TEMPORARY WORKERS AND TRAINEES (H NONIMMIGRANTS).

SEC. 205. TEMPORARY WORKERS AND TRAINEES (H NONIMMIGRANTS). (a) Limitation on Numbers.— Section 214 (8 U.S.C. 1184), as amended by section 202(a), is amended by adding at the end the following new subsection: “(g) (1) The total number of aliens who may be issued visas or otherwise provided nonimmigrant status during any fiscal year (beginning with fiscal year 1992)— “(A) under section 101(a)(15)(H)(i)(b) may not exceed 65,000, “(B) under section 101(a)(15)(H)(ii)(b) may not exceed 66,000, or “(C) under section 101(a)(15)(P)(i) or section 101(a)(15)(P)(iii) may not exceed 25,000. “(2) The numerical limitations of paragraph (1) shall only apply to principal aliens and not to the spouses or children of such aliens. “(3) Aliens who are subject to the numerical limitations of paragraph (1) shall be issued visas (or otherwise provided nonimmigrant status) in the order in which petitions are filed for such visas or status. “(4) In the case of a nonimmigrant described in section 101(a)(15)(H)(i)(b), the period of authorized admission as such a nonimmigrant may not exceed 6 years.”. 104 STAT. 5020 (b) Construction Respecting Intent With Respect to Abandonment of Foreign Residence.— Section 214, as amended by section 202(a) and by subsection (a), is further 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: “(h) The fact that an alien is the beneficiary of an application for a preference status filed under section 204 or has otherwise sought permanent residence in the United States shall not constitute evidence of an intention to abandon a foreign residence for purposes of obtaining a visa as a nonimmigrant described in subparagraph (H)(i) or (L) of section 101(a)(15) or otherwise obtaining or maintaining the status of a nonimmigrant described in such subparagraph, if the alien had obtained a change of status under section 248 to a classification as such a nonimmigrant before the alien’s most recent departure from the United States.”. (c) Revision of H-1B Category.— (1) In general.— Subclause (b) of section 101(a)(15)(H)(i) (8 U.S.C. 1101(a)(15)(H)(i)) is amended by striking “who is of distinguished” and all that follows through “such institution or agency” and inserting the following: “who is coming temporarily to the United States to perform services (other than services described in subclause (a) during the period in which such subclause applies and other than services described in subclause (ii)(a) or in subparagraph (O) or (P)) in a specialty occupation described in section 214(i)(1), who meets the requirements for the occupation specified in section 214(i)(2), and with respect to whom the Secretary of Labor determines and certifies to the Attorney General that the intending employer has filed with, and had approved by, the Secretary an application under section 212(n)(1)” (2) Specialty occupation defined.— Section 214, as amended by section 202(a) and subsections (a) and (b), is further amended by adding at the end the following new subsection: “(i) (1) For purposes of section 101(a)(15)(H)(i)(b) and paragraph (2), the term ‘specialty occupation’ means an occupation that requires— “(A) theoretical and practical application of a body of highly specialized knowledge, and “(B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. “(2) For purposes of section 101(a)(15)(H)(i)(b), the requirements of this paragraph, with respect to a specialty occupation, are— “(A) full state licensure to practice in the occupation, if such licensure is required to practice in the occupation, “(B) completion of the degree described in paragraph (1)(B) for the occupation, or “(C) (i) experience in the specialty equivalent to the completion of such degree, and (ii) recognition of expertise in the specialty through progressively responsible positions relating to the specialty.”. (3) Labor condition application for h-1b.— Section 212 is amended by adding at the end the following new subsection: “(n) (1) No alien may be admitted or provided status as a non-immigrant described in section 101(a)(15)(H)(i)(b) in an occupational104 STAT. 5021 classification unless the employer has filed with the Secretary of Labor an application stating the following: “(A) The employer— “(i) is offering and will offer during the period of authorized employment to aliens and to other individuals employed in the occupational classification and in the area of employment wages that are at least— “(I) the actual wage level for the occupational classification at the place of employment, or “(II) the prevailing wage level for the occupational classification in the area of employment, whichever is greater, determined as of the time of filing the application, and “(ii) will provide working conditions for such aliens that will not adversely affect the working conditions of workers similarly employed. “(B) There is not a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment. “(C) The employer, at the time of filing the application— “(i) has provided notice of the filing under this paragraph to the bargaining representative (if any) of the employer’s employees in the occupational classification and area for which aliens are sought, or “(ii) if there is no such bargaining representative, has posted notice of filing in conspicuous locations at the place of employment. “(D) The application shall contain a specification of the number of workers sought, the occupational classification in which the workers will be employed, and wage rate and conditions under which they will be employed. The employer shall make available for public examination, within one working day after the date on which an application under this paragraph is filed, at the employer’s principal place of business or worksite, a copy of each such application (and accompanying documentation). The Secretary shall compile, on a current basis, a list (by employer and by occupational classification) of the applications filed under this subsection. Such list shall include the wage rate, number of aliens sought, period of intended employment, and date of need. The Secretary shall make such list available for public examination in Washington, D.C. “(2) (A) The Secretary shall establish a process for the receipt, investigation, and disposition of complaints respecting a petitioner’s failure to meet a condition specified in an application submitted under paragraph (1) or a petitioner’s misrepresentation of material facts in such an application. Complaints may be filed by any aggrieved person or organization (including bargaining representatives). No investigation or hearing shall be conducted on a complaint concerning such a failure or misrepresentation unless the complaint was filed not later than 12 months after the date of the failure or misrepresentation, respectively. The Secretary shall conduct an investigation under this paragraph if there is reasonable cause to believe that such a failure or misrepresentation has occurred. “(B) Under such process, the Secretary shall provide, within 30 days after the date such a complaint is filed, for a determination as to whether or not a reasonable basis exists to make a finding described in subparagraph (C). If the Secretary determines that such104 STAT. 5022 a reasonable basis exists, the Secretary shall provide for notice of such determination to the interested parties and an opportunity for a hearing on the complaint, 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. In the case of similar complaints respecting the same applicant, the Secretary may consolidate the hearings under this subparagraph on such complaints. “(C) If the Secretary finds, after notice and opportunity for a hearing, a failure to meet a condition (or a substantial failure in the case of a condition described in subparagraph (C) or (D) of paragraph (1)) or 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. “(D) In addition to the sanctions provided under subparagraph (C), if the Secretary finds, after notice and opportunity for a hearing, that an employer has not paid wages at the wage level specified under the application and required under paragraph (1), the Secretary shall order the employer to provide for payment of such amounts of back pay as may be required to comply with the requirements of paragraph (1).”. (d) Limitation on Trainees.— Section 101(a)(15)(H)(iii) (8 U.S.C. 1101(a)(15)(H)(iii)) is amended by inserting before the semicolon at the end the following: “, in a training program that is not designed primarily to provide productive employment”. (e) Removal of Foreign Residence Requirement for H-1 Nonimmigrants.— Section 101(a)(15)(H) (8 U.S.C. 1101(a)(15)(H)) is amended— (1) by striking “having a residence in a foreign country which he has no intention of abandoning”; (2) in clause (ii), by striking “who is coming temporarily to the United States (a)” and inserting “(a) having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States”; (3) in clause (ii)(b), by inserting “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States” immediately after “(b)”; and (4) in clause (iii), by inserting “having a residence in a foreign country which he has no intention of abandoning” after “(iii)”.