Bipartisan I-Squared Act Introduced

23 January 2015

o-1 visa

Legal Highlights:

Full Text: On January 13, 2015, Senators Hatch (R-Utah), Klobuchar (D-Minn.), Rubio (R-Fla.), Coons (D-Del.), Flake (R-Ariz.), and Blumenthal (D-Conn.) introduced the Immigration Innovation (“I-Squared”) Act of 2015, a major immigration reform bill addressing the high-skilled and science, technology, engineering, and math (STEM) immigration programs. Similar to the I-Squared Act of 2013 (S.169) and the high-skilled provisions of the comprehensive immigration reform bill passed by the Senate in 2013 (S.744), the bill raises the allocations for H-1B skilled worker visas and employment-based green cards while forging a middle ground between the more restrictive skilled worker provisions in the 2013 Senate bill and the much higher caps in the 2013 I-Squared Act.

The Act raises the annual cap on the H-1B temporary skilled worker visa, which is a nonimmigrant visa available for foreign professionals who have at least a bachelor’s degree in a specialty occupation. The number of H-1B visas available each year is currently capped at 65,000, with an extra 20,000 allocated for holders of U.S. graduate degrees. The Act would raise the annual cap to a minimum of 115,000, and would allow the cap to rise to a maximum of 195,000, based on market demand. There would be no cap on H-1B visas for foreign professionals with advanced degrees from U.S. universities, and spouses of H-1B visa holders would be allowed to work, which is not currently the case. H-1B workers who were discharged from their employment would be given an official 60-day grace period during which they could change status or obtain a new H-1B visa with a new employer. Renewals of previously approved H-1B and L-1 visas could not be denied without a formal finding of material change or error.

The Act would also effectively raise the annual allotment for immigrant visas (or “green cards”) by exempting certain immigrant visa categories from the cap and by ensuring all the visa numbers are used. Spouses and children of employment-based immigrants would not be counted towards the annual cap; only the principal employment-based immigrant would be counted. (This is how H-1B visas and other non-immigrant visas are counted.) In addition, foreign nationals of extraordinary ability, outstanding professors and scientists, executives and managers of multinational companies, and graduates of U.S. universities with advanced degrees in STEM fields would also be cap-exempt. Employment-based visas unused during the fiscal year would be recouped for use in future years, instead of being lost. In addition, the caps on employment-based visas from each individual country, which currently stand at 7 percent of the total cap, would be eliminated. The per-country caps for family-based immigrant visas would be raised from 7 percent to 15 percent.

Other miscellaneous provisions include the extension of “dual intent,” which refers to the simultaneous intent to stay in the United States temporarily and the intent to eventually stay permanently, to student F-1 visas. Visa fees would also be increased and go to a new fund that would be used to strengthen STEM education in the United States. States could apply for grants from this fund to improve STEM education and STEM worker training.

The I-Squared Act would allow U.S. employers to hire more of the skilled foreign professionals they need and would give those employees more job security and flexibility. Every year U.S. employers file more than twice as many H-1B visa petitions than are allowed, and every year the cap is reached in a matter of days. The excess demand will continue to grow as the economy improves. This bill would increase the H-1B cap and permit it to adjust to demand, allowing employers to hire skilled employees when needed, rather than filing applications in anticipation of later hiring needs when the cap opens, which risks wasting recruitment efforts and filing fees if applications are rejected due to insufficient visa availability. Employers would also be less likely to have their previously-approved H and L visas denied without justification.

By increasing the availability of green cards for foreign workers, the bill would allow employers to hire and retain more highly-qualified foreign nationals for the long term, in particular those with advanced STEM degrees from U.S. universities or other outstanding credentials. Currently, due to worldwide annual caps and country-based caps, backlogs for certain green card categories are many-years long, in particular for Chinese and Indian nationals. This bill would alleviate those backlogs, allowing employers to hire and retain these highly-qualified professionals, while giving these employees more job security and allowing them to change jobs more easily. High-tech employers of STEM workers would also benefit from increased funding for STEM education in the United States.

Source: JD Supra

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