Cite as "AILA InfoNet Doc. No. 03071841 (posted Jul. 18, 2003)"
Section by Section Summary of H.R. 2702, the “L-1 Nonimmigrant Reform
Introduced July 10, 2003 by Rosa DeLauro (D-CT) and
Cosponsored by Representatives Shays (R-CT); George Miller (D-CA); Tierney
(D-MA); McGovern (D-MA); Sanders (I-VT); Owens (D-NY); Frank (D-MA); Green
SECTION 1- TITLE
Title- the “L-1
Nonimmigrant Reform Act.”
SECTION 2- REVISION OF THE L-1
SECTION 2(a) - Creates new
subsection (t) under INA §212 (Note: The text of the bill actually calls for an
amendment to INA §214. However, due to the content of the new subsection, this
is assumed to be a typographical error. AILA is currently seeking
New subsection (t)(1)- DOL
This subsection provides that an alien may not
be admitted or provided L-1 status unless the employer files an application with
DOL stating the following:
- The employer is offering wages that are the highest of the following based
on the best information available at the time of filing: the prevailing wage;
the median wage for all workers in the area of employment; or the median wage
for the OES skill level II for the occupational classification. Wage
determination methodology must be submitted to the DOL.
- There is not a strike or lockout in the course of a labor dispute in the
occupational classification at the place of employment.
- The employer has provided notice of the DOL filing to the bargaining
representative, or, if there is no bargaining representative, has provided
notice to employees in the same occupational classification through physical
posting or electronic notification.
- The occupational classification for the worker, the wage rate and conditions
under which the worker will be employed.
- The employer did not displace a US worker 180 days prior to the filing of a
visa petition and will not displace a US worker for 180 days after such
- *The employer may not out-source, lease or otherwise contract for the
placement of a worker with another firm.
*(Note: Internal references
indicate that new subsection (t)(1)(F) originally may have been intended to be
subdivided further. However, such subdivision was not included in the introduced
bill. Frequent references in subsequent sections of the bill to “(1)(F)(ii)(II)”
supports this assumption. AILA is working to clarify this issue.)
Within 1 day of filing the application, the
employer must make it, and accompanying documents, available at the employer’s
principle place of business or worksite. In addition, DOL will compile a list of
the applications filed and will make it available for public examination. The
list will include the wage rate, the number of aliens sought, the country of
origin, the period of intended employment and the date of need.
subsection (t)(2)- DOL Complaint Procedure & Investigations, Worker
Protections, and Annual Report
Complaint Procedures- Provides that DOL
shall establish a process for the handling of complaints regarding a
misrepresentation of material fact or an employer’s failure to meet a condition
specified in the DOL application. Complaints may be filed within 12 months of
the alleged transgression by any aggrieved person or organization (including
bargaining representatives). The DOL will conduct an investigation of the
complaint if there is reasonable cause to believe that the complaint is valid.
This section provides DOL with the authority to conduct surveys of the level of
compliance by employers and to conduct annual compliance audits of employers
with L-1 employees.
Hearing Procedures- The DOL has 30 days
after the complaint is filed days to determine whether a reasonable basis exists
to find a misrepresentation of material fact or an employer’s failure to meet a
condition specified. If a reasonable basis exists, DOL will provide notice of
the opportunity to hold a hearing on the matter within 60 days of the
determination. If a hearing is held, DOL will make a finding not later than 60
days after the hearing. Similar complaints involving the same applicant may be
Penalties, L-1 Protections, Penalty fees, L-1
benching, and L-1 benefits
The DOL may assess 3
levels of penalties:
For failure to meet a condition or
misrepresentation of a material fact-$1,000 fine per violation and at least 1
year exclusion from INA §§ 204 and 214 petitions;
For a willful failure or willful misrepresentation-
$5,000 fine per violation and at least 2 years exclusion from INA §§ 204 and 214
For a willful failure or willful misrepresentation
which resulted in a displacement of a US worker within the prohibited timeframe-
$35,000 fine per violation and at least 3 years exclusion from INA §§ 204 and
L-1 Worker Protections-
It is a violation for employers who have filed an
application with DOL to intimidate, threaten, restrain, coerce, blacklist,
discharge or in any other manner discriminate against an employee, former
employee or an applicant for employment who has disclosed information about a
violation or cooperated in an investigation pertaining to a violation.
DOL and DHS are directed to create a process by
which L-1 employees who file a compliant will be allowed to seek employment in
the U.S. for the remainder of their authorized stay.
Violations Regarding Fees and Penalties-
It is a violation for an employer who has filed an
application with DOL to require an L-1 to pay a penalty for ceasing employment
prior to the date agreed upon by the L-1 and the employer.
It is a violation for an employer who has filed a
petition for which a fee is imposed under INA §214(c)(9) to require the
non-immigrant employee to reimburse or compensate the employer for any part of
the fee. Similarly, it is a violation for an employer to accept such
reimbursement from the alien.
Violation of these prohibitions can result in fines
of $1,000 per violation, $5,000 for second violations, and $10,000 for any
subsequent violations in addition to the return of any money paid to the
employer by the L-1.
L-1 Benching Prohibited-
Benching an L-1 employee by placing him or her in
nonproductive or part-time status and failing to pay the full time wages for all
non-productive time is a failure to meet a condition of the
Exceptions are made for educational institutions
and nonproductive time due to non-work related factors.
Back Pay- Employers who willfully fail to
pay wages specified by the DOL application or who willfully lay off a worker in
violation of the application will be liable for payment of double back
Investigations- DOL may decide, on a
case-by-case basis, to subject an employer to random investigation for 5 years
if the DOL has found that the employer committed a willful failure or
DOL Investigative authority-
Upon the receipt of credible information submitted
within 12 months of an alleged failure by an employer to meet a condition of the
application, the DOL has the authority to conduct a 30-day investigation into
such alleged failure.
DOL shall devise a procedure for the submission of
information that would serve as the basis of an investigation.
The DOL will provide notice to an employer
regarding the receipt of information about that employer and the potential for
If DOL determines a reasonable basis for finding
that a failure has occurred, the DOL shall provide notice to the interested
parties and an opportunity for a hearing within 60 days of the date of
determination. If a hearing is requested, the DOL shall make a finding on the
matter not later than 60 days after the
Annual Report- DHS and DOL shall submit an
annual report to Congress on the use of L-1 visas. The report shall include
information regarding employers’ violations of conditions, information on
complaints and violations, fines and debarments imposed, back pay awarded and
other remedies obtained. The report should also include information from the
list compiled on L-1 statistics mandated in new section (t)(1)(F)
DHS Enforcement Authority- Nothing
in the subsection should supercede or preempt any other enforcement-related
authority under the INA or any other Act.
New subsection (t)(3)- Definitions
Term “area of employment” means the area within
normal commuting distance of the worksite or physical location where the L-1
work will be performed. If the work location is within a Metropolitan
Statistical Area, then it includes any point within that area.
The term “displace” means where the employer lays
off a worker from a job that is essentially the equivalent of the job for which
L-1 employees are sought.
The term “essentially equivalent” means a job
involving essentially the same responsibilities held by a US worker with
substantially equivalent qualifications and experience, and which is located in
the same area of employment.
The term “L-1 non-immigrant” means an alien
provided status as a principal nonimmigrant under INA
The term “lays off” means to cause the worker’s
loss of employment, cause significant change or diminution of duties of
employment. It does not include a situation in which the worker is offered, as
an alternative to loss of employment, a similar employment opportunity with no
significant change or diminution of duties, with same employer, at equivalents
or higher compensation and benefits, regardless of whether or not the employee
accepts such offer.
The term “United States worker” means an employee
who is a citizen or national of the U.S. or is a legal permanent resident,
refugee, asylum grantee or an immigrant authorized to be employed.
New subsection (t)(4) DHS
Complaint Procedure- DHS shall establish a process for the handling of
complaints regarding an employer’s failure to meet the conditions of new
subsection (t)(1)(F) or a misrepresentation of material fact with respect to
this subsection. Complaints filed within 12 months by aggrieved individuals who
have submitted a resume or otherwise applied for the job, will come under the
review of DHS. This complaint procedure will apply instead of the DOL complaint
procedure in the case of an employer’s failure to meet the conditions of new
subsection (t)(1)(F) or a misrepresentation of material fact with respect to
this subsection, but the DHS’s authority is not limited with respect to any
SECTION 2(b) RETURN TRANSPORTATION- Amends INA §214(c)(5)(A) to
extend to the L visa category the employer responsibility for the reasonable
cost of return transportation abroad for alien.
Fees- Amends INA §214(c)(9) by adding a new subsection (D),
which applies the fees applicable to the H-1 category to the L visa category.
This new subsection also directs that the collected fees shall be deposited in
the Treasury’s L-1 non-immigrant petitioner account (created by this section of
Creation of the L-1 Non-immigrant Petitioner Account- Amends INA §286
to provide for an L-1 petitioner account where the fees collected under INA §214
(c)(9)(D) will be placed. 30% of the amounts deposited into the account will be
available to BCIS for processing and data collection. 40% of the account will be
available to the DOL for enforcement activities. The remaining 30% of the
account will be used by the DOL for the training and education of American
Annual Cap- Limits the L visa category to 35,000 available visas per
fiscal year, beginning with fiscal year 2004. Only principal aliens are subject
to the cap.
Limitation of Duration- Limits the L visa beneficiary
to a period of authorized admission not to exceed 3 years (Note: Technically the
bill limits the H-1B category to 3 years. This is believed to be a typographical
error in the bill and AILA is currently seeking clarification.)
Exemptions- Exempts from the L cap L-1 visa holders who work at an
institution of higher education or a related or affiliated nonprofit entity and
non-profit research organization or a governmental research organization.
SECTION 2(e) CORPORATE RESTRUCTURING- Amends INA §214(c)(10) to
not require an amended L-1 petition where the petitioning employer is involved
in a corporate restructuring where the new corporate entity succeeds to the
interests and obligations of the original petitioning employer and where the
terms and conditions of employment remain the same.
PROHIBITION OF BLANKET VISAS- Amends INA §214(c)(2) to preclude DHS from
accepting the use of blanket petitions in the L category.
2(g) VISA QUALIFICATIONS- Amends INA §214(c)(4)(B) to require that the
visa applicant possess at least a bachelor’s degree or foreign equivalent. If
the degree is foreign, it must be verified by the DOS.
INCREASES PRIOR EMPLOYMENT REQUIREMENT- Amends INA §101(15)(L) to
require that the L visa applicants have at least 2 years continuous full-time
employment with the firm or corporation during the previous 3 years.
SECTION 2(i) EFFECTIVE DATE- Except as otherwise provided,
amendments made by this section shall apply to applications for nonimmigrant
status filed on or after the first day of the first fiscal year beginning after
the date of the enactment of this act.