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Title I — Employment-Based Nonimmigrant Visas

S. 169 · 113th Congress · Jan 29, 2013 · Lineage

I Employment-Based Nonimmigrant Visas

Sec. 101 Market-based H–1B visa limits

(a)
In general— Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended—
(1)
in paragraph (1)—
(A)
in the matter preceding subparagraph (A), by striking “(beginning with fiscal year 1992)”; and
(B)
by amending subparagraph (A) to read as follows:

“(A) under section 101(a)(15)(H)(i)(b) may not exceed the sum of—

“(i) the base allocation calculated under paragraph (9)(A); and

“(ii) the allocation adjustment calculated under paragraph (9)(B); and”

(2)
in paragraph (5)—
(A)
in subparagraph (B), by striking “or” at the end; and
(B)
in subparagraph (C), by striking “, until the number of aliens who are exempted from such numerical limitation during such year exceeds 20,000.” and inserting “; or”;
(3)
in paragraph (8), by striking subparagraphs (B)(iv) and (D);
(4)
by redesignating paragraph (10) as subparagraph (D) of paragraph (9);
(5)
by redesignating paragraph (9) as paragraph (10); and
(6)
by inserting after paragraph (8) the following:

“(9)

“(A) The base allocation of nonimmigrant visas under section 101(a)(15)(H)(i)(b) for each fiscal year shall be equal to—

“(i) the sum of—

“(I) the base allocation for the most recently completed fiscal year; and

“(II) the allocation adjustment for the most recently completed fiscal year;

“(ii) if the number calculated under clause (i) is less than 115,000, 115,000; or

“(iii) if the number calculated under clause (i) is more than 300,000, 300,000.

“(B)

“(i) If the number of cap-subject nonimmigrant visa petitions approved under section 101(a)(15)(H)(i)(b) during the first 45 days petitions may be filed for a fiscal year is equal to the base allocation for such fiscal year, an additional 20,000 such visas shall be made available beginning on the 46th day on which petitions may be filed for such fiscal year.

“(ii) If the base allocation of cap-subject nonimmigrant visa petitions approved under section 101(a)(15)(H)(i)(b) for a fiscal year is reached during the 15-day period ending on the 60th day on which petitions may be filed for such fiscal year, an additional 15,000 such visas shall be made available beginning on the 61st day on which petitions may be filed for such fiscal year.

“(iii) If the base allocation of cap-subject nonimmigrant visa petitions approved under section 101(a)(15)(H)(i)(b) for a fiscal year is reached during the 30-day period ending on the 90th day on which petitions may be filed for such fiscal year, an additional 10,000 such visas shall be made available beginning on the 91st day on which petitions may be filed for such fiscal year.

“(iv) If the base allocation of cap-subject nonimmigrant visa petitions approved under section 101(a)(15)(H)(i)(b) for a fiscal year is reached during the 185-day period ending on the 275th day on which petitions may be filed for such fiscal year, an additional 5,000 such visas shall be made available beginning on the date on which such allocation is reached.

“(v) If the number of cap-subject nonimmigrant visa petitions approved under section 101(a)(15)(H)(i)(b) for a fiscal year is at least 5,000 fewer than the base allocation, but is not more than 9,999 fewer than the base allocation, the allocation adjustment for the following fiscal year shall be −5,000.

“(vi) If the number of cap-subject nonimmigrant visa petitions approved under section 101(a)(15)(H)(i)(b) for a fiscal year is at least 10,000 fewer than the base allocation, but not more than 14,999 fewer than the base allocation, the allocation adjustment for the following fiscal year shall be −10,000.

“(vii) If the number of cap-subject nonimmigrant visa petitions approved under section 101(a)(15)(H)(i)(b) for a fiscal year is at least 15,000 fewer than the base allocation, but not more than 19,999 fewer than the base allocation, the allocation adjustment for the following fiscal year shall be −15,000.

“(viii) If the number of cap-subject nonimmigrant visa petitions approved under section 101(a)(15)(H)(i)(b) for a fiscal year is at least 20,000 fewer than the base allocation, the allocation adjustment for the following fiscal year shall be −20,000.”

(b)
Reporting requirement— The Secretary of Homeland Security shall—
(1)
timely upload to a public website data that summarizes the adjudication of nonimmigrant petitions under section 101(a)(15)(H)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(b)) during each fiscal year; and
(2)
allow the timely adjustment of visa allocations under section 214(g)(9)(B) of such Act, as added by subsection (a).

Sec. 102 Employment authorization for dependents of H–1B nonimmigrants

Section 214(c) of the Immigration and Nationality Act (8 U.S.C. 1184(c)) is amended—
(1)
by striking “Attorney General” each place such term appears and inserting “Secretary of Homeland Security”; and
(2)
in paragraph (2), by amending subparagraph (E) to read as follows:

“(E) The Secretary of Homeland Security shall—

“(i) authorize an alien spouse admitted under subparagraph (H)(i)(b) or (L) of section 101(a)(15) who is accompanying or following to join the principal alien to engage in employment in the United States; and

“(ii) provide the spouse with an “employment authorized” endorsement or other appropriate work permit.”

Sec. 103 Eliminating impediments to worker mobility

(a)
Deference to prior approvals— Section 214(c) of the Immigration and Nationality Act (8 U.S.C. 1184(c)) is amended by adding at the end the following:

“(9) The Secretary of Homeland Security may not deny a petition to extend the status of a nonimmigrant admitted under subparagraph (H)(i)(b) or (L) of section 101(a)(15) in which the petition involves the same alien and petitioner unless the Secretary determines that—

“(A) there was a material error with regard to the previous petition approval;

“(B) a substantial change in circumstances has taken place that renders the nonimmigrant ineligible for such status under this Act; or

“(C) new material information has been discovered that adversely impacts the eligibility of the employer or the nonimmigrant.”

(b)
Effect of employment termination— Section 214(n) of the Immigration and Nationality Act (8 U.S.C. 1184(n)) is amended by adding at the end the following:

“(3) A nonimmigrant admitted under section 101(a)(15)(H)(i)(b) whose employment relationship terminates before the expiration of the nonimmigrant's period of authorized admission shall be deemed to have retained such legal status throughout the entire 60-day period beginning on the date such employment is terminated if an employer files a petition to extend, change, or adjust the status of the nonimmigrant at any point during such period.”

(c)
Visa revalidation— Section 222(c) of the Immigration and Nationality Act (8 U.S.C. 1202(c)) is amended by inserting “The Secretary of State shall authorize an alien admitted under subparagraph (E), (H), (L), (O), or (P) of section 101(a)(15) to renew his or her nonimmigrant visa in the United States if the alien has remained eligible for such status.”.