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H-1B Workers: ACWIA Law

 TITLE IV--AMERICAN COMPETITIVENESS AND WORKFORCE IMPROVEMENT ACT

     SEC. 401. SHORT TITLE; TABLE OF CONTENTS; AMENDMENTS TO
                   IMMIGRATION AND NATIONALITY ACT.

       (a) Short Title.--This title may be cited as the ``American
     Competitiveness and Workforce Improvement Act of 1998''.
       (b) Table of Contents.--The table of contents of this title
     is as follows:

Sec. 401. Short title; table of contents; amendments to Immigration and
              Nationality Act.

         Subtitle A--Provisions Relating to H-1B Nonimmigrants

Sec. 411. Temporary increase in access to temporary skilled personnel
              under H-1B program.
Sec. 412. Protection against displacement of United States workers in
              case of H-1B-dependent employers.
Sec. 413. Changes in enforcement and penalties.
Sec. 414. Collection and use of H-1B nonimmigrant fees for scholarships
              for low-income math, engineering, and computer science
              students and job training of United States workers.
Sec. 415. Computation of prevailing wage level.
Sec. 416. Improving count of H-1B and H-2B nonimmigrants.
Sec. 417. Report on older workers in the information technology field.
Sec. 418. Report on high technology labor market needs; reports on
              economic impact of increase in H-1B nonimmigrants.

    Subtitle B--Special Immigrant Status for Certain NATO Civilian
                               Employees

Sec. 421. Special immigrant status for certain NATO civilian employees.

                  Subtitle C--Miscellaneous Provision

Sec. 431. Academic honoraria.
       (c) Amendments to Immigration and Nationality Act.--Except
     as otherwise specifically provided in this title, whenever in
     this title an amendment is expressed in terms of an amendment
     to a section or other provision, the reference shall be
     considered to be made to that section or other provision of
     the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

         Subtitle A--Provisions Relating to H-1B Nonimmigrants

     SEC. 411. TEMPORARY INCREASE IN ACCESS TO TEMPORARY SKILLED
                   PERSONNEL UNDER H-1B PROGRAM.

       (a) Temporary Increase in Skilled Nonimmigrant Workers.--
     Paragraph (1)(A) of section 214(g) (8 U.S.C. 1184(g)) is
     amended to read as follows:
       ``(A) under section 101(a)(15)(H)(i)(b), may not exceed--
       ``(i) 65,000 in each fiscal year before fiscal year 1999;
       ``(ii) 115,000 in fiscal year 1999;
       ``(iii) 115,000 in fiscal year 2000;
       ``(iv) 107,500 in fiscal year 2001; and
       ``(v) 65,000 in each succeeding fiscal year; or''.
       (b) Effective Dates.--The amendment made by subsection (a)
     applies beginning with fiscal year 1999.

     SEC. 412. PROTECTION AGAINST DISPLACEMENT OF UNITED STATES
                   WORKERS IN CASE OF H-1B-DEPENDENT EMPLOYERS.

       (a) Protection Against Layoff and Requirement for Prior
     Recruitment of United States Workers.--
       (1) Additional statements on application.--Section
     212(n)(1) (8 U.S.C. 1182(n)(1)) is amended by inserting after
     subparagraph (D) the following:
       ``(E)(i) In the case of an application described in clause
     (ii), the employer did not displace and will not displace a
     United States worker (as defined in paragraph (4)) employed
     by the employer within the period beginning 90 days before
     and ending 90 days after the date of filing

[[Page H11218]]

     of any visa petition supported by the application.
       ``(ii) An application described in this clause is an
     application filed on or after the date final regulations are
     first promulgated to carry out this subparagraph, and before
     October 1, 2001, by an H-1B-dependent employer (as defined in
     paragraph (3)) or by an employer that has been found, on or
     after the date of the enactment of the American
     Competitiveness and Workforce Improvement Act of 1998, under
     paragraph (2)(C) or (5) to have committed a willful failure
     or misrepresentation during the 5-year period preceding the
     filing of the application. An application is not described in
     this clause if the only H-1B nonimmigrants sought in the
     application are exempt H-1B nonimmigrants.
       ``(F) In the case of an application described in
     subparagraph (E)(ii), the employer will not place the
     nonimmigrant with another employer (regardless of whether or
     not such other employer is an H-1B-dependent employer)
     where--
       ``(i) the nonimmigrant performs duties in whole or in part
     at one or more worksites owned, operated, or controlled by
     such other employer; and
       ``(ii) there are indicia of an employment relationship
     between the nonimmigrant and such other employer;
     unless the employer has inquired of the other employer as to
     whether, and has no knowledge that, within the period
     beginning 90 days before and ending 90 days after the date of
     the placement of the nonimmigrant with the other employer,
     the other employer has displaced or intends to displace a
     United States worker employed by the other employer.
       ``(G)(i) In the case of an application described in
     subparagraph (E)(ii), subject to clause (ii), the employer,
     prior to filing the application--
       ``(I) has taken good faith steps to recruit, in the United
     States using procedures that meet industry-wide standards and
     offering compensation that is at least as great as that
     required to be offered to H-1B nonimmigrants under
     subparagraph (A), United States workers for the job for which
     the nonimmigrant or nonimmigrants is or are sought; and
       ``(II) has offered the job to any United States worker who
     applies and is equally or better qualified for the job for
     which the nonimmigrant or nonimmigrants is or are sought.
       ``(ii) The conditions described in clause (i) shall not
     apply to an application filed with respect to the employment
     of an H-1B nonimmigrant who is described in subparagraph (A),
     (B), or (C) of section 203(b)(1).''.
       (2) Notice on application of potential liability of placing
     employers.--Section 212(n)(1) (8 U.S.C. 1182(n)(1)) is
     amended by adding at the end the following: ``The application
     form shall include a clear statement explaining the liability
     under subparagraph (F) of a placing employer if the other
     employer described in such subparagraph displaces a United
     States worker as described in such subparagraph.''.
       (3) Construction.--Section 212(n)(1) (8 U.S.C. 1182(n)(1))
     is further amended by adding at the end the following:
     ``Nothing in subparagraph (G) shall be construed to prohibit
     an employer from using legitimate selection criteria relevant
     to the job that are normal or customary to the type of job
     involved, so long as such criteria are not applied in a
     discriminatory manner.''.
       (b) H-1B-Dependent Employer and Other Definitions.--
       (1) In general.--Section 212(n) (8 U.S.C. 1182(n)) is
     amended by adding at the end the following:
       ``(3)(A) For purposes of this subsection, the term `H-1B-
     dependent employer' means an employer that--
       ``(i)(I) has 25 or fewer full-time equivalent employees who
     are employed in the United States; and (II) employs more than
     7 H-1B nonimmigrants;
       ``(ii)(I) has at least 26 but not more than 50 full-time
     equivalent employees who are employed in the United States;
     and (II) employs more than 12 H-1B nonimmigrants; or
       ``(iii)(I) has at least 51 full-time equivalent employees
     who are employed in the United States; and (II) employs H-1B
     nonimmigrants in a number that is equal to at least 15
     percent of the number of such full-time equivalent employees.
       ``(B) For purposes of this subsection--
       ``(i) the term `exempt H-1B nonimmigrant' means an H-1B
     nonimmigrant who--
       ``(I) receives wages (including cash bonuses and similar
     compensation) at an annual rate equal to at least $60,000; or
       ``(II) has attained a master's or higher degree (or its
     equivalent) in a specialty related to the intended
     employment; and
       ``(ii) the term `nonexempt H-1B nonimmigrant' means an H-1B
     nonimmigrant who is not an exempt H-1B nonimmigrant.
       ``(C) For purposes of subparagraph (A)--
       ``(i) in computing the number of full-time equivalent
     employees and the number of H-1B nonimmigrants, exempt H-1B
     nonimmigrants shall not be taken into account during the
     longer of--
       ``(I) the 6-month period beginning on the date of the
     enactment of the American Competitiveness and Workforce
     Improvement Act of 1998; or
       ``(II) the period beginning on the date of the enactment of
     the American Competitiveness and Workforce Improvement Act of
     1998 and ending on the date final regulations are issued to
     carry out this paragraph; and
       ``(ii) any group treated as a single employer under
     subsection (b), (c), (m), or (o) of section 414 of the
     Internal Revenue Code of 1986 shall be treated as a single
     employer.
       ``(4) For purposes of this subsection:
       ``(A) The term `area of employment' means the area within
     normal commuting distance of the worksite or physical
     location where the work of the H-1B nonimmigrant is or will
     be performed. If such worksite or location is within a
     Metropolitan Statistical Area, any place within such area is
     deemed to be within the area of employment.
       ``(B) In the case of an application with respect to one or
     more H-1B nonimmigrants by an employer, the employer is
     considered to `displace' a United States worker from a job if
     the employer lays off the worker from a job that is
     essentially the equivalent of the job for which the
     nonimmigrant or nonimmigrants is or are sought. A job shall
     not be considered to be essentially equivalent of another job
     unless it involves essentially the same responsibilities, was
     held by a United States worker with substantially equivalent
     qualifications and experience, and is located in the same
     area of employment as the other job.
       ``(C) The term `H-1B nonimmigrant' means an alien admitted
     or provided status as a nonimmigrant described in section
     101(a)(15)(H)(i)(b).
       ``(D)(i) The term `lays off', with respect to a worker--
       ``(I) means to cause the worker's loss of employment, other
     than through a discharge for inadequate performance,
     violation of workplace rules, cause, voluntary departure,
     voluntary retirement, or the expiration of a grant or
     contract (other than a temporary employment contract entered
     into in order to evade a condition described in subparagraph
     (E) or (F) of paragraph (1)); but
       ``(II) does not include any situation in which the worker
     is offered, as an alternative to such loss of employment, a
     similar employment opportunity with the same employer (or, in
     the case of a placement of a worker with another employer
     under paragraph (1)(F), with either employer described in
     such paragraph) at equivalent or higher compensation and
     benefits than the position from which the employee was
     discharged, regardless of whether or not the employee accepts
     the offer.
       ``(ii) Nothing in this subparagraph is intended to limit an
     employee's rights under a collective bargaining agreement or
     other employment contract.
       ``(E) The term `United States worker' means an employee
     who--
       ``(i) is a citizen or national of the United States; or
       ``(ii) is an alien who is lawfully admitted for permanent
     residence, is admitted as a refugee under section 207, is
     granted asylum under section 208, or is an immigrant
     otherwise authorized, by this Act or by the Attorney General,
     to be employed.''.
       (2) Conforming amendments.--Section 212(n)(1) (8 U.S.C.
     1182(n)(1)) is amended by striking ``a nonimmigrant described
     in section 101(a)(15)(H)(i)(b)'' each place it appears and
     inserting ``an H-1B nonimmigrant''.
       (c) Improved Posting of Notice of Application.--Section
     212(n)(1)(C)(ii) (8 U.S.C. 1182(n)(1)(C)(ii)) is amended to
     read as follows:
       ``(ii) if there is no such bargaining representative, has
     provided notice of filing in the occupational classification
     through such methods as physical posting in conspicuous
     locations at the place of employment or electronic
     notification to employees in the occupational classification
     for which H-1B nonimmigrants are sought.''.
       (d) Effective Dates.--The amendments made by subsection (a)
     apply to applications filed under section 212(n)(1) of the
     Immigration and Nationality Act on or after the date final
     regulations are issued to carry out such amendments, and the
     amendments made by subsections (b) and (c) take effect on the
     date of the enactment of this Act.
       (e) Reduction of Period for Public Comment.--In first
     promulgating regulations to implement the amendments made by
     this section in a timely manner, the Secretary of Labor and
     the Attorney General may reduce to not less than 30 days the
     period of public comment on proposed regulations.

     SEC. 413. CHANGES IN ENFORCEMENT AND PENALTIES.

       (a) Increased Enforcement and Penalties.--Section
     212(n)(2)(C) (8 U.S.C. 1182(n)(2)(C)) is amended to read as
     follows:
       ``(C)(i) If the Secretary finds, after notice and
     opportunity for a hearing, a failure to meet a condition of
     paragraph (1)(B), (1)(E), or (1)(F), a substantial failure to
     meet a condition of paragraph (1)(C), (1)(D), or
     (1)(G)(i)(I), or a misrepresentation of material fact in an
     application--
       ``(I) 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
       ``(II) the Attorney General shall not approve petitions
     filed with respect to that employer under section 204 or
     214(c) during a period of at least 1 year for aliens to be
     employed by the employer.
       ``(ii) If the Secretary finds, after notice and opportunity
     for a hearing, a willful failure to meet a condition of
     paragraph (1), a willful misrepresentation of material fact
     in an application, or a violation of clause (iv)--
       ``(I) 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 $5,000 per violation) as the
     Secretary determines to be appropriate; and
       ``(II) the Attorney General shall not approve petitions
     filed with respect to that employer under section 204 or
     214(c) during a period of at least 2 years for aliens to be
     employed by the employer.
       ``(iii) If the Secretary finds, after notice and
     opportunity for a hearing, a willful failure to meet a
     condition of paragraph (1) or a willful misrepresentation of
     material fact in an application, in the course of which
     failure or misrepresentation the employer displaced a United

[[Page H11219]]

     States worker employed by the employer within the period
     beginning 90 days before and ending 90 days after the date of
     filing of any visa petition supported by the application--
       ``(I) 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 $35,000 per violation) as the
     Secretary determines to be appropriate; and
       ``(II) the Attorney General shall not approve petitions
     filed with respect to that employer under section 204 or
     214(c) during a period of at least 3 years for aliens to be
     employed by the employer.
       ``(iv) It is a violation of this clause for an employer who
     has filed an application under this subsection to intimidate,
     threaten, restrain, coerce, blacklist, discharge, or in any
     other manner discriminate against an employee (which term,
     for purposes of this clause, includes a former employee and
     an applicant for employment) because the employee has
     disclosed information to the employer, or to any other
     person, that the employee reasonably believes evidences a
     violation of this subsection, or any rule or regulation
     pertaining to this subsection, or because the employee
     cooperates or seeks to cooperate in an investigation or other
     proceeding concerning the employer's compliance with the
     requirements of this subsection or any rule or regulation
     pertaining to this subsection.
       ``(v) The Secretary of Labor and the Attorney General shall
     devise a process under which an H-1B nonimmigrant who files a
     complaint regarding a violation of clause (iv) and is
     otherwise eligible to remain and work in the United States
     may be allowed to seek other appropriate employment in the
     United States for a period not to exceed the maximum period
     of stay authorized for such nonimmigrant classification.
       ``(vi)(I) It is a violation of this clause for an employer
     who has filed an application under this subsection to require
     an H-1B nonimmigrant to pay a penalty for ceasing employment
     with the employer prior to a date agreed to by the
     nonimmigrant and the employer. The Secretary shall determine
     whether a required payment is a penalty (and not liquidated
     damages) pursuant to relevant State law.
       ``(II) It is a violation of this clause for an employer who
     has filed an application under this subsection to require an
     alien who is the subject of a petition filed under section
     214(c)(1), for which a fee is imposed under section
     214(c)(9), to reimburse, or otherwise compensate, the
     employer for part or all of the cost of such fee. It is a
     violation of this clause for such an employer otherwise to
     accept such reimbursement or compensation from such an alien.
       ``(III) If the Secretary finds, after notice and
     opportunity for a hearing, that an employer has committed a
     violation of this clause, the Secretary may impose a civil
     monetary penalty of $1,000 for each such violation and issue
     an administrative order requiring the return to the
     nonimmigrant of any amount paid in violation of this clause,
     or, if the nonimmigrant cannot be located, requiring payment
     of any such amount to the general fund of the Treasury.
       ``(vii)(I) It is a failure to meet a condition of paragraph
     (1)(A) for an employer, who has filed an application under
     this subsection and who places an H-1B nonimmigrant
     designated as a full-time employee on the petition filed
     under section 214(c)(1) by the employer with respect to the
     nonimmigrant, after the nonimmigrant has entered into
     employment with the employer, in nonproductive status due to
     a decision by the employer (based on factors such as lack of
     work), or due to the nonimmigrant's lack of a permit or
     license, to fail to pay the nonimmigrant full-time wages in
     accordance with paragraph (1)(A) for all such nonproductive
     time.
       ``(II) It is a failure to meet a condition of paragraph
     (1)(A) for an employer, who has filed an application under
     this subsection and who places an H-1B nonimmigrant
     designated as a part-time employee on the petition filed
     under section 214(c)(1) by the employer with respect to the
     nonimmigrant, after the nonimmigrant has entered into
     employment with the employer, in nonproductive status under
     circumstances described in subclause (I), to fail to pay such
     a nonimmigrant for such hours as are designated on such
     petition consistent with the rate of pay identified on such
     petition.
       ``(III) In the case of an H-1B nonimmigrant who has not yet
     entered into employment with an employer who has had approved
     an application under this subsection, and a petition under
     section 214(c)(1), with respect to the nonimmigrant, the
     provisions of subclauses (I) and (II) shall apply to the
     employer beginning 30 days after the date the nonimmigrant
     first is admitted into the United States pursuant to the
     petition, or 60 days after the date the nonimmigrant becomes
     eligible to work for the employer (in the case of a
     nonimmigrant who is present in the United States on the date
     of the approval of the petition).
       ``(IV) This clause does not apply to a failure to pay wages
     to an H-1B nonimmigrant for nonproductive time due to non-
     work-related factors, such as the voluntary request of the
     nonimmigrant for an absence or circumstances rendering the
     nonimmigrant unable to work.
       ``(V) This clause shall not be construed as prohibiting an
     employer that is a school or other educational institution
     from applying to an H-1B nonimmigrant an established salary
     practice of the employer, under which the employer pays to H-
     1B nonimmigrants and United States workers in the same
     occupational classification an annual salary in
     disbursements over fewer than 12 months, if--
       ``(aa) the nonimmigrant agrees to the compressed annual
     salary payments prior to the commencement of the employment;
     and
       ``(bb) the application of the salary practice to the
     nonimmigrant does not otherwise cause the nonimmigrant to
     violate any condition of the nonimmigrant's authorization
     under this Act to remain in the United States.
       ``(VI) This clause shall not be construed as superseding
     clause (viii).
       ``(viii) It is a failure to meet a condition of paragraph
     (1)(A) for an employer who has filed an application under
     this subsection to fail to offer to an H-1B nonimmigrant,
     during the nonimmigrant's period of authorized employment,
     benefits and eligibility for benefits (including the
     opportunity to participate in health, life, disability, and
     other insurance plans; the opportunity to participate in
     retirement and savings plans; and cash bonuses and noncash
     compensation, such as stock options (whether or not based on
     performance)) on the same basis, and in accordance with the
     same criteria, as the employer offers to United States
     workers.''.
       (b) Use of Arbitration Process for Disputes Involving
     Qualifications of United States Workers Not Hired.--
       (1) In general.--Section 212(n) (8 U.S.C. 1182(n)), as
     amended by section 412(b), is further amended by adding at
     the end the following:
       ``(5)(A) This paragraph shall apply instead of
     subparagraphs (A) through (E) of paragraph (2) in the case of
     a violation described in subparagraph (B), but shall not be
     construed to limit or affect the authority of the Secretary
     or the Attorney General with respect to any other violation.
       ``(B) The Attorney General shall establish a process for
     the receipt, initial review, and disposition in accordance
     with this paragraph of complaints respecting an employer's
     failure to meet the condition of paragraph (1)(G)(i)(II) or a
     petitioner's misrepresentation of material facts with respect
     to such condition. Complaints may be filed by an aggrieved
     individual who has submitted a resume or otherwise applied in
     a reasonable manner for the job that is the subject of the
     condition. No proceeding shall be conducted under this
     paragraph on a complaint concerning such a failure or
     misrepresentation unless the Attorney General determines that
     the complaint was filed not later than 12 months after the
     date of the failure or misrepresentation, respectively.
       ``(C) If the Attorney General finds that a complaint has
     been filed in accordance with subparagraph (B) and there is
     reasonable cause to believe that such a failure or
     misrepresentation described in such complaint has occurred,
     the Attorney General shall initiate binding arbitration
     proceedings by requesting the Federal Mediation and
     Conciliation Service to appoint an arbitrator from the roster
     of arbitrators maintained by such Service. The procedure and
     rules of such Service shall be applicable to the selection of
     such arbitrator and to such arbitration proceedings. The
     Attorney General shall pay the fee and expenses of the
     arbitrator.
       ``(D)(i) The arbitrator shall make findings respecting
     whether a failure or misrepresentation described in
     subparagraph (B) occurred. If the arbitrator concludes that
     failure or misrepresentation was willful, the arbitrator
     shall make a finding to that effect. The arbitrator may not
     find such a failure or misrepresentation (or that such a
     failure or misrepresentation was willful) unless the
     complainant demonstrates such a failure or misrepresentation
     (or its willful character) by clear and convincing evidence.
     The arbitrator shall transmit the findings in the form of a
     written opinion to the parties to the arbitration and
     the Attorney General. Such findings shall be final and
     conclusive, and, except as provided in this subparagraph,
     no official or court of the United States shall have power
     or jurisdiction to review any such findings.
       ``(ii) The Attorney General may review and reverse or
     modify the findings of an arbitrator only on the same bases
     as an award of an arbitrator may be vacated or modified under
     section 10 or 11 of title 9, United States Code.
       ``(iii) With respect to the findings of an arbitrator, a
     court may review only the actions of the Attorney General
     under clause (ii) and may set aside such actions only on the
     grounds described in subparagraph (A), (B), or (C) of section
     706(a)(2) of title 5, United States Code. Notwithstanding any
     other provision of law, such judicial review may only be
     brought in an appropriate United States court of appeals.
       ``(E) If the Attorney General receives a finding of an
     arbitrator under this paragraph that an employer has failed
     to meet the condition of paragraph (1)(G)(i)(II) or has
     misrepresented a material fact with respect to such
     condition, unless the Attorney General reverses or modifies
     the finding under subparagraph (D)(ii)--
       ``(i) the Attorney General may impose administrative
     remedies (including civil monetary penalties in an amount not
     to exceed $1,000 per violation or $5,000 per violation in the
     case of a willful failure or misrepresentation) as the
     Attorney General determines to be appropriate; and
       ``(ii) the Attorney General is authorized to not approve
     petitions filed, with respect to that employer and for aliens
     to be employed by the employer, under section 204 or 214(c)--
       ``(I) during a period of not more than 1 year; or
       ``(II) in the case of a willful failure or willful
     misrepresentation, during a period of not more than 2 years.
       ``(F) The Attorney General shall not delegate, to any other
     employee or official of the Department of Justice, any
     function of the Attorney General under this paragraph, until
     60 days after the Attorney General has submitted a plan for
     such delegation to the Committees on the Judiciary of the
     United States House of Representatives and the Senate.''.
       (2) Conforming amendment.--The first sentence of section
     212(n)(2)(A) (8 U.S.C. 1182(n)(2)(A)) is amended by striking
     ``The Secretary'' and inserting ``Subject to paragraph
     (5)(A), the Secretary''.
       (c) Liability of Petitioning Employer in Case of Placement
     of H-1B Nonimmigrant

[[Page H11220]]

     With Another Employer.--Section 212(n)(2) (8 U.S.C.
     1182(n)(2)) is amended by adding at the end the following:
       ``(E) If an H-1B-dependent employer places a nonexempt H-1B
     nonimmigrant with another employer as provided under
     paragraph (1)(F) and the other employer has displaced or
     displaces a United States worker employed by such other
     employer during the period described in such paragraph, such
     displacement shall be considered for purposes of this
     paragraph a failure, by the placing employer, to meet a
     condition specified in an application submitted under
     paragraph (1); except that the Attorney General may impose a
     sanction described in subclause (II) of subparagraph (C)(i),
     (C)(ii), or (C)(iii) only if the Secretary of Labor found
     that such placing employer--
       ``(i) knew or had reason to know of such displacement at
     the time of the placement of the nonimmigrant with the other
     employer; or
       ``(ii) has been subject to a sanction under this
     subparagraph based upon a previous placement of an H-1B
     nonimmigrant with the same other employer.''.
       (d) Spot Investigations During Probationary Period.--
     Section 212(n)(2) (8 U.S.C. 1182(n)(2)), as amended by
     subsection (c), is further amended by adding at the end the
     following:
       ``(F) The Secretary may, on a case-by-case basis, subject
     an employer to random investigations for a period of up to 5
     years, beginning on the date (on or after the date of the
     enactment of the American Competitiveness and Workforce
     Improvement Act of 1998) on which the employer is found by
     the Secretary to have committed a willful failure to meet a
     condition of paragraph (1) (or has been found under paragraph
     (5) to have committed a willful failure to meet the condition
     of paragraph (1)(G)(i)(II)) or to have made a willful
     misrepresentation of material fact in an application. The
     preceding sentence shall apply to an employer regardless of
     whether or not the employer is an H-1B-dependent employer.
     The authority of the Secretary under this subparagraph shall
     not be construed to be subject to, or limited by, the
     requirements of subparagraph (A).''.
       (e) Additional Investigative Authority.--
        (1) In General.--Section 212(n)(2) (8 U.S.C. 1182(n)(2)),
     as amended by subsection (d), is further amended by adding at
     the end the following:
       ``(G)(i) If the Secretary receives specific credible
     information from a source, who is likely to have knowledge of
     an employer's practices or employment conditions, or an
     employer's compliance with the employer's labor condition
     application under paragraph (1), and whose identity is known
     to the Secretary, and such information provides reasonable
     cause to believe that the employer has committed a willful
     failure to meet a condition of paragraph (1)(A), (1)(B),
     (1)(E), (1)(F), or (1)(G)(i)(I), has engaged in a pattern or
     practice of failures to meet such a condition, or has
     committed a substantial failure to meet such a condition that
     affects multiple employees, the Secretary may conduct a 30-
     day investigation into the alleged failure or failures. The
     Secretary (or the Acting Secretary in the case of the
     Secretary's absence or disability) shall personally certify
     that the requirements for conducting such an investigation
     have been met and shall approve commencement of the
     investigation. The Secretary may withhold the identity of the
     source from the employer, and the source's identity shall not
     be subject to disclosure under section 552 of title 5, United
     States Code.
       ``(ii) The Secretary shall establish a procedure for any
     person, desiring to provide to the Secretary information
     described in clause (i) that may be used, in whole or in
     part, as the basis for commencement of an investigation
     described in such clause, to provide the information in
     writing on a form developed and provided by the Secretary and
     completed by or on behalf of the person. The person may not
     be an officer or employee of the Department of Labor, unless
     the information satisfies the requirement of clause (iii)(II)
     (although an officer or employee of the Department of Labor
     may complete the form on behalf of the person).
       ``(iii) Any investigation initiated or approved by the
     Secretary under clause (i) shall be based on information that
     satisfies the requirements of such clause and that (I)
     originates from a source other than an officer or employee of
     the Department of Labor, or (II) was lawfully obtained by the
     Secretary of Labor in the course of lawfully conducting
     another Department of Labor investigation under this Act or
     any other Act.
       ``(iv) The receipt by the Secretary of information
     submitted by an employer to the Attorney General or the
     Secretary for purposes of securing the employment of an H-1B
     nonimmigrant shall not be considered a receipt of information
     for purposes of clause (i).
       ``(v) No investigation described in clause (i) (or hearing
     described in clause (vii)) may be conducted with respect to
     information about a failure to meet a condition described in
     clause (i), unless the Secretary receives the information not
     later than 12 months after the date of the alleged
     failure.
       ``(vi) The Secretary shall provide notice to an employer
     with respect to whom the Secretary has received information
     described in clause (i), prior to the commencement of an
     investigation under such clause, of the receipt of the
     information and of the potential for an investigation. The
     notice shall be provided in such a manner, and shall contain
     sufficient detail, to permit the employer to respond to the
     allegations before an investigation is commenced. The
     Secretary is not required to comply with this clause if the
     Secretary determines that to do so would interfere with an
     effort by the Secretary to secure compliance by the employer
     with the requirements of this subsection. There shall be no
     judicial review of a determination by the Secretary under
     this clause.
       ``(vii) If the Secretary determines under this subparagraph
     that a reasonable basis exists to make a finding that a
     failure described in clause (i) has occurred, the Secretary
     shall provide for notice of such determination to the
     interested parties and an opportunity for a hearing, in
     accordance with section 556 of title 5, United States Code,
     within 60 days after the date of the determination. If such a
     hearing is requested, the Secretary shall make a finding
     concerning the matter by not later than 60 days after the
     date of the hearing.''.
       (2) Sunset.--The amendment made by paragraph (1) shall
     cease to be effective on September 30, 2001.
       (f) Construction.--Section 212(n)(2) (8 U.S.C. 1182(n)(2)),
     as amended by subsection (e), is further amended by adding at
     the end the following:
       ``(H) Nothing in this subsection shall be construed as
     superseding or preempting any other enforcement-related
     authority under this Act (such as the authorities under
     section 274B), or any other Act.''.

     SEC. 414. COLLECTION AND USE OF H-1B NONIMMIGRANT FEES FOR
                   SCHOLARSHIPS FOR LOW-INCOME MATH, ENGINEERING,
                   AND COMPUTER SCIENCE STUDENTS AND JOB TRAINING
                   OF UNITED STATES WORKERS.

       (a) Imposition of Fee.--Section 214(c) (8 U.S.C. 1184(c))
     is amended by adding at the end the following:
       ``(9)(A) The Attorney General shall impose a fee on an
     employer (excluding an employer described in subparagraph (A)
     or (B) of section 212(p)(1)) filing (on or after December 1,
     1998, and before October 1, 2001) a petition under paragraph
     (1)--
       ``(i) initially to grant an alien nonimmigrant status
     described in section 101(a)(15)(H)(i)(b);
       ``(ii) to extend the stay of an alien having such status
     (unless the employer previously has obtained an extension for
     such alien); or
       ``(iii) to obtain authorization for an alien having such
     status to change employers.
       ``(B) The amount of the fee shall be $500 for each such
     petition.
       ``(C) Fees collected under this paragraph shall be
     deposited in the Treasury in accordance with section
     286(s).''.
       (b) Establishment of Account; Use of Fees.--Section 286 (8
     U.S.C. 1356) is amended by adding at the end the following:
       ``(s) H-1B Nonimmigrant Petitioner Account.--
       ``(1) In general.--There is established in the general fund
     of the Treasury a separate account, which shall be known as
     the `H-1B Nonimmigrant Petitioner Account'. Notwithstanding
     any other section of this title, there shall be deposited as
     offsetting receipts into the account all fees collected under
     section 214(c)(9).
       ``(2) Use of fees for job training.--56.3 percent of
     amounts deposited into the H-1B Nonimmigrant Petitioner
     Account shall remain available to the Secretary of Labor
     until expended for demonstration programs and projects
     described in section 414(c) of the American Competitiveness
     and Workforce Improvement Act of 1998.
       ``(3) Use of fees for low-income scholarship program.--28.2
     percent of the amounts deposited into the H-1B Nonimmigrant
     Petitioner Account shall remain available to the Director of
     the National Science Foundation until expended for
     scholarships described in section 414(d) of the American
     Competitiveness and Workforce Improvement Act of 1998 for
     low-income students enrolled in a program of study leading to
     a degree in mathematics, engineering, or computer science.
       ``(4) Additional nsf uses.--
       ``(A) Grants for mathematics, engineering, or science
     enrichment courses.--4 percent of the amounts deposited into
     the H-1B Nonimmigrant Petitioner Account shall remain
     available to the Director of the National Science Foundation
     until expended to make merit-reviewed grants, under section
     3(a)(1) of the National Science Foundation Act of 1950 (42
     U.S.C. 1862(a)(1)), for programs that provide opportunities
     for enrollment in year-round academic enrichment courses in
     mathematics, engineering, or science.
       ``(B) Systemic reform activities.--4 percent of the amounts
     deposited into the H-1B Nonimmigrant Petitioner Account shall
     remain available to the Director of the National Science
     Foundation until expended to carry out systemic reform
     activities administered by the National Science Foundation
     under section 3(a)(1) of the National Science Foundation Act
     of 1950 (42 U.S.C. 1862(a)(1)).
       ``(5) Use of fees for duties relating to petitions.--1.5
     percent of the amounts deposited into the H-1B Nonimmigrant
     Petitioner Account shall remain available to the Attorney
     General until expended to carry out duties under paragraphs
     (1) and (9) of section 214(c) related to petitions made for
     nonimmigrants described in section 101(a)(15)(H)(i)(b), to
     decrease the processing time for such petitions, and to carry
     out duties under section 416 of the American Competitiveness
     and Workforce Improvement Act of 1998. Such amounts shall be
     available in addition to any other fees authorized to be
     collected by the Attorney General with respect to such
     petitions.
       ``(6) Use of fees for application processing and
     enforcement.--For fiscal year 1999, 6 percent of the amounts
     deposited into the H-1B Nonimmigrant Petitioner Account shall
     remain available to the Secretary of Labor until expended for
     decreasing the processing time for applications under section
     212(n)(1) and for carrying out section 212(n)(2). Beginning
     with fiscal year 2000, 3 percent of the amounts deposited
     into the H-1B Nonimmigrant Petitioner Account

[[Page H11221]]

     shall remain available to the Secretary of Labor until
     expended for decreasing the processing time for applications
     under section 212(n)(1), and 3 percent of such amounts shall
     remain available to such Secretary until expended for
     carrying out section 212(n)(2). Notwithstanding the preceding
     sentence, both of the amounts made available for any fiscal
     year (beginning with fiscal year 2000) pursuant to the
     preceding sentence shall be available to such Secretary, and
     shall remain available until expended, only for decreasing
     the processing time for applications under section 212(n)(1)
     until the Secretary submits to the Congress a report
     containing a certification that, during the most recently
     concluded calendar year, the Secretary substantially
     complied with the requirement in section 212(n)(1)
     relating to the provision of the certification described
     in section 101(a)(15)(H)(i)(b) within a 7-day period.''.
       (c) Demonstration Programs and Projects To Provide
     Technical Skills Training for Workers.--
       (1) In general.--In establishing demonstration programs
     under section 452(c) of the Job Training Partnership Act (29
     U.S.C. 1732(c)), as in effect on the date of the enactment of
     this Act, or demonstration programs or projects under section
     171(b) of the Workforce Investment Act of 1998, the Secretary
     of Labor shall use funds available under section 286(s)(2) to
     establish demonstration programs or projects to provide
     technical skills training for workers, including both
     employed and unemployed workers.
       (2) Grants.--The Secretary of Labor shall award grants to
     carry out the programs and projects described in paragraph
     (1) to--
       (A)(i) private industry councils established under section
     102 of the Job Training Partnership Act (29 U.S.C. 1512), as
     in effect on the date of the enactment of this Act; or
       (ii) local boards that will carry out such programs or
     projects through one-stop delivery systems established under
     section 121 of the Workforce Investment Act of 1998; or
       (B) regional consortia of councils or local boards
     described in subparagraph (A).
       (d) Low-Income Scholarship Program.--
       (1) Establishment.--The Director of the National Science
     Foundation (referred to in this subsection as the
     ``Director'') shall award scholarships to low-income
     individuals to enable such individuals to pursue associate,
     undergraduate, or graduate level degrees in mathematics,
     engineering, or computer science.
       (2) Eligibility.--
       (A) In general.--To be eligible to receive a scholarship
     under this subsection, an individual--
       (i) must be a citizen of the United States, a national of
     the United States (as defined in section 101(a) of the
     Immigration and Nationality Act), an alien admitted as a
     refugee under section 207 of the Immigration and Nationality,
     or an alien lawfully admitted to the United States for
     permanent residence;
       (ii) shall prepare and submit to the Director an
     application at such time, in such manner, and containing such
     information as the Director may require; and
       (iii) shall certify to the Director that the individual
     intends to use amounts received under the scholarship to
     enroll or continue enrollment at an institution of higher
     education (as defined in section 101(a) of the Higher
     Education Act of 1965) in order to pursue an associate,
     undergraduate, or graduate level degree in mathematics,
     engineering, or computer science.
       (B) Ability.--Awards of scholarships under this subsection
     shall be made by the Director solely on the basis of the
     ability of the applicant, except that in any case in which 2
     or more applicants for scholarships are deemed by the
     Director to be possessed of substantially equal ability, and
     there are not sufficient scholarships available to grant one
     to each of such applicants, the available scholarship or
     scholarships shall be awarded to the applicants in a
     manner that will tend to result in a geographically wide
     distribution throughout the United States of recipients'
     places of permanent residence.
       (3) Limitation.--The amount of a scholarship awarded under
     this subsection shall be determined by the Director, except
     that the Director shall not award a scholarship in an amount
     exceeding $2,500 per year.
       (4) Funding.--The Director shall carry out this subsection
     only with funds made available under section 286(s)(3) of the
     Immigration and Nationality Act.

     SEC. 415. COMPUTATION OF PREVAILING WAGE LEVEL.

       (a) In General.--Section 212 (8 U.S.C. 1182) is amended by
     adding at the end the following:
       ``(p)(1) In computing the prevailing wage level for an
     occupational classification in an area of employment for
     purposes of subsections (n)(1)(A)(i)(II) and (a)(5)(A) in the
     case of an employee of--
       ``(A) an institution of higher education (as defined in
     section 101(a) of the Higher Education Act of 1965), or a
     related or affiliated nonprofit entity; or
       ``(B) a nonprofit research organization or a Governmental
     research organization,
     the prevailing wage level shall only take into account
     employees at such institutions and organizations in the area
     of employment.
       ``(2) With respect to a professional athlete (as defined in
     subsection (a)(5)(A)(iii)(II)) when the job opportunity is
     covered by professional sports league rules or regulations,
     the wage set forth in those rules or regulations shall be
     considered as not adversely affecting the wages of United
     States workers similarly employed and be considered the
     prevailing wage.''.
       (b) Effective Date.--The amendment made by subsection (a)
     applies to prevailing wage computations made--
       (1) for applications filed on or after the date of the
     enactment of this Act; and
       (2) for applications filed before such date, but only to
     the extent that the computation is subject to an
     administrative or judicial determination that is not final as
     of such date.

     SEC. 416. IMPROVING COUNT OF H-1B AND H-2B NONIMMIGRANTS.

       (a) Ensuring Accurate Count.--The Attorney General shall
     take such steps as are necessary to maintain an accurate
     count of the number of aliens subject to the numerical
     limitations of section 214(g)(1) of the Immigration and
     Nationality Act (8 U.S.C. 1184(g)(1)) who are issued visas or
     otherwise provided nonimmigrant status.
       (b) Revision of Petition Forms.--The Attorney General shall
     take such steps as are necessary to revise the forms used for
     petitions for visas or nonimmigrant status under clause
     (i)(b) or (ii)(b) of section 101(a)(15)(H) of the Immigration
     and Nationality Act (8 U.S.C. 1101(a)(15)(H)) so as to ensure
     that the forms provide the Attorney General with sufficient
     information to permit the Attorney General accurately to
     count the number of aliens subject to the numerical
     limitations of section 214(g)(1) of such Act (8 U.S.C.
     1184(g)(1)) who are issued visas or otherwise provided
     nonimmigrant status.
       (c) Provision of Information.--
       (1) Quarterly notification.--Beginning not later than 60
     days after the first day of fiscal year 1999, the Attorney
     General shall notify, on a quarterly basis, the Committees on
     the Judiciary of the United States House of Representatives
     and the Senate of the numbers of aliens who were issued visas
     or otherwise provided nonimmigrant status under section
     101(a)(15)(H)(i)(b) of the Immigration and Nationality Act
     during the preceding 3-month period.
       (2) Annual submission.--Beginning with fiscal year 2000,
     the Attorney General shall submit on an annual basis, to the
     Committees on the Judiciary of the United States House of
     Representatives and the Senate, information on the countries
     of origin and occupations of, educational levels attained by,
     and compensation paid to, aliens who were issued visas or
     otherwise provided nonimmigrant status under section
     101(a)(15)(H)(i)(b) of the Immigration and Nationality Act
     during the previous fiscal year. With respect to the first
     submission under this paragraph, the information shall relate
     solely to aliens provided nonimmigrant status after the date
     that is 60 days after the date on which final regulations are
     issued to carry out section 412(a).
       (3) Specification of number of petitions filed by certain
     employers.--Each notification under paragraph (1), and each
     submission under paragraph (2), shall include the number of
     aliens who were issued visas or otherwise provided
     nonimmigrant status pursuant to petitions filed by
     institutions or organizations described in section 212(p)(1)
     of the Immigration and Nationality Act (as added by section
     415 of this title).

     SEC. 417. REPORT ON OLDER WORKERS IN THE INFORMATION
                   TECHNOLOGY FIELD.

       (a) Study.--The Director of the National Science Foundation
     shall enter into a contract with the President of the
     National Academy of Sciences to conduct a study, using the
     best available data, assessing the status of older workers in
     the information technology field. The study shall consider
     the following:
       (1) The existence and extent of age discrimination in the
     information technology workplace.
       (2) The extent to which there is a difference, based on
     age, in--
       (A) promotion and advancement;
       (B) working hours;
       (C) telecommuting;
       (D) salary; and
       (E) stock options, bonuses, and other benefits.
       (3) The relationship between rates of advancement,
     promotion, and compensation to experience, skill level,
     education, and age.
       (4) Differences in skill level on the basis of age.
       (b) Report.--Not later than October 1, 2000, the Director
     of the National Science Foundation shall submit to the
     Committees on the Judiciary of the United States House of
     Representatives and the Senate a report containing the
     results of the study described in subsection (a).

     SEC. 418. REPORT ON HIGH TECHNOLOGY LABOR MARKET NEEDS;
                   REPORTS ON ECONOMIC IMPACT OF INCREASE IN H-1B
                   NONIMMIGRANTS.

       (a) National Science Foundation Study and Report.--
       (1) In general.--The Director of the National Science
     Foundation shall conduct a study to assess labor market needs
     for workers with high technology skills during the next 10
     years. The study shall investigate and analyze the following:
       (A) Future training and education needs of companies in the
     high technology and information technology sectors and future
     training and education needs of United States students to
     ensure that students' skills at various levels are matched to
     the needs in such sectors.
       (B) An analysis of progress made by educators, employers,
     and government entities to improve the teaching and
     educational level of American students in the fields of math,
     science, computer science, and engineering since 1998.
       (C) An analysis of the number of United States workers
     currently or projected to work overseas in professional,
     technical, and managerial capacities.
       (D) The relative achievement rates of United States and
     foreign students in secondary schools in a variety of
     subjects, including math, science, computer science, English,
     and history.
       (E) The relative performance, by subject area, of United
     States and foreign students in postsecondary and graduate
     schools as compared to secondary schools.

[[Page H11222]]

       (F) The needs of the high technology sector for foreign
     workers with specific skills and the potential benefits and
     costs to United States employers, workers, consumers,
     postsecondary educational institutions, and the United States
     economy, from the entry of skilled foreign professionals in
     the fields of science and engineering.
       (G) The needs of the high technology sector to adapt
     products and services for export to particular local markets
     in foreign countries.
       (H) An examination of the amount and trend of moving the
     production or performance of products and services now
     occurring in the United States abroad.
       (2) Report.--Not later than October 1, 2000, the Director
     of the National Science Foundation shall submit to the
     Committees on the Judiciary of the United States House of
     Representatives and the Senate a report containing the
     results of the study described in paragraph (1).
       (3) Involvement.--The study under paragraph (1) shall be
     conducted in a manner that ensures the participation of
     individuals representing a variety of points of view.
       (b) Reporting on Studies Showing Economic Impact of H-1B
     Nonimmigrant Increase.--The Chairman of the Board of
     Governors of the Federal Reserve System, the Director of the
     Office of Management and Budget, the Chair of the Council of
     Economic Advisers, the Secretary of the Treasury, the
     Secretary of Commerce, the Secretary of Labor, and any other
     member of the Cabinet, shall promptly report to the Congress
     the results of any reliable study that suggests, based on
     legitimate economic analysis, that the increase effected by
     section 411(a) of this title in the number of aliens who may
     be issued visas or otherwise provided nonimmigrant status
     under section 101(a)(15)(H)(i)(b) of the Immigration and
     Nationality Act has had an impact on any national economic
     indicator, such as the level of inflation or unemployment,
     that warrants action by the Congress.

    Subtitle B--Special Immigrant Status for Certain NATO Civilian
                               Employees

     SEC. 421. SPECIAL IMMIGRANT STATUS FOR CERTAIN NATO CIVILIAN
                   EMPLOYEES.

       (a) In General.--Section 101(a)(27) (8 U.S.C. 1101(a)(27))
     is amended--
       (1) by striking ``or'' at the end of subparagraph (J);
       (2) by striking the period at the end of subparagraph (K)
     and inserting ``; or''; and
       (3) by adding at the end the following new subparagraph:
       ``(L) an immigrant who would be described in clause (i),
     (ii), (iii), or (iv) of subparagraph (I) if any reference in
     such a clause--
       ``(i) to an international organization described in
     paragraph (15)(G)(i) were treated as a reference to the North
     Atlantic Treaty Organization (NATO);
       ``(ii) to a nonimmigrant under paragraph (15)(G)(iv) were
     treated as a reference to a nonimmigrant classifiable under
     NATO-6 (as a member of a civilian component accompanying a
     force entering in accordance with the provisions of the NATO
     Status-of-Forces Agreement, a member of a civilian component
     attached to or employed by an Allied Headquarters under the
     `Protocol on the Status of International Military
     Headquarters' set up pursuant to the North Atlantic Treaty,
     or as a dependent); and
       ``(iii) to the Immigration Technical Corrections Act of
     1988 or to the Immigration and Nationality Technical
     Corrections Act of 1994 were a reference to the American
     Competitiveness and Workforce Improvement Act of 1998.''.
       (b) Conforming Nonimmigrant Status for Certain Parents of
     Special Immigrant Children.--Section 101(a)(15)(N) (8 U.S.C.
     1101(a)(15)(N)) is amended--
       (1) by inserting ``(or under analogous authority under
     paragraph (27)(L))'' after ``(27)(I)(i)''; and
       (2) by inserting ``(or under analogous authority under
     paragraph (27)(L))'' after ``(27)(I)''.

                  Subtitle C--Miscellaneous Provision

     SEC. 431. ACADEMIC HONORARIA.

       (a) In General.--Section 212 (8 U.S.C. 1182), as amended by
     section 415, is further amended by adding at the end the
     following:
       ``(q) Any alien admitted under section 101(a)(15)(B) may
     accept an honorarium payment and associated incidental
     expenses for a usual academic activity or activities (lasting
     not longer than 9 days at any single institution), as defined
     by the Attorney General in consultation with the Secretary of
     Education, if such payment is offered by an institution or
     organization described in subsection (p)(1) and is made for
     services conducted for the benefit of that institution or
     entity and if the alien has not accepted such payment or
     expenses from more than 5 institutions or organizations in
     the previous 6-month period.''.
       (b) Effective Date.--The amendment made by subsection (a)
     shall apply to activities occurring on or after the date of
     the enactment of this Act.