Siskind Summary – Immigration Innovation Act of 2018 (“I-Squared”)

By Greg Siskind

Title I – Employment-Based Nonimmigrant Visas

Section 101. Market-Based H-1B Visa Limits

The H-1B cap shall be calculated first determining a base number using the number allocated in the prior fiscal year plus the allocation adjustment from the prior year as long as that number is between 85,000 and 195,000.

If the number of cap-subject H-1Bs filed in the first 45 days of the filing period for the upcoming fiscal year exceeds the base allocation for the year, an additional 30,000 such visa shall be made available beginning on the first day of the fiscal year.

If the number of cap-subject H-1Bs filed between day 46 and September 30th (the last day of the prior fiscal year) exceeds the base allocation for the year, an additional 20,000 such visa shall be made available beginning on the first day of the fiscal year.

If the number of cap-subject H-1Bs filed exceeds the base allocation for the year and that number is reached in the first 60 days of the fiscal year (beginning October 1st), an additional 10,000 such visa shall be made available beginning on December 1st of the fiscal year.

If the number of cap-subject H-1Bs filed exceeds the base allocation for the year and that number is reached between the 61st and 120th day of the fiscal year , an additional 5,000 such visa shall be made available beginning on February 1st of the fiscal year.

If the number of cap-subject H-1Bs allocated in a fiscal year is at least 5,000 fewer than the base allocation, but not more than 9,999 fewer, the allocation of such visas for the following fiscal year is reduced by 5,000.

If the number of cap-subject H-1Bs allocated in a fiscal year is at least 10,000 fewer than the base allocation, but not more than 19,999 fewer, the allocation of such visas for the following fiscal year is reduced by 10,000.

If the number of cap-subject H-1Bs allocated in a fiscal year is at least 20,000 fewer than the base allocation, but not more than 29,999 fewer, the allocation of such visas for the following fiscal year is reduced by 20,000.

If the number of cap-subject H-1Bs allocated in a fiscal year is at least 30,000 fewer than the base allocation, the allocation of such visas for the following fiscal year is reduced by 30,000.

If the base allocation is used up within the 1st 180 days of a fiscal year, DHS shall announce the base allocation number for the following fiscal year on or before April 1st for the upcoming fiscal year (when applications for the upcoming fiscal year normally begin to be accepted).

If the base allocation is used up after the 1st 180 days of a fiscal year, DHS shall announce the base allocation number for the following fiscal year on or before the first day of the upcoming fiscal year (October 1st).

Advanced degree holders graduating from US graduate institutions (as defined by the Higher Education Act of 1965) are still eligible for a 20,000 set aside for this population). Note that this still does not include physicians pursuing graduate medical education in the US. Individuals in this category are exempt from the H-1B cap if the employer starts or attests an intention to start permanent residency processing. In these cases, approvals are granted in one-year increments and the first extension is possible only if a PERM or immigrant visa petition is actually filed and not yet denied.

If there are more petitions received in the first five days of the initial filing period than available H-1B slots, applications will be considered based on the following prioritization:

Petitions for people who have earned a master’s or higher degree from a US institution (as defined in Higher Education Act of 1965) – physicians in GME programs are not included in this definition.
Petitions for people who have earned the equivalent of a US doctoral degree from a foreign institution – physicians in GME programs are not included in this definition.
STEM degree holders from US institutions. The STEM definition is based on a list published by DHS on the SEVIS website. Physicians excluded. https://www.ice.gov/sites/default/files/documents/Document/2016/stem-list.pdf
All other qualified petitioners.

Employers who have more than five H-1B cap-subject petitions approved in a year are subject to financial penalties if workers spend less than 25% of the year working in the US. Exceptions are made if there is an unexpected change in the need for the worker, because the workers starts work in another lawful status or because the worker quits or resigns. Withdrawn petitions will be reassigned to other employers.

Employers may not hire an H-1B to replace a US worker.

Section 102. Employment Authorization for Dependents of H-1Bs.

If an H-1B has a pending green card application, the H-4 spouse may apply for work authorization. Employers must pay the higher of the prevailing wage or actual wage to the H-4.

Section 103. Eliminating Impediments to Worker Mobility.

Amended H-1Bs not required if a petitioner is involved in a corporate restructuring, a new employer succeeds to the interests of the original petitioning employer and the terms of employment remain the same, or the worker begins working at a new place of employment for which the petitioner has secured a valid, certified LCA before the worker began working at such place of employment.

In extension cases, USCIS will defer to prior determinations in H-1B and L-1 petitions unless their have been material changes, a substantial change in circumstances, or new material information has been discovered.

Terminated H-1B workers will be entitled to a 60-day grace period.

Section 104. Definitions.

“Intending Immigrant”

“Covered Employer”

“Immigrant Status Petition”

“Labor Certification”

“STEM”

 

H-1B Dependent Employers

Employers with more than 50 employees of whom more than 50% are on H-1Bs, shall always be subject to advertising and attestation requirements applicable to dependent employers.

Exempt H-1Bs include those receiving 105% of the occupational mean wage or $100,000 or has a doctoral degree from a US institution. The $100,000 exemption shall rise based on changes in the Consumer Price Index.

Section 105. Strengthening the Prevailing Wage System.

For prevailing wage determinations, the first level of wages shall not be less than the lowest 50% of the wages surveyed. Employers may use independent wage surveys if

The survey was published within last two years;
The survey hasn’t been duplicated since its initial publication;
The data was collected during the 2-year period ending on the date on which the survey was published;
The survey reflects the area of intended employment;
The employer’s job description adequately matches the job description in the survey;
The survey is across industries that employ workers in the occupation;
The wage is based on the arithmetic mean (weighted average); and
The survey identifies a statistically valid methodology that was used to collect the data.

Section 106. Schedule a Study.

Within a year, DOL will submit a study to Congress on occupations listed in Schedule A.

 

TITLE II – EMPLOYMENT-BASED IMMIGRANT VISAS

Section 201. Elimination of Per-Country Numerical Limitations.

For family petitions, the number of immigrant visas made available to nationals of a single country may not exceed 15% of the total number of such visas made available in that fiscal year. Limits eliminated for employment-based categories.

Section 202. Ensuring the Issuance of All Preference Employment-Based Immigrant Visas.

Calls for unused employment-based green cards from FY 1992 to FY 2013 to be added to employment-based green cards available beginning in FY 2018.

Allows for employment-based adjustments to be filed as long as not all green cards issued for the fiscal year.

Section 203. Aliens Not Subject to Direct Numerical Limitation.

Spouses and children not subject to employment-based quotas. Aliens who have received a STEM masters or doctoral degree from a US institution. EB-1 outstanding researchers/professors and EB-1 extraordinary ability cases not subject to quotas. Doctors left out.

Reallocation of EB caps – EB-1 (intracompany transfers decreases to 12% while EB-2 and EB-3 rise to 36.9% from 28.6% and EB-3

Section 204. Increased Portability.

Removes the 180-day requirement from adjustment portability cases.

Section 205. Adjustment of Status for Employment-Based Immigrants.

Adjustments can be filed based on approved I-140 regardless of whether a green card is immediately available. A $500 supplemental fee will accompany such applications.

Section 206. Employment-Based Conditional Immigrants.

Creates a system to grant up to 35,000 conditional green cards a year to people in backlogs and the conditions may be removed when unconditional green cards become available under the quotas.

 

TITLE III – Student Visas

Section 301. Authorization of Dual Intent.

Makes F-1 students dual intent.

 

TITLE IV – STEM EDUCATION AND WORKER TRAINING

Section 401. Funding for STEM Education and Worker Training.

Increases worker retraining fees from $750 and $1500 to $2000 and $4000.

The $2000/$4000 fee increases as the cap is expanded and can rise to as high as $8000.

Section 402. Promoting American Ingenuity Account.

New fund designed to promote STEM education.

Section 403. National Evaluation.

Calls on the Department of Education to report on the new Promoting American Ingenuity Account.

Section 404. Rule of Construction.

 

TITLE V – REFORMS AFFECTING IMMIGRANT AND NONIMMIGRANT VISAS

Section 501. Streamlining Petitions for Established Employers and Other Requirements.

DHS shall establish a pre-certification procedure for employers who file multiple petitions to enable employers to avoid repeatedly submitting documentation common to multiple petitions. Effective date 180 days after enactment.

Greg Siskind

Greg Siskind

Greg Siskind is a partner with Siskind Susser, PC - Immigration Lawyers. After graduating from Vanderbilt University, he received his law degree at the University of Chicago. He created the first immigration law web site in 1994 and the first law blog in 1997. He's written four books and currently serves on the board of governors of the American Immigration Lawyers Association. He can be reached by email at gsiskind@visalaw.com.
Greg Siskind
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