Summary of Immigration Innovation Act of 2018, or I-Squared

January 29th, 2018

On January 25, 2018, Senators Orrin Hatch (R-UT) and Jeff Flake (R-AZ) introduced S. 2344, the Immigration Innovation Act of 2018, or I-Squared. It will increase H-1B statutory cap, provide for employment authorization for H-4 spouses and children, ease H-1B worker mobility, allow for greater immigrant visa number availability (thereby shortening the green card process for many), provide for greater mobility during the green card process, create conditional legal permanent residency for certain high-skilled workers and grant dual intent for F-1 students so that they may travel abroad while the green card process is pending.

The following is a summary of key points of S.2344.

H-1B Visas

  • Increases H-1B visa numbers
    • Raises H-1B visa numbers (cap) from 65,000 to 85,000;
    • Creates a market-based escalator up to 195,000;
    • Provides that individuals who earn a US master’s degree or higher (regardless of the field) are exempt from the cap if the green card process is initiated within one year of beginning H-1B status (employee would obtain a one-year approval initially and then move to three-year increments);
    • Provides an additional 20,000 visa numbers for individuals who earn a US master’s degree or higher and who are not exempt based on the initiation of the green card process within one year;
    • Allows for additional H-1B numbers within any fiscal year, up to 195,000, as follows:
      • Cap met by May 15 – 30,000 added, available 10/1;
      • Cap met by September 30 – 20,000 added, available 10/2;
      • Cap met by November 29 – 10,000 added, available 12/1; and
      • Cap met by January 28 – 5,000 added, available 2/1.
  • Prioritization of H-1B cap petitions
    • If the H-1B cap is met within the first five business days of April 1st, the cap subject petitions will be selected as follows:
      • Beneficiaries with a US master’s or higher who are not counted against the 20,000 master’s pool (and not being sponsored for a green card within the first year of H-1B status);
      • Beneficiaries with a foreign doctorate that is equivalent to a US doctorate;
      • Beneficiaries with a bachelor’s degree in a STEM field; and
      • Remaining cap-subject petitions.
  • Raises H-1B filing fees
    • Raises the current ACWIA fee from $1,500 to $4,000 for companies with 25 or more employees;
    • Raises the $750 ACWIA fee to $2,000 for companies with fewer than 25 employees; and
    • Increases H-1B fees up to $8,000 depending on the size of the employer, extent to which the H-1B cap increases and when, if at all.
  • Grace period:  Creates a 60-day grace period for H-1B workers whose employment terminated so that they may change H-1B employers (already available in the regulations).
  • Deference for extensions:  Requires deference for H-1B extension petitions if there is no material change in eligibility or there was no substantial error in the prior approval.
  • Employment authorization for H-4 spouses:  Authorizes H-4 spouses of H-1B visa holders to obtain employment authorization if the H-1B spouse has a pending or approved/certified PERM labor certification application or I-140 immigrant visa petition.  The employer must pay the higher of the actual or prevailing wage.
  • Visa Revalidation in the US:  Allows certain foreign workers to revalidate their work visas in the US
  • Prohibition on replacing US workers:  Prohibits hiring an H-1B worker with the purpose and intent to replace an American worker.
  • Prohibition on training of H-1B replacements: Prohibits conditioning an employee’s pay or severance on training an H-1B replacement.
  • Raises the level one prevailing wage requirement:  The level one (entry level) wage requirement shall not be less than the mean of the lowest 50 percent of the wages surveyed.
  • Change in worksite location:  Allows for a change in job location without a new H-1B petition where:  (1) the petitioning employer is involved in a corporate restructuring (including a merger, a acquisition or consolidation); a new corporate entity succeeds to the interest and obligations of the original H-1B employer and the terms and conditions remain the same except for the identity of the petitioner; or the employer has a certified Labor Condition Application (LCA, ETA 9035) for the new work location before the nonimmigrant began working at such place of employment.
  • Exemptions for H-1B dependent employers:
    • When calculating whether an employer is H-1B dependent, and thereby subject to the additional recruitment and non-displacement requirements, the following are excluded:
      • Individuals who earn a US master’s degree or higher (regardless of the field) are exempt from the cap if the green card process is initiated within one year of beginning H-1B status (employee would obtain a one-year approval initially and then move to three-year increments);
      • 20,000 visa numbers for individuals who earn a US master’s degree or higher and who are not exempt based on the initiation of the green card process within one year;
      • H-1Bs and L-1Bs who are in the green card process are excluded from the calculation.  The employer must file Form I-140 immigrant visa petition for at least 90 percent of the workers who are the beneficiaries of certified PERM labor certification application cases; and
      • Those being offered an annual wage that is higher than either 105 percent of the mean wage or $100,000, or who have earned a PhD;
    • Eliminates H-1B dependent exemption for a company that has more than 50 employees with more than 50 percent in H-1B status.
  • Penalties for short duration of H-1B employment and withdrawals:
    • Imposes penalties on employers that obtain more than five H-1B cap-subject petition approvals where the H-1B worker does not spend at least 25 percent of his or her time in the US, unless the employer withdraws the petition because of unexpected circumstances; the employee enters the US in another visa status; or the alien worker quits or resigns.
    •  The employer must pay a fine if it obtained between 20 and 49 H-1B cap petition approvals, withdraws more than 25 percent of these petitions or withdraws more than 10 percent of such petitions because the foreign worker resigned before completing three months of employment.
    • The employer must pay a fine if it obtains more than 50 H-1B cap petition approvals, withdraws more than 20 percent of these petitions or withdraws more than five percent of such petitions because the foreign worker resigned before completing three months of employment.
    • The penalty for violating the above rules is $10,000 for each petition in the first fiscal year and $25,000 for each such petition after the first year of noncompliance.
    • If the employer violates this provision in three consecutive years then it is barred from filing H-1B petitions in the fourth year.
  • Reporting requirements: Each employer that has five or more approved H-1B cap petitions must submit an annual report to the DHS that notes the date on which each H-B worker approved during the most recent fiscal year started working for the employer in the US and the total period of employment for such worker during the first year.

Increased Portability for Applicants to Adjust Status (I-485)

  • Allows the beneficiary of a certified PERM labor certification application or approved Form I-140 immigrant to change jobs (including with a different employer) in the same or similar occupation of the original PERM or I-140 immigrant visa petition without losing his or her place in line for the green card (no 180-day wait as under current I-485 portability); and Allows the beneficiary of a certified PERM labor certification application or approved Form I-140 immigrant to change jobs (including with a different employer) in the same or similar occupation of the original PERM or I-140 immigrant visa petition without losing his or her place in line for the green card (no 180-day wait as under current I-485 portability); and
  • Allows a  foreign worker to file to adjust status to legal permanent residency (I-485) status regardless of whether an immigrant visa number is available ($500 fee).

Employment-Based Immigrant Visa Availability

  • Eliminates from the numerical limitation on employment-based visas:
    • The spouse and children of any employment-based immigration;The spouse and children of any employment-based immigration;
    • Aliens who have earned a master’s or higher degree in a STEM (science, technology, engineering, math) field;
    • Aliens who have an approved EB-1A immigrant visa petition (Extraordinary Ability EB-1A, Outstanding Researcher and Professor (EB-1B);
  • Eliminates per country quotas; and   Eliminates per country quotas; and
  • Recaptures unused immigrant visas from the prior year.

Employment-Based Conditional Legal Permanent Residency

  • Allows for up to 35,000 visas per year;Allows for up to 35,000 visas per year;
  • The alien must have earned a university degree and received an offer of employment from a US employer that has complied with all of the requirements of the I-140 immigrant visa petition;
  • The alien must receive an annual wage of at least $100,000 (including cash bonuses), which may be adjusted per the Consumer Price Index;
  • The alien may legal permanent residency in the US and not seek an immigrant visa abroad;
  • The employer must file a petition with USCIS attesting that the alien will not be paid less than similarly situated US workers, no US worker has been or will be displaced by the alien, the employer has completed at least three types of recruitment for a position requiring at least a bachelor’s degree and the employer is enrolled in E-Verify;
  • The employer may not be an H-1B dependent employer or debarred from any immigration program;
  • Requires an annual review of conditional permanent residents that mandates from the alien evidence of: (1) ongoing employment in the occupation the alien was originally granted a conditional employment-based visa; (2) payment of taxes; (3) at the first annual review, evidence of PERM labor certification application (or I-140 immigrant visa petition filed; at the second annual review evidence of a filed I-140 immigrant visa petition, unless the PERM labor certification application prevents it; (4) at the third and subsequent annual reviews, an approval of an I-140 immigrant visa petition;
  • An alien receiving conditional permanent resident status may change employers without affecting his or her status if the new employer complies with the immigrant visa petition rules.
  • Fees: $10,000 if the new employer hires the alien during the one-year period beginning on the date on which the alien obtains conditional permanent resident status; $5,000 if the new employer hires the alien during the one-year period beginning at the end of the first year of conditional residency status; $2,500 if the new employer hires the alien during the one-year period beginning at the end of the subsequent year; and $0 if the new employer hires the alien after the end of the subsequent year.
  • Termination of conditional permanent residency: Conditional permanent residency terminates if the alien fails to submit evidence at each annual review, has been unemployed or not employment in the requisite occupation for a cumulative total of 180 days while holding conditional residency, or does not seek the removal of conditions within one year of an immigrant visa number becoming available; or the employer fails to comply with the immigrant visa requirements.
  • Removal of conditions: Conditions may be removed on or after the date on which an immigrant visa numbers would be available.

F-1 Students and Dual Intent

  • Permits “dual intent,” which allows a nonimmigrant to have immigrant intent, for F-1 foreign students in Optional Practical Training (OPT) status so that the F-1 student may travel in and out of the US while a green card process (immigrant visa process) is pending.

Please contact my office with any questions about your H-1B or green card case.