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S. 2045 (es) To amend the Immigration and Nationality Act with respect to H-1B nonimmigrant aliens. [Engrossed in Senate] ...


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        S.2045

                       One Hundred Sixth Congress

                                 of the

                        United States of America


                          AT THE SECOND SESSION

           Begun and held at the City of Washington on Monday,
             the twenty-fourth day of January, two thousand


                                 An Act


 
   To amend the Immigration and Nationality Act with respect to H-1B 
                          nonimmigrant aliens.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

     TITLE I--AMERICAN COMPETITIVENESS IN THE TWENTY-FIRST CENTURY

SEC. 101. SHORT TITLE.

    This title may be cited as the ``American Competitiveness in the 
Twenty-first Century Act of 2000''.

SEC. 102. TEMPORARY INCREASE IN VISA ALLOTMENTS.

    (a) Fiscal Years 2001-2003.--Section 214(g)(1)(A) of the 
Immigration and Nationality Act (8 U.S.C. 1184(g)(1)(A)) is amended--
        (1) by redesignating clause (v) as clause (vii); and
        (2) by striking clause (iv) and inserting the following:
                ``(iv) 195,000 in fiscal year 2001;
                ``(v) 195,000 in fiscal year 2002;
                ``(vi) 195,000 in fiscal year 2003; and''.
    (b) Additional Visas for Fiscal Years 1999 and 2000.--
        (1) In general.--(A) Notwithstanding section 214(g)(1)(A)(ii) 
    of the Immigration and Nationality Act (8 U.S.C. 
    1184(g)(1)(A)(ii)), the total number of aliens who may be issued 
    visas or otherwise provided nonimmigrant status under section 
    101(a)(15)(H)(i)(b) of such Act in fiscal year 1999 is increased by 
    a number equal to the number of aliens who are issued such a visa 
    or provided such status during the period beginning on the date on 
    which the limitation in such section 214(g)(1)(A)(ii) is reached 
    and ending on September 30, 1999.
        (B) In the case of any alien on behalf of whom a petition for 
    status under section 101(a)(15)(H)(i)(b) is filed before September 
    1, 2000, and is subsequently approved, that alien shall be counted 
    toward the numerical ceiling for fiscal year 2000 notwithstanding 
    the date of the approval of the petition. Notwithstanding section 
    214(g)(1)(A)(iii) of the Immigration and Nationality Act, the total 
    number of aliens who may be issued visas or otherwise provided 
    nonimmigrant status under section 101(a)(15)(H)(i)(b) of such Act 
    in fiscal year 2000 is increased by a number equal to the number of 
    aliens who may be issued visas or otherwise provided nonimmigrant 
    status who filed a petition during the period beginning on the date 
    on which the limitation in such section 214(g)(1)(A)(iii) is 
    reached and ending on August 31, 2000.
        (2) Effective date.--Paragraph (1) shall take effect as if 
    included in the enactment of section 411 of the American 
    Competitiveness and Workforce Improvement Act of 1998 (as contained 
    in title IV of division C of the Omnibus Consolidated and Emergency 
    Supplemental Appropriations Act, 1999; Public Law 105-277).
    SEC. 103. SPECIAL RULE FOR UNIVERSITIES, RESEARCH FACILITIES, AND 
      GRADUATE DEGREE RECIPIENTS; COUNTING RULES.
    Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 
1184(g)) is amended by adding at the end the following new paragraphs:
    ``(5) The numerical limitations contained in paragraph (1)(A) shall 
not apply to any nonimmigrant alien issued a visa or otherwise provided 
status under section 101(a)(15)(H)(i)(b) who is employed (or has 
received an offer of employment) at--
        ``(A) an institution of higher education (as defined in section 
    101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))), or 
    a related or affiliated nonprofit entity; or
        ``(B) a nonprofit research organization or a governmental 
    research organization.
    ``(6) Any alien who ceases to be employed by an employer described 
in paragraph (5)(A) shall, if employed as a nonimmigrant alien 
described in section 101(a)(15)(H)(i)(b), who has not previously been 
counted toward the numerical limitations contained in paragraph (1)(A), 
be counted toward those limitations the first time the alien is 
employed by an employer other than one described in paragraph (5).
    ``(7) Any alien who has already been counted, within the 6 years 
prior to the approval of a petition described in subsection (c), toward 
the numerical limitations of paragraph (1)(A) shall not again be 
counted toward those limitations unless the alien would be eligible for 
a full 6 years of authorized admission at the time the petition is 
filed. Where multiple petitions are approved for 1 alien, that alien 
shall be counted only once.''.
    SEC. 104. LIMITATION ON PER COUNTRY CEILING WITH RESPECT TO 
      EMPLOYMENT-BASED IMMIGRANTS.
    (a) Special Rules.--Section 202(a) of the Immigration and 
Nationality Act (8 U.S.C. 1152(a)) is amended by adding at the end the 
following new paragraph:
        ``(5) Rules for employment-based immigrants.--
            ``(A) Employment-based immigrants not subject to per 
        country limitation if additional visas available.--If the total 
        number of visas available under paragraph (1), (2), (3), (4), 
        or (5) of section 203(b) for a calendar quarter exceeds the 
        number of qualified immigrants who may otherwise be issued such 
        visas, the visas made available under that paragraph shall be 
        issued without regard to the numerical limitation under 
        paragraph (2) of this subsection during the remainder of the 
        calendar quarter.
            ``(B) Limiting fall across for certain countries subject to 
        subsection (e).--In the case of a foreign state or dependent 
        area to which subsection (e) applies, if the total number of 
        visas issued under section 203(b) exceeds the maximum number of 
        visas that may be made available to immigrants of the state or 
        area under section 203(b) consistent with subsection (e) 
        (determined without regard to this paragraph), in applying 
        subsection (e) all visas shall be deemed to have been required 
        for the classes of aliens specified in section 203(b).''.
    (b) Conforming Amendments.--
        (1) Section 202(a)(2) of the Immigration and Nationality Act (8 
    U.S.C. 1152(a)(2)) is amended by striking ``paragraphs (3) and 
    (4)'' and inserting ``paragraphs (3), (4), and (5)''.
        (2) Section 202(e)(3) of the Immigration and Nationality Act (8 
    U.S.C. 1152(e)(3)) is amended by striking ``the proportion of the 
    visa numbers'' and inserting ``except as provided in subsection 
    (a)(5), the proportion of the visa numbers''.
    (c) One-Time Protection Under Per Country Ceiling.--Notwithstanding 
section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 
1184(g)(4)), any alien who--
        (1) is the beneficiary of a petition filed under section 204(a) 
    of that Act for a preference status under paragraph (1), (2), or 
    (3) of section 203(b) of that Act; and
        (2) is eligible to be granted that status but for application 
    of the per country limitations applicable to immigrants under those 
    paragraphs,
may apply for, and the Attorney General may grant, an extension of such 
nonimmigrant status until the alien's application for adjustment of 
status has been processed and a decision made thereon.

SEC. 105. INCREASED PORTABILITY OF H-1B STATUS.

    (a) In General.--Section 214 of the Immigration and Nationality Act 
(8 U.S.C. 1184) is amended by adding at the end the following new 
subsection:
    ``(m)(1) A nonimmigrant alien described in paragraph (2) who was 
previously issued a visa or otherwise provided nonimmigrant status 
under section 101(a)(15)(H)(i)(b) is authorized to accept new 
employment upon the filing by the prospective employer of a new 
petition on behalf of such nonimmigrant as provided under subsection 
(a). Employment authorization shall continue for such alien until the 
new petition is adjudicated. If the new petition is denied, such 
authorization shall cease.
    ``(2) A nonimmigrant alien described in this paragraph is a 
nonimmigrant alien--
        ``(A) who has been lawfully admitted into the United States;
        ``(B) on whose behalf an employer has filed a nonfrivolous 
    petition for new employment before the date of expiration of the 
    period of stay authorized by the Attorney General; and
        ``(C) who, subsequent to such lawful admission, has not been 
    employed without authorization in the United States before the 
    filing of such petition.''.
    (b) Effective Date.--The amendment made by subsection (a) shall 
apply to petitions filed before, on, or after the date of enactment of 
this Act.
    SEC. 106. SPECIAL PROVISIONS IN CASES OF LENGTHY ADJUDICATIONS.
    (a) Exemption From Limitation.--The limitation contained in section 
214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)) 
with respect to the duration of authorized stay shall not apply to any 
nonimmigrant alien previously issued a visa or otherwise provided 
nonimmigrant status under section 101(a)(15)(H)(i)(b) of that Act on 
whose behalf a petition under section 204(b) of that Act to accord the 
alien immigrant status under section 203(b) of that Act, or an 
application for adjustment of status under section 245 of that Act to 
accord the alien status under such section 203(b), has been filed, if 
365 days or more have elapsed since--
        (1) the filing of a labor certification application on the 
    alien's behalf (if such certification is required for the alien to 
    obtain status under such section 203(b)); or
        (2) the filing of the petition under such section 204(b).
    (b) Extension of H-1B Worker Status.--The Attorney General shall 
extend the stay of an alien who qualifies for an exemption under 
subsection (a) in one-year increments until such time as a final 
decision is made on the alien's lawful permanent residence.
    (c) Increased Job Flexibility for Long Delayed Applicants for 
Adjustment of Status.--(1) Section 204 of the Immigration and 
Nationality Act (8 U.S.C. 1154) is amended by adding at the end the 
following new subsection:
    ``(j) Job Flexibility for Long Delayed Applicants for Adjustment of 
Status to Permanent Residence.--A petition under subsection (a)(1)(D) 
for an individual whose application for adjustment of status pursuant 
to section 245 has been filed and remained unadjudicated for 180 days 
or more shall remain valid with respect to a new job if the individual 
changes jobs or employers if the new job is in the same or a similar 
occupational classification as the job for which the petition was 
filed.''.
    (2) Section 212(a)(5)(A) of the Immigration and Nationality Act (8 
U.S.C. 1182(a)(5)(A)) is amended by adding at the end the following new 
clause:
                ``(iv) Long delayed adjustment applicants.--A 
            certification made under clause (i) with respect to an 
            individual whose petition is covered by section 204(j) 
            shall remain valid with respect to a new job accepted by 
            the individual after the individual changes jobs or 
            employers if the new job is in the same or a similar 
            occupational classification as the job for which the 
            certification was issued.''.
    (d) Recapture of Unused Employment-Based Immigrant Visas.--
        (1) In general.--Notwithstanding any other provision of law, 
    the number of employment-based visas (as defined in paragraph (3)) 
    made available for a fiscal year (beginning with fiscal year 2001) 
    shall be increased by the number described in paragraph (2). Visas 
    made available under this subsection shall only be available in a 
    fiscal year to employment-based immigrants under paragraph (1), 
    (2), or (3) of section 203(b) of the Immigration and Nationality 
    Act.
        (2) Number available.--
            (A) In general.--Subject to subparagraph (B), the number 
        described in this paragraph is the difference between the 
        number of employment-based visas that were made available in 
        fiscal years 1999 and 2000 and the number of such visas that 
        were actually used in such fiscal years.
            (B) Reduction.--The number described in subparagraph (A) 
        shall be reduced, for each fiscal year after fiscal year 2001, 
        by the cumulative number of immigrant visas actually used under 
        paragraph (1) for previous fiscal years.
            (C) Construction.--Nothing in this paragraph shall be 
        construed as affecting the application of section 201(c)(3)(C) 
        of the Immigration and Nationality Act (8 U.S.C. 
        1151(c)(3)(C)).
        (3) Employment-based visas defined.--For purposes of this 
    subsection, the term ``employment-based visa'' means an immigrant 
    visa which is issued pursuant to the numerical limitation under 
    section 203(b) of the Immigration and Nationality Act (8 U.S.C. 
    1153(b)).
    SEC. 107. EXTENSION OF CERTAIN REQUIREMENTS AND AUTHORITIES THROUGH 
      FISCAL YEAR 2002.
    (a) Attestation Requirements.--Section 212(n)(1)(E)(ii)) of the 
Immigration and Nationality Act (8 U.S.C. 1182(n)(1)(E)(ii)) is amended 
by striking ``October 1, 2001'' and inserting ``October 1, 2003''.
    (b) Department of Labor Investigative Authorities.--Section 
413(e)(2) of the American Competitiveness and Workforce Improvement Act 
of 1998 (as contained in title IV of division C of Public Law 105-277) 
is amended by striking ``September 30, 2001'' and inserting ``September 
30, 2003''.

SEC. 108. RECOVERY OF VISAS USED FRAUDULENTLY.

    Section 214(g)(3) of the Immigration and Nationality Act (8 U.S.C. 
1184 (g)(3)) is amended to read as follows:
    ``(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. If an alien who was issued a visa or otherwise provided 
nonimmigrant status and counted against the numerical limitations of 
paragraph (1) is found to have been issued such visa or otherwise 
provided such status by fraud or willfully misrepresenting a material 
fact and such visa or nonimmigrant status is revoked, then one number 
shall be restored to the total number of aliens who may be issued visas 
or otherwise provided such status under the numerical limitations of 
paragraph (1) in the fiscal year in which the petition is revoked, 
regardless of the fiscal year in which the petition was approved.''.

SEC. 109. NSF STUDY AND REPORT ON THE ``DIGITAL DIVIDE''.

    (a) Study.--The National Science Foundation shall conduct a study 
of the divergence in access to high technology (commonly referred to as 
the ``digital divide'') in the United States.
    (b) Report.--Not later than 18 months after the date of enactment 
of this Act, the Director of the National Science Foundation shall 
submit a report to Congress setting forth the findings of the study 
conducted under subsection (a).
    SEC. 110. MODIFICATION OF NONIMMIGRANT PETITIONER ACCOUNT 
      PROVISIONS.
    (a) Allocation of Funds.--Section 286(s) of the Immigration and 
Nationality Act (8 U.S.C. 1356(s)) is amended--
        (1) in paragraph (2), by striking ``56.3 percent'' and 
    inserting ``55 percent'';
        (2) in paragraph (3), by striking ``28.2 percent'' and 
    inserting ``23.5 percent'';
        (3) by amending paragraph (4) to read as follows:
        ``(4) National science foundation competitive grant program for 
    k-12 math, science and technology education.--
            ``(A) In general.--15 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 a direct or matching grant program to 
        support private-public partnerships in K-12 education.
            ``(B) Types of programs covered.--The Director shall award 
        grants to such programs, including those which support the 
        development and implementation of standards-based instructional 
        materials models and related student assessments that enable K-
        12 students to acquire an understanding of science, 
        mathematics, and technology, as well as to develop critical 
        thinking skills; provide systemic improvement in training K-12 
        teachers and education for students in science, mathematics, 
        and technology; support the professional development of K-12 
        math and science teachers in the use of technology in the 
        classroom; stimulate system-wide K-12 reform of science, 

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