Page:United States Statutes at Large Volume 112 Part 4.djvu/673

 PUBLIC LAW 105-277—OCT. 21, 1998 112 STAT. 2(381-644 "(ii) the term 'nonexempt H-IB nonimmigrant' means an H-IB nonimmigrant who is not an exempt H-IB nonimmigrant. "(C) For purposes of subparagraph (A)— "(i) in computing the number of full-time equivalent employees and the number of H-IB nonimmigrsuits, exempt H-IB nonimmigrants shall not be taken into account during the longer of— "(I) the 6-month period beginning on the date of the enactment of the American Competitiveness and Workforce Improvement Act of 1998; or "(II) the period beginning on the date of the enactment of the American Competitiveness and Workforce Improvement Act of 1998 and ending on the date final regulations are issued to carry out this paragraph; and "(ii) any group treated as a single employer under subsection (b), (c), (m), or (o) of section 414 of the Internal Revenue Code of 1986 shall be treated as a single employer. "(4) For purposes of this subsection: "(A) The term 'area of employment' means the area within normal commuting distance of the worksite or physical location where the work of the H-IB nonimmigramt is or will be performed. If such worksite or location is within a Metropolitan Statistical Area, any place within such area is deemed to be within the area of employment. "(B) In the case of an application with respect to one or more H-IB nonimmigrants by an employer, the employer is considered to 'displace' a United States worker from a job if the employer lays off the worker from a job that is essentially the equivalent of the job for which the nonimmigrant or nonimmigrants is or are sought. A job shall not be considered to be essentially equivalent of another job unless it involves essentially the same responsibilities, was held by a United States worker with substantially equivalent qualifications and experience, and is located in the same area of employment as the other job. "(C) The term 'H-IB nonimmigrant' means £m alien admitted or provided status as a nonimmigrant described in section 101(a)(15)(H)(i)(b). "(D)(i) The term lays off, with respect to a worker— "(I) means to cause the worker's loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, 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 described in subparagraph (E) or (F) of paragraph (1)); but "(II) 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 (or, in the case of a placement of a worker with another employer under paragraph (1)(F), with either employer described in such paragraph) at equivalent or higher compensation and benefits than the position from which the employee was discheurged, regardless of whether or not the employee accepts the offer. 6B-194O-96 -22:(^3Put4

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