Sec. 104. Definitions
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Section 101(a) of the Immigration and Nationality Act ( 8 U.S.C. 1101(a) ) is amended by adding at the end the following: The term intending immigrant means, with respect to the number of aliens employed by an employer, an alien who intends to work and reside permanently in the United States, as evidenced by— a pending or approved application for a labor certification filed for such alien by a covered employer; or a pending or approved immigrant status petition filed for such alien by a covered employer.
In this paragraph: The term covered employer means an employer that has filed immigrant status petitions for not fewer than 90 percent of current employees who were the beneficiaries of applications for labor certification that were approved during the 1-year period ending 6 months before the filing of an application or petition for which the number of intending immigrants is relevant. The term immigrant status petition means a petition filed under paragraph (1), (2), or
(3)of section 203(b). The term labor certification means an employment certification under section 212(a)(5)(A). Notwithstanding any other provision of law— for all calculations of the number of aliens admitted pursuant to subparagraph (H)(i)(b) or
(L)of paragraph (15), including calculations for the purposes set forth in section 203(i), an intending immigrant shall be counted as an alien lawfully admitted for permanent residence and shall not be counted as an employee admitted pursuant to such a subparagraph; and for all determinations of the number of employees or United States workers employed by an employer, all of the employees in any group treated as a single employer under subsection (b), (c), (m), or
(o)of section 414 of the Internal Revenue Code of 1986 shall be counted. The term STEM means the academic and professional disciplines of science (excluding social sciences), technology, engineering, and mathematics. . Section 212(n) of the Immigration and Nationality Act ( 8 U.S.C. 1182(n) ) is amended— in paragraph (1)— in subparagraph (E)— in clause (i), by striking (as defined in paragraph (4)) ; and by striking clause
(ii)and inserting the following: Except as provided in clause (iii), an application described in this clause is an application filed by— an H–1B-dependent employer; or an employer that has been found under paragraph (2)(C) or
(5)to have committed a willful failure or misrepresentation during the 5-year period preceding the filing of the application. Except as provided in subclause (II), an application is not described in clause
(ii)if the only H–1B nonimmigrants sought in the application are exempt H–1B nonimmigrants. Subclause
(I)shall not apply if the employer has more than 50 employees and more than 50 percent of the employer’s employees are H–1B nonimmigrants. ; in paragraph (2)(F)— by inserting
(i)before Subject ; and by adding at the end the following: The Director of U.S. Citizenship and Immigration Services shall provide the Secretary of Labor with any information contained in the materials submitted by employers of H–1B nonimmigrants as part of the petition adjudication process that indicates that the employer is not complying with visa program requirements for H–1B nonimmigrants. The Secretary may initiate and conduct an investigation and hearing under this paragraph after receiving information of noncompliance under this subparagraph. ; and in paragraph (3)— by amending subparagraph
(A)to read as follows: For purposes of this subsection, the term H–1B-dependent employer means an employer that— in the case of an employer that has 25 or fewer full-time equivalent employees who are employed in the United States, employs more than 7 H–1B nonimmigrants; in the case of an employer that has at least 26 but not more than 50 full-time equivalent employees who are employed in the United States, employs more than 12 H–1B nonimmigrants; or in the case of an employer that has at least 51 full-time equivalent employees who are employed in the United States, employs H–1B nonimmigrants in a number that is equal to at least 15 percent of the number of such full-time equivalent employees. In determining the number of employees who are H–1B nonimmigrants under subparagraph (A), an intending immigrant employee shall not count toward such number. ; and in subparagraph (B)— by amending clause
(i)to read as follows: the term exempt H–1B nonimmigrant means an H–1B nonimmigrant who— receives wages (including cash bonuses) at an annual rate equal to not less than the higher of— 105 percent of the occupational mean wage, as determined based on Bureau of Labor Statistics data for the geographic area of employment; or $100,000 (or the adjusted amount under clause (iii), if applicable); or has attained a doctoral 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 in a specialty related to the intended employment; ; in clause (ii), by striking the period at the end and inserting ; and ; and by adding at the end the following: the amount under clause (i)(I)(bb) shall be increased, for the third fiscal year beginning after the date of the enactment of this clause and for every third fiscal year thereafter, by the percentage (if any) by which the Consumer Price Index for the month of June preceding the date on which such increase takes effect exceeds the Consumer Price Index for the same month of the third preceding calendar year. .
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