Sec. 101. Definitions
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As used in this title, the following definitions apply: The term employer shall include any parent, branch, affiliate, or subsidiary of a United States or foreign firm, corporation, or other legal entity and any group treated as a single employer under subsection (b), (c), (m), or
(o)of section 414 of the Internal Revenue Code of 1986. The term foreign labor contracting activity means recruiting, soliciting, or collecting funds from a prospective worker or worker who resides outside of the United States and is physically present outside of the United States at the time of such activities, in furtherance of employment in the United States, pursuant to a work-authorized nonimmigrant visa, that will compensate that worker at a rate of compensation below the rate of a highly compensated employee as required under the Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq. ) and required under section 541.601(a) of title 29, Code of Federal Regulations, or any similar successor regulation, including when such activity occurs wholly outside of the United States. The term foreign labor contractor means any individual, group of individuals, or employer who performs foreign labor contracting activity or utilizes a third-party foreign labor recruiter to perform such activity, except that such term does not include— any Federal, State, or local governmental entity; a United States or foreign firm, corporation, or other legal entity or parent, branch, affiliate, or subsidiary thereof that hires its own existing employee from outside the United States to work for a branch of the same firm, corporation, or other legal entity or a parent, affiliate, or subsidiary thereof within the United States; or any attorney or person to the extent they are assisting an employer with preparing a petition, certification, application, or other documents or filings (such as a job order to be filed with a State workforce agency) related to the legal requirements to hire a prospective worker under the Immigration and Nationality Act ( 8 U.S.C. 1101 et seq. ) or assisting with any subsequent administrative or judicial appeals related to such petitions, certifications, applications, or related legal documents or advising the prospective worker about the visa application and consular process. The term prospective worker means an individual who is not a national of the United States (as defined in section 101(a)(22) of the Immigration and Nationality Act ( 8 U.S.C. 1101(a)(22) )) or an individual lawfully admitted for permanent residence (as defined in section 101(a)(20) of such Act ( 8 U.S.C. 1101(a)(20) )) who is the subject of foreign labor contracting activity in furtherance of employment in the United States pursuant to a work-authorized nonimmigrant visa. Except as otherwise specified in section 106, the term Secretary means the Secretary of Homeland Security. The term third-party foreign labor recruiter means any foreign labor contractor who receives remuneration for conducting foreign labor contracting activity, except that an employer who engages in foreign labor contracting activity solely to find workers to be employed by the employer shall not be considered a third-party foreign labor recruiter. An employer shall not be considered to be engaged in foreign labor contracting activity solely to find a worker to be employed by such employer if the worker performs duties predominantly at one or more worksites owned, operated, or controlled by another employer or employers and the other employer or employers direct and control the work of the worker. The term work-authorized nonimmigrant visa means a nonimmigrant visa (as defined in section 101(a)(26) of the Immigration and Nationality Act ( 8 U.S.C. 1101(a)(26) )) issued to a class of nonimmigrant aliens listed in section 214(s) of such Act ( 8 U.S.C. 1184(s) ) (as added by section 202 of this Act) who are eligible under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) to be employed in the United States. The term worker means an individual who was the subject of foreign labor contracting activity that resulted in the individual being issued a work-authorized nonimmigrant visa. Such term does not include an unauthorized alien (as defined in section 274A(h)(3) of the Immigration and Nationality Act ( 8 U.S.C. 1324a(h)(3) )).
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