provide a process for the receipt and review of petitions to establish and modify such schedules. The exclusion of aliens under this paragraph shall apply to immigrants seeking admission under section 203(b) and shall not apply to immigrants seeking admission under section 203(c)(2);'. (2) The Secretary of Labor, for purposes of making certifications under section 212(a)(14) of the Immigration and Nationality Act, shall expand the use of schedules regarding labor shortages and surpluses. The Secretary shall use this information to develop strategies to reduce labor shortages through employment of United States workers in coordination with appropriate Federal and State agencies. (d) GROUND FOR DEPORTATION FOR FAILURE TO CONTINUE INVESTMENT- Section 241(a) of the Immigration and Nationality Act (8 U.S.C. 1251(a)) is amended-- (1) by striking `or' at the end of paragraph (19), (2) by striking the period at the end of paragraph (20) and inserting `; or', and (3) by adding at the end the following new paragraph: `(21) obtains the status of an immigrant by virtue of a visa number made available under section 203(c)(1) (relating to employment creation) and fails to make or continue (during the 5-year period that begins on the date the alien was granted lawful permanent resident status) other than due to circumstances beyond the control of the alien or extreme hardship to the alien, the capital investment and employment required to have been made under such section.'. SEC. 5. TREATMENT OF RELIGIOUS WORKERS. (a) AS TEMPORARY WORKERS- Section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)), as amended by section 3(e), is amended-- (1) in subparagraph (N), by striking `or' at the end, (2) in subparagraph (O), by striking the period at the end and inserting `; or', and (3) by adding at the end the following new subparagraph: `(P) an alien, and the alien spouse and minor children of such alien if accompanying or following to join, who (i) for the two years immediately preceding the alien's application for admission has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States, and (ii) seeks to enter the United States for a period not to exceed 5 years to engage in a religious occupation with the religious denomination of which the alien has been a member for the preceding two years or to work for a nonprofit, religious organization associated with that denomination.'. (b) AS SPECIAL IMMIGRANTS- Section 101(a)(27)(C) of such Act (8 U.S.C. 1101(a)(27)(C)) is amended by striking `(C)(i)' and all that follows through `(ii)' and inserting the following: `(C)(i) an immigrant who for at least two years immediately preceding the time of the immigrant's application for admission to the United States has been a minister of religion or a religious worker for a religious denomination and who seeks to enter the United States for the purpose of carrying on a religious vocation or occupation as a minister of religion or religious worker for a religious denomination or for a bona fide organization which is affiliated with the religious denomination, is exempt from taxation as an organization described in section 503(c)(3) of the Internal Revenue Code of 1986, and needs the services of such immigrant; and'. SEC. 6. MISCELLANEOUS CONFORMING AND TECHNICAL CHANGES. (a) Sections 101(b)(1)(F), 202(a), 202(c), 204(b), 204(e), 216(g)(1)(A), 222(a), 244(d), 245(c)(2), and 245(c)(5) of the Immigration and Nationality Act (8 U.S.C. 1101(b)(1)(F), 1152(a), 1152(c), 1154(a)(1), 1154(b), 1154(e), 1186a(g)(1)(A), 1202(a), 1254(d), 1255(c)(2), 1255(c)(5)) are each amended by striking `201(b)' each place it appears and inserting `201(b)(2)(A)(i)'. (b) Section 204 of such Act (8 U.S.C. 1154) is amended-- (1) in subsection (b)-- (A) by striking `section 203(a) (3) or (6)' and inserting `section 203(b)', and (B) by striking `a preference status under section 203(a)' and inserting `preference under subsection (a) or (b) of section 203'; (2) in subsection (e), by striking `preference immigrant under section 203(a)' and inserting `immigrant under subsection (a) or (b) of section 203'; (3) by striking subsection (f); (4) by redesignating subsections (g) and (h) as subsections (f) and (g), respectively; (5) in subsection (f)(1), as redesignated by paragraph (4), by inserting `(as in effect before the date of the enactment of the Employment-Related Immigration Act of 1990)' after `203(a)(4)'; and (6) in subsection (g), as redesignated by paragraph (4), by striking `preference status' and inserting `status under section 203(a)(2)'. (c) Section 212(a)(32) of such Act (8 U.S.C. 1182(a)(32)) is amended by striking `203(a) (3) and (6) and to nonpreference immigrant aliens described in section 203(a)(7)' and inserting `203(b) (2) and (3) and section 203(c)(2)'. (d) Section 245 of such Act (8 U.S.C. 1255) is amended-- (1) in subsection (b), by striking `203(a)' and inserting `203', and (2) in subsection (c), by redesignating clause (5) as clause (4) and by inserting before the period at the end the following: `, or (5) an alien who is applying for adjustment of status to preference status under section 203(c)(2)'. (e)(1) Section 3304(a)(14)(A) of the Internal Revenue Code of 1986 is amended by striking `section 203(a)(7) or'. (2) Section 1614(a)(1)(B) of the Social Security Act is amended by striking `section 203(a)(7) or'. (f) Section 2(c)(4) of the Virgin Islands Nonimmigrant Alien Adjustment Act of 1982 (Public Law 97-271) is amended by inserting before the period at the end the following: `(as in effect before October 1, 1991) or by reason of the relationship described in section 203(a)(2)(B), 203(a)(3), or 201(b)(2)(A)(i), respectively, of such Act (as in effect on or after such date)'. SEC. 7. EFFECTIVE DATES AND TRANSITION. (a) IN GENERAL- (1) Except as provided in paragraph (2), the amendments made by this Act shall take effect on October 1, 1991, and shall apply to immigrant visa numbers issued for fiscal years beginning with fiscal year 1992. (2) The amendments made by section 4(b) (relating to immigrant visa petitioning process) shall take effect on the date of the enactment of this Act and apply to immigrant visa numbers issued for fiscal years beginning with fiscal year 1992. (b) GENERAL TRANSITION- In the case of a petition filed under section 204(a) of the Immigration and Nationality Act before October 1, 1991, for preference status under paragraph (3), (4), (5), or (6) of section 203(a) of such Act (as in effect before such date), such petition shall be deemed as of October 1, 1991, to be a petition for the status described in section 203(b)(1), 203(a)(3), 203(a)(4), or 203(b)(3) of such Act, respectively, and the priority date for such petition shall remain in effect. (c) ADMISSIBILITY STANDARDS- When an immigrant, in possession of an unexpired immigrant visa issued before October 1, 1991, makes application for admission, the immigrant's admissibility under paragraphs (20) and (21) of section 212(a) of the Immigration and Nationality Act shall be determined under the provisions of law in effect on the date of the issuance of such visa.