[Congressional Bills 112th Congress]
[From the U.S. Government Printing Office]
[H.R. 2161 Introduced in House (IH)]
112th CONGRESS
1st Session
H. R. 2161
To amend the Immigration and Nationality Act to promote innovation,
investment, and research in the United States, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 14, 2011
Ms. Zoe Lofgren of California (for herself, Mr. Capuano, Ms. Chu, Mr.
Conyers, Ms. Eshoo, Mr. Gutierrez, Mr. Heinrich, Mr. Honda, Mrs.
Maloney, Mr. George Miller of California, Mr. Polis, Ms. Linda T.
Sanchez of California, Mr. Schiff, and Mr. Rush) introduced the
following bill; which was referred to the Committee on the Judiciary,
and in addition to the Committee on Education and the Workforce, for a
period to be subsequently determined by the Speaker, in each case for
consideration of such provisions as fall within the jurisdiction of the
committee concerned
_______________________________________________________________________
A BILL
To amend the Immigration and Nationality Act to promote innovation,
investment, and research in the United States, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as--
(1) the ``Immigration Driving Entrepreneurship in America
Act of 2011''; or
(2) the ``IDEA Act of 2011''.
TITLE I--ATTRACTING AND RETAINING INNOVATORS AND JOB CREATORS
SEC. 101. U.S. GRADUATES IN SCIENCE, TECHNOLOGY, ENGINEERING, AND
MATHEMATICS.
(a) Advanced STEM Graduates.--Section 203(b)(1) of the Immigration
and Nationality Act (8 U.S.C. 1153(b)(1)) is amended--
(1) in the matter preceding subparagraph (A), by striking
``(A) through (C)'' and inserting ``(A) through (D)''; and
(2) by adding at the end the following:
``(D) Advanced graduates in science, technology,
engineering and mathematics.--An alien is described in
this subparagraph if--
``(i) the alien possesses a graduate degree
at the level of master's or higher in a field
of science, technology, engineering, or
mathematics from a United States institution of
higher education that has been designated by
the Director of the National Science Foundation
as a research institution or as otherwise
excelling at instruction in such fields;
``(ii) the alien has an offer of employment
from a United States employer in a field
related to such degree; and
``(iii) the employer is offering and will
offer wages that are at least--
``(I) the actual wage level paid by
the employer to all other individuals
with similar experience and
qualifications in the same occupational
classification; or
``(II) the prevailing wage level
for the occupational classification in
the area of employment;
whichever is greater, based on the best
information available as of the time of filing
the petition.''.
(b) Cap Exemption.--Section 201(b)(1) of the Immigration and
Nationality Act (8 U.S.C. 1151(b)(1)) is amended by adding at the end
the following:
``(F) Aliens described in paragraph (1)(B) or (1)(D) of
section 203(b).''.
(c) Removing Visa Hurdles for Students.--
(1) Providing dual intent.--
(A) In general.--Section 101(a)(15)(F)(i) of the
Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(F)(i)) is amended by striking ``an alien
having a residence in a foreign country which he has no
intention of abandoning, who is a bona fide student
qualified to pursue a full course of study and who''
and inserting ``an alien who is a bona fide student
qualified to pursue a full course of study, who (except
for a student qualified to pursue a full course of
study at an institution of higher education) has a
residence in a foreign country which the alien has no
intention of abandoning, and who''.
(B) Conforming amendments.--
(i) Section 214(b) of the Immigration and
Nationality Act (8 U.S.C. 1184(b)) is amended
by striking ``(other than a nonimmigrant'' and
inserting ``(other than a nonimmigrant
described in section 101(a)(15)(F) if the alien
is qualified to pursue a full course of study
at an institution of higher education, other
than a nonimmigrant''.
(ii) Section 214(h) of the Immigration and
Nationality Act (8 U.S.C. 1184(h)) is amended
by inserting ``(F) (if the alien is qualified
to pursue a full course of study at an
institution of higher education),'' before
``H(i)(b)''.
(2) Extensions in cases of lengthy adjudications.--
(A) In general.--Section 214 of the Immigration and
Nationality Act (8 U.S.C. 1154) is amended by adding at
the end the following:
``(s) Extensions in Cases of Lengthy Adjudications.--
``(1) Exemption from limitations.--Notwithstanding
subsection (c)(2)(D), (g)(4) and (m), the authorized stay of an
alien described in paragraph (2) may be extended pursuant to
paragraph (3) if 365 days or more have elapsed since the filing
of any of the following:
``(A) An application for labor certification under
section 212(a)(5)(A), in a case in which certification
is required or used by an alien to obtain status under
section 203(b).
``(B) A petition described in section 204(b) to
accord the alien a status under section 203(b).
``(2) Aliens described.--An alien is described in this
paragraph if the alien was previously issued a visa or
otherwise provided nonimmigrant status under--
``(A) section 101(a)(15)(F);
``(B) section 101(a)(15)(H)(i)(b); or
``(C) section 101(a)(15)(L).
``(3) Extension of status.--The Secretary of Homeland
Security shall extend the stay of an alien who qualifies for an
extension under paragraph (1) in one-year increments until such
time as a final decision is made--
``(A) to deny the application described in
paragraph (1)(A), or, in a case in which such
application is granted, to deny a petition described in
paragraph (1)(B) filed on behalf of the alien pursuant
to such grant;
``(B) to deny the petition described in paragraph
(1)(B); or
``(C) to grant or deny the alien's application for
an immigrant visa or adjustment of status to that of an
alien lawfully admitted for permanent residence.
Work authorization shall be provided to an alien whose stay is
extended under this paragraph.''.
(B) Conforming amendment.--Section 106 of the
American Competitiveness in the 21st Century Act is
amended by striking subsections (a) and (b).
(3) Definitions.--Section 101(a) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)) is amended by adding at the
end the following:
``(52) The term `institution of higher education' has the
meaning given such term in section 101(a) of the Higher
Education Act of 1965 (20 U.S.C. 1001(a)).
``(53) The term `employer' shall include any group treated
as a single employer under subsection (b), (c), (m), or (o) of
section 414 of the Internal Revenue Code of 1986.''.
(d) Conforming Amendments.--Section 204(a)(1)(F) of the Immigration
and Nationality Act (8 U.S.C. 1154(a)(1)(F)) is amended--
(1) by inserting ``203(b)(1)(D),'' after ``203(b)(1)(C),'';
and
(2) by striking ``Attorney General'' and inserting
``Secretary of Homeland Security''.
SEC. 102. ENTREPRENEURS WHO ESTABLISH BUSINESSES AND CREATE JOBS IN THE
UNITED STATES.
(a) Start-Up Business and Job Creation Visas.--Section 203(b) of
the Immigration and Nationality Act (8 U.S.C. 1153(b)) is amended--
(1) by redesignating paragraph (6) as paragraph (7); and
(2) by inserting after paragraph (5) the following:
``(6) Start-up entrepreneurs.--
``(A) In general.--Visas shall be made available,
notwithstanding subsection (a)(2) or (d) of section 201
or the matter preceding paragraph (1) of this
subsection, to qualified immigrants who are described
in subparagraph (B) or (C).
``(B) Venture capital-backed start-up
entrepreneurs.--An alien is described in this
subparagraph if the alien intends to engage in a new
commercial enterprise (including a limited partnership
or similar entity) in the United States--
``(i) with respect to which the alien has
completed an investment agreement requiring an
investment in the enterprise in an amount not
less than $500,000 on the part of--
``(I) a qualified venture capital
operating company;
``(II) 1 or more qualified angel
investors (of which at least 1 such
investor is providing $100,000 of the
required investment); or
``(III) a qualified business
entity; and
``(ii) which will benefit the United States
economy and, during the 2-year period beginning
on the date on which the visa is issued under
this paragraph, will--
``(I) create full-time employment
for at least 3 United States workers;
``(II) raise not less than an
additional $1,000,000 in capital
investment; or
``(III) generate not less than
$1,000,000 in revenue.
``(C) Self-sponsored start-up entrepreneurs.--An
alien is described in this subparagraph if--
``(i) the alien has engaged in a new
commercial enterprise (including a limited
partnership or similar entity) in the United
States that benefits the United States economy;
``(ii) the enterprise has created full-time
employment for at least 3 United States
workers; and
``(iii) by not later than the end of the 2-
year period beginning on the date on which the
visa is issued under this paragraph, the
enterprise will create full-time employment for
a total of at least 10 United States workers
(which total may include the employment
described in clause (ii)).
``(D) Methodologies.--The Secretary of Homeland
Security, in consultation with the Secretary of
Commerce, shall recognize reasonable methodologies for
determining the number of direct and indirect jobs
created by a commercial enterprise, including such jobs
that are estimated to have been created indirectly
through revenues generated from increased exports,
improved regional productivity, or increased domestic
capital investment resulting from the commercial
enterprise.
``(E) Definitions.--For purposes of this paragraph:
``(i) Full-time employment.--The term
`full-time employment' means employment in a
position that requires at least 35 hours of
service per week at any time, regardless of who
fills the position. Such employment may be
satisfied on a full-time equivalent basis by
calculating the number of full-time employees
that could have been employed if the reported
number of hours worked by part-time employees
had been worked by full-time employees. Full-
time equivalent employment shall be calculated
by dividing the part-time hours paid by the
standard number of hours for full-time
employees.
``(ii) Investment.--The term `investment'
does not include any assets acquired, directly
or indirectly, by unlawful means.
``(iii) Qualified angel investor.--The term
`qualified angel investor' means, with respect
to a qualified immigrant, an individual who--
``(I) is an accredited investor (as
defined in section 230.501(a) of title
17, Code of Federal Regulations (as in
effect on April 1, 2010));
``(II) is a United States citizen
or an alien lawfully admitted to the
United States for permanent residence;
and
``(III) has made at least 2 equity
investments of not less than $50,000 in
each of the 3 years before the date of
a petition by the qualified immigrant
for classification under this
paragraph.
``(iv) Qualified business entity.--The term
`qualified business entity' means, with respect
to a qualified immigrant, an entity that--
``(I) has been operating for a
period beginning on a date that is not
less than 2 years before the date of
the petition for classification under
this paragraph;
``(II) employs not fewer than 10
United States workers in the United
States; and
``(III) has employed the alien for
not less than 1 year on the date of the
petition for classification under this
paragraph.
``(v) Qualified venture capital operating
company.--The term `qualified venture capital
operating company' means, with respect to a
qualified immigrant, an entity that--
``(I) is classified as a `venture
capital operating company' under
section 2510.3-101(d) of title 29, Code
of Federal Regulations (as in effect on
July 1, 2009);
``(II) is based in the United
States;
``(III) in the determination of the
Secretary of Homeland Security, is
owned and controlled by United States
citizens or aliens lawfully admitted to
the United States for permanent
residence;
``(IV) has capital commitments of
not less than $10,000,000;
``(V) has been operating for a
period of at least 2 years before the
date of the petition for classification
under this paragraph; and
``(VI) has made at least 2
investments of not less than $500,000
in each of the 2 years before the date
of the petition for classification
under this paragraph.
``(vi) United states worker.--The term
`United States worker' means an employee (other
than the immigrant or the immigrant's spouse,
sons, or daughters) who--
``(I) is a citizen or national of
the United States; or
``(II) is an alien who is lawfully
admitted for permanent residence, is
admitted as a refugee under section
207, is granted asylum under section
208, or is an immigrant otherwise
authorized to be employed in the United
States.''.
(b) Procedure for Granting Immigrant Status.--Section 204(a)(1)(H)
of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(H)) is
amended by striking ``section 203(b)(5)'' and inserting ``paragraph (5)
or (6) of section 203(b)''.
(c) Conditional Permanent Resident Status.--Section 216A of the
Immigration and Nationality Act (8 U.S.C. 1186b) is amended--
(1) by striking ``Attorney General'' each place such term
appears and inserting ``Secretary of Homeland Security'';
(2) in subsection (b)(1)--
(A) in subparagraph (A), by striking ``investment''
and inserting ``investment or engagement'';
(B) by amending subparagraph (B) to read as
follows:
``(B) the requisite investment or engagement was
not made or was not sustained throughout the period of
the alien's residence in the United States; or''; and
(C) in subparagraph (C), by striking ``section
203(b)(5)'' and inserting ``paragraph (5) or 6 of
section 203(b), as applicable'';
(3) in subsection (d)(1)--
(A) in the matter preceding subparagraph (A), by
striking ``the alien'';
(B) by amending subparagraph (A) to read as
follows:
``(A) the requisite investment or engagement was
made and was sustained throughout the period of the
alien's residence in the United States; and'';
(C) in subparagraph (B), by striking ``section
203(b)(5)'' and inserting ``paragraph (5) or (6) of
section 203(b), as applicable''; and
(4) in subsection (f)--
(A) in paragraph (1), by striking ``section
203(b)(5)'' and inserting ``paragraph (5) or (6) of
section 203(b)''; and
(B) in paragraph (3), by inserting ``or similar
entity'' before the period.
(d) Cap Exemption.--Section 201(b)(1) of the Immigration and
Nationality Act (8 U.S.C. 1151(b)(1)), as amended by section 101(b) of
this Act, is further amended by striking the period at the end and
inserting ``or section 203(b)(6).''.
SEC. 103. ELIMINATING GREEN CARD BACKLOGS.
(a) Recapturing Immigrant Visas Lost to Bureaucratic Delay.--
(1) Employment-based immigrants.--Section 201(d) of the
Immigration and Nationality Act (8 U.S.C. 1151(d)) is amended
to read as follows:
``(d) Worldwide Level of Employment-Based Immigrants.--
``(1) In general.--The worldwide level of employment-based
immigrants under this subsection for a fiscal year is equal to
the sum of--
``(A) 140,000;
``(B) the number computed under paragraph (2); and
``(C) the number computed under paragraph (3).
``(2) Previous fiscal year.--The number computed under this
paragraph for a fiscal year is the difference, if any, between
the maximum number of visas which may be issued under section
203(a) (relating to family-sponsored immigrants) during the
previous fiscal year and the number of visas issued under that
section during that year.
``(3) Unused visas.--The number computed under this
paragraph is the difference, if any, between--
``(A) the difference, if any, between--
``(i) the sum of the worldwide levels
established under paragraph (1) for fiscal
years 1992 through 2011; and
``(ii) the number of visas actually issued
under section 203(b), subject to this
subsection, during such fiscal years; and
``(B) the number of visas actually issued after
fiscal year 2011 pursuant to an immigrant visa number
issued under section 203(b), subject to this
subsection, during fiscal years 1992 through 2011.''.
(2) Family-sponsored immigrants.--Section 201(c) of the
Immigration and Nationality Act (8 U.S.C. 1151(c)) is amended
to read as follows:
``(c) Worldwide Level of Family-Sponsored Immigrants.--
``(1) In general.--
``(A) Subject to subparagraph (B), the worldwide
level of family-sponsored immigrants under this
subsection for a fiscal year is equal to--
``(i) 480,000 minus the number computed
under paragraph (2); plus
``(ii) the sum of the number computed under
paragraph (3) and the number computed under
paragraph (4).
``(B) In no case shall the number computed under
subparagraph (A)(i) be less than 226,000.
``(2) Immediate relatives.--The number computed under this
paragraph for a fiscal year is the number of aliens described
in subparagraph (A) or (B) of subsection (b)(2) who were issued
immigrant visas, or who otherwise acquired the status of an
alien lawfully admitted to the United States for permanent
residence, in the previous fiscal year.
``(3) Previous fiscal year.--The number computed under this
paragraph for a fiscal year is the difference, if any, between
the maximum number of visas which may be issued under section
203(b) (relating to employment-based immigrants) during the
previous fiscal year and the number of visas issued under that
section during that year.
``(4) Unused visas.--The number computed under this
paragraph is the difference, if any, between--
``(A) the difference, if any, between--
``(i) the sum of the worldwide levels
established under paragraph (1) for fiscal
years 1992 through 2011; and
``(ii) the number of visas actually issued
under section 203(a), subject to this
subsection, during such fiscal years; and
``(B) the number of visas actually issued after
fiscal year 2011 pursuant to an immigrant visa number
issued under section 203(a), subject to this
subsection, during fiscal years 1992 through 2011.''.
(b) Spouses and Minor Children.--Section 201(b)(1) of the
Immigration and Nationality Act (8 U.S.C. 1151(b)(1)), as amended by
this Act, is further amended by adding at the end the following:
``(G) Aliens who are the spouse or child of an
alien admitted as an employment-based immigrant under
section 203(b).''.
(c) Eliminating Employment-Based Per Country Levels.--Section
202(a) of the Immigration and Nationality Act (8 U.S.C. 1152(a)) is
amended--
(1) in paragraph (2)--
(A) by striking ``, (4), and (5)'' and inserting
``and (4)'';
(B) by striking ``subsections (a) and (b) of
section 203'' and inserting ``section 203(a)'';
(C) by striking ``7 percent (in the case of a
single foreign state) or 2 percent'' and inserting ``10
percent (in the case of a single foreign state) or 5
percent''; and
(D) by striking ``such subsections'' and inserting
``such section''; and
(2) by striking paragraph (5).
(d) Country-Specific Offset.--Section 2 of the Chinese Student
Protection Act of 1992 (8 U.S.C. 1255 note) is amended--
(1) in subsection (a), by striking ``subsection (e)'' and
inserting ``subsection (d)'';
(2) by striking subsection (d); and
(3) by redesignating subsection (e) as subsection (d).
SEC. 104. IMMIGRANT ENTREPRENEURS AND INNOVATORS PRESENT IN THE UNITED
STATES.
Section 245 of the Immigration and Nationality Act (8 U.S.C. 1255)
is amended by adding at the end the following:
``(n) Immigrant Entrepreneurs and Innovators Present in the United
States.--An alien who is eligible to receive an immigrant visa under
paragraph (1)(D) or (6) of section 203(b) may adjust status pursuant to
subsection (a) and notwithstanding paragraph (2), (7), or (8) of
subsection (c) and paragraphs (6)(A) and (7) of section 212(a), if the
alien was present in the United States on the date of the enactment of
the IDEA Act of 2011 and has been continuously present since that
date.''.
TITLE II--INVESTING IN THE NEXT GENERATION OF INNOVATORS AND JOB
CREATORS
SEC. 201. INVESTING IN STEM EDUCATION FOR U.S. STUDENTS.
Section 204(a)(1)(F) of the Immigration and Nationality Act (8
U.S.C. 1154(a)(1)(F)), as amended by this Act, is further amended--
(1) by striking ``(F)'' and inserting ``(F)(i)''; and
(2) by adding at the end the following:
``(ii)(I) The Secretary of Homeland Security shall
impose a fee on an employer (excluding any employer
that is a primary or secondary education institution,
an institution of higher education, a nonprofit entity
related to or affiliated with any such institution, a
nonprofit entity which engages in established
curriculum-related clinical training of students
registered at any such institution, a nonprofit
research organization, or a governmental research
organization) filing a petition under clause (i) to
employ an alien entitled to classification under
subparagraph (B) or (D) of section 203(b)(1), section
203(b)(2), clause (i) or (ii) of section 203(b)(3)(A),
section 203(b)(5) or section 203(b)(6).
``(II) The amount of the fee shall be $2,000 for
each such petition except that the fee shall be half
the amount for each such petition by any employer with
not more than 25 full-time equivalent employees who are
employed in the United States.
``(III) Fees collected under this clause shall be
deposited in the Treasury in accordance with section
286(s).''.
SEC. 202. U.S. STEM EDUCATION AND TRAINING ACCOUNT.
Section 286(s) of the Immigration and Nationality Act (8 U.S.C.
1356(s)) is amended to read as follows:
``(s) STEM Education and Training Account.--
``(1) In general.--There is established in the general fund
of the Treasury a separate account, which shall be known as the
`STEM Education and Training Account'. Notwithstanding any
other section of this title, there shall be deposited as
offsetting receipts into the account all fees collected under
section 204(a)(1)(F)(ii) and paragraphs (9) and (11) of section
214(c).
``(2) Low-income stem scholarship program.--Sixty percent
of the amounts deposited into the STEM Education and Training
Account shall remain available to the Director of the National
Science Foundation until expended for scholarships described in
section 414(d) of the American Competitiveness and Workforce
Improvement Act of 1998 for low-income students enrolled in a
program of study leading to a degree in science, technology,
engineering, or mathematics.
``(3) National science foundation competitive grant program
for k-12 science, technology, engineering and mathematics
education.--
``(A) In general.--Fifteen percent of the amounts
deposited into the STEM Education and Training Account
shall remain available to the Director of the National
Science Foundation until expended to carry out a direct
or matching grant program to support improvement in K-
12 education, including through private-public
partnerships.
``(B) Types of programs covered.--The Director
shall award grants to such programs, including those
which support the development and implementation of
standards-based instructional materials models and
related student assessments that enable K-12 students
to acquire an understanding of science, technology,
engineering, and mathematics, as well as to develop
critical thinking skills; provide systemic improvement
in training K-12 teachers and education for students in
science, technology, engineering, and mathematics,
including by supporting efforts to promote gender-
equality among students receiving such instruction;
support the professional development of K-12 science,
technology, engineering and mathematics teachers in the
use of technology in the classroom; stimulate system-
wide K-12 reform of science, technology, engineering,
and mathematics in rural, economically disadvantaged
regions of the United States; provide externships and
other opportunities for students to increase their
appreciation and understanding of science, technology,
engineering, and mathematics (including summer
institutes sponsored by an institution of higher
education for students in grades 7-12 that provide
instruction in such fields); involve partnerships of
industry, educational institutions, and community
organizations to address the educational needs of
disadvantaged communities; provide college preparatory
support to expose and prepare students for careers in
science, technology, engineering, and mathematics; and
provide for carrying out systemic reform activities
under section 3(a)(1) of the National Science
Foundation Act of 1950 (42 U.S.C. 1862(a)(1)).
``(4) STEM capacity building at minority-serving
institutions.--
``(A) In general.--Twelve percent of the amounts
deposited into the STEM Education and Training Account
shall remain available to the Director of the National
Science Foundation until expended to establish or
expand programs to award grants on a competitive,
merit-reviewed basis to enhance the quality of
undergraduate science, technology, engineering, and
mathematics education at minority-serving institutions
of higher education and to increase the retention and
graduation rates of students pursuing degrees in such
fields at such institutions.
``(B) Types of programs covered.--Grants awarded
under this paragraph shall be awarded to--
``(i) minority-serving institutions of
higher education for--
``(I) activities to improve courses
and curriculum in science, technology,
engineering, and mathematics;
``(II) efforts to promote gender
equality among students enrolled in
such courses;
``(III) faculty development;
``(IV) stipends for undergraduate
students participating in research; and
``(V) other activities consistent
with subparagraph (A), as determined by
the Director; and
``(ii) to other institutions of higher
education to partner with the institutions
described in clause (i) for--
``(I) faculty and student
development and exchange;
``(II) research infrastructure
development;
``(III) joint research projects;
and
``(IV) identification and
development of minority and low-income
candidates for graduate studies in
science, technology, engineering and
mathematics degree programs.
``(C) Institutions included.--In this paragraph,
the term `minority-serving institutions of higher
education' shall include--
``(i) colleges eligible to receive funds
under the Act of August 30, 1890 (7 U.S.C. 321-
326a and 328), including Tuskegee University;
``(ii) 1994 Institutions, as defined in
section 532 of the Equity in Educational Land-
Grant Status Act of 1994 (7 U.S.C. 301 note);
and
``(iii) Hispanic-serving institutions, as
defined in section 502(a)(5) of the Higher
Education Act of 1965 (20 U.S.C. 1101a(a)(5)).
``(5) STEM job training.--Ten percent of amounts deposited
into the STEM Education and Training Account shall remain
available to the Secretary of Labor until expended for--
``(A) demonstration programs and projects described
in section 414(c) of the American Competitiveness and
Workforce Improvement Act of 1998; and
``(B) training programs in the fields of science,
technology, engineering, and mathematics for persons
who have served honorably in the Armed Forces of the
United States and have retired or are retiring from
such service.
``(6) Use of fees for duties relating to petitions.--One
and one-half percent of the amounts deposited into the STEM
Education and Training Account shall remain available to the
Secretary of Homeland Security until expended to carry out
duties under paragraphs (1) (E) or (F) of section 204(a)
(related to petitions for immigrants described in section
203(b)) and under paragraphs (1) and (9) of section 214(c)
(related to petitions made for nonimmigrants described in
section 101(a)(15)(H)(i)(b)).
``(7) Use of fees for application processing and
enforcement.--One and one-half percent of the amounts deposited
into the STEM Education and Training Account shall remain
available to the Secretary of Labor until expended for
decreasing the processing time for applications under section
212(a)(5)(A) and section 212(n)(1).''.
SEC. 203. ACCESS TO STUDENT VISAS FOR IMMIGRANT STUDENTS PRESENT IN THE
UNITED STATES.
Notwithstanding paragraphs (6)(A) and (7) of section 212(a) of the
Immigration and Nationality Act (8 U.S.C. 1182(a)), the Secretary of
Homeland Security may adjust an alien's status to that of a
nonimmigrant student under section 101(a)(15)(F) of such Act (8 U.S.C.
1101(a)(15)(F)) if the alien--
(1) is a bona fide student enrolled in a full course of
study at a United States institution of higher education;
(2) was present in the United States on the date of the
enactment of this Act and has been continuously present since
that date; and
(3) was 15 years of age or younger on the date the alien
initially entered the United States.
TITLE III--REDUCING ADMINISTRATIVE HURDLES TO FOSTER INNOVATION AND JOB
CREATION
SEC. 301. STREAMLINING LABOR CERTIFICATIONS.
(a) In General.--Section 212(a)(5)(A) of the Immigration and
Nationality Act (8. U.S.C. 1182(a)(5)(A)) is amended--
(1) in clause (ii)--
(A) in subclause (I), by striking ``or'';
(B) in subclause (II), by striking the period and
inserting ``, or'';
(C) by adding at the end the following new
subclause:
``(III) is the beneficiary of a
labor certification application filed
by an employer designated as an
Established U.S. Recruiter under clause
(vii).''; and
(2) by adding at the end the following new clauses:
``(v) Processing standards.--
``(I) Timeframes.--The Secretary of
Labor shall adjudicate an application
for certification under clause (i) not
later than 120 days after the date on
which the application is filed. In the
event that additional information or
documentation is requested by the
Secretary during such 120-day period,
the Secretary shall adjudicate the
application not later than 60 days
after the date on which such
information or documentation is
received.
``(II) Notice within 30 days of
deficiencies.--The employer shall be
notified in writing within 30 days of
the date of filing if the application
does not meet the standards (other than
that described in clause (i)(I)) for
approval. If the application does not
meet such standards, the notice shall
include the reasons therefor and the
Secretary shall provide an opportunity
for the prompt resubmission of a
modified application.
``(vi) Fees.--
``(I) Application fee.--In addition
to any other fees authorized by law,
the Secretary of Labor shall impose a
fee on an employer that submits an
application for certification under
clause (i). The amount of the fee shall
be $295 for each such application.
``(II) Premium processing.--The
Secretary of Labor is authorized to
establish and collect an optional
premium fee for processing of
applications for certification under
clause (i). This fee shall be set at
$1,000 and shall be paid in addition to
the application fee under subclause
(I). For an application in which the
premium processing fee is paid, the
Secretary shall adjudicate the
application not later than 30 days
after the date on which the application
is filed. In the event that additional
information or documentation is
requested by the Secretary with respect
to such application during the 30-day
period, the Secretary shall adjudicate
the application not later than 30 days
after the date on which such
information or documentation is
received. If the Secretary does not
comply with these timeframes, the
Secretary shall refund the premium
processing fee to the applicant.
``(III) Deposit of fees.--Fees
collected under subclauses (I) and (II)
shall be deposited in the Treasury in
accordance with section 286(w).
``(IV) Prohibition on employer
accepting reimbursement of fee.--An
employer subject to a fee under this
clause shall not require or accept
reimbursement of or other compensation
for all or part of the cost of such
fee, directly or indirectly, from the
alien on whose behalf the application
is filed.
``(vii) Established u.s. recruiters.--
``(I) In general.--The Secretary of
Labor shall establish a process for
employers to apply for designation as
an Established U.S. Recruiter. An
employer seeking such designation must
file an application with the Secretary
stating the following:
``(aa) At least 80 percent
of the employer's workforce in
the United States are United
States workers.
``(bb) At least 80 percent
of the employer's new hires in
the United States in the 5
years preceding the filing of
the application are United
States workers.
``(cc) The employer
regularly posts employment
opportunities on a publicly
accessible Internet Web site
and has engaged in at least 3
other forms of active
recruitment on an annual basis
over the preceding 3 years.
``(dd) The employer will
continue to engage in the
recruitment efforts described
in item (cc) during the
certification period.
For the purposes of this clause, the
term `United States worker' shall
include an alien with a pending or
approved petition under subparagraph
(E) or (F) of section 204(a)(1).
``(II) Designation.--
``(aa) Timely
adjudications.--The Secretary
of Labor shall adjudicate an
application for designation
under subclause (I) not later
than 30 days after the date on
which the application is filed.
In the event that additional
information or documentation is
requested by the Secretary, the
Secretary shall adjudicate the
application not later than 30
days after the receipt of such
information or documentation.
``(bb) Application fee.--In
addition to any other fees
authorized by law, the
Secretary of Labor may impose a
fee on an employer that submits
an application for designation
under subclause (I). The amount
of the fee shall be $500 for
each such application. Fees
collected under this clause
shall be deposited in the
Treasury in accordance with
section 286(w).
``(cc) Period of
designation.--Unless terminated
under item (dd), a designation
issued under this clause shall
be valid for 3 years.
``(dd) Termination.--The
Secretary of Labor may
terminate a designation under
subclause (I) if the Secretary
determines that the employer--
``(AA) did not
fulfill the
requirements of such
subclause at the time
the certification was
issued; or
``(BB) failed to
meet the requirements
under subclause (I)(ee)
during the designation
period described in
item (cc).
``(III) Active recruitment.--For
the purposes of this clause `active
recruitment' means any of the
following:
``(aa) Employee referral
program.--The employer operates
an employee referral program
that includes meaningful
incentives for employees to
refer workers for job openings.
``(bb) In-house
recruiters.--The employer
retains an in-house recruiter
on a full-time basis to recruit
workers for job openings.
``(cc) Job fairs.--The
employer recruits workers at
job fairs that are advertised
in newspaper advertisements in
which the employer is named as
a participant in such fairs.
``(dd) Military
recruiting.--The employer
recruits workers during
recruiting events that are
organized by the Armed Forces
of the United States.
``(ee) On-campus
recruiting.--The employer
recruits workers at
institutions of higher
education during recruiting
events that are organized by
such institutions.
``(ff) Private employment
firms.--The employer regularly
engages private employment
firms or placement agencies to
recruit workers for job
openings.
``(gg) Trade or
professional organizations.--
The employer regularly
advertises with trade or
professional organizations to
recruit workers for job
openings.''.
(b) Establishment of Account and Use of Funds.--Section 286 of the
Immigration and Nationality Act (8 U.S.C. 1356) is amended by adding at
the end the following new subsection:
``(w) Labor Certification Application Fee Account.--
``(1) In general.--There is established in the general fund
of the Treasury a separate account, which shall be known as the
`Labor Certification Application Fee Account'. Notwithstanding
any other section of this title, there shall be deposited as
offsetting receipts into the account all fees collected under
section 212(a)(5)(A).
``(2) Use of fees.--Amounts deposited into the Labor
Certification Application Fee Account shall remain available to
the Secretary of Labor until expended for carrying out labor
certification activities under section 212(a)(5)(A) (including
providing premium processing services) and to make
infrastructure improvements in the adjudications and customer-
service processes related to such activities.''.
SEC. 302. STREAMLINING PETITIONS FOR ESTABLISHED EMPLOYERS.
Section 214(c) of the Immigration and Nationality Act (8. U.S.C.
1184) is amended by adding at the end the following:
``(15) The Secretary of Homeland Security shall establish a pre-
certification procedure for employers who file multiple petitions
described in this subsection or section 203(b). Such precertification
procedure shall enable an employer to avoid repeatedly submitting
documentation that is common to multiple petitions and establish,
through a single filing, criteria relating to the employer and the
offered employment opportunity.''.
SEC. 303. PREMIUM PROCESSING.
Section 286(u) of the Immigration and Nationality Act (8 U.S.C.
1356(u)) is amended--
(1) by striking ``is authorized to'' and inserting
``shall''; and
(2) at the end of the first sentence, by striking
``applications.'' and inserting ``applications, including an
administrative appeal of any decision on an employment-based
immigrant petition.''.
TITLE IV--PROTECTING AMERICAN WORKERS
SEC. 401. STRENGTHENING THE PREVAILING WAGE SYSTEM TO PROTECT AMERICAN
WORKERS.
Section 212(p) of the Immigration and Nationality Act (8 U.S.C.
1182(p)) is amended to read as follows:
``(p) Computation of Prevailing Wage Level.--
``(1) The Secretary of Labor shall make available to
employers a governmental survey to determine the prevailing
wage for each occupational classification by metropolitan
statistical area in the United States. Such survey, or other
survey approved by the Secretary of Labor, shall provide 3
levels of wages commensurate with experience, education, and
level of supervision. Such wage levels shall be determined as
follows:
``(A) The first level shall be the mean of the
lowest two-thirds of wages surveyed, but in no case
less than 80 percent of the mean of the wages surveyed.
``(B) The second level shall be the mean of wages
surveyed.
``(C) The third level shall be the mean of the
highest two-thirds of wages surveyed.
``(2) The prevailing wage level required to be paid
pursuant to section 203(b)(1)(D) and subsections (a)(5)(A),
(n)(1)(A)(i)(II), and (t)(1)(A)(i)(II) of this section shall be
100 percent of the wage level determined pursuant to those
sections.
``(3) In computing the prevailing wage level for an
occupational classification in an area of employment for
purposes of section 203(b)(1)(D) and subsections (a)(5)(A),
(n)(1)(A)(i)(II), and (t)(1)(A)(i)(II) of this section in the
case of an employee of--
``(A) an institution of higher education, or a
related or affiliated nonprofit entity, or
``(B) a nonprofit research organization or a
Governmental research organization,
the prevailing wage level shall only take into account
employees at such institutions and organizations in the area of
employment.
``(4) With respect to a professional athlete (as defined in
subsection (a)(5)(A)(iii)(II)) when the job opportunity is
covered by professional sports league rules or regulations, the
wage set forth in those rules or regulations shall be
considered as not adversely affecting the wages of United
States workers similarly employed and be considered the
prevailing wage.''.
SEC. 402. REFORMING THE H-1B VISA PROGRAM TO PROTECT AMERICAN WORKERS.
(a) Strengthening Wage Protections.--Section 214(g)(3) of the
Immigration and Nationality Act (8 U.S.C. 1184(g)(3)) is amended--
(1) by striking ``Aliens who'' and inserting ``(A) Aliens
who''; and
(2) by adding at the end the following:
``(B) If, on any given date, the number of petitions filed
under subparagraph (A) exceeds the number of visas remaining
under paragraph (1), the Secretary shall consider such
petitions in the following order:
``(i) petitions in which the offered wage level
meets or exceeds the wage set by section 212(p)(1)(C);
``(ii) petitions in which the offered wage level
meets or exceeds the wage set by section 212(p)(1)(B);
and
``(iii) any remaining petitions.''.
(b) Prohibiting Displacement of U.S. Workers.--
(1) Prohibiting displacement by employer.--Section
212(n)(1)(E) of the Immigration and Nationality Act (8 U.S.C.
1182(n)(1)(E)) is amended--
(A) in clause (i) by striking ``In the case of an
application described in clause (ii), the'' and
inserting ``The''; and
(B) by striking clause (ii).
(2) Prohibiting displacement by third-party employer.--
Section 212(n)(1)(F) of the Immigration and Nationality Act (8
U.S.C. 1182(n)(1)(F)) is amended by striking ``In the case of
an application described in subparagraph (E)(ii), the'' and
inserting ``The''.
(3) Definition of displace.--Section 212(n)(4)(B) of the
Immigration and Nationality Act (8 U.S.C. 1182(n)(4)(B)) is
amended by--
(A) inserting ``and skills'' after
``responsibilities''; and
(B) inserting ``working in the same division,
project or product line'' after ``experience''.
(c) Strengthening Recruitment Requirements.--
(1) Requiring recruitment of u.s. workers.--
(A) In general.--Section 212(n)(1)(G)(i) of the
Immigration and Nationality Act (8 U.S.C.
1182(n)(1)(G)(i)) is amended by striking ``In the case
of an application described in subparagraph (E)(ii),
subject to clause (ii)'' and inserting ``Subject to
clauses (ii) and (iii)''.
(B) Dependent employers.--Section 212(n)(1)(G)(ii)
of the Immigration and Nationality Act (8 U.S.C.
1182(n)(1)(G)(ii)) is amended to read as follows:
``(ii) The employer shall be required to
comply with additional supervised recruitment
activities as specified by the Secretary of the
Labor if the employer--
``(I) employs 50 or more employees
in the United States and less than 50
percent of such employees are United
States workers; and
``(II) is offering wages below the
wage level set by subsection (p)(1)(B)
(relating to the mean wage for the
occupational classification in the area
of employment).
For purposes of this clause, the term `United
States worker' shall include an alien with a
pending or approved petition under subparagraph
(E) or (F) of section 204(a)(1).''.
(C) Recruitment report.--Section 212(n)(1) of the
Immigration and Nationality Act (8 U.S.C. 1182(n)(1))
is amended, in the flush text following subparagraph
(G), by striking ``Nothing in subparagraph (G)'' and
inserting ``An employer required to recruit under
subparagraph (G) shall submit to the Secretary, along
with an application under this paragraph, a recruitment
report containing evidence that the employer posted the
employment opportunity on a publicly accessible
Internet Web site and engaged in at least 3 other forms
of active recruitment (as defined in subsection
(a)(5)(A)(vii)(III)). The employer shall maintain an
audit file of recruitment activities, including
information on United States worker applicants, for 3
years after the date the application was filed with the
Secretary. Nothing in Subparagraph (G)''.
(2) Exception for employers who pay increased wages.--
Section 212(n)(1)(G) of the Immigration and Nationality Act (8
U.S.C. 1182(n)(1)(G)), as amended by this subsection, is
further amended by adding at the end the following:
``(iii) The conditions described in clause
(i) shall not apply to an application filed
with respect to the employment of an H-1B
nonimmigrant--
``(I) who is described in
subparagraph (A), (B), or (C) of
section 203(b)(1); or
``(II) if the wages being offered
to such nonimmigrant meet or exceed the
wage level set by subsection (p)(1)(B)
(relating to the mean wage for the
occupational classification in the area
of employment) and the applicant is
designated as an Established U.S.
Recruiter under section
212(a)(5)(A)(vii).''.
(3) Eliminating redundant testing of labor market.--Section
212(a)(5)(D) of the Immigration and Nationality Act (8 U.S.C.
1182(a)(5)(D)) is amended--
(A) by striking ``The grounds'' and inserting ``(i)
Except as provided in clause (ii), the grounds''; and
(B) by adding at the end the following:
``(ii) Clause (i) shall not apply to an alien
seeking admission or adjustment of status who is
presently a nonimmigrant described under section
101(a)(15)(H)(i)(b) if--
``(I) the alien obtained such nonimmigrant
status based on a petition filed after the
effective date of the IDEA Act of 2011;
``(II) the alien is the subject of a
petition described in section 204(a)(1)(F) and
is seeking admission or adjustment of status
through such petition; and
``(III) the petition described in subclause
(II) was filed by the alien's employer within
18 months after the date on which the alien
obtained nonimmigrant status under section
101(a)(15)(H)(i)(b).''.
(d) Improving Protections for U.S. Workers.--
(1) In general.--Section 212(n)(2) of the Immigration and
Nationality Act (8 U.S.C. 1182(n)(2)) is amended to read as
follows:
``(2)(A) In general.--The Secretary of Labor shall
establish a process for the receipt, investigation, and
disposition of complaints, which may be filed by any aggrieved
person or organization (including bargaining representatives),
respecting an employer's compliance with this subsection. The
Secretary, either pursuant to this complaint process or
otherwise, may investigate employers as necessary to determine
such compliance. The Secretary shall audit at least 5 percent
of the employers who file applications under paragraph (1) in a
given year to determine compliance with this subsection.
``(B) Penalties.--If the Secretary of Labor finds, after
notice and an opportunity for a hearing--
``(i) a substantial failure to meet any of the
conditions of the application described under paragraph
(1), a misrepresentation of a material fact in such
application, or a violation of subparagraph (C) or
(D)--
``(I) the Secretary of Labor shall, in
addition to any other remedy authorized by law,
impose such administrative remedies (including
civil monetary penalties in an amount not to
exceed $10,000 per violation) as the Secretary
determines to be appropriate; and
``(II) the Secretary of Labor may not
approve applications with respect to that
employer under paragraph (1) during a period of
at least 1 year but not more than 5 years for
aliens to be employed by the employer; and
``(ii) a substantial failure to meet any of the
conditions of the application described under paragraph
(1) or a misrepresentation of a material fact in such
application, in the course of which failure or
misrepresentation the employer displaced a United
States worker employed by the employer within the
period beginning 180 days before and ending 180 days
after the date of filing of any visa petition supported
by the application--
``(I) the Secretary of Labor shall impose
such administrative remedies (including civil
monetary penalties in an amount not to exceed
$35,000 per violation) as the Secretary
determines to be appropriate; and
``(II) the Secretary of Labor may not
approve applications with respect to that
employer under paragraph (1) during a period of
at least 5 years for aliens to be employed by
the employer.
``(C) Discrimination or retaliation prohibited.--It is a
violation of this subparagraph for an employer who has filed an
application under this subsection to intimidate, threaten,
restrain, coerce, discharge, or in any other manner
discriminate or retaliate against an employee (including a
former employee or an applicant for employment) because the
employee--
``(i) has disclosed information to the employer, or
to any other person, that the employee reasonably
believes evidences a violation of this subsection, or
any rule or regulation pertaining to this subsection;
or
``(ii) seeks legal assistance or counsel related to
any such violation, or cooperates, or seeks to
cooperate, in an investigation or other proceeding
concerning the employer's compliance with the
requirements of this subsection, or any rule or
regulation pertaining to this subsection.
The Secretary of Labor and the Secretary of Homeland Security
shall devise a process under which an H-1B nonimmigrant who
files a complaint regarding a violation of this subparagraph
and is otherwise eligible to remain and work in the United
States may be allowed to seek other appropriate employment in
the United States for a period not to exceed the maximum period
of stay authorized for such nonimmigrant classification.
``(D) Prohibited fees.--It is a violation of this
subparagraph for an employer who has filed an application under
this subsection--
``(i) to require an H-1B nonimmigrant to pay a
penalty for ceasing employment with the employer prior
to a date agreed to by the nonimmigrant and the
employer; or
``(ii) to require or accept reimbursement or any
other form of compensation from an alien with respect
to a fee imposed on the employer under section
214(c)(9).
``(E) Benching prohibited.--
``(i) In general.--It is a violation of paragraph
(1)(A) for an employer, who has filed an application
under this subsection and who places an H-1B
nonimmigrant, after the nonimmigrant has entered into
employment with the employer, in nonproductive status
due to a decision by the employer (based on factors
such as lack of work), or due to the nonimmigrant's
lack of a permit or license, to fail to pay the
nonimmigrant full-time wages in accordance with
paragraph (1)(a) for all such nonproductive time (if
the nonimmigrant was designated as a full-time employee
on the petition filed under section 214(c)(1)) or
otherwise for such hours as are designated on such
petition consistent with the rate of pay identified on
such petition.
``(ii) Exceptions.--
``(I) In the case of an H-1B nonimmigrant
who has not yet entered into employment with an
employer who has had approved an application
under this subsection, and a petition under
section 214(c)(1), with respect to the
nonimmigrant, subclause (i) shall apply to the
employer beginning 30 days after the date the
nonimmigrant first is admitted into the United
States pursuant to the petition, or 60 days
after the date the nonimmigrant becomes
eligible to work for the employer (in the case
of a nonimmigrant who is present in the United
States on the date of the approval of the
petition).
``(II) Clause (i) does not apply to a
failure to pay wages to an H-1B nonimmigrant
for nonproductive time due to non-work-related
factors, such as the voluntary request of the
nonimmigrant for an absence or circumstances
rendering the nonimmigrant unable to work.
``(III) Clause (i) shall not be construed
as prohibiting an employer that is a school or
other educational institution from applying to
an H-1B nonimmigrant an established salary
practice of the employer, under which the
employer pays to H-1B nonimmigrants and United
States workers in the same occupational
classification an annual salary in
disbursements over fewer than 12 months, if--
``(aa) the nonimmigrant agrees to
the compressed annual salary payments
prior to the commencement of the
employment; and
``(bb) the application of the
salary practice to the nonimmigrant
does not otherwise cause the
nonimmigrant to violate any condition
of the nonimmigrant's authorization
under this chapter to remain in the
United States.
``(iii) Relation to subparagraph (g).--This
subparagraph shall not be construed as superseding
subparagraph (G).
``(F) Treatment.--It is a violation of paragraph (1)(A) for
an employer who has filed an application under this subsection
to fail to offer to an H-1B nonimmigrant, during the
nonimmigrant's period of authorized employment, benefits and
eligibility for benefits (including the opportunity to
participate in health, life, disability, and other insurance
plans; the opportunity to participate in retirement and savings
plans; and cash bonuses and noncash compensation, such as stock
options (whether or not based on performance)) on the same
basis, and in accordance with the same criteria, as the
employer offers to United States workers.
``(G) Back wages.--If the Secretary of Labor finds, after
notice and an opportunity for a hearing, that recovery of back
wages, fees or costs is necessary to address a violation of
this subsection or any other law, the Secretary of Labor may
recover such back wages, fees or costs on behalf of the worker.
``(H) Good faith compliance.--
``(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;
``(II) the person or entity has been
provided a period of not less than 10 business
days (beginning after the date of the
explanation) within which to correct such
failure; and
``(III) the person or entity has not
corrected the failure voluntarily within such
period.
``(iii) A person or entity that, in the course of
an investigation, is found to have violated the
prevailing wage requirements set forth in paragraph
(1)(A), shall not be assessed fines or other penalties
for such violation if the person or entity can
establish that the manner in which the prevailing wage
was calculated was consistent with recognized industry
standards and practices.
``(iv) Clauses (i) and (iii) shall not apply to a
person or entity that has engaged in or is engaging in
a pattern or practice of willful violations of this
paragraph.
``(I) Authority to ensure compliance.--The Secretary of
Labor is authorized to take other such actions, including
issuing subpoenas and seeking appropriate injunctive relief and
specific performance of contractual obligations, as may be
necessary to assure employer compliance with the terms and
conditions under this subsection. The rights and remedies
provided to H-1B nonimmigrants by this subsection are in
addition to, and not in lieu of, any other contractual or
statutory rights and remedies of such nonimmigrants, and are
not intended to alter or affect such rights and remedies.
``(J) Substantial failure defined.--The term `substantial
failure' means the repeated, reckless or willful failure to
comply with the requirements of this section that constitute a
significant deviation from the requirements of this section or
the terms and conditions of an application filed under this
section.''.
(2) Conforming amendment.--Section 212(n) of the
Immigration and Nationality Act (8 U.S.C. 1182(n)) is amended
by striking paragraphs (3) and (5) and redesignating paragraph
(4), as amended by this section, as paragraph (3).
(e) Eliminating H-1B Extensions for Exclusively Temporary
Workers.--Section 214(g)(4) of the Immigration and Nationality Act (8
U.S.C. 1184(g)(4)) is amended by striking ``6'' and inserting ``3''.
(f) Increased Portability for H-1B Employees.--
(1) Grace period.--Section 214(g)(4) of the Immigration and
Nationality Act (8 U.S.C. 1184(g)(4)), as amended by this Act,
is further amended by adding at the end the following:
``(C) If a nonimmigrant described in section
101(a)(15)(H)(i)(b) is terminated or laid off by the
nonimmigrant's employer, or otherwise ceases employment with
the employer, the nonimmigrant's status shall continue for 60
days or until the last date of the previously approved status,
whichever is earlier.''.
(2) Allowing promotions.--Section 204(j) of the Immigration
and Nationality Act (8 U.S.C. 1154(j)) is amended by--
(A) striking ``(a)(1)(D)'' and inserting
``(a)(1)(F)'';
(B) striking ``if the new job is in the same or
similar occupational classification as the job for
which the petition was filed.'' and inserting ``if the
new job--''; and
(C) inserting at the end the following:
``(1) is in the same or similar occupational classification
as the job for which the petition was filed; or
``(2) is in a different occupational classification that is
in a field related to the job for which the petition was filed
and involves an increase in wages of at least 5 percent.''.
(3) Retention of priority date.--Section 203 of the
Immigration and Nationality Act (8 U.S.C. 1153), as amended by
this Act, is further amended by adding at the end the following
new subsection:
``(i) Retention of Priority Date.--The priority date for any
immigrant petition shall be the date of filing with the Secretary of
Homeland Security or the Secretary of State, unless the filing was
preceded by the filing of a labor certification with the Secretary of
Labor, in which case the date of filing of such labor certification
shall constitute the priority date. The beneficiary of any petition
shall retain the earliest priority date based on any approved petition
filed on the beneficiary's behalf, regardless of the category of
subsequent petitions.''.
(4) Employment of spouses.--Section 214(c)(2)(E) of the
Immigration and Nationality Act (8 U.S.C. 1184(c)(2)(E)) is
amended by striking ``section 101(a)(15)(L)'' and inserting
``subparagraph (H) or (L) of section 101(a)(15)''.
(g) Elimination of H-1B Classification for Fashion Models.--
(1) In general.--Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b))
is amended--
(A) by striking ``or as a fashion model''; and
(B) by striking ``or, in the case of a fashion
model, is of distinguished merit and ability''.
(2) Addition to p nonimmigrant classification.--
(A) New classification.--Section 101(a)(15)(P) of
the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(P)) is amended--
(i) in clause (iii), by striking ``or'' at
the end;
(ii) in clause (iv), by striking ``clause
(i), (ii), or (iii)'' and inserting ``clause
(i), (ii), (iii), or (iv)'';
(iii) by redesignating clause (iv) as
clause (v);
(iv) by inserting after clause (iii) the
following:
``(iv) is a fashion model who is of
distinguished merit and ability and who is
seeking to enter the United States temporarily
to perform fashion modeling services that
involve events or productions which have a
distinguished reputation or that are performed
for an organization or establishment that has a
distinguished reputation for, or a record of,
utilizing prominent modeling talent; or''; and
(v) by striking ``having a foreign
residence which the alien has no intention of
abandoning''.
(B) Authorized period of stay.--Section 214(a)(2)
of the Immigration and Nationality Act (8 U.S.C.
1184(a)(2)) is amended--
(i) in paragraph (B) by inserting ``(i),
(ii), and (iii)'' after ``1101(a)(15)(P)'' each
place that term appears; and
(ii) by inserting ``or fashion model''
after ``athlete''.
(C) Consultation.--
(i) In general.--Section 214(c)(4)(D) of
the Immigration and Nationality Act (8 U.S.C.
1184(c)(4)(D)) is amended by striking ``clause
(i) or (iii)'' and inserting ``clause (i),
(iii), or (iv)''.
(ii) Advisory opinion.--Section
214(c)(6)(A) of the Immigration and Nationality
Act (8 U.S.C. 1184(c)(6)(A)) is amended by
inserting at the end new clause to read as
follows--
``(iv) To meet the consultation requirement
of paragraph (4)(D), in the case of a petition
for a nonimmigrant described in section
101(a)(15)(P)(iv) of this Act, the petitioner
shall submit with the petition an advisory
opinion from a peer group, labor organization,
or other person or persons of its choosing with
expertise in the field of fashion modeling.''
(iii) Expedited procedures.--Section
214(c)(6)(E)(i) of the Immigration and
Nationality Act (8 U.S.C. 1184(c)(6)(E)(i)) is
amended by striking ``artists or entertainers''
and inserting ``artists, entertainers, or
fashion models''.
(3) Conforming amendments.--Section 214 (a) and (c) of the
Immigration and Nationality Act (8 U.S.C. 1184 (a) and (c)) are
amended by striking the term ``Attorney General'' each place it
appears and inserting ``Secretary of Homeland Security''.
(4) Construction.--Nothing in this subsection shall be
construed as preventing an alien who is a fashion model from
obtaining nonimmigrant status under section 101(a)(15)(O)(i) of
the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(O)(i)) if such alien is otherwise qualified for
such status.
SEC. 403. REFORMING THE L VISA PROGRAM TO PROTECT AMERICAN WORKERS.
(a) Requiring Prevailing Wage for Certain L-1B Nonimmigrants.--
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) No alien described in clause (ii) may be
admitted or provided status under section 101(a)(15)(L)
unless the employer has filed with the Secretary of
Labor an application stating that the employer--
``(I) is offering and will offer 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 as of the time of filing
the application; and
``(II) will provide working conditions for
such alien that will not adversely affect the
working conditions of workers similarly
employed.
``(ii) An alien is described in this clause if the
alien will serve in a capacity involving specialized
knowledge under section 101(a)(15)(L) and the alien--
``(I) will be employed in the United States
for a cumulative period of time in excess of 18
months over a 3-year period, or
``(II) will be employed in the United
States for a cumulative period of time in
excess of 90 days over a 3-year period and will
be stationed primarily at the worksite of an
employer other than the petitioning employer or
its affiliate, subsidiary, or parent, including
pursuant to an outsourcing, leasing, or other
contracting agreement.
``(iii) An employer may comply with the
requirements of clause (i) by establishing that the
total amount of compensation to be paid by the employer
to the alien (including 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)
meets or exceeds the total amount of compensation paid
by the employer to all other employees with similar
experience and qualifications working in the same
occupational classification.''.
(b) Investigation and Disposition of Complaints Against L-1
Employers.--Section 214(c)(2) of the Immigration and Nationality Act (8
U.S.C. 1184(c)(2)), as amended by this section, is further amended by
adding at the end the following:
``(H)(i) The Secretary of Labor shall establish a
process for the receipt, investigation and disposition
of complaints, which may be filed by any aggrieved
person or organization (including bargaining
representatives), respecting an employer's compliance
with this paragraph and the conditions of an
application under paragraph (1) for a nonimmigrant
under section 101(a)(15)(L). The Secretary, either
pursuant to this complaint process or otherwise, may
investigate employers as necessary to determine such
compliance. The Secretary shall audit at least 5
percent of the employers who file applications under
subparagraph (G) in a given year to determine
compliance with this subsection.
``(ii) If the Secretary finds, after notice and an
opportunity for a hearing, a substantial failure to
meet any of the conditions of this paragraph, a
misrepresentation of a material fact in an application
under paragraph (1) for a nonimmigrant under section
101(a)(15)(L), or a violation of clause (iii) or (iv)--
``(I) the Secretary shall, in addition to
any other remedy authorized by law, impose such
administrative remedies (including civil
monetary penalties in an amount not to exceed
$10,000 per violation) as the Secretary
determines to be appropriate; and
``(II) the Secretary may not approve
applications with respect to that employer
under paragraph (1) for a nonimmigrant under
section 101(a)(15)(L) during a period of at
least 1 year but not more than 5 years for
aliens to be employed by the employer.
``(iii) It is a violation of this subparagraph for
an employer who has filed an application under
paragraph (1) for a nonimmigrant under section
101(a)(15)(L) to intimidate, threaten, restrain,
coerce, discharge, or in any other manner discriminate
or retaliate against an employee (including a former
employee or an applicant for employment) because the
employee--
``(I) has disclosed information to the
employer, or to any other person, that the
employee reasonably believes evidences a
violation of this subsection, or any rule or
regulation pertaining to this subsection; or
``(II) seeks legal assistance or counsel
related to any such violation, or cooperates,
or seeks to cooperate, in an investigation or
other proceeding concerning the employer's
compliance with the requirements of this
subsection, or any rule or regulation
pertaining to this subsection.
The Secretary shall devise a process under which a
nonimmigrant under section 101(a)(15)(L) who files a
complaint regarding a violation of this subparagraph
and is otherwise eligible to remain and work in the
United States may be allowed to seek other appropriate
employment in the United States for a period not to
exceed the maximum period of stay authorized for such
nonimmigrant classification.
``(iv) It is a violation of this subparagraph for
an employer who has filed an application under
paragraph (1) for a nonimmigrant under section
101(a)(15)(L)--
``(I) to require such nonimmigrant to pay a
penalty for ceasing employment with the
employer prior to a date agreed to by the
nonimmigrant and the employer; or
``(II) to require or accept reimbursement
or any other form of compensation from an alien
with respect to a fee imposed on the employer
related to such application.
``(v) If the Secretary finds, after notice and an
opportunity for a hearing, that recovery of back wages,
fees or costs is necessary to address a violation of
this subparagraph or any other law, the Secretary may
recover such back wages, fees or costs on behalf of the
worker.
``(vi) The Secretary is authorized to take other
such actions, including issuing subpoenas and seeking
appropriate injunctive relief and specific performance
of contractual obligations, as may be necessary to
assure employer compliance with the terms and
conditions under this paragraph. The rights and
remedies provided to nonimmigrants under section
101(a)(15)(L) by this paragraph are in addition to, and
not in lieu of, any other contractual or statutory
rights and remedies of such nonimmigrants, and are not
intended to alter or affect such rights and remedies.
``(vii)(I) Except as provided in subclauses (II)
and (III), a person or entity is considered to have
complied with the requirements of this paragraph,
notwithstanding a technical or procedural failure to
meet such requirements, if there was a good faith
attempt to comply with the requirements.
``(II) Subclause (I) shall not apply if--
``(aa) the Secretary of Homeland
Security (or another enforcement
agency) has explained to the person or
entity the basis for the failure;
``(bb) the person or entity has
been provided a period of not less than
10 business days (beginning after the
date of the explanation) within which
to correct such failure; and
``(cc) the person or entity has not
corrected the failure voluntarily
within such period.
``(III) A person or entity that, in the
course of an investigation, is found to have
violated the prevailing wage requirements set
forth in subparagraph (G), shall not be
assessed fines or other penalties for such
violation if the person or entity can establish
that the manner in which the prevailing wage
was calculated was consistent with recognized
industry standards and practices.
``(IV) Subclauses (I) and (III) shall not
apply to a person or entity that has engaged in
or is engaging in a pattern or practice of
willful violations of this paragraph.
``(viii) The term `substantial failure' means the
repeated, reckless or willful failure to comply with
the requirements of this paragraph that constitute a
significant deviation from the requirements of this
paragraph or the terms and conditions of an application
filed under paragraph (1) for nonimmigrants under
section 101(a)(15)(L).''.
(c) Technical Amendment.--Section 214(c)(2) of the Immigration and
Nationality Act (8 U.S.C. 1184(c)(2)), as amended by this section, is
further amended by striking ``Attorney General'' each place such term
appears and inserting ``Secretary of Homeland Security''.
(d) Report on L-1 Nonimmigrants.--Section 214(c)(8) of the
Immigration and Nationality Act (8 U.S.C. 1184(c)(8)) is amended--
(1) by striking ``Attorney General'' and inserting
``Secretary of Homeland Security or Secretary of State, as
appropriate,'';
(2) by inserting ``(L),'' after ``(H),''; and
(3) by adding at the end the following:
``(F) The number of applications for nonimmigrants
described under section 101(a)(15)(L), based on an
approved blanket petition under paragraph (2)(A), which
have been filed.
``(G) The number of applications for nonimmigrants
described under section 101(a)(15)(L), based on an
approved blanket petition under paragraph (2)(A), which
have been approved.''.
(e) Report on L-1 Blanket Petition Process.--Not later than 12
months after the date of the enactment of this Act, the Inspector
General of the Department of Homeland Security, in cooperation with the
Inspector General of the Department of State, shall submit to the
Committee on the Judiciary of the House of Representatives and the
Committee on the Judiciary of the Senate a report regarding the use of
blanket petitions under section 214(c)(2)(A) of the Immigration and
Nationality Act (8 U.S.C. 1184(c)(2)(A)). Such report shall assess the
efficiency and reliability of the process for reviewing such blanket
petitions and adjudicating visa applications filed under an approved
blanket petition, including whether the process includes adequate
safeguards against fraud and abuse.
TITLE V--PROMOTING INVESTMENT IN THE AMERICAN ECONOMY
SEC. 501. EB-5 EMPLOYMENT CREATION INVESTOR PROGRAM.
(a) Authorization of EB-5 Employment Creation Regional Center
Program.--Section 203(b)(5) of the Immigration and Nationality Act (8
U.S.C. 1153(b)(5)) is amended by adding at the end the following new
subparagraph:
``(E) Set-aside for employment creation regional
centers.--
``(i) In general.--Of the visas otherwise
available under this paragraph, the Secretary
of State, together with the Secretary of
Homeland Security, shall set aside at least
5,000 visas for a program involving regional
centers designated by the Secretary of Homeland
Security, on the basis of a general proposal,
for the promotion of economic growth, including
improved regional productivity, job creation,
or increased domestic capital investment. A
regional center shall have jurisdiction over a
specific geographic area, which shall be
described in the proposal and consistent with
the purpose of concentrating pooled investment
in defined economic zones. The establishment of
a regional center under this subparagraph may
be based on general predictions, contained in
the proposal, concerning the kinds of new
commercial enterprises that will receive
capital from aliens under this paragraph, the
jobs that will be created (directly or
indirectly) as a result of such capital
investments and the other positive economic
effects such capital investments will have.
``(ii) Methodologies.--In determining
compliance with this subparagraph, and
notwithstanding requirements applicable to
investors not involving regional centers, the
Secretary of Homeland Security, in consultation
with the Secretary of Commerce, shall recognize
reasonable methodologies for determining the
number of jobs created by a designated regional
center, including such jobs that are estimated
to have been created indirectly through
revenues generated from increased exports,
improved regional productivity, or increased
domestic capital investment resulting from the
regional center. The Secretary may consider
estimated job creation outside the geographic
boundary of a designated regional center if
such estimate is supported by substantial
evidence and constitutes no more than 50
percent of the overall number of jobs estimated
to be created by such regional center.
``(iii) Preapproval of new commercial
enterprises.--The Secretary of Homeland
Security shall establish a preapproval
procedure for commercial enterprises that--
``(I) allows a regional center to
apply to the Secretary for approval of
a new commercial enterprise before any
alien files a petition for
classification under this paragraph by
reason of investment in the new
commercial enterprise;
``(II) in considering an
application under subclause (I),
requires that the Secretary make final
decisions on all issues under this
paragraph other than those issues
unique to each individual investor in
the new commercial enterprise; and
``(III) requires that the Secretary
eliminate the need for the repeated
submission of documentation that is
common to multiple petitions for
classification under this paragraph
through a regional center.
``(iv) Fee for regional center
designation.--In addition to any other fees
authorized by law, the Secretary of Homeland
Security shall impose a fee to apply for
designation as an EB-5 regional center under
this paragraph. Fees collected under this
paragraph shall be deposited in the Treasury in
accordance with section 286(y).''.
(b) Targeted Employment Areas.--Section 203(b)(5)(B) of the
Immigration and Nationality Act (8 U.S.C. 1153(b)(5)(B)) is amended as
follows:
(1) Targeted employment area defined.--In clause (ii), to
read as follows:
``(ii) Targeted employment area defined.--
In this paragraph, the term `targeted
employment area' means--
``(I) a rural area;
``(II) an area that has experienced
high unemployment (of at least 150
percent of the national average rate)
within the preceding 12 months;
``(III) a county that has had a 20
percent or more decrease in population
since 1970; or
``(IV) an area that is within the
boundaries established for purposes of
a State or Federal economic development
incentive program, including areas
defined as Enterprise Zones, Renewal
Communities and Empowerment Zones.''.
(2) Rural area defined.--In clause (iii), by striking
``within a metropolitan statistical area or''.
(3) Effect of prior determination.--By adding at the end
the following:
``(iv) Effect of prior determination.--In a
case in which a geographic area is determined
under clause (ii) to be a targeted employment
area, such determination shall remain in effect
during the 2-year period beginning on the date
of the determination for purposes of any alien
seeking a visa reserved under this
subparagraph.''.
(c) Calculating Job Creation.--Section 203(b)(5)(D) of such Act (8
U.S.C. 1153(b)(5)(D)) is amended to read as follows:
``(D) Full-time employment.--In this paragraph, the
term `full-time employment' means employment in a
position that requires at least 35 hours of service per
week at any time, regardless of who fills the position.
Such employment may be satisfied on a full-time
equivalent basis by calculating the number of full-time
employees that could have been employed if the reported
number of hours worked by part-time employees had been
worked by full-time employees. Full-time equivalent
employment shall be calculated by dividing the part-
time hours paid by the standard number of hours for
full-time employees.''.
(d) Capital.--Section 203(b)(5)(C) of the Immigration and
Nationality Act (8 U.S.C. 1153(b)(5)(C)) is amended by adding at the
end the following:
``(iv) Capital defined.--For purposes of
this paragraph, the term `capital' does not
include any assets acquired, directly or
indirectly, by unlawful means.''.
(e) Type of Investment.--Section 203(b)(5)(A) of the Immigration
and Nationality Act (8 U.S.C. 1153(b)(5)(A)), is amended by adding ``or
similar entity'' after ``including a limited partnership''.
(f) Extension.--Subparagraph (A) of section 216A(d)(2) of the
Immigration and Nationality Act (8 U.S.C. 1186b(d)(2)(A)) is amended by
adding at the end the following: ``A date specified by the applicant
(but not later than the fourth anniversary) shall be substituted for
the second anniversary in applying the preceding sentence if the
applicant demonstrates that the applicant has attempted to follow the
applicant's business model in good faith, provides an explanation for
the delay in filing the petition that is based on circumstances outside
of the applicant's control, and demonstrates that such circumstances
will be able to be resolved within the specified period.''.
(g) Study.--
(1) In general.--The Secretary of Homeland Security, in
appropriate consultation with the Secretary of Commerce and
other interested parties, shall conduct a study concerning--
(A) current job creation counting methodology and
initial projections under section 203(b)(5) of the
Immigration and Nationality Act (8 U.S.C. 1153(b)(5));
and
(B) how to best promote the employment creation
program described in such section overseas to potential
immigrant investors.
(2) Report.--The Secretary of Homeland Security shall
submit a report to the Committee on the Judiciary of the House
of Representatives and the Committee on the Judiciary of the
Senate not later than 1 year after the date of the enactment of
this Act containing the results of the study conducted under
paragraph (1).
(h) Biennial Report.--Beginning on the date that is one year after
the date of enactment of this Act, and every 2 years thereafter, the
Secretary of Homeland Security shall submit a report to the Committee
on the Judiciary of the House of Representatives and the Committee on
the Judiciary of the Senate that measures the economic impact of the
regional center program described in section 203(b)(5)(E) of the
Immigration and Nationality Act (8 U.S.C. 1153(b)(5)(E)), including--
(1) foreign and domestic capital investment;
(2) the number of jobs directly and indirectly created;
(3) any other economic benefits related to foreign
investment under such program; and
(4) the number of petitions under such section approved or
denied for each regional center.
(i) Rulemaking.--Not later than 120 days after the date of the
enactment of this Act, the Secretary of Homeland Security shall
prescribe regulations to implement the amendments made by this section.
SEC. 502. CONCURRENT FILING; ADJUSTMENT OF STATUS.
Section 245 of the Immigration and Nationality Act (8 U.S.C. 1255)
is amended--
(1) in subsection (k), in the matter preceding paragraph
(1), by striking ``(1), (2), or (3)'' and inserting ``(1), (2),
(3), (5), or (6)''; and
(2) by adding at the end the following:
``(n) If, at the time a petition is filed under section 204 for
classification under paragraph (5) or (6) of section 203(b), approval
of the petition would make a visa immediately available to the alien
beneficiary, the alien beneficiary's adjustment application under this
section shall be considered to be properly filed whether the
application is submitted concurrently with, or subsequent to, the visa
petition.''.
SEC. 503. FEES; PREMIUM PROCESSING.
(a) Establishment of Account; Use of Fees.--Section 286 of the
Immigration and Nationality Act (8 U.S.C. 1356), as amended by this
Act, is further amended by adding at the end the following:
``(y) Immigrant Entrepreneur Account.--
``(1) In general.--There is established in the general fund
of the Treasury a separate account, which shall be known as the
`Immigrant Entrepreneur Account'. Notwithstanding any other
provision of law, there shall be deposited as offsetting
receipts into the account all fees collected under paragraph
(5) or (6) of section 203(b) of this Act or section 610(b) of
the Departments of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act, 1993 (8 U.S.C. 1153
note).
``(2) Use of fees.--Fees collected under this section may
only be used by the Secretary of Homeland Security to
administer and operate the employment creation program
described in paragraph (5) or (6) of section 203(b).''.
(b) Premium Processing.--Section 286(u) of the Immigration and
Nationality Act (8 U.S.C. 1356(u)) is amended by adding at the end the
following: ``In the case of a petition filed under section 204(a)(1)(H)
for classification under paragraph (5) or (6) of section 203(b), if the
petitioner desires a guarantee of a decision on the petition in 60 days
or less, the premium processing fee under this subsection shall be set
at $2,500 and shall be deposited as offsetting receipts in the
Immigrant Entrepreneur Account established under subsection (y).''.
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