Key Provisions: Immigration Innovation Act of 2018 (I-Squared)

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1 Key Provisions: Immigration Innovation Act of 2018 (I-Squared) H-1B PROVISIONS H-1B cap Annual H-1B cap 85,000, with a market escalator 20,000 cap exemption for holders of US advanced degrees Unlimited cap exemption for holders of US advanced degrees for whom an employment-based green card case is begun within one year of commencing H-1B status o Initial one-year H-1B approval, extensions available if labor certification or I-140 filed within initial approval period Market escalator could raise the cap to a maximum of 195,000 over four years o If the annual cap were reached early in a fiscal year, additional ,000 cap numbers would be allocated for that FY, depending on when the cap is reached during the year Market de-escalator provision would decrease the H-1B quota by ,000 if cap is not reached in the preceding FY, though cap could not be decreased below 85,000 H-1B cap allocation/prioritization If the H-1B cap is met within the first five business days of the filing period for the fiscal year, cap numbers would be allocated according to the following priority system: (1) Cap-subject FNs with a US advanced degree (i.e., those not selected for the advanced-degree cap exemption and not being sponsored for a green card within the first year of H-1B status)* (2) FNs holding a foreign PhD in a specialty related to the offered H-1B employment, if the degree is equivalent to a doctoral degree awarded by a US institution of higher education (3) FNs holding a US bachelor s degree in a DHS-designated STEM field* (4) Remaining petitions * The degree must be from an accredited public or nonprofit US institution of higher education, earned while FN was physically present in the US. 1

2 H-1B PROVISIONS, cont d Unused H-1B cap approvals: penalties and reassignment of unused cap numbers Non-replacement obligations H-1B amendments Employers with at least 5 approved cap cases in a FY would be fined for each petition under which the beneficiary works in the US for less than three months in the first year of the petition validity period ($10,000 penalty for first violation, $25,000 for subsequent violations) o No penalty if the employer withdraws the petition because of an unexpected change in need for the FN, the FN begins employment with the employer in another lawful status, or the FN quit or resigned; withdrawal must include a description of the circumstances o BUT withdrawal will not shield employer from penalties if: Employer has H-1B cap approvals in a FY and withdraws >25% of approvals in the FY or >10% of approvals because of employee resignation within 3 months of employment Employer has >50 approvals in a FY and withdraws >20% of cap approvals in the FY or >5% of approvals because of employee resignation within 3 months of employment o Employers subject to penalty in any 3 fiscal years would be barred from filing cap-subject H petitions in the following FY Unused visas due to employer withdrawal would be added back to the annual cap for that FY Employers with at least 5 approved H-1B cap petitions must submit an annual report to DHS containing the date each H-1B cap beneficiary started working in the US for the employer and their total period of employment in the first year of H-1B work authorization during the most recent FY Employers would be prohibited from hiring an H-1B for the purpose and intent of replacing a US worker (other than through US worker s promotion or voluntary transfer, departure or retirement) Employers intending to replace a US worker with an H-1B (other than through promotion or voluntary transfer, departure or retirement of USW) would be prohibited from conditioning the USW s compensation or performance review on training the H-1B to perform the USW s job An amended H-1B petition would not be required if: o The petitioner is involved in a corporate restructuring; o A successor entity assumes the interests and obligations of the original petitioner and the terms/conditions of employment are unchanged except for the petitioner s identity; or o The H-1B beneficiary begins working at a new place of employment and the employer secures a new LCA before the location change 2

3 H-1B PROVISIONS, cont d H-1B grace period Would create a statutory 60-day grace period for H-1B whose employment relationship is terminated early, voluntarily or involuntarily, to allow the H-1B to find new employment, change status or prepare to depart H-1B spousal employment and wage obligations H-1B dependency H-4 spouses would be eligible for work authorization if the H-1B principal has a pending or approved labor certification or I-140 immigrant worker petition Employers of H-4 spouses would be required to pay the H-4 at least the higher of the actual or prevailing wage for the occupation Recruitment and non-displacement obligations would not apply if: o The employer pays H-1B worker the higher of (1) $100,000 (CPI-adjusted every 3 years); or (2) 105% of the mean wage for the occupation; or o The H-1B beneficiary has a US PhD in a field related to the intended employment Would exempt from dependency calculation H-1B workers being sponsored for EB permanent residence if employer files I-140 petitions for at least 90% of its labor certification beneficiaries H-1B training and education fee Would raise the base rate for the H-1B training and education fee to $4000 (or $2000 for employers with 25 or fewer employees) An H-1B quota increase would result in a fee increase to $ in the following FY (or $ for employers with 25 or fewer employees) Fees would be used to fund STEM training and education EMPLOYMENT-BASED PERMANENT RESIDENCE Per-country limits on immigrant visas Recapture of unused immigrant visas Employment-based immigrant visa quota and exemptions Per-country caps on employment-based immigrant visas would be eliminated Family-based immigrant visas would be capped at 15% per country (2% for dependent areas) Approximately 200,000 unused employment-based immigrant visas from prior years would be made available to reduce backlogs Employment-based immigrant visa quota would be unchanged, but is effectively increased due to exemptions New quota exemptions for: o EB-1A extraordinary ability foreign nationals and EB-1B outstanding professors/researchers o Foreign nationals with a US advanced degree in a DHS-designated STEM field o Spouses and children of employment-based immigrants 3

4 EMPLOYMENT-BASED PERMANENT RESIDENCE, cont d I-140 portability Beneficiary of an approved I-140 petition and certain conditional employment-based permanent residents could change jobs in the same or a similar occupation after the filing of an application for adjustment of status without the need to wait 180 days after adjustment filing Adjustment of status application filing Conditional employment-based permanent residence Foreign nationals with an approved EB-1, EB-2 or EB-3 I-140 petition would be able file an application for adjustment of status despite unavailability an immigrant visa, on payment of a $500 fee 35,000 conditional EB immigrant visas per year would be available to foreign nationals (including nonimmigrants) who hold a university degree, have an offer of employment from a qualifying US employer and qualify for the EB-1, EB-2 or EB-3 classification Petitioning employers requirements: o Pay the beneficiary no less than a similarly situated USW o No displacement of a USW by the foreign beneficiary o Undertake recruitment of USWs with a bachelor s degree or higher in the same or similar occupation as the foreign beneficiary o Fully participate in E-Verify o Initiate EB permanent residence process within one year of hire 60-day adjudication period $10,000 filing fee; change of employer fee of $ ,000 if FN hired within three years of obtaining conditional permanent residence (CPR) DOL labor certification special handling available if offered salary is at least $100,000 (prior competitive recruitment accepted; labor certification could be approved if no USW applicants were as qualified as the foreign beneficiary) Conditional permanent residents reviewed annually to ensure ongoing employment in the approved occupation, payment of applicable taxes, filing of labor certification or I-140 within first year of conditional residence, approved I-140 required at third annual review. CPRs would be eligible to apply for removal of conditions when an EB immigrant visa becomes available Schedule A study Would direct DOL to conduct a study of occupations exempt from labor certification under Schedule A and rulemaking if the study determines Schedule A should be modified or expanded 4

5 OTHER PROVISIONS Prevailing wages Would increase entry-level wages to the mean of the lowest 50% of wages surveyed for the H-1B and PERM programs Would codify private surveys as acceptable wage sources for the H-1B and PERM programs Deference to prior petition approvals DHS and DOS would be required to give deference to prior H-1B and L-1 petition, visa and admission application approvals, except in cases of material error in the prior approval, a subsequent change in circumstances rendering the FN ineligible for the status or new material information that adversely affected the eligibility of the employer or beneficiary Dual intent for F-1 students Foreign residency requirement for F-1 students would be eliminated Would establish statutory dual intent for foreign students, allowing them to seek permanent residence in F-1 status Employer pre-certification Would require DHS to establish a precertification process for employers who file multiple foreign worker petitions, to eliminate the need for duplicative filing of corporate and employment documents Electronic signatures and filing Would require DHS to promulgate regulations to allow petitioners to electronically sign, file and store USCIS petitions, applications, reports and supporting documentation 5