Possible Great News – it seems that Senator Grassley is willing to lift hold on H.R. 3012 with the new compromised and amended text.  The question is what are we expecting on this.  Will it be passed as it was written or an amended version.  So far we have not have any confirmation, that it will be passed.  But information is indicating that there is a good chance it will happen.  If this is the case, we welcome this bill with all our heart.  As you all know HR 3012 ( Fairness for High-Skilled Immigrants Act of 2011) was unanimously passed by Congress.

Proposed Amendment

Purpose: To amend section 212(n) and 214(c) of the Immigration and Nationality Act to modify the procedures relating to the investigation of employers’ compliance with applicable immigration laws.

H. R. 3012

To amend the Immigration and Nationality Act to eliminate the per-country numerical limitation for employment-based immigrants, to increase the per-country numerical limitation for
family-sponsored immigrants, and for other purposes.

Referred to the Committee on _____________ and ordered to be
printed

Ordered to lie on the table and to be printed

AMENDMENT INTENDED TO BE PROPOSED BY MR. GRASSLEY

Viz:

On page 6, after line 16, add the following:

SEC. 3. LABOR CONDITION APPLICATION.

(a) Application Review Requirements.—Section 212(n)(1) of the Immigration and Nationality
Act (8 U.S.C. 1182(n)(1)) is amended, in the undesignated matter at the end—

(1) by inserting “and through the Department of Labor’s website, without charge.” after
“D.C.”;

(2) by striking “only for completeness” and inserting “for completeness, clear indicators
of fraud or misrepresentation of material fact,”;

(3) by striking “or obviously inaccurate” and inserting “, presents clear indicators of fraud
or misrepresentation of material fact, or is obviously inaccurate”; and

(4) by adding at the end the following: “If the Secretary’s review of an application
identifies clear indicators of fraud or misrepresentation of material fact, the Secretary may
conduct an investigation and hearing in accordance with paragraph (2).”.

(b) Initiation of Investigations.—Section 212(n)(2)(G) of the Immigration and Nationality Act
(8 U.S.C. 1182(n)(2)(G)) is amended—

(1) in clause (i), by striking “In the case of an investigation” and all that follows;

(2) in clause (ii), by striking “and whose identity” and all that follows through “failure or
failures.” and inserting “the Secretary of Labor may conduct an investigation into the
employer’s compliance with the requirements of this subsection.”;

(3) in clause (iii), by striking the last sentence;

(4) by striking clauses (iv) and (v);

(5) by redesignating clauses (vi), (vii), and (viii) as clauses (iv), (v), and (vi),
respectively;

(6) in clause (iv), as redesignated, by striking “meet a condition described in clause (ii)”
and inserting “comply with the requirements under this subsection”;

(7) by amending clause (v), as redesignated, to read as follows:

“(v) The Secretary of Labor shall provide notice to an employer of the intent to conduct
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 such compliance would interfere with an effort by the Secretary to
investigate or secure compliance by the employer with the requirements of this subsection.
A determination by the Secretary under this clause shall not be subject to judicial review.”;

(8) in clause (vi), as redesignated, by striking “An investigation” and all that follows
through “the determination.” and inserting “If the Secretary of Labor, after an investigation
under clause (i) or (ii), determines that a reasonable basis exists to make a finding that the
employer has failed to comply with the requirements under this subsection, the Secretary
shall provide interested parties with notice of such determination and an opportunity for a
hearing in accordance with section 556 of title 5, United States Code, not later than 60 days
after the date of such determination.”; and

(9) by adding at the end the following:

“(vii) If the Secretary of Labor, after a hearing, finds that the employer has violated a
requirement under this subsection, the Secretary shall impose a penalty pursuant to
subparagraph (C).”.

(c) General Modification of Procedures for Investigation and Disposition.—Section
212(n)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)(A)) is amended—

(1) by striking “(A) Subject” and inserting the following:

“(A)(i) Subject”;

(2) by striking the last sentence; and

(3) by adding at the end the following:

“(ii)(I) Upon the receipt of a complaint under clause (i), the Secretary may initiate an
investigation to determine if such a failure or misrepresentation has occurred.

“(II) The Secretary may conduct—

“(aa) surveys of the degree to which employers comply with the requirements of this
subsection; and

“(III) The Secretary—

“(aa) subject to the limitation in subsection (IV), may conduct annual compliance
audits of any employer that employs H–1B nonimmigrants during the applicable
calendar year;

“(bb) subject to the limitation in subsection (IV), shall conduct annual compliance
audits of each employer with more than 100 full-time equivalent employees who are
employed in the United States if more than 15 percent of the number of such full-time
employees are H–1B nonimmigrants; and

“(cc) make available to the public an executive summary or report describing the
general findings of the audits carried out pursuant to this subclause.”.

(IV) In the event an employer is subject to any annual compliance audit in which
there was no finding of a willful failure to meet a condition under 8 U.S.C.
1182(n)(2)(C)(ii), no further annual compliance audit shall be conducted with respect
to that employer for a period of at least 4 years, absent evidence of misrepresentation
or fraud.

Summary of the Bill:

11/29/2011–Passed House amended. (This measure has not been amended since it was reported to the House on November 18, 2011. The summary of that version is repeated here.) Fairness for High-Skilled Immigrants Act of 2011 – Amends the Immigration and Nationality Act to: (1) eliminate the per country numerical limitation for employment-based immigrants, and (2) increase the per country numerical limitation for family based immigrants from 7% to 15% of the total number of family-sponsored visas. Amends the Chinese Student Protection Act of 1992 to eliminate the provision requiring the reduction of annual Chinese (PRC) immigrant visas to offset status adjustments under such Act. Sets forth the following transition period for employment-based second and third preference (EB-2 and EB-3) immigrant visas: (1) for FY2012, 15% of such visas allotted to natives of countries other than the two countries with the largest aggregate numbers of natives obtaining such visas in FY2010; (2) for FY2013, 10% of such visas allotted in each category to natives of countries other than the two with the largest aggregate numbers of natives obtaining such visas in FY2011; and (3) for FY2014, 10% of such visas allotted in each category to natives of countries other than the two with the largest aggregate numbers of natives obtaining such visas in FY2012. Sets forth the following per country distribution rules: (1) for transition period visas, not more than 25% of the total number of EB-2 and EB-3 visas for natives of a single country; and (2) for non-transition period visas, not more than 85% of EB-2 and EB-3 visas for natives of a single country. Provides that the amendments made by this Act will take place as if enacted on September 30, 2011, and shall apply beginning in FY2012.

Information provided above is for educational purposes only.  One should not act or refrain to act solely based on the information provided.  You should consult an attorney to assess your case before proceeding.

Shah Peerally is an attorney licensed in California practicing immigration law and debt settlement. He has featured as an expert legal analyst for many TV networks such as NDTV, Times Now and Sitarree TV.  Articles about Shah Peerally and his work have appeared on newspapers such as San Jose Mercury News, Oakland Tribune, US Fiji Times, Mauritius Le Quotidien, Movers & Shakers and other prominent international newspapers. His work has been commended by Congress women Nancy Pelosi and Barbara Lee.  He has a weekly radio show on KLOK 1170AM and frequently participates in legal clinics in churches, temples and mosques. His law group, Shah Peerally Law Group, has represented clients all over the United States constantly dealing with the United States Citizenship and Immigration Services (USCIS), Immigration and Custom Enforcement(ICE) and CBP (Customs Border Patrol (CBP) under  the Department of Homeland Security (DHS).  This department was formerly known as the Immigration and Nationality Services (INS).

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