Text: H.R.5658 — 111th Congress (2009-2010)All Information (Except Text)

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Introduced in House (07/01/2010)


111th CONGRESS
2d Session
H. R. 5658


To amend the Immigration and Nationality Act to increase competitiveness in the United States, and for other purposes.


IN THE HOUSE OF REPRESENTATIVES

July 1, 2010

Mr. Shadegg (for himself and Mr. Djou) introduced the following bill; which was referred to the Committee on the Judiciary


A BILL

To amend the Immigration and Nationality Act to increase competitiveness in the United States, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title; table of contents.

(a) Short title.—This Act may be cited as the “Securing Knowledge, Innovation, and Leadership Act of 2010” or the “SKIL Act of 2010”.

(b) Table of contents.—The table of contents for this Act is as follows:


Sec. 1. Short title; table of contents.

Sec. 101. H–1B visa holders.

Sec. 102. Market-based visa limits.

Sec. 201. United States educated immigrants.

Sec. 202. Immigrant visa backlog reduction.

Sec. 203. Student visa reform.

Sec. 204. L–1 visa holders subject to visa backlog.

Sec. 205. Retaining workers subject to green card backlog.

Sec. 301. Streamlining the adjudication process for established employers.

Sec. 302. Providing premium processing of employment-based visa petitions.

Sec. 303. Eliminating procedural delays in labor certification process.

Sec. 401. Completion of background and security checks.

Sec. 402. Visa revalidation.

Sec. 403. Severability.

Sec. 404. Constitutional authority.

SEC. 101. H–1B visa holders.

(a) In general.—Section 214(g)(5) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(5)) is amended—

(1) in subparagraph (B)—

(A) by striking “nonprofit research” and inserting “nonprofit”;

(B) by inserting “Federal, State, or local” before “governmental”; and

(C) by striking “or” at the end;

(2) in subparagraph (C)—

(A) by striking “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))),” and inserting “an institution of higher education in a foreign country,”; and

(B) by striking the period at the end and inserting a semicolon; and

(3) by adding at the end, the following new subparagraphs:

“(D) 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))); or

“(E) has been awarded medical specialty certification based on post-doctoral training and experience in the United States.”.

(b) Applicability.—The amendments made by subsection (a) shall apply to any petition or visa application pending on the date of enactment of this Act and any petition or visa application filed on or after such date.

SEC. 102. Market-based visa limits.

Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended—

(1) in paragraph (1)—

(A) in the matter preceding subparagraph (A), by striking “(beginning with fiscal year 1992)”; and

(B) in subparagraph (A)—

(i) in clause (vi) by striking “and”;

(ii) in clause (vii), by striking “each succeeding fiscal year; or” and inserting “each of fiscal years 2004 through 2010;”; and

(iii) by adding after clause (vii) the following:

“(viii) 115,000 in the first fiscal year beginning after the date of the enactment of the Securing Knowledge, Innovation, and Leadership Act of 2010; and

“(ix) the number calculated under paragraph (9) in each fiscal year after the fiscal year described in clause (viii); or”;

(2) in paragraph (5), as amended by section 101(a), in the matter preceding subparagraph (A), by inserting “101(a)(15)(H)(i)(b1) or section” after “under section”;

(3) in paragraph (8), by striking subparagraphs (B)(iv) and (D);

(4) by redesignating paragraphs (9), (10), and (11) as paragraphs (10), (11), and (12), respectively; and

(5) by inserting after paragraph (8) the following:

“(9) If the numerical limitation in paragraph (1)(A)—

“(A) is reached during the previous fiscal year, the numerical limitation under paragraph (1)(A)(ix) for the subsequent fiscal year shall be equal to 120 percent of the numerical limitation for the previous fiscal year; or

“(B) is not reached during the previous fiscal year, the numerical limitation under paragraph (1)(A)(ix) for the subsequent fiscal year shall be equal to the numerical limitation for the previous fiscal year.”.

SEC. 201. United States educated immigrants.

(a) In general.—Section 201(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1151(b)(1)) is amended by adding at the end the following:

“(F) Aliens who have earned a master's or higher degree from an accredited United States university.

“(G) Aliens who have been awarded medical specialty certification based on post-doctoral training and experience in the United States preceding their application for an immigrant visa under section 203(b).

“(H) Aliens who will perform labor in shortage occupations designated by the Secretary of Labor for blanket certification under section 212(a)(5)(A) as lacking sufficient United States workers able, willing, qualified, and available for such occupations and for which the employment of aliens will not adversely affect the terms and conditions of similarly employed United States workers.

“(I) Aliens who have earned a master's degree or higher in science, technology, engineering, or math and have been working in a related field in the United States in a nonimmigrant status during the 3-year period preceding their application for an immigrant visa under section 203(b).

“(J) Aliens described in subparagraph (A) or (B) of section 203(b)(1) or who have received a national interest waiver under section 203(b)(2)(B).

“(K) The spouse and minor children of an alien who is admitted as an employment-based immigrant under section 203(b).”.

(b) Labor certifications.—Section 212(a)(5)(A)(ii) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)(A)(ii)) is amended—

(1) in subclause (I), by striking “or” at the end;

(2) in subclause (II), by striking the period at the end and inserting “; or”; and

(3) by adding at the end the following:

“(III) is a member of the professions and has a master's degree or higher from an accredited United States university or has been awarded medical specialty certification based on post-doctoral training and experience in the United States.”.

SEC. 202. Immigrant visa backlog reduction.

Section 201(d) of the Immigration and Nationality Act (8 U.S.C. 1151(d)) is amended to read as follows:

“(d) Worldwide level of employment-Based immigrants.—The worldwide level of employment-based immigrants under this subsection for a fiscal year is equal to the sum of—

“(1) 290,000;

“(2) the difference between—

“(A) the maximum number of visas authorized to be issued under this subsection during the previous fiscal year; and

“(B) the number of such visas issued during the previous fiscal year; and

“(3) the difference between—

“(A) the maximum number of visas authorized to be issued under this subsection during fiscal years 2001 through 2005 and the number of visa numbers issued under this subsection during such fiscal years; and

“(B) the number of visas calculated under subparagraph (A) that were issued after fiscal year 2005.”.

SEC. 203. Student visa reform.

(a) In general.—Section 101(a)(15)(F) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(F)) is amended to read as follows:

“(F) an alien—

“(i) who—

“(I) is a bona fide student qualified to pursue a full course of study in mathematics, engineering, technology, or the sciences leading to a bachelors or graduate degree and who seeks to enter the United States for the purpose of pursuing such a course of study consistent with section 214(m) at an institution of higher education (as defined by section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))) in the United States, particularly designated by the alien and approved by the Secretary of Homeland Security, after consultation with the Secretary of Education, which institution or place of study shall have agreed to report to the Secretary of Homeland Security the termination of attendance of each nonimmigrant student, and if any such institution of learning or place of study fails to make reports promptly the approval shall be withdrawn; or

“(II) is engaged in temporary employment for optional practical training related to such alien’s area of study following completion of the course of study described in subclause (I) for a period or periods of not more than 24 months;

“(ii) who—

“(I) has a residence in a foreign country which the alien has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study, and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study consistent with section 214(m) at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program in the United States, particularly designated by the alien and approved by the Secretary of Homeland Security, after consultation with the Secretary of Education, which institution or place of study shall have agreed to report to the Secretary of Homeland Security the termination of attendance of each nonimmigrant student, and if any such institution of learning or place of study fails to make reports promptly the approval shall be withdrawn; or

“(II) is engaged in temporary employment for optional practical training related to such alien’s area of study following completion of the course of study described in subclause (I) for a period or periods of not more than 24 months;

“(iii) who is the spouse or minor child of an alien described in clause (i) or (ii) if accompanying or following to join such an alien; or

“(iv) who—

“(I) is a national of Canada or Mexico, who maintains actual residence and place of abode in the country of nationality, who is described in clause (i) or (ii) except that the alien's qualifications for and actual course of study may be full or part-time, and who commutes to the United States institution or place of study from Canada or Mexico; or

“(II) is engaged in temporary employment for optional practical training related to such alien’s area of study following completion of the course of study described in subclause (I) for a period or periods of not more than 24 months;”.

(b) Admission.—Section 214(b) of the Immigration and Nationality Act (8 U.S.C. 1184(b)) is amended by inserting “(F)(i),” before “(L) or (V)”.

(c) Conforming amendment.—Section 214(m)(1) of the Immigration and Nationality Act (8 U.S.C. 1184(m)(1)) is amended, in the matter preceding subparagraph (A), by striking “(i) or (iii)” and inserting “(i), (ii), or (iv)”.

SEC. 204. L–1 visa holders subject to visa backlog.

Section 214(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(2)) is amended by adding at the end the following new subparagraph:

“(G) The limitations contained in subparagraph (D) with respect to the duration of authorized stay shall not apply to any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(L) on whose behalf a petition under section 204(b) to accord the alien immigrant status under section 203(b), or an application for labor certification (if such certification is required for the alien to obtain status under such section 203(b)) has been filed, if 365 days or more have elapsed since such filing. The Secretary of Homeland Security shall extend the stay of an alien who qualifies for an exemption under this subparagraph until such time as a final decision is made on the alien's lawful permanent residence.”.

SEC. 205. Retaining workers subject to green card backlog.

(a) Adjustment of status.—

(1) IN GENERAL.—Section 245(a) of the Immigration and Nationality Act (8 U.S.C. 1255(a)) is amended to read as follows:

“(a) Eligibility.—

“(1) IN GENERAL.—The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification under subparagraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii) of section 204(a)(1) may be adjusted by the Secretary of Homeland Security or the Attorney General, in the discretion of the Secretary or the Attorney General under such regulations as the Secretary or Attorney General may prescribe, to that of an alien lawfully admitted for permanent residence if—

“(A) the alien makes an application for such adjustment;

“(B) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and

“(C) an immigrant visa is immediately available to the alien at the time the application is filed.

“(2) SUPPLEMENTAL FEE.—An application under paragraph (1) that is based on a petition approved or approvable under subparagraph (E) or (F) of section 204(a)(1) may be filed without regard to the limitation set forth in paragraph (1)(C) if a supplemental fee of $500 is paid by the principal alien at the time the application is filed. A supplemental fee may not be required for any dependent alien accompanying or following to join the principal alien.

“(3) VISA AVAILABILITY.—An application for adjustment filed under this paragraph may not be approved until such time as an immigrant visa become available.”.

(b) Use of fees.—Section 286(v)(1) (8 U.S.C. 1356(v)(1)) is amended by inserting before the period at the end “and the fees collected under section 245(a)(2).”.

SEC. 301. Streamlining the adjudication process for established employers.

Section 214(c) of the Immigration and Nationality Act (8. U.S.C. 1184) is amended by adding at the end the following new paragraph:

“(15) Not later than 180 days after the date of the enactment of the Securing Knowledge, Innovation, and Leadership Act of 2010, the Secretary of Homeland Security shall establish a pre-certification procedure for employers who file multiple petitions described in this subsection or section 203(b). Such precertification procedure shall enable an employer to avoid repeatedly submitting documentation that is common to multiple petitions and establish through a single filing criteria relating to the employer and the offered employment opportunity.”.

SEC. 302. Providing premium processing of employment-based visa petitions.

(a) In general.—Pursuant to section 286(u) of the Immigration and Nationality Act (8 U.S.C. 1356(u)), the Secretary of Homeland Security shall establish and collect a fee for premium processing of employment-based immigrant petitions.

(b) Appeals.—Pursuant to such section 286(u), the Secretary of Homeland Security shall establish and collect a fee for premium processing of an administrative appeal of any decision on a permanent employment-based immigrant petition.

SEC. 303. Eliminating procedural delays in labor certification process.

(a) Prevailing wage rate.—

(1) REQUIREMENT TO PROVIDE.—The Secretary of Labor shall provide prevailing wage determinations to employers seeking a labor certification for aliens pursuant to part 656 of title 20, Code of Federal Regulation (or any successor regulation). The Secretary may not delegate this function to any agency of a State.

(2) SCHEDULE FOR DETERMINATION.—Except as provided in paragraph (3), the Secretary of Labor shall provide a response to an employer's request for a prevailing wage determination in no more than 20 calendar days from the date of receipt of such request. If the Secretary fails to reply during such 20-day period, then the wage proposed by the employer shall be the valid prevailing wage rate.

(3) USE OF SURVEYS.—The Secretary of Labor shall accept an alternative wage survey provided by the employer unless the Secretary determines that the wage component of the Occupational Employment Statistics Survey is more accurate for the occupation in the labor market area.

(b) Placement of job order.—The Secretary of Labor shall maintain a Web site with links to the official Web site of each workforce agency of a State, and such official Web site shall contain instructions on the filing of a job order in order to satisfy the job order requirements of section 656.17(e)(1) of title 20, Code of Federal Regulation (or any successor regulation).

(c) Technical corrections.—The Secretary of Labor shall establish a process by which employers seeking certification under section 212(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)), as amended by section 201(b), may make technical corrections to applications in order to avoid requiring employers to conduct additional recruitment to correct an initial technical error. A technical error shall include any error that would not have a material effect on the validity of the employer’s recruitment of able, willing, and qualified United States workers.

(d) Administrative appeals.—Motions to reconsider, and administrative appeals of, a denial of a permanent labor certification application, shall be decided by the Secretary of Labor not later than 60 days after the date of the filing of such motion or such appeal.

(e) Applications under previous system.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Labor shall process and issue decisions on all applications for permanent alien labor certification that were filed prior to March 28, 2005.

(f) Effective date.—The provisions of this section shall take effect 90 days after the date of enactment of this Act, regardless of whether the Secretary of Labor has amended the regulations at part 656 of title 20, Code of Federal Regulation to implement such changes.

SEC. 401. Completion of background and security checks.

Section 103 of the Immigration and Nationality Act (8 U.S.C. 1103) is amended by adding at the end the following new subsection:

“(i) Requirement for background checks.—Notwithstanding any other provision of law, until appropriate background and security checks, as determined by the Secretary of Homeland Security, have been completed, and the information provided to and assessed by the official with jurisdiction to grant or issue the benefit or documentation, on an in-camera basis as may be necessary with respect to classified, law enforcement, or other information that cannot be disclosed publicly, the Secretary of Homeland Security, the Attorney General, or any court may not—

“(1) grant or order the grant of adjustment of status of an alien to that of an alien lawfully admitted for permanent residence;

“(2) grant or order the grant of any other status, relief, protection from removal, or other benefit under the immigration laws; or

“(3) issue any documentation evidencing or related to such grant by the Secretary, the Attorney General, or any court.

“(j) Requirement To resolve fraud allegations.—Notwithstanding any other provision of law, until any suspected or alleged fraud relating to the granting of any status (including the granting of adjustment of status), relief, protection from removal, or other benefit under this Act has been investigated and resolved, the Secretary of Homeland Security and the Attorney General may not be required to—

“(1) grant or order the grant of adjustment of status of an alien to that of an alien lawfully admitted for permanent residence;

“(2) grant or order the grant of any other status, relief, protection from removal, or other benefit under the immigration laws; or

“(3) issue any documentation evidencing or related to such grant by the Secretary, the Attorney General, or any court.

“(k) Prohibition of judicial enforcement.—Notwithstanding any other provision of law, no court may require any act described in subsection (i) or (j) to be completed by a certain time or award any relief for the failure to complete such acts.”.

SEC. 402. Visa revalidation.

(a) In general.—Section 222 of the Immigration and Nationality Act (8 U.S.C. 1202) is amended by adding at the end the following:

“(i) Visa revalidation.—The Secretary of State shall permit an alien granted a nonimmigrant visa under subparagraph (E), (H), (I), (L), (O), or (P) of section 101(a)(15) to apply for a renewal of such visa within the United States if—

“(1) such visa expired during the 12-month period ending on the date of such application;

“(2) the alien is seeking a nonimmigrant visa under the same subparagraph under which the alien had previously received a visa; and

“(3) the alien has complied with the immigration laws and regulations of the United States.”.

(b) Conforming amendment.—Section 222(h) of such Act is amended, in the matter preceding subparagraph (1), by inserting “and except as provided under subsection (i),” after “Act”.

SEC. 403. Severability.

If any provision of this Act, any amendment by this Act, or the application of such provision or amendment to any person or circumstance is held to be invalid for any reason, the remainder of this Act, the amendments made by this Act, and the applications of such to any other person or circumstance shall not be affected by such holding.

SEC. 404. Constitutional authority.

The constitutional authority on which this Act rests is the power of Congress to establish a uniform rule of naturalization and authority to provide for the general welfare of the United States as enumerated in article I, section 8 of the United States Constitution.