118 STAT. 3355 PUBLIC LAW 108–447—DEC. 8, 2004 ‘‘(v) The receipt by the Secretary of Labor of information sub mitted by an employer to the Attorney General or the Secretary of Labor for purposes of securing the employment of a nonimmigrant described in section 101(a)(15)(H)(i)(b) shall not be considered a receipt of information for purposes of clause (ii). ‘‘(vi) No investigation described in clause (ii) (or hearing described in clause (viii) based on such investigation) may be con ducted with respect to information about a failure to meet a condi tion described in clause (ii), unless the Secretary of Labor receives the information not later than 12 months after the date of the alleged failure. ‘‘(vii) The Secretary of Labor shall provide notice to an employer with respect to whom there is reasonable cause to initiate an investigation described in clauses (i) or (ii), prior to the commence ment of an investigation under such clauses, 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 Sec retary of Labor is not required to comply with this clause if the Secretary of Labor determines that to do so would interfere with an effort by the Secretary of Labor to secure compliance by the employer with the requirements of this subsection. There shall be no judicial review of a determination by the Secretary of Labor under this clause. ‘‘(viii) An investigation under clauses (i) or (ii) may be conducted for a period of up to 60 days. If the Secretary of Labor determines after such an investigation that a reasonable basis exists to make a finding that the employer has committed a willful failure to meet a condition of paragraph (1)(A), (1)(B), (1)(C), (1)(E), (1)(F), or (1)(G)(i)(I), has engaged in a pattern or practice of failures to meet such a condition, or has committed a substantial failure to meet such a condition that affects multiple employees, the Sec retary of Labor shall provide for notice of such determination to the interested parties and an opportunity for a hearing in accord ance with section 556 of title 5, United States Code, within 120 days after the date of the determination. If such a hearing is requested, the Secretary of Labor shall make a finding concerning the matter by not later than 120 days after the date of the hearing.’’. (2) RETROACTIVE.—The amendment made by paragraph (1) shall take effect as if enacted on October 1, 2003. (b) GOOD FAITH COMPLIANCE OR CONFORMITY.—Section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)) is amended— (1) by redesignating subparagraph (H) as subparagraph (I); and (2) by inserting after subparagraph (G), as added by sub section (a)(1), the following: ‘‘(H)(i) Except as provided in clauses (ii) and (iii), a person or entity is considered to have complied with the requirements of this subsection, notwithstanding a technical or procedural failure to meet such requirements, if there was a good faith attempt to comply with the requirements. ‘‘(ii) Clause (i) shall not apply if— ‘‘(I) the Department of Labor (or another enforcement agency) has explained to the person or entity the basis for the failure; Effective date. 8 USC 1182 note. Deadline. Notice. Notice.
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