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Title II — Nonimmigrant Visa Reforms

H.R. 2131 · 113th Congress · May 23, 2013 · Lineage

II Nonimmigrant Visa Reforms

Sec. 201 H–1B visas

(a)
Increase in H–1B visa numerical limit— Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended—
(1)
in paragraph (1)(A)—
(A)
in clause (vi), by striking “and” at the end;
(B)
by amending clause (vii) to read as follows:

“(vii) 65,000 in fiscal years 2004 through 2013; and”

(C)
by adding at the end the following:

“(viii) 155,000 in each succeeding fiscal year; or”

(2)
by amending paragraph (5)(C) to read as follows:

“(C) meets the requirements of paragraph (6)(A) or (7)(A) of section 203(b), until the number of aliens who are exempted from such numerical limitation during such year exceeds 40,000.”

(b)
Wage level— Section 212(n)(1)(A)(i) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)(A)(i)) is amended—
(1)
by striking “, and” at the end and inserting “; or”;
(2)
by redesignating subclauses (I) and (II) as items (aa) and (bb), respectively;
(3)
by striking “(i)” and inserting “(i)(I)”;
(4)
by inserting “except as provided in subclause (II),” before “is offering”; and
(5)
by adding at the end the following:

“(II) if 80 percent or more of the employer’s workers in the same occupational classification as the alien admitted or provided status as an H-1B nonimmigrant and in the same area of employment as the alien admitted or provided status as an H-1B nonimmigrant are United States workers (as defined in paragraph (4)), is offering and will offer during the period of authorized employment to aliens admitted or provided status as an H-1B nonimmigrant wages that are at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question (but, in the case of an employer with more than 25 employees, in no event shall such wages be lower than the mean of the lowest one-half of wages surveyed pursuant to subsection (p)(5)); and”

(c)
Spousal employment— Section 214(c)(2)(E) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)(E)) is amended by striking “101(a)(15)(L),” and inserting “subparagraph (H)(i)(b), (H)(i)(b1), (E)(iii), or (L) of section 101(a)(15)”.
(d)
Anti-Fraud measures—
(1)
Foreign degrees—
(A)
Specialty occupation— Section 214(i) of the Immigration and Nationality Act (8 U.S.C. 1184(i)) is amended by adding at the end the following:

“(4)

“(A) For purposes of paragraphs (1)(B) and (3)(B), the term “bachelor’s or higher degree” includes a foreign degree that is a recognized foreign equivalent of a bachelor’s or higher degree.

“(B)

“(i) In the case of an alien with a foreign degree, any determination with respect to the equivalence of that degree to a degree obtained in the United States shall be made by the Secretary of State.

“(ii) In carrying out the preceding clause, the Secretary of State shall verify the authenticity of any foreign degree proffered by an alien. The Secretary of State may enter into contracts with public or private entities in conducting such verifications.

“(iii) In addition to any other fees authorized by law, the Secretary of State may impose a fee on an employer filing a petition under subsection (c)(1) initially to grant an alien nonimmigrant status described in section 101(a)(15)(H)(i)(b), if a determination or verification described in clause (i) or (ii) is required with respect to the petition. Fees collected under this clause shall be deposited in the Treasury in accordance with section 286(t).”

(B)
H–1B educational credential verification account— Section 286 of the Immigration and Nationality Act (8 U.S.C. 1356) is amended by adding at the end the following:

“(w) H–1B educational credential verification account—There is established in the general fund of the Treasury a separate account, which shall be known as the “H–1B Educational Credential Verification Account”. Notwithstanding any other provision of law, there shall be deposited as offsetting receipts into the account all fees collected under section 214(i)(4)(B)(iii). Amounts deposited into the account shall remain available to the Secretary of State until expended to carry out section 214(i)(4)(B).”

(2)
Investigations— The first sentence of subsection (n)(2)(F), and the first sentence of subsection (t)(3)(E) (as added by section 402(b)(2) of Public Law 108–77 (117 Stat. 941)), of section 212 of the Immigration and Nationality Act (8 U.S.C. 1182) are each amended by striking “investigations” and all that follows through the period at the end and inserting the following: “investigations. An employer who has been subject to 2 random investigations may not be subject to another random investigation within 4 years of the second investigation unless the employer was found in the previous investigations or otherwise to have committed a willful failure to meet a condition of paragraph (1) (or has been found under paragraph (5) to have committed willful failure to meet the condition of paragraph (1)(G)(i)(II)) or to have made a willful misrepresentation of material fact in an application.”.
(3)
Bona fide businesses— Section 214(c) of the Immigration and Nationality Act (8 U.S.C. 1184(c)) is amended by adding at the end the following:

“(15) The Secretary of Homeland Security may not approve any petition under paragraph (1) filed by an employer with respect to an alien seeking to obtain the status of a nonimmigrant under subclause (b) or (b1) of section 101(a)(15)(H)(i) and the Secretary of State may not approve a visa with respect to an alien seeking to obtain the status of a nonimmigrant under subparagraph (E)(iii) or (H)(i)(b1) of section 101(a)(15) unless—

“(A) the employer—

“(i) is an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))), or a governmental or nonprofit entity; or

“(ii) maintains a place of business in the United States that is licensed in accordance with any applicable State or local business licensing requirements and is used exclusively for business purposes; and

“(B) the employer—

“(i) is a governmental entity;

“(ii) has aggregate gross assets with a value of not less than $50,000—

“(I) in the case of an employer that is a publicly held corporation, as determined using its most recent report filed with the Securities and Exchange Commission; or

“(II) in the case of any other employer, as determined as of the date on which the petition is filed under regulations promulgated by the Secretary of Homeland Security; or

“(iii) provides appropriate documentation of business activity under regulations promulgated by the Secretary of Homeland Security.”

(4)
Subpoena authority—
(A)
H–1B application— Section 212(n)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(2)) is amended by adding at the end the following:

“(J) The Secretary of Labor is authorized to issue subpoenas as may be necessary to assure employer compliance with the terms and conditions of this subsection.”

(B)
Attestation with respect to other nonimmigrant employees— Section 212(t)(3) of such Act (8 U.S.C. 1182(t)(3)) (as added by section 402(b)(2) of Public Law 108-77 (117 Stat. 941)) is amended by adding at the end the following:

“(G) The Secretary of Labor is authorized to issue subpoenas as may be necessary to assure employer compliance with the terms and conditions of this subsection.”

(e)
B visas in lieu of H–1B visas— Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended by adding at the end the following:

“(12) Notwithstanding any other provision of this Act, any alien admitted or provided status as a nonimmigrant in order to provide services in a specialty occupation described in paragraph (1) or (3) of subsection (i) (other than services described in subparagraph (H)(ii)(a), (O), or (P) of section 101(a)(15)) or as a fashion model shall have been issued a visa (or otherwise been provided nonimmigrant status) under subclause (b) or (b1) of section 101(a)(15)(H)(i) or section 101(a)(15)(E)(iii).”

(f)
Effective dates—
(1)
The amendments made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to aliens issued visas or otherwise provided with nonimmigrant status under section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)) beginning in fiscal year 2014.
(2)
The amendments made by subsection (b) shall take effect on the date of the enactment of this Act and shall apply to the spouses of aliens issued visas or otherwise provided with nonimmigrant status under subparagraph (H)(i)(b), (H)(i)(b1), or (E)(iii) of section 101(a)(15) of the Immigration and Nationality Act before, on, or after such date.
(3)
The amendments made by paragraphs (1) and (3) of subsection (c) shall take effect on the date of the enactment of this Act and shall apply to petitions filed under section 214(c) of the Immigration and Nationality Act (8 U.S.C. 1184(c)) on or after such date and to visa applications filed on or after such date where no petition was filed because none was required under subparagraph (H)(i)(b1) or (E)(iii) of section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)).
(4)
The amendments made by paragraphs (2) and (4) of subsection (c) shall take effect on the date of the enactment of this Act and shall apply to employers of aliens issued visas or otherwise provided with nonimmigrant status under subparagraph (H)(i)(b), (H)(i)(b1), or (E)(iii) section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) before, on, or after such date.
(5)
The amendment made by subsection (d) shall take effect on the date of the enactment of this Act and shall apply to aliens admitted or provided status as nonimmigrants on or after such date.

Sec. 202 L visas

(a)
In general— Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)) is amended by adding at the end the following:

“(G)

“(i) An employer of an alien who will serve in a capacity for the employer involving specialized knowledge under section 101(a)(15)(L) for a cumulative period of time in excess of 6 months over a 2-year period—

“(I)

“(aa) except as provided in item (bb), will offer to the alien during the period of authorized employment wages that are at least—

“(AA) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question; or

“(BB) the prevailing wage level for the occupational classification in the area of employment, whichever is greater, based on the best information available; or

“(bb) if 80 percent or more of the employer’s workers in the same occupational classification as the alien and in the same area of employment as the alien are United States workers (as defined in section 212(n)(4)), will offer to the alien during the period of authorized employment wages that are at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question; and

“(II) will provide working conditions for such alien that will not adversely affect the working conditions of workers similarly employed.

“(ii) In complying with the requirements of clause (i), an employer may keep the alien on their home country payroll, and may take into account the value of wages paid by the employer to the alien in the currency of the alien’s home country, the value of benefits paid by the employer to the alien in the alien’s home country, employer-provided housing or housing allowances, employer-provided vehicles or transportation allowances, and other benefits provided to the alien as an incident of the assignment in the United States.

“(iii) The Secretary of Labor shall have the same investigatory and enforcement powers to ensure compliance with this subparagraph as are set forth in section 212(n)(2).”

(b)
Effective date— The amendment made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to employers with respect to aliens issued visas or otherwise provided nonimmigrant status under section 101(a)(15)(L) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(L)) on or after such date.

Sec. 203 O visas

(a)
Portability of o visas— The first sentence of section 214(n)(1) of the Immigration and Nationality Act (8 U.S.C. 1184(n)(1)) is amended—
(1)
by striking “section 101(a)(15)(H)(i)(b)” and inserting “subparagraphs (H)(i)(b) and (O)(i) of section 101(a)(15)”; and
(2)
by inserting “under such sections” after “new employment”.
(b)
3-Year waiver of new O–1 consultations for arts and motion pictures and television and transparency for O–1 visas for motion pictures and television—
(1)
In general— Section 214(c)(3) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(3)) is amended—
(A)
by striking “Attorney General” each place such term appears and inserting “Secretary of Homeland Security”; and
(B)
by striking the first two sentences of the matter that follows subparagraph (B) and inserting the following: “In the case of an alien seeking entry for a motion picture or television production, (i) any opinion under the previous sentence shall only be advisory, (ii) any such opinion that recommends denial must be in writing, (iii) in making the decision the Secretary of Homeland Security shall consider the exigencies and scheduling of the production, (iv) the Secretary of Homeland Security shall append to the decision any such opinion, and (v) upon making the decision, the Secretary of Homeland Security shall immediately provide a copy of the decision to the consulting labor and management organizations. The Secretary of Homeland Security shall provide by regulation for the waiver of the consultation requirement under subparagraph (A) in the case of aliens who have been admitted as nonimmigrants under section 101(a)(15)(O)(i) because of extraordinary ability in the arts or extraordinary achievement in motion picture or television production and who seek readmission to perform similar services within 3 years after the date of a consultation under such subparagraph provided that, in the case of aliens admitted because of extraordinary achievement in motion picture or television production, such waiver shall apply only if the prior consultations by the appropriate union and management organization were favorable or raised no objection to the approval of the petition.”.
(2)
Effective date— The amendment made by paragraph (1) shall take effect on the date of the enactment of this Act and shall apply to petitions filed under section 214(c) of the Immigration and Nationality Act (8 U.S.C. 1184(c)) on or after such date and to consultation decisions made before, on, or after such date.

Sec. 204 Mexican and Canadian professionals

Section 214(e) of the Immigration and Nationality Act (8 U.S.C. 1184(e)) is amended by adding at the end the following:

“(7)

“(A) An employer of a Mexican or Canadian professional under this subsection—

“(i)

“(I) except as provided in subclause (II), will offer to the alien during the period of authorized employment wages that are at least—

“(aa) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question; or

“(bb) the prevailing wage level for the occupational classification in the area of employment, whichever is greater, based on the best information available; or

“(II) if 80 percent or more of the employer’s workers in the same occupational classification as the alien and in the same area of employment as the alien are United States workers (as defined in section 212(n)(4)), will offer to the alien during the period of authorized employment wages that are at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question (but, in the case of an employer with more than 25 employees, in no event shall such wages be lower than the mean of the lowest one-half of wages surveyed pursuant to section 212(p)(5)); and

“(ii) will provide working conditions for such alien that will not adversely affect the working conditions of workers similarly employed.

“(B) The Secretary of Labor shall have the same investigatory and enforcement powers to ensure compliance with this paragraph as are set forth in section 212(n)(2).”

Sec. 205 H-1B1 and E-3 visas

Section 212(t)(1)(A)(i) of the Immigration and Nationality Act (8 U.S.C. 1182(t)(1)(A)(i)) (as added by section 402(b)(2) of Public Law 108–77 (117 Stat. 941)) is amended—
(1)
by striking “; and” at the end and inserting “; or”;
(2)
by redesignating subclauses (I) and (II) as items (aa) and (bb), respectively;
(3)
by striking “(i)” and inserting “(i)(I)”;
(4)
by inserting “except as provided in subclause (II),” before “is offering”; and
(5)
by adding at the end the following:

“(II) if 80 percent or more of the employer’s workers in the same occupational classification as the alien admitted or provided status under section 101(a)(15)(H)(i)(b1) or 101(a)(15)(E)(iii) and in the same area of employment as the alien admitted or provided status under section 101(a)(15)(H)(i)(b1) or 101(a)(15)(E)(iii) are United States workers (as defined in subsection (n)(4)), is offering and will offer during the period of authorized employment to aliens admitted or provided status under section 101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) wages that are at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question (but, in the case of an employer with more than 25 employees, in no event shall such wages be lower than the mean of the lowest one-half of wages surveyed pursuant to subsection (p)(5)); and”

Sec. 206 Students

(a)
Dual intent—
(1)
In general— Section 101(a)(15)(F) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(F)) is amended to read as follows:

“(F) an alien—

“(i) who—

“(I) is a bona fide student qualified to pursue a full course of study in a field of science, technology, engineering, or mathematics (as defined in section 203(b)(6)(B)(ii)) leading to a bachelors or graduate degree and who seeks to enter the United States for the purpose of pursuing such a course of study consistent with section 214(m) at an institution of higher education (as described in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))) or a proprietary institution of higher education (as defined in section 102(b) of such Act (20 U.S.C. 1002(b))) in the United States, particularly designated by the alien and approved by the Secretary of Homeland Security, after consultation with the Secretary of Education, which institution shall have agreed to report to the Secretary of Homeland Security the determination of attendance of each nonimmigrant student, and if any such institution fails to make reports promptly the approval shall be withdrawn; or

“(II) is engaged in temporary employment for optional practical training related to such alien’s area of study following completion of the course of study described in subclause (I);

“(ii) who—

“(I) has a residence in a foreign country which the alien has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study, and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study consistent with section 214(m) at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program in the United States, particularly designated by the alien and approved by the Secretary of Homeland Security, after consultation with the Secretary of Education, which institution of learning or place of study shall have agreed to report to the Secretary of Homeland Security the determination of attendance of each nonimmigrant student, and if any such institution of learning or place of study fails to make reports promptly the approval shall be withdrawn; or

“(II) is engaged in temporary employment for optional practical training related to such alien’s area of study following completion of the course of study described in subclause (I);

“(iii) who is the spouse or minor child of an alien described in clause (i) or (ii) if accompanying or following to join such an alien; or

“(iv) who is a national of Canada or Mexico, who maintains actual residence and place of abode in the country of nationality, who is described in clause (i) or (ii) except that the alien’s qualifications for and actual course of study may be full or part-time, and who commutes to the United States institution or place of study from Canada or Mexico;”

(2)
Admission— Section 214(b) of the Immigration and Nationality Act (8 U.S.C. 1184(b)), as amended by section 108(d)(1) of this Act, is further amended by striking “(L) or (V)” inserting “(F)(i), (L), or (V)”.
(3)
Conforming amendment— Section 214(m)(1) of the Immigration and Nationality Act (8 U.S.C. 1184(m)(1)) is amended, in the matter preceding subparagraph (A), by striking “(i) or (iii)” and inserting “(i), (ii), or (iv)”.
(b)
Optional practical training for foreign students— Section 214 of the Immigration and Nationality Act (8 U.S.C. 1184) is amended by adding at the end the following:

“(s)

“(1) An employer providing optional practical training to an alien who has been issued a visa or otherwise provided nonimmigrant status under subparagraph (F) or (M) of section 101(a)(15) after completion of the alien’s course of study—

“(A)

“(i) except as provided in clause (ii), shall offer to the alien during the period of optional practical training wages that are at least—

“(I) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question; or

“(II) the prevailing wage level for the occupational classification in the area of employment, whichever is greater, based on the best information available; or

“(ii) if 80 percent or more of the employer’s workers in the same occupational classification as the alien and in the same area of employment as the alien are United States workers (as defined in section 212(n)(4)), shall offer to the alien during the period of authorized employment wages that are at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question (but, in the case of an employer with more than 25 employees, in no event shall such wages be lower than the mean of the lowest one-half of wages surveyed pursuant to section 212(p)(5)); and

“(B) shall provide working conditions for such alien that will not adversely affect the working conditions of workers similarly employed.

“(2) The Secretary of Labor has the same investigatory and enforcement powers to ensure compliance with paragraph (1) as are set forth in section 212(n)(2).”

(c)
Effective dates—
(1)
The amendments made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to nonimmigrants who possess or are granted status under section 101(a)(15)(F) of the Immigration and Nationality Act (8 U.S.C. 1101(a))(15)(F)) on or after such date.
(2)
The amendment made by subsection (b) shall apply to employers with respect to aliens who begin post-course of study optional practical training with them on or after the date of the enactment of this Act.

Sec. 207 Extension of employment eligibility while visa extension petition pending

(a)
In general— Section 214 of the Immigration and Nationality Act (8 U.S.C. 1184, as amended by section 205(b), is further amended by adding at the end the following:

“(t) A nonimmigrant issued a visa or otherwise provided nonimmigrant status under subparagraph (A), (E), (G), (H), (I), (J), (L), (O), (P), (Q), or (R) of section 101(a)(15), or section 214(e), and otherwise as the Secretary of Homeland Security may by regulations prescribe, whose status has expired but who has, or whose sponsoring employer or authorized agent has, filed a timely application or petition for an extension of authorized status as provided under this section, is authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay until and unless the application or petition is denied. Such authorization shall be subject to the same conditions and limitations noted on the original authorization.”

(b)
Effective date— The amendment made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to aliens issued visas or otherwise provided nonimmigrant status before, on, or after such date.

Sec. 208 Fraud detection and prevention fee

Section 214(c)(12)(A) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(12)(A)) is amended by adding at the end the following:

Sec. 209 Technical correction

The second subsection designated as subsection (t) of section 212 of the Immigration and Nationality Act (8 U.S.C. 1182) (as added by section 1(b)(2)(B) of Public Law 108–449 (118 Stat. 3470)) is redesignated as subsection (u) of such section.