Sec. 2. Protection of American workers and values
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Chapter 2 of title II of the Immigration and Nationality Act ( 8 U.S.C. 1181 et seq. ), as amended by section 5(d), is further amended by adding at the end the following: In this section: The term area of employment , with respect to the job for which an employer made a bona fide offer of employment to an alien, means the area within normal commuting distance of the worksite or physical location at which the work of the alien will be performed. If such worksite or location is within a Metropolitan Statistical Area, any place within such area is deemed to be within such area of employment.
The term essentially the equivalent , with respect to a job for which an employer made a bona fide offer of employment to an alien, means a job that— is held by a United States worker with substantially equivalent qualifications and experience to such alien; involves essentially the same responsibilities; and is located in the same area of employment. The term lay off , with respect to a worker— means to cause the worker’s loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, other cause, voluntary departure, voluntary retirement, or the expiration of a grant or contract (other than a temporary employment contract entered into in order to evade a condition of the employer’s attestation); and does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer at equivalent or higher compensation and benefits as the position from which the employee was laid off, 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 United States; or an alien who is lawfully admitted for permanent residence. An employer’s attestation meets the requirements described in section 204A(a)(2) if the employer— attests that the employer, before making a bona fide job offer to the alien— took good faith steps to recruit United States workers for the job for which the alien has been made an offer using procedures that meet industry-wide standards and offering compensation that is not less than the compensation offered to the alien; and offered the job to any United States worker who applied and was equally or better qualified for the job offered to the alien than such alien; provides a summary of the recruitment efforts described in paragraph (1), including— the good faith steps taken to recruit United States workers; the name, address, and contact information, and resume (if provided) of each United States worker who applied for the job; the name, address, and contact information of each United States worker who was offered the job, the proffered wage to each such worker, and whether each such worker accepted such offer; and for each United States worker who was not offered the job, the reason why the job was not offered to such United States worker; and attests the employer— did not lay off and will not lay off any United States worker employed by the employer from a job that is essentially the equivalent of the job for which the employer made a bona fide offer of employment to the alien during the period beginning 90 days before making such attestation and ending on the last day of the employer’s employment of the alien; will not place the alien with another employer for which the alien performs duties, in whole or in part, at 1 or more worksites— owned, operated, or controlled by such other employer; or physically located within, adjacent to, or in close proximity to, a worksite described in clause
(i)for the purpose of avoiding the requirements under this subsection; and will employ the alien at not less than the promised wage rate for 3 years unless— the alien is discharged for inadequate performance, violation of workplace rules, or other cause; or the alien voluntarily departed from the job or voluntarily retired. The Secretary of Labor may initiate an investigation of any employer that has signed an attestation described in subsection
(b)if the Secretary has reasonable cause to believe such employer is not in compliance with the terms of such attestation. The Secretary of Labor shall notify an employer with respect to whom there is reasonable cause to initiate an investigation under clause
(i)before commencing such investigation. Such 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 of Labor is not required to comply with clause
(ii)if the Secretary determines providing notice to an employer would interfere with an effort by the Secretary to secure compliance by the employer with the terms of its attestation described in subsection (b). There shall be no judicial review of a determination by the Secretary under this subparagraph. If the Secretary determines, after an investigation conducted pursuant to this subparagraph, that a reasonable basis exists to determine the employer is not in compliance with the terms of its attestation described in subsection (b), the Secretary shall provide for— notice of such determination to be sent to the interested parties; and an opportunity for a hearing in accordance with section 556 of title 5, United States Code. The Secretary of Labor shall establish procedures for— individuals who have applied in a reasonable manner for a job that is the subject of an employer’s attestation described in subsection
(b)or has been laid off in noncompliance with the terms of such an attestation to file a written, signed complaint respecting the alleged violation of the attestations; and the investigation of complaints described in clause (i), which have a substantial probability of validity. If the Secretary of Labor determines there is a substantial probability of validity of a claim in a complaint filed pursuant to paragraph (1)(B)(i) that an employer is not in compliance with the terms of an attestation signed by the employer, the Secretary shall initiate binding arbitration proceedings by requesting the Federal Mediation and Conciliation Service to appoint an arbitrator from its roster of arbitrators. The procedure and rules of the Federal Mediation and Conciliation Service shall be applicable to— the selection of such arbitrator; and such arbitration proceedings. The Secretary of Labor shall pay the fee and expenses of the arbitrator. The arbitrator shall determine whether the employer is not in compliance with the terms of the attestation signed by the employer. If the arbitrator determines that the employer willfully failed to comply with such terms, the arbitrator shall make a finding to that effect. The arbitrator shall submit any findings described in clause
(i)in the form of a written opinion to the parties to the arbitration and to the Secretary of Labor. The findings submitted pursuant to clause
(ii)shall be final and conclusive. Except as provided in subparagraph (C), no official or court of the United States shall have power or jurisdiction to review any such findings. The Secretary of Labor may review and reverse or modify the findings of the arbitrator only on the same bases as an award of an arbitrator may be vacated or modified under section 10 or 11 of title 9, United States Code. A court may review only the actions of the Secretary under clause
(i)and may set aside such actions only on the grounds described in subparagraph (A), (B), or
(C)of section 706(a)(2) of title 5, United States Code. Notwithstanding any other provision of law, judicial review under this clause may only be brought in an appropriate United States court of appeals. An employer shall be subject to the penalties set forth in subparagraph
(B)if— the Secretary of Labor— finds, after notice and opportunity for a hearing pursuant to paragraph (1)(A)(v)(II), that an employer is not in compliance with the terms of a signed attestation described in subsection (b); or receives a finding of an arbitrator that an employer is not in compliance with the terms of such an attestation; and the Secretary has not reversed or modified such finding pursuant to paragraph (2)(C)(i). The Secretary of Labor— shall require each employer described in subparagraph
(A)to cease and desist from any noncompliance with the terms of a signed attestation described in subsection (b); may, at the discretion of the Secretary and subject to clause (iii), require such employer to pay a civil monetary penalty in an amount that is not more than— $5,000 for noncompliance with any term of the employer’s attestation; $15,000 for each willful noncompliance with a term of the employer’s attestation; and $50,000 for each willful noncompliance with a term of the employer’s attestation that resulted in a United States worker being laid off; and beginning on January 1, 2028, and annually thereafter, shall automatically adjust the amounts described in clause
(ii)for violations committed after the effective date of each adjustment based on the cumulative annual percentage change in the unadjusted Consumer Price Index for all Urban Consumers published by the Bureau of Labor Statistics of the Department of Labor between January 1, 2027, and the date of such adjustment; may disapprove any petition filed by any alien desiring to be classified as points-based immigrants under section 203(b) that includes a bona fide offer of employment made by such employer— during a period of not more than 1 year; and in the case of willful noncompliance, during a period of not more than 15 years; if the attesting employer failed to offer a job to a United States worker in compliance with subsection (b)(1)(B), shall order such remedial action as may be appropriate, including— the hiring by the attesting employer of the United States worker for the job for which the alien had been made an offer which the United States worker was not, but should have been, offered, with compensation that is not less than the compensation offered to the alien; or payment by the attesting employer to such United States worker of compensatory damages; if the attesting employer laid off a United States worker in violation of subsection (b)(3)(A), shall order such remedial action as may be appropriate, including— reinstatement by the attesting employer of the United States worker to his or her former position and compensation (including back pay), terms, conditions, and privileges of such employment; or payment by the attesting employer to such laid off United States worker of compensatory damages; and if the attesting employer placed the alien with another employer in violation of subsection (b)(3)(B), and the other employer consequently laid off a United States worker, shall order payment by the attesting employer to such laid off United States worker of compensatory damages. . Chapter 2 of title II of the Immigration and Nationality Act ( 8 U.S.C. 1181 et seq. ), as amended by subsection
(a)and section 5(d), is further amended by adding at the end the following: In the attestation required under section 204A(a)(2)(A), the alien petitioner shall attest that he or she— will remain— attached to the principles of the Constitution of the United States; and well disposed to the good order and happiness of the United States; has not ordered, incited, advocated for, assisted, or otherwise participated in (including by writing, publishing, or causing to be written or published, by knowingly circulating, distributing, printing, publishing, or displaying, by knowingly causing to be circulated, distributed, printed, published, or displayed, or by knowingly having in his or her possession for the purpose of circulation, publication, distribution, or display, any written matter (including through electronic means, such as the internet and electronic text and mail) or printed matter for the purpose, in whole or in part, of carrying out such order, incitement, advocacy, assistance, or participation)— genocide (as defined in section 1091(a) of title 18, United States Code); the civil or criminal punishment of a person on account, in whole or in part, of such person's actual or perceived religious apostasy or blasphemy; the establishment of any governmentally enforced religious law in the United States that would— operate in place of, or in addition to, any Federal, State, or local civil or criminal law; and apply to— all persons in the United States; or persons of a particular religious faith in the United States (regardless of whether adherence to such law is voluntary or mandatory); the persecution of any person on account of, in whole or in part, race, religion, nationality, membership in a particular social group, or political opinion; female infanticide; sex-selective abortion; honor killing; or female genital mutilation (as defined in section 644(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208 ; 8 U.S.C. 1374(c) )); will not engage in any activity described in paragraph
(2)in the future; and is not, has not been, and will not become, a member of, or affiliated with, any organization that carries out or has carried out 1 or more of the actions described in subparagraphs
(A)through
(H)of paragraph
(2)when the alien petitioner was a member of, or affiliated with, such organization. . The table of contents for the Immigration and Nationality Act ( 8 U.S.C. 1101 et seq. ) is amended— by inserting after the item relating to section 204 the following: Sec. 204A. Procedure for granting immigrant status for points-based immigrants in the American interest. ; and by inserting after the item relating to section 219 the following: Sec. 220. Points-based Immigrant Visa Program in the American interest. Sec. 220A. Protection of American workers; employer attestation. Sec. 220B. Protection of American values. . The amendments made by this section shall take effect on the date of the enactment of this Act.
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- Pub. L. 104-208
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Sec. 2
Protection of American workers and values
Pub. L.Pub. L. 104-208
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