Sec. 101. Market-based H–1B visa limits
2,331 words·~11 min read·
/bill/115/s/2344/is/section-101·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Section 214(g) of the Immigration and Nationality Act ( 8 U.S.C. 1184(g) ) is amended— in paragraph (1)— in the matter preceding subparagraph (A), by striking (beginning with fiscal year 1992) ; and by amending subparagraph
(A)to read as follows: under section 101(a)(15)(H)(i)(b) may not exceed the sum of— the base allocation calculated under paragraph (9)(A); and the allocation adjustment calculated under paragraph (9)(B); and ; in paragraph (5), by amending subparagraph
(C)to read as follows: subject to paragraph (6)(B), has earned a master’s or higher degree from a United States institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 ( 20 U.S.C. 1001(a) )). ; in paragraph (6)— by inserting
(A)before Any alien ; and by adding at the end the following: If the employer of an alien described in paragraph (5)(C) certifies that the employer has filed or will file an Immigrant Petition on behalf of the alien, the initial period of validity of the nonimmigrant visa issued to the alien under section 101(a)(15)(H)(i)(b) shall be 12 months. The period of validity of such visa may be extended beyond such initial period if the employer provides evidence to the Secretary that the employer has filed, on the alien’s behalf, a nonfrivolous Application for Permanent Employment Certification or a nonfrivolous Immigrant Petition and such application or petition has not been denied in a final agency action. Not more than 20,000 of the aliens described in paragraph (5)(C) who are not described in clause
(i)may be exempted from the numerical limitations under paragraph (1)(A) during each fiscal year. ; in paragraph (8), by striking subparagraphs (B)(iv) and (D); by redesignating paragraph
(10)as subparagraph
(D)of paragraph (9), and adjusting the margin accordingly; by redesignating paragraph
(9)as paragraph (10); and by inserting after paragraph
(8)the following: The base allocation of nonimmigrant visas under section 101(a)(15)(H)(i)(b) for each fiscal year shall be equal to— the sum of— the base allocation for the most recently completed fiscal year; and the allocation adjustment for the most recently completed fiscal year; if the number calculated under clause
(i)is less than 85,000, 85,000; or if the number calculated under clause
(i)is more than 195,000, 195,000. If the number of cap-subject nonimmigrant visa petitions filed under section 101(a)(15)(H)(i)(b) during the first 45 days of the petition filing period for a fiscal year exceeds the base allocation for such fiscal year, an additional 30,000 such visas shall be made available beginning on the first day of such fiscal year. If the base allocation of cap-subject nonimmigrant visa petitions filed under section 101(a)(15)(H)(i)(b) for a fiscal year is reached during the period beginning on the 46th day of the petition filing period for the fiscal year and ending on the last day of the previous fiscal year, an additional 20,000 such visas shall be made available for the fiscal year beginning on the first day of such fiscal year. If the base allocation of cap-subject nonimmigrant visa petitions filed under section 101(a)(15)(H)(i)(b) for a fiscal year is reached during the first 60 days of the fiscal year, an additional 10,000 such visas shall be made available beginning on December 1 of the fiscal year. If the base allocation of cap-subject nonimmigrant visa petitions filed under section 101(a)(15)(H)(i)(b) for a fiscal year is reached during the period beginning on the 61st day of the fiscal year and ending on the 120th day of the fiscal year, an additional 5,000 such visas shall be made available beginning on February 1 of the fiscal year. 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 of such visas for the following fiscal year shall be reduced by 5,000. 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 19,999 fewer than the base allocation, the allocation of such visas for the following fiscal year shall be reduced by 10,000. 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, but not more than 29,999 fewer than the base allocation, the allocation of such visas for the following fiscal year shall be reduced by 20,000. 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 30,000 fewer than the base allocation, the allocation of such visas for the following fiscal year shall be reduced by 30,000. If the final receipt date for filing nonimmigrant visa petitions under section 101(a)(H)(i)(b) subject to the numerical limitations under paragraph (1)(A) in a fiscal year occurs on or before the 180th day of the fiscal year, the Secretary of Homeland Security shall announce the following fiscal year’s base allocation for such nonimmigrant visas on or before April 1 of the fiscal year preceding the fiscal year for which such allocation applies. If the final receipt date for filing nonimmigrant visa petitions under section 101(a)(H)(i)(b) subject to the numerical limitations under paragraph (1)(A) in a fiscal year occurs after the 180th day of the fiscal year, the Secretary of Homeland Security shall announce the following fiscal year’s base allocation for such nonimmigrant visas not later than the first day of the fiscal year for which such allocation applies. . Section 214(g)(3) of the Immigration and Nationality Act ( 8 U.S.C. 1184(g)(3) ) is amended— by striking the first sentence and inserting the following:
(A)Subject to subparagraphs
(B)and (C), aliens who are subject to the numerical limitations under paragraph (1)(A) shall be issued visas, or otherwise provided nonimmigrant status, in a manner and order established by the Secretary by regulation. ; and by adding at the end the following: In any fiscal year in which the number of petitions filed for nonimmigrant status under section 101(a)(15)(H)(i)(b) during the first 5 business days of the petition filing period exceeds the numerical limitation for that fiscal year, the Secretary shall consider petitions received during those 5 business days in the following order: Petitions for aliens who have earned a master’s or higher degree from an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 ( 20 U.S.C. 1001(a) )) in the United States and who are subject to the numerical limitations under paragraph (1)(A). Petitions for aliens who have earned a doctoral degree from an institution of higher education outside the United States in a specialty related to the intended employment if such degree is equivalent to a doctoral degree awarded by an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 ( 20 U.S.C. 1001(a) )) in the United States. Petitions for aliens who have earned a bachelor’s degree in a field listed on the STEM Designated Degree Program List published by the Department of Homeland Security on the Student and Exchange Visitor Program website from an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 ( 20 U.S.C. 1001(a) )) in the United States. Other petitions. The first sentence of subparagraph
(A)shall not apply in any fiscal year in which the demand for nonimmigrant visas under section 101(a)(15)(H)(i)(b) exceeds the numerical limitation under paragraph (1)(A) during the first 5 business days of the petition filing period. . Section 214(g)(9) of the Immigration and Nationality Act, as added by subsection (a)(7), is amended by adding at the end the following: Subject to clause (ii), if 5 or more petitions for H–1B classification subject to the cap established under paragraph (1)(A) filed by an employer in a fiscal year are approved, the employer shall pay a penalty for each such approved petition subject to such cap for which the H–1B beneficiary works in the United States for less than 25 percent of the first year of the beneficiary’s approved work authorization period. An employer shall not be subject to the penalties set forth in clause
(i)if the employer withdraws the petition for an H–1B visa— as a result of an unexpected change in the need for the alien worker; because the alien worker commences employment in the United States for the employer under another lawful status; or because the alien worker quit or resigned the worker’s position with the employer. An employer withdrawing a petition under subclause
(I)shall file with the Secretary a description of the circumstances— resulting in the unexpected change in the need for the alien worker; surrounding the alien worker’s commencement of employment in the United States for the employer under another lawful status; or surrounding the alien worker’s decision to quit or resign the worker’s position with the employer. Any unused visas associated with petitions withdrawn under subclause
(I)that were subject to the cap established under paragraph (1)(A) shall be reassigned to another H–1B petition filed by another employer either in the fiscal year in which the withdrawal was received or in the following fiscal year. Subclause
(I)shall not apply to an employer in a fiscal year if— at least 20 and not more than 49 petitions filed by the employer in a fiscal year for H–1B visa classification subject to the cap established under paragraph (1)(A) are approved; and the employer withdraws more than 25 percent of the approved H–1B visa petitions subject to the numerical limitation under paragraph (1)(A) that were received by the employer in the fiscal year or the employer withdraws more than 10 percent of such petitions because the alien worker resigned his or her employment with the employer before completing 3 months of employment; or more than 50 petitions filed by the employer in a fiscal year for H–1B visa classification subject to the cap established under paragraph (1)(A) are approved; and the employer withdraws more than 20 percent of the approved H–1B visa petitions subject to the numerical limitation under paragraph (1)(A) that were received by the employer in the fiscal year or the employer withdraws more than 5 percent of such petitions because the alien worker resigned his or her employment with the employer before completing 3 months of employment. The penalty for a violation of clause
(i)shall be— $10,000 for each petition described in such clause during the first fiscal year of noncompliance; and $25,000 for each such petition after the first fiscal year of noncompliance. An employer subject to a penalty under clause
(i)in any 3 fiscal years shall be barred from filing any petitions for H–1B visas subject to the numerical limitation under paragraph (1)(A) for the fiscal year immediately following the third year of noncompliance. Each employer that has 5 or more approved petitions for H–1B classification subject to the cap established under paragraph (1)(A) shall submit an annual report to the Secretary of Homeland Security that identifies— the date on which each such H–1B nonimmigrant approved during the most recent fiscal year began working for the employer in the United States; and the total period of employment in the first year of available work authorization for each such H–1B nonimmigrant during the most recent fiscal year. Penalties assessed under this subparagraph shall be deposited into the Promoting American Ingenuity Account established under section 286(w). . Section 214(g)(9)(C) of the Immigration and Nationality Act, as added by paragraph (1), shall take effect on the date that is 1 year after the date of the enactment of this Act. The Secretary of Homeland Security shall— timely upload to a public website data that summarizes the adjudication of nonimmigrant petitions under section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act ( 8 U.S.C. 1101(a)(15)(H)(i)(b) ) during each fiscal year; allow the timely adjustment of visa allocations under section 214(g)(9)(B) of such Act, as added by subsection (a)(7); and identify the number of previously approved visas that were the subject of withdrawn petitions under section 214(g)(9)(C)(ii) of such Act and are available for reassignment to another employer. Section 212(n)(1) of the Immigration and Nationality Act ( 8 U.S.C. 1182(n)(1) ) is amended— in the matter preceding subparagraph (A), by striking stating the following and inserting containing the statements described in subparagraphs
(A)through
(G); and in the undesignated matter following subparagraph (G)(ii)— by striking The employer shall make and inserting the following: The employer shall make ; and by adding at the end the following: An employer may not hire an H–1B nonimmigrant for the purpose and intent of replacing a United States worker with the H–1B nonimmigrant (other than through the United States worker’s promotion, voluntary transfer, voluntary departure, or voluntary retirement). In an enforcement action for a violation of this clause, the agency initiating the enforcement action shall bear the burden of proving that the employer acted with the purpose and intent to replace the United States worker with the H–1B nonimmigrant. No employer, having the purpose and intent of replacing a current employee with an H–1B nonimmigrant (other than through the current employee’s promotion, voluntary transfer, voluntary departure, or voluntary retirement), may condition the employee’s pay, bonus, or severance, or any other form of compensation, or the employee’s performance review, on the employee’s willingness to train the H–1B nonimmigrant to perform the employee’s responsibilities. In an enforcement action for a violation of this clause, the agency initiating the enforcement action shall bear the burden of proving that the employer had the purpose and intent to replace the current employee with the H–1B nonimmigrant. . Section 212(n) of the Immigration and Nationality Act ( 8 U.S.C. 1182(n) ) is amended by adding at the end the following: The enforcement of this subsection may be carried out using funds deposited into the Fraud Prevention and Detection Account under section 286(v). .
Connectionstraces to 4
Citation graph
cites case law
Cites 4Cited by 0 across 0 sources