DHS Announces Proposals to Attract and Retain Highly Skilled Immigrants

From the Department of Homeland Security, 05/06/2014

WASHINGTON — As part of the Administration’s continuing commitment to attract and retain highly skilled immigrants, the Department of Homeland Security (DHS) today announced the publication of two proposed rules, including a rule to extend employment authorization to spouses of certain H-1B workers, and a proposal to enhance opportunities for certain groups of highly-skilled workers by removing obstacles to their remaining in the United States. 

Together these actions will help attract new businesses and new investment to the U.S. and ensure that the U.S. has the most skilled workforce in the world.

“The proposed rules announced today provide important support to U.S. businesses while also supporting economic growth here in the U.S.,” said Deputy Secretary Alejandro Mayorkas.  “These steps will help the U.S. maintain competitiveness with other countries in our efforts to attract the best and the brightest high-skilled workers from around the world to support companies here at home. Businesses continue to need these high-skilled workers, and these rules ensure we do not cede the upper hand to other countries competing for the same talent.”

“These two proposed rule changes are an integral part of the Administration’s efforts to strengthen entrepreneurship and innovation, and to help the United States attract and retain highly skilled immigrants,” said U.S. Secretary of Commerce Penny Pritzker. “The fact is, we must do more to retain and attract world-class talent to the United States and these regulations put us on a path to doing that. These actions promise to unleash more of the extraordinary contributions that immigrants have always made to America’s innovation economy.”

Both Notices of Proposed Rulemaking will soon publish in the Federal Register. DHS encourages the public to comment on the proposed rules through www.regulations.gov.  All public comments will be considered before the final rules are published and go into effect.

Proposed Rule to Extend Employment Authorization to Spouses of Certain H-1B Workers

This proposed rule will amend existing regulations to allow H-4 dependent spouses of certain principal H-1B workers to request employment authorization.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as science, engineering or computer programming.  Frequently, employers will petition for an immigrant visa for an H-1B worker, which enables individuals to become lawful permanent residents.  Lawful permanent residents are generally eligible to become naturalized U.S. citizens after five years.

Under existing regulations, DHS does not extend employment authorization to dependents (also known as H-4 nonimmigrants) of H-1B nonimmigrant workers. The change proposed by DHS, would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.

Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

• Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
• Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

Proposal to Enhance Opportunities for Highly-Skilled Workers 

This proposed regulatory change would enhance opportunities for certain groups of highly-skilled and transitional workers by removing obstacles to their remaining in the United States.   

Specifically, the change to the regulation would:

• Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer,
• Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization. 

• Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.

It would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Under current regulations, employers of workers in E-3,  H-1B1, or CW-1 status must generally file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.

Finally, this proposal would also expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations.  This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence. 

For more information, please visit www.dhs.gov.

Proposed Rules on Work Authorization for Certain H-1B Dependents and Others Expected to Advance

From Fragomen.com, 04/10/2014

Two highly anticipated proposed regulations will soon advance to the next stage of the federal regulatory process, the White House announced earlier this week. The rules seek to allow H-4 dependents of certain H-1B foreign nationals to seek work authorization and to extend the work authorization of E-3 and H-1B1 employees awaiting the approval of a timely-filed extension petition. 

The draft H-4 rule is expected to propose eligibility for employment authorization for the dependent spouses of H-1B nonimmigrants who are beneficiaries of extensions past their six-year time limit. Post-6th year extensions are available in certain circumstances to H-1B employees with long-pending employment-based permanent residence sponsorship cases. Under current law, H-4 foreign nationals are not eligible to apply for employment authorization pursuant to their nonimmigrant status. 

A separate rule is expected to extend employment authorization for 240 days beyond the period specified on an E-3 or H-1B1 nonimmigrant’s Form I-94 arrival record, as long as the foreign national is the beneficiary of a timely application to extend status filed by the same employer. Under current rules, this 240-day extension is available to qualifying H-1B, L-1 and certain other nonimmigrants, but not to E-3s or H-1B1s. 

Both proposals have been pending at the Office of Management and Budget (OMB) for several months. Once they initially clear OMB, they will be published as Notices of Proposed Rulemaking with a public comment period of at least 30 days and additional time for DHS to consider comments. The rules will not be implemented until after they receive final approval from OMB -- a process that could take several months or more for each rule. 

The exact contents of the two proposed rules will remain confidential until they are published in the Federal Register. Abstracts of the H-4 and 240-day extension of employment authorization proposed rules are available at the OMB website. 

The proposals are part of the Obama Administration’s Startup America Initiative, which was begun in 2011 and includes plans to implement administrative reforms at the Department of Homeland Security to attract and retain highly skilled foreign nationals. 

What This Means for Employers and Foreign Nationals 

If implemented, the rules would give some – but by no means all – spouses of H-1B employees the opportunity to work in the United States and would help E-3 and H-1B1 employees avoid work interruption when an application for an extension of stay is pending past their initial period of stay in the United States. 

House Republican Standards for Immigration Reform Highlight Targeted Approach Over Comprehensive Reform

From Fragomen.com, 01/31/2014

As anticipated, House Republicans on Thursday released a set of Standards for Immigration Reform, a set of principles intended to revive the bipartisan discussions that stalled last year. The Standards reflect a commitment to bipartisan progress, but stress that House Republicans do not intend to proceed to a conference with the Senate’s comprehensive immigration reform bill. Rather, they plan a step-by-step approach that starts with border security and increased enforcement. The Standards point to a fully functioning electronic exit-entry control system and electronic employment verification as priorities to combat status violations, fraud and other abuses of the law. 

The Standards place a strong positive emphasis on employment-based immigration, particularly in regard to the ability of employers to retain talent educated in the United States in high-skill fields. The Standards also endorse temporary worker programs that provide “realistic, enforceable, usable, legal paths for entry into the United States,” citing the agricultural industry as a particular concern. 

Finally, the Standards support a means for undocumented individuals to legally live and work in the United States once certain conditions are met, but with no path to citizenship. The process for obtaining such legal status would not be available until “specific enforcement triggers have been implemented.” However, as one exception, those who were brought to the United States as children would be eligible for legal permanent residence and citizenship. 

The response from stakeholders across the immigration reform effort has generally been positive, and the Standards are generally seen as offering a good starting place for discussions and potential legislative action later this year. 

DHS Plans Changes for H-4 Spouses

SHRM, 07/22/2013

The U.S. Department of Homeland Security’s spring 2013 regulatory agenda, released July 3, 2013, contains 52 items from the department’s immigration-related agencies, including proposed rules clarifying Form I-9 violations, providing work authorization to H-4 dependent spouses of H-1B visa holders, renewing the H-1C nurse visa and amending regulations governing the calculation of prevailing wages under the H-2B guest worker program.

Final Rules

A few rules that U.S. Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE) will be implementing in the coming months are relevant to HR professionals. These include:

·         By October 2013, CBP will set the eligibility requirements and the application procedures and fees for the U.S. Asia-Pacific Economic Cooperation Business Travel Card Program. The program will enable eligible travelers to use fast-track immigration lanes in cooperating Asia-Pacific nations.

·         The extension of U.S. immigration law to the Commonwealth of the Northern Mariana Islands by December 2013.

·         A July 2014 final rule implementing the Legal Immigration Family Equity Act, which will allow the spouses and children of lawful permanent residents to live and work in the United States while waiting for a green card.

·         The finalization of interim regulations, by July 2014, precluding employers from filing duplicate petitions on behalf of the same foreign temporary worker subject to the annual H-1B numerical cap.

·         A final rule, planned for July 2014, implementing the Nursing Relief for Disadvantaged Areas Act, which created the H-1C nonimmigrant nurse visa in 1999 in response to the shortage of qualified nurses in many regions of the United States. To qualify for the H-1C visa, 500 of which are granted annually, a nurse must be licensed or have obtained a nursing degree in the U.S. and must pass the NCLEX-RN exam. Nurses with an H-1C visa may work in the United States for up to three years. USCIS stopped accepting new H-1C petitions after Dec. 21, 2009, when Congress failed to reauthorize the program.

Proposed Rules

USCIS proposes to extend employment authorization to certain H-4 dependent spouses of principal H-1B visa holders who have begun the process of seeking lawful permanent-resident status through employment. “Allowing the eligible class of H-4 dependent spouses to work encourages professionals with high-demand skills to remain in the country and help spur the innovation and growth of U.S. companies,” USCIS said.

A Notice of Proposed Rulemaking is scheduled for October 2013 proposing to amend regulations that clarify certain Form I-9 paperwork failures and violations. According to the agenda, this proposed rule would define a substantive violation and a technical or procedural failure and delineate the circumstances in which an employer may be subject to penalties or not, due to a good-faith attempt to comply when completing the form.

Another rule planned for October 2013 would allow students on F-1 visas with degrees in science, technology, engineering or mathematics to take advantage of a 17-month optional practical training extension to gain experience in those fields.

And USCIS proposes to amend its regulations affecting high-skilled workers from Chile and Singapore (H-1B1), Australia (E-3), the Commonwealth of the Northern Mariana Islands (CW-1), and outstanding professors and researchers (EB-1) by November 2013.

The rule would reconcile the regulations for these classifications with existing regulations for other similarly situated classifications “by removing unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications,” according to DHS.

White House White Board: Why Immigration Reform Is Good For Our Economy

House GOP Conference Meets as Immigration Reform Reaches a Crossroads

From Fragomen.com, 07/15/2013

The House GOP Conference met last week to discuss possible approaches to immigration reform in the U.S. House of Representatives. House Republican leaders endorsed continuing along the current path of approaching immigration on an issue-by-issue basis, which some have referred to as a “piecemeal” approach. In a statement released shortly after the meeting, House leaders stated that they would not take up the Border Security, Economic Opportunity and Immigration Modernization Act of 2013 (S. 744), the bipartisan comprehensive immigration reform bill passed last month by the Senate, but rather would “continue their work on a step-by-step, commonsense approach to fix what has long been a broken system.” The caucus as a whole reportedly remains deeply divided, particularly on the issue of a pathway to citizenship for the undocumented. 

Following the Senate’s passage of S. 744, questions abounded about the prospects for comprehensive immigration reform in the House. While the House “Group of Seven” is reportedly still working at crafting a comprehensive solution, the piecemeal approach favored by House Republican leaders continues to hold sway. 

While analysts agree that there would likely be enough combined Democratic and Republican votes to pass S. 744 or some similar comprehensive bill, Speaker John Boehner indicated even prior to the House GOP meeting last week that he would not allow a comprehensive immigration bill to reach the House floor without the support of a majority of Republicans. The July 11th meeting itself – in which some conservatives reportedly urged Boehner to “kill the bill,” and referred to S. 744 as an “Obamacare-like bill” – seemed to validate the view that a majority of Republicans in the House are not prepared, at least at this juncture, to support any approach resembling the Senate bill. 

It remains to be seen whether the collection of House bills that have moved forward to date, or some subset of them, might be successfully patched together and conferenced with S. 744, particularly with the very thorny issue of a pathway to citizenship for the undocumented yet to be addressed in the House. 

Among the bills reported out by the House Judiciary Committee are the SKILLS Visa Act (H.R. 2131), the Legal Workforce Act (H.R. 1772), the Strengthen and Fortify Enforcement Act (H.R. 2278), also known as the SAFE Act, and the Agricultural Guestworker “AG” Act (H.R. 1773). Earlier this year, the House border security subcommittee passed the Border Security Results Act of 2013 (H.R. 1417), a bill that would compel DHS to produce a strategy and implementation plan for achieving measurable border security. The timing of floor votes on these bills is not certain, but may begin this month. 

Provisions for High Skilled Workers 

The House Judiciary Committee in late June cleared the SKILLS Visa Act, which would expand green card and nonimmigrant opportunities for skilled workers. The bill would allocate additional immigrant visas to foreign graduates of U.S. universities with advanced degrees in STEM fields; increase the standard H-1B cap to 155,000 (with 40,000 more numbers for advanced-degree STEM graduates); and repeal employment-based per-country limits. The bill would also make major changes to the way required wages are calculated, and impose new wage requirements on longer-term L-1s, F-1s on OPT, and TNs. (Click here for a summary of the bill.) 

The SKILLS Visa Act would not provide as great an infusion of green card numbers as S. 744, though it lifts the H-1B cap considerably and without the new employer requirements that the Senate bill would impose. Though the bill would establish new wage requirements as described above, it does not include S.744-type provisions on recruitment or non-displacement. See this chart for a comparison of the SKILLS Visa Act to provisions of S. 744 affecting employers of skilled professionals. (An updated chart on S. 744 is available here.)

Other Bills Cleared by the House Judiciary Committee 

The Legal Workforce Act would make E-Verify mandatory for all employers at a quick pace – within two years after enactment. The bill would pre-empt state laws mandating E-Verify use, but states could withhold licenses and impose fines on businesses failing to comply with electronic verification requirements. The SAFE Act is a border and interior enforcement bill that, among other things, would increase the ability of local police to enforce immigration laws, accelerate and expand the government’s expedited removal and detention power, and augment visa security measures at consular posts. The AG Act would create a new agricultural guestworker program to replace the H-2A program. 

S. 744 Passes in the U.S. Senate, Next Steps to Unfold in the U.S. House

By a strong vote of 68-32, the U.S. Senate passed the “Border Security, Economic Opportunity and Immigration Modernization Act (S. 744)” as modified by the Corker-Hoeven substitute to the bill. 

What changes were made to S. 744 this week that will impact employers? 

In a complex Senate procedural move to gain more Republican votes for S. 744, the Corker –Hoeven “border surge” amendment was the vehicle to substituting the entire Senate base bill with dozens of amendments, replacing Titles I, II, III and IV, in addition to creating a new Title V.

Title I (Border Security):  It became feasible at the end of last week for the Senate to work toward a compromise that would not only help the bill gain significant Republican votes, but also adds more costs to strengthen border security, after a Congressional Budget Office report revealed that overhauling our immigration system would reduce the federal budget deficit by $197 billion over ten years and over $700 billion over 20 years, as well as increase GDP by 3.3 percent in 2023 and 5.4 percent in 2033.  The Corker-Hoeven border surge amendment adds “triggers” to the bill that require at least 180 days before a registered provisional immigrant (the legalization group) may qualify for a green card; that DHS certify a border strategy has been deployed and that certain border security measure are met which include  the completion of a 700 mile fence, implementation of mandatory E-Verify, an electronic biometric exit system at all air and seaports of entry where CBP is located, deployment of new border security technology, and an additional 38,000 or so border patrol agents on the southern border.  This title also authorizes a pilot program to notify nonimmigrants that their period of authorized stay is about to expire.  All of this would be funded through increased authorization up from $8.3 billion in the bill to $46.3 billion, allowing DHS to add a surcharge to the fees of immigrant and nonimmigrant petitions to pay for its implementation. 

Title II (Immigrant Visas):  Amendments to the bill this week made the following clarifications and changes:

• Labor Certification Exemption.  Certain U.S. STEM advanced degree graduates who have a job offer and earned their degree five years prior to filing their petition are not only exempt from the green card caps, but also exempt from labor certification.  This is a great benefit to U.S. employers and will ensure, should the bill become law, that employers can access these workers on a fast-track to green card.

• Modifications to the New Merit Based Green Card System.  Drops from four to three years the amount of time the new 120,000 up to 250,000 green cards per year merit-based green card cap would be available solely to the EB-3 preference and to those who adjust from the new W visa (for those with under a bachelor’s degree; lesser skilled).  Should the bill be enacted, this would still help make the EB-3 preference more current than today and the bill would still work to clear our green card backlogs in the EB-2 and EB-3 preferences within seven years-time.  
  
  
  Additionally, the bill waives the three and ten year bar to re-entry for merit based track two applicants.  Further, in amendments to the bill this week, it establishes application procedures for those merit based green card applications filed in fiscal year 2018 and beyond.  The bill states that beginning in fiscal year 2018, on October 1 during the 30-day period following and in subsequent years during that timeframe, eligible foreign nationals may submit to USCIS an application for a merit-based immigrant visa that contains information DHS may reasonably require.  Before the last day of each fiscal year in which applications are filed USCIS shall: (1) review the applications to determine which foreign nationals will be granted a merit-based immigrant visa in the following fiscal year and (2) in coordination with the DOS, provide such visas to all successful applicants.  It is unclear from the bill’s language if the merit-based green cards would be issued in the order the labor certification or petition was filed.

Title III (Employment Verification System):  Amendments to the bill this week did not make many changes to the employment verification title.  The key amendments that were made include:   Excluding exchange visitors, such as interns or trainees, from the definition of worker under the foreign labor recruiting provisions in addition to excluding J sponsors from the definition of a foreign labor contractor.  A new Subtitle I is also added that would provide tools to exchange visitors and sponsors to prevent fraud while protecting participants.  This Subtitle contains directions to the DOS to institute a variety of regulatory improvements, including compliance audits and increased fee transparency for participants.  DOS is also directed to address the issue of program fees and whether these fees should be eliminated through the regulatory process. There are, however, concerning provisions in the enforcement section of this new subtitle that may create the right of private legal action against J-1 employers by J-1 participants.

Title IV (Nonimmigrant Visas): Amendments to the bill this week include:

• Exemption for Public Universities from Non-Displacement Requirement.  Changes to the bill’s language this week ensure public universities would be exempt from non-displacement attestations if an H-1B is placed at one or more worksites owned, operated or controlled by a Federal, State or local government entity that directs and controls the work of the H-1B.  This was a critical exemption for public universities.

• Exemption for Non-profit Higher Education and Research Institutions from Dependency.  Generally, the bill defines dependent employersas those with 51 or more full time employees who have over 15% of their U.S. workforce on H-1B. 

• H-1B Cap.  Bill changes this week also clarify that the number of H-1Bs cannot exceed 180,000 visas per fiscal year, even though this already appeared to be clear in the base bill.

• Reduces J-1 Summer Work Travel Fee.   Changes to the bill this week also reduced the fee from $500 to $100 per J-1 exchange visitor coming for Summer Work Travel.

• O and P Visa Adjudication and Premium Processing Fee Waiver.  The bill also adds the requirement that DHS shall adjudicate all O-1, O-2, O-3 and P visas within 14 days after the date on which the petitioner submits the petition with a written advisory opinion, letter of no objection, or request for waiver or the date on which the 15-day period has expired if the petitioner has had an appropriate opportunity to supply rebuttal evidence.  If the petition is not adjudicated before the end of the 14 day period DHS shall provide the petitioner with the premium processing services without a fee.

• Limits on B and F Nonimmigrant Health Related Programs.  The bill also made changes this week to bar payment to states for medical assistance for certain temporary workers like B and F nonimmigrants, but continue to generally provide for an exception regarding emergency medical care or medical care for pregnant women and children.

• Title V (Youth Jobs):  An amendment to the bill this week also created a youth jobs program, and provides $1.5 billion over two years to fund the program.  A new $10 surcharge on all J visas will support the creation of the appropriated fund to provide summer and year-round employment opportunities to low income youth.

Global Human Resources will continue to provide updates as this landmark legislation evolves, so be sure to subscribe to The Global Buzz by email or add it to your RSS reader.

Source: ACIP

Senate Judiciary Committee Approves Immigration Reform Bill

From Fragomen.com, 05/22/2013

After several weeks of hearings and mark-ups, the Senate Judiciary Committee on Tuesday approved S. 744, the comprehensive immigration reform package, by a vote of 13 to 5. The bill now proceeds to the full Senate for debate, which is expected to begin next month.

The last hours of mark-up saw several amendments to the provisions of the bill affecting nonimmigrant workers. These are summarized below. 

The H-1B cap. The final version of the bill includes a higher H-1B cap baseline of 115,000 and a new formula that will allow for quota increases of 5,000 to 20,000 within a fiscal year if demand exceeds the cap and the unemployment rate for managerial, professional and related occupations is less than 4.5 percent. 

H-1B skilled worker dependency. Amendments to the bill introduce enhanced recruitment and non-displacement obligations for the “H-1B skilled worker dependent employer,” which is defined as an employer whose skilled workforce – comprising full-time equivalent employees in occupations within Zones 4 and 5 of the Labor Department’s O*NET database – is made up of 15 percent or more H-1B workers. Intending immigrants would not be included in the workforce calculation if their employer had filed permanent residence petitions for at least 90 percent of the labor certifications for which it received approvals within a given timeframe. 

Recruitment. Employers would be required to post H-1B jobs on a DOL website, engage in good faith recruitment using industry-wide standards, and offer compensation at least equal to that offered prospective H-1B nonimmigrants. DOL would be required to facilitate the posting of H-1B jobs on the websites of state workforce agencies (SWAs). H-1B skilled-worker dependent employers would be required to offer a job opening for which an H-1B worker is sought to any to any equally or better qualified U.S. worker who applies for the position. 

Non-displacement. An H-1B employer, other than one who is H-1B dependent or skilled-worker dependent, is prohibited from displacing a U.S. worker if the employer is: (1) filing an H-1B petition with the intent or purpose of displacing a specific U.S. worker from the position to be occupied by the beneficiary of the petition; (2) providing services to worksites operated by federal, state or local government employer entities that would direct and control the work of the prospective H-1B employee; or (3) a public school. H-1B skilled worker dependent employers would need to attest that they did not and would not displace a U.S. worker 90 days before or after filing an H-1B petition. For H-1B dependent employers, the non-displacement period would remain 180 days before and after filing. 

Outplacement restrictions on H-1B dependent employers. The amended bill retains the prohibition against outplacement by H-1B dependent employers, but clarifies that dependent employers who are nonprofit institutions of higher education, nonprofit research organizations or health care providers petitioning for physicians or other health care workers would not be not subject to the restrictions, though they would be required to pay an outplacement fee. 

H-1B spousal work authorization. The amended bill eliminates a provision that would have granted H-1B spousal work authorization only if the principal H-1B’s home country provided reciprocal benefits to similarly situated spouses of U.S. citizens. However, the bill allows the Department of Homeland Security, at the request of the State Department, to suspend H-1B spousal employment authorization for nationals of countries that do not provide reciprocal benefits. 

L-1B outplacement. The amendment prohibits the outplacement of L-1Bs if 15 percent or more of an employer’s full-time equivalent workforce is made up of L-1Bs, including intending immigrants. Otherwise, employers would not be permitted to outsource or outplace an L-1B unless: (1) the worker is controlled and supervised by the petitioning employer; (2) the placement is not an arrangement to provide labor for hire; and (3) the employer pays a $500 STEM education and training fee. 

Covered employers. For purposes of the H-1B dependency and skilled-worker dependency calculations, intending immigrants are not included in the calculation if their employer is a “covered employer.” The amended bill redefines covered employer to mean an employer who has filed I-140 petitions for at least 90% of current employees who were beneficiaries of applications for labor certifications that were approved during the one-year period ending six months before filing the H-1B or L-1 petition for which the number of intending immigrants is relevant. 

Adjustment of status portability. The amended bill clarifies that, for purposes of adjustment portability, approved I-140 petitions remain valid even if withdrawn by the petitioning employer, provided that the adjustment applicant has a new job in the same or a similar occupational classification. 

Adjustment filing before visa availability. Under the amended bill, a foreign national would be eligible to file an adjustment application concurrently with an immigrant petition or at a later point whether or not a visa number is available. If a visa number is not available at the time the adjustment is filed, the principal applicant would be subject to a supplemental fee of $500; dependents would not be liable for the fee. 

Effective date. The provisions of the bill would affect all petitions and applications filed on or after the date of enactment, but the H-1B recruitment and non-displacement provisions would not apply to extensions or other petitions or applications filed on behalf of existing employees. 

What Is Next for S. 744?  The Senate immigration bill has several hurdles to overcome before it becomes law. The package approved by the Judiciary Committee on Tuesday is subject to additional changes on the Senate floor. If the bill is passed in the Senate, it will need to be reconciled with legislation passed by the House of Representatives. The House is at the early stages of crafting its own immigration bill, and it is not yet clear how much it will resemble the Senate’s approach. 

Senate Judiciary Committee to Debate Nonimmigrant Provisions of Reform Bill

From Fragomen.com, 05/14/2013

Today, the Senate Judiciary Committee will begin debate and mark-up of Title IV of S. 744, the employment-based nonimmigrant section of the comprehensive immigration reform bill. The Committee will consider an array of proposed amendments concerning the H-1B and L-1 programs and the optional practical training rules for F-1 students. Mark-up of the employment-based green card proposals is expected in the coming days, though no specific date has yet been set. 

Among the key nonimmigrant amendments are proposals from Sen. Charles Grassley (R-IA) to further broaden the Department of Labor's authority to review and investigate employers’ compliance with the labor condition application (LCA) regulations and to limit post-graduate employment options for F-1 students. Sen. Amy Klobuchar (D-MN) has proposed requiring H-1B employers to post offered positions on the websites of state workforce agencies. 

Sen. Orrin Hatch (R-UT) is seeking to increase the H-1B cap baseline to 115,000, with a reformulated market escalator that would allow for just-in-time quota increases within a given fiscal year, based on immediate demand for H-1B numbers. He is also seeking more moderate restrictions on offsite placement of L-1B specialized knowledge workers, with a $500 L-1B outplacement fee. 

The markup will begin at 10:00 a.m. EDT and will be streamed live. 

Senate Introduces Much-Anticipated Comprehensive Immigration Reform Bill

The Senate ‘Gang of Eight’ released a comprehensive immigration reform bill - the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013. 

Below are the highlights from the areas of the bill that we are tracking most closely:

Immigrant and Nonimmigrant Visas for Highly Educated Talent

The bill great strides in clearing current green card backlogs and improving future access for high-skilled professionals.  It increases availability of H-1B visas, but at a cost to L-1B visas.  It also provides portability for O visas, expands honoraria for B visas and tweaks the E visa system.  

Key provisions would:

• Create many more green cards by exempting family members, extraordinary ability, outstanding professors and researchers, multinational managers and executives, STEM Ph.D.s, and certain physicians from the 140,000 employment-based cap.  Forty percent of the 140,000 visas will go to those with advanced degrees and certain U.S. STEM degree holders.  Another 40 percent will go to EB-3, with 10 percent each to special immigrants and entrepreneurs.
• Work to clear current green card backlogs over a seven-year period after which a new “merit-based system” will provide additional visas for persons with strong prospects in the United States.  Points will be awarded based upon family ties, education, employment and other factors.  This will supplement, not replace, the employment-sponsored green cards.  The diversity lottery and certain family-based categories will be eliminated.  It would create new visas for start-up entrepreneurs.
• Provide dual intent for students pursuing a bachelor’s degree.
• Require all H-1B employers to recruit U.S. workers that are equally or better qualified by posting a detailed job opening on a Department of Labor website for 30 days.
• Require H-1B non-dependent employers to attest to non-displacement of U.S. workers for 90 days before and after filing of LCA (180 days before and after for dependent employers). Some exceptions exist.
• Create a new three-level prevailing wage system for most employers – effectively upwardly adjusting wages.  The concern is that under this new proposed prevailing wage system employers would pay their foreign national workers more than their U.S. workers. 

Related Links

Border Security, Economic Opportunity, and Immigration Modernization Act of 2013

Outline of the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013