II 

112TH CONGRESS 

1ST SESSION S. 1986 

To amend the Immigration and Nationality Act to promote innovation, 

investment, and research in the United States, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 13, 2011 

Mr. BENNET introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

A BILL 

To amend the Immigration and Nationality Act to promote 

innovation, investment, and research in the United 

States, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLES. 

4 This Act may be cited as— 

5 (1) the ‘‘Science, Technology, Engineering, and 

6 Mathematics Visa Act of 2011’’; or 

7 (2) the ‘‘STEM Visa Act of 2011’’. 


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1 TITLE I—ATTRACTING AND RE2 TAINING INNOVATORS AND 

3 JOB CREATORS 

4 SEC. 101. U.S. GRADUATES IN SCIENCE, TECHNOLOGY, EN5 GINEERING, AND MATHEMATICS. 

6 (a) ADVANCED STEM GRADUATES.—Section 

7 203(b)(1) of the Immigration and Nationality Act (8 

8 U.S.C. 1153(b)(1)) is amended— 

9 (1) in the matter preceding subparagraph (A), 

10 by striking ‘‘(A) through (C)’’ and inserting ‘‘(A) 

11 through (D)’’; and 

12 (2) by adding at the end the following: 

13 ‘‘(D) ADVANCED GRADUATES IN SCIENCE, 

14 TECHNOLOGY, ENGINEERING AND MATHE15 MATICS.—An alien is described in this subpara16 graph if— 

17 ‘‘(i) the alien possesses a graduate de18 gree at the level of master’s or higher in 

19 a field of science, technology, engineering, 

20 or mathematics from a United States insti21 tution of higher education that has been 

22 designated by the Director of the National 

23 Science Foundation as a research institu24 tion or as otherwise excelling at instruction 

25 in such fields; 


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1 ‘‘(ii) the alien has an offer of employ2 ment from a United States employer in a 

3 field related to such degree; and 

4 ‘‘(iii) the employer is offering and will 

5 offer wages that are at least— 

6 ‘‘(I) the actual wage level paid by 

7 the employer to all other individuals 

8 with similar experience and qualifica9 tions in the same occupational classi10 fication; or 

11 ‘‘(II) the prevailing wage level for 

12 the occupational classification in the 

13 area of employment; 

14 whichever is greater, based on the best in15 formation available as of the time of filing 

16 the petition.’’. 

17 (b) CAP EXEMPTION.—Section 201(b)(1) of the Im18 migration and Nationality Act (8 U.S.C. 1151(b)(1)) is 

19 amended by adding at the end the following: 

20 ‘‘(F) Aliens described in paragraph (1)(B) or 

21 (1)(D) of section 203(b).’’. 

22 (c) REMOVING VISA HURDLES FOR STUDENTS.— 

23 (1) PROVIDING DUAL INTENT.— 

24 (A) IN GENERAL.—Section 

25 101(a)(15)(F)(i) of the Immigration and NaVerDate Mar 15 2010 20:33 Dec 21, 2011 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1986.IS S1986

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1 tionality Act (8 U.S.C. 1101(a)(15)(F)(i)) is 

2 amended by striking ‘‘an alien having a resi3 dence in a foreign country which he has no in4 tention of abandoning, who is a bona fide stu5 dent qualified to pursue a full course of study 

6 and who’’ and inserting ‘‘an alien who is a bona 

7 fide student qualified to pursue a full course of 

8 study, who (except for a student qualified to 

9 pursue a full course of study at an institution 

10 of higher education) has a residence in a for11 eign country which the alien has no intention of 

12 abandoning, and who’’. 

13 (B) CONFORMING AMENDMENTS.— 

14 (i) Section 214(b) of the Immigration 

15 and Nationality Act (8 U.S.C. 1184(b)) is 

16 amended by striking ‘‘(other than a non17 immigrant’’ and inserting ‘‘(other than a 

18 nonimmigrant described in section 

19 101(a)(15)(F) if the alien is qualified to 

20 pursue a full course of study at an institu21 tion of higher education, other than a non22 immigrant’’. 

23 (ii) Section 214(h) of the Immigration 

24 and Nationality Act (8 U.S.C. 1184(h)) is 

25 amended by inserting ‘‘(F) (if the alien is 


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1 qualified to pursue a full course of study at 

2 an institution of higher education),’’ before 

3 ‘‘H(i)(b)’’. 

4 (2) EXTENSIONS IN CASES OF LENGTHY ADJU5 DICATIONS.— 

6 (A) IN GENERAL.—Section 214 of the Im7 migration and Nationality Act (8 U.S.C. 1154) 

8 is amended by adding at the end the following: 

9 ‘‘(s) EXTENSIONS IN CASES OF LENGTHY ADJUDICA10 TIONS.— 

11 ‘‘(1) EXEMPTION FROM LIMITATIONS.—Not12 withstanding subsection (c)(2)(D), (g)(4) and (m), 

13 the authorized stay of an alien described in para14 graph (2) may be extended pursuant to paragraph 

15 (3) if 365 days or more have elapsed since the filing 

16 of any of the following: 

17 ‘‘(A) An application for labor certification 

18 under section 212(a)(5)(A), in a case in which 

19 certification is required or used by an alien to 

20 obtain status under section 203(b). 

21 ‘‘(B) A petition described in section 204(b) 

22 to accord the alien a status under section 

23 203(b). 

24 ‘‘(2) ALIENS DESCRIBED.—An alien is de25 scribed in this paragraph if the alien was previously 


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1 issued a visa or otherwise provided nonimmigrant 

2 status under— 

3 ‘‘(A) section 101(a)(15)(F); 

4 ‘‘(B) section 101(a)(15)(H)(i)(b); or 

5 ‘‘(C) section 101(a)(15)(L). 

6 ‘‘(3) EXTENSION OF STATUS.—The Secretary 

7 of Homeland Security shall extend the stay of an 

8 alien who qualifies for an extension under paragraph 

9 (1) in one-year increments until such time as a final 

10 decision is made— 

11 ‘‘(A) to deny the application described in 

12 paragraph (1)(A), or, in a case in which such 

13 application is granted, to deny a petition de14 scribed in paragraph (1)(B) filed on behalf of 

15 the alien pursuant to such grant; 

16 ‘‘(B) to deny the petition described in 

17 paragraph (1)(B); or 

18 ‘‘(C) to grant or deny the alien’s applica19 tion for an immigrant visa or adjustment of 

20 status to that of an alien lawfully admitted for 

21 permanent residence. 

22 Work authorization shall be provided to an alien 

23 whose stay is extended under this paragraph.’’. 

24 (B) CONFORMING AMENDMENT.—Section 

25 106 of the American Competitiveness in the 


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1 21st Century Act is amended by striking sub2 sections (a) and (b). 

3 (3) DEFINITIONS.—Section 101(a) of the Immi4 gration and Nationality Act (8 U.S.C. 1101(a)) is 

5 amended by adding at the end the following: 

6 ‘‘(52) The term ‘institution of higher education’ 

7 has the meaning given such term in section 101(a) 

8 of the Higher Education Act of 1965 (20 U.S.C. 

9 1001(a)). 

10 ‘‘(53) The term ‘employer’ shall include any 

11 group treated as a single employer under subsection 

12 (b), (c), (m), or (o) of section 414 of the Internal 

13 Revenue Code of 1986.’’. 

14 (d) CONFORMING AMENDMENTS.—Section 

15 204(a)(1)(F) of the Immigration and Nationality Act (8 

16 U.S.C. 1154(a)(1)(F)) is amended— 

17 (1) by inserting ‘‘203(b)(1)(D),’’ after 

18 ‘‘203(b)(1)(C),’’; and 

19 (2) by striking ‘‘Attorney General’’ and insert20 ing ‘‘Secretary of Homeland Security’’. 

21 SEC. 102. ELIMINATING GREEN CARD BACKLOGS. 

22 (a) RECAPTURING IMMIGRANT VISAS LOST TO BU23 REAUCRATIC DELAY.— 


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1 (1) EMPLOYMENT-BASED IMMIGRANTS.—Sec2 tion 201(d) of the Immigration and Nationality Act 

3 (8 U.S.C. 1151(d)) is amended to read as follows: 

4 ‘‘(d) WORLDWIDE LEVEL OF EMPLOYMENT-BASED

5 IMMIGRANTS.— 

6 ‘‘(1) IN GENERAL.—The worldwide level of em7 ployment-based immigrants under this subsection for 

8 a fiscal year is equal to the sum of— 

9 ‘‘(A) 140,000; 

10 ‘‘(B) the number computed under para11 graph (2); and 

12 ‘‘(C) the number computed under para13 graph (3). 

14 ‘‘(2) PREVIOUS FISCAL YEAR.—The number 

15 computed under this paragraph for a fiscal year is 

16 the difference, if any, between the maximum number 

17 of visas which may be issued under section 203(a) 

18 (relating to family-sponsored immigrants) during the 

19 previous fiscal year and the number of visas issued 

20 under that section during that year. 

21 ‘‘(3) UNUSED VISAS.—The number computed 

22 under this paragraph is the difference, if any, be23 tween— 

24 ‘‘(A) the difference, if any, between— 


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1 ‘‘(i) the sum of the worldwide levels 

2 established under paragraph (1) for fiscal 

3 years 1992 through 2011; and 

4 ‘‘(ii) the number of visas actually 

5 issued under section 203(b), subject to this 

6 subsection, during such fiscal years; and 

7 ‘‘(B) the number of visas actually issued 

8 after fiscal year 2011 pursuant to an immi9 grant visa number issued under section 203(b), 

10 subject to this subsection, during fiscal years 

11 1992 through 2011.’’. 

12 (2) FAMILY-SPONSORED IMMIGRANTS.—Section 

13 201(c) of the Immigration and Nationality Act (8 

14 U.S.C. 1151(c)) is amended to read as follows: 

15 ‘‘(c) WORLDWIDE LEVEL OF FAMILY-SPONSORED

16 IMMIGRANTS.— 

17 ‘‘(1) IN GENERAL.— 

18 ‘‘(A) Subject to subparagraph (B), the 

19 worldwide level of family-sponsored immigrants 

20 under this subsection for a fiscal year is equal 

21 to— 

22 ‘‘(i) 480,000 minus the number com23 puted under paragraph (2); plus 


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1 ‘‘(ii) the sum of the number computed 

2 under paragraph (3) and the number com3 puted under paragraph (4). 

4 ‘‘(B) In no case shall the number com5 puted under subparagraph (A)(i) be less than 

6 226,000. 

7 ‘‘(2) IMMEDIATE RELATIVES.—The number 

8 computed under this paragraph for a fiscal year is 

9 the number of aliens described in subparagraph (A) 

10 or (B) of subsection (b)(2) who were issued immi11 grant visas, or who otherwise acquired the status of 

12 an alien lawfully admitted to the United States for 

13 permanent residence, in the previous fiscal year. 

14 ‘‘(3) PREVIOUS FISCAL YEAR.—The number 

15 computed under this paragraph for a fiscal year is 

16 the difference, if any, between the maximum number 

17 of visas which may be issued under section 203(b) 

18 (relating to employment-based immigrants) during 

19 the previous fiscal year and the number of visas 

20 issued under that section during that year. 

21 ‘‘(4) UNUSED VISAS.—The number computed 

22 under this paragraph is the difference, if any, be23 tween— 

24 ‘‘(A) the difference, if any, between— 


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1 ‘‘(i) the sum of the worldwide levels 

2 established under paragraph (1) for fiscal 

3 years 1992 through 2011; and 

4 ‘‘(ii) the number of visas actually 

5 issued under section 203(a), subject to this 

6 subsection, during such fiscal years; and 

7 ‘‘(B) the number of visas actually issued 

8 after fiscal year 2011 pursuant to an immi9 grant visa number issued under section 203(a), 

10 subject to this subsection, during fiscal years 

11 1992 through 2011.’’. 

12 (b) SPOUSES AND MINOR CHILDREN.—Section 

13 201(b)(1) of the Immigration and Nationality Act (8 

14 U.S.C. 1151(b)(1)), as amended by this Act, is further 

15 amended by adding at the end the following: 

16 ‘‘(G) Aliens who are the spouse or child of 

17 an alien admitted as an employment-based im18 migrant under section 203(b).’’. 

19 (c) ELIMINATING EMPLOYMENT-BASED PER COUN20 TRY LEVELS.—Section 202(a) of the Immigration and 

21 Nationality Act (8 U.S.C. 1152(a)) is amended— 

22 (1) in paragraph (2)— 

23 (A) by striking ‘‘, (4), and (5)’’ and insert24 ing ‘‘and (4)’’; 


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1 (B) by striking ‘‘subsections (a) and (b) of 

2 section 203’’ and inserting ‘‘section 203(a)’’; 

3 (C) by striking ‘‘7 percent (in the case of 

4 a single foreign state) or 2 percent’’ and insert5 ing ‘‘10 percent (in the case of a single foreign 

6 state) or 5 percent’’; and 

7 (D) by striking ‘‘such subsections’’ and in8 serting ‘‘such section’’; and 

9 (2) by striking paragraph (5). 

10 TITLE II—INVESTING IN THE 

11 NEXT GENERATION OF 

12 INNOVATORS AND JOB CRE13 ATORS 

14 SEC. 201. INVESTING IN STEM EDUCATION FOR U.S. STU15 DENTS. 

16 Section 204(a)(1)(F) of the Immigration and Nation17 ality Act (8 U.S.C. 1154(a)(1)(F)), as amended by this 

18 Act, is further amended— 

19 (1) by striking ‘‘(F)’’ and inserting ‘‘(F)(i)’’; 

20 and 

21 (2) by adding at the end the following: 

22 ‘‘(ii)(I) The Secretary of Homeland Secu23 rity shall impose a fee on an employer (exclud24 ing any employer that is a primary or sec25 ondary education institution, an institution of 


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1 higher education, a nonprofit entity related to 

2 or affiliated with any such institution, a non3 profit entity which engages in established cur4 riculum-related clinical training of students reg5 istered at any such institution, a nonprofit re6 search organization, or a governmental research 

7 organization) filing a petition under clause (i) 

8 to employ an alien entitled to classification 

9 under subparagraph (B) or (D) of section 

10 203(b)(1), section 203(b)(2), clause (i) or (ii) of 

11 section 203(b)(3)(A), section 203(b)(5) or sec12 tion 203(b)(6). 

13 ‘‘(II) The amount of the fee shall be 

14 $2,000 for each such petition except that the 

15 fee shall be half the amount for each such peti16 tion by any employer with not more than 25 

17 full-time equivalent employees who are em18 ployed in the United States. 

19 ‘‘(III) Fees collected under this clause 

20 shall be deposited in the Treasury in accordance 

21 with section 286(s).’’. 

22 SEC. 202. U.S. STEM EDUCATION AND TRAINING ACCOUNT. 

23 Section 286(s) of the Immigration and Nationality 

24 Act (8 U.S.C. 1356(s)) is amended to read as follows: 

25 ‘‘(s) STEM EDUCATION AND TRAINING ACCOUNT.— 


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1 ‘‘(1) IN GENERAL.—There is established in the 

2 general fund of the Treasury a separate account, 

3 which shall be known as the ‘STEM Education and 

4 Training Account’. Notwithstanding any other sec5 tion of this title, there shall be deposited as offset6 ting receipts into the account all fees collected under 

7 section 204(a)(1)(F)(ii) and paragraphs (9) and 

8 (11) of section 214(c). 

9 ‘‘(2) LOW-INCOME STEM SCHOLARSHIP PRO10 GRAM.—Sixty percent of the amounts deposited into 

11 the STEM Education and Training Account shall 

12 remain available to the Director of the National 

13 Science Foundation until expended for scholarships 

14 described in section 414(d) of the American Com15 petitiveness and Workforce Improvement Act of 

16 1998 for low-income students enrolled in a program 

17 of study leading to a degree in science, technology, 

18 engineering, or mathematics. 

19 ‘‘(3) NATIONAL SCIENCE FOUNDATION COM20 PETITIVE GRANT PROGRAM FOR K–12 SCIENCE, 

21 TECHNOLOGY, ENGINEERING AND MATHEMATICS

22 EDUCATION.— 

23 ‘‘(A) IN GENERAL.—Fifteen percent of the 

24 amounts deposited into the STEM Education 

25 and Training Account shall remain available to 


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1 the Director of the National Science Founda2 tion until expended to carry out a direct or 

3 matching grant program to support improve4 ment in K–12 education, including through pri5 vate-public partnerships. 

6 ‘‘(B) TYPES OF PROGRAMS COVERED.— 

7 The Director shall award grants to such pro8 grams, including those which support the devel9 opment and implementation of standards-based 

10 instructional materials models and related stu11 dent assessments that enable K–12 students to 

12 acquire an understanding of science, technology, 

13 engineering, and mathematics, as well as to de14 velop critical thinking skills; provide systemic 

15 improvement in training K–12 teachers and 

16 education for students in science, technology, 

17 engineering, and mathematics, including by 

18 supporting efforts to promote gender-equality 

19 among students receiving such instruction; sup20 port the professional development of K–12 

21 science, technology, engineering and mathe22 matics teachers in the use of technology in the 

23 classroom; stimulate system-wide K–12 reform 

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1 gions of the United States; provide externships 

2 and other opportunities for students to increase 

3 their appreciation and understanding of science, 

4 technology, engineering, and mathematics (in5 cluding summer institutes sponsored by an in6 stitution of higher education for students in 

7 grades 7–12 that provide instruction in such 

8 fields); involve partnerships of industry, edu9 cational institutions, and community organiza10 tions to address the educational needs of dis11 advantaged communities; provide college pre12 paratory support to expose and prepare stu13 dents for careers in science, technology, engi14 neering, and mathematics; and provide for car15 rying out systemic reform activities under sec16 tion 3(a)(1) of the National Science Foundation 

17 Act of 1950 (42 U.S.C. 1862(a)(1)). 

18 ‘‘(4) STEM CAPACITY BUILDING AT MINORITY19 SERVING INSTITUTIONS.— 

20 ‘‘(A) IN GENERAL.—Twelve percent of the 

21 amounts deposited into the STEM Education 

22 and Training Account shall remain available to 

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1 reviewed basis to enhance the quality of under2 graduate science, technology, engineering, and 

3 mathematics education at minority-serving in4 stitutions of higher education and to increase 

5 the retention and graduation rates of students 

6 pursuing degrees in such fields at such institu7 tions. 

8 ‘‘(B) TYPES OF PROGRAMS COVERED.— 

9 Grants awarded under this paragraph shall be 

10 awarded to— 

11 ‘‘(i) minority-serving institutions of 

12 higher education for— 

13 ‘‘(I) activities to improve courses 

14 and curriculum in science, technology, 

15 engineering, and mathematics; 

16 ‘‘(II) efforts to promote gender 

17 equality among students enrolled in 

18 such courses; 

19 ‘‘(III) faculty development; 

20 ‘‘(IV) stipends for undergraduate 

21 students participating in research; 

22 and 

23 ‘‘(V) other activities consistent 

24 with subparagraph (A), as determined 

25 by the Director; and 


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1 ‘‘(ii) to other institutions of higher 

2 education to partner with the institutions 

3 described in clause (i) for— 

4 ‘‘(I) faculty and student develop5 ment and exchange; 

6 ‘‘(II) research infrastructure de7 velopment; 

8 ‘‘(III) joint research projects; 

9 and 

10 ‘‘(IV) identification and develop11 ment of minority and low-income can12 didates for graduate studies in 

13 science, technology, engineering and 

14 mathematics degree programs. 

15 ‘‘(C) INSTITUTIONS INCLUDED.—In this 

16 paragraph, the term ‘minority-serving institu17 tions of higher education’ shall include— 

18 ‘‘(i) colleges eligible to receive funds 

19 under the Act of August 30, 1890 (7 

20 U.S.C. 321–326a and 328), including 

21 Tuskegee University; 

22 ‘‘(ii) 1994 Institutions, as defined in 

23 section 532 of the Equity in Educational 

24 Land-Grant Status Act of 1994 (7 U.S.C. 

25 301 note); and 


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1 ‘‘(iii) Hispanic-serving institutions, as 

2 defined in section 502(a)(5) of the Higher 

3 Education Act of 1965 (20 U.S.C. 

4 1101a(a)(5)). 

5 ‘‘(5) STEM JOB TRAINING.—Ten percent of 

6 amounts deposited into the STEM Education and 

7 Training Account shall remain available to the Sec8 retary of Labor until expended for— 

9 ‘‘(A) demonstration programs and projects 

10 described in section 414(c) of the American 

11 Competitiveness and Workforce Improvement 

12 Act of 1998; and 

13 ‘‘(B) training programs in the fields of 

14 science, technology, engineering, and mathe15 matics for persons who have served honorably 

16 in the Armed Forces of the United States and 

17 have retired or are retiring from such service. 

18 ‘‘(6) USE OF FEES FOR DUTIES RELATING TO

19 PETITIONS.—One and one-half percent of the 

20 amounts deposited into the STEM Education and 

21 Training Account shall remain available to the Sec22 retary of Homeland Security until expended to carry 

23 out duties under paragraphs (1) (E) or (F) of sec24 tion 204(a) (related to petitions for immigrants de25 scribed in section 203(b)) and under paragraphs (1) 


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1 and (9) of section 214(c) (related to petitions made 

2 for nonimmigrants described in section 

3 101(a)(15)(H)(i)(b)). 

4 ‘‘(7) USE OF FEES FOR APPLICATION PROC5 ESSING AND ENFORCEMENT.—One and one-half per6 cent of the amounts deposited into the STEM Edu7 cation and Training Account shall remain available 

8 to the Secretary of Labor until expended for de9 creasing the processing time for applications under 

10 section 212(a)(5)(A) and section 212(n)(1).’’. 

11 SEC. 203. ACCESS TO STUDENT VISAS FOR IMMIGRANT STU12 DENTS PRESENT IN THE UNITED STATES. 

13 Notwithstanding paragraphs (6)(A) and (7) of sec14 tion 212(a) of the Immigration and Nationality Act (8 

15 U.S.C. 1182(a)), the Secretary of Homeland Security may 

16 adjust an alien’s status to that of a nonimmigrant student 

17 under section 101(a)(15)(F) of such Act (8 U.S.C. 

18 1101(a)(15)(F)) if the alien— 

19 (1) is a bona fide student enrolled in a full 

20 course of study related to science, technology, engi21 neering, or mathematics at a United States institu22 tion of higher education; 

23 (2) was present in the United States on the 

24 date of the enactment of this Act and has been con25 tinuously present since that date; and 


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1 (3) was 15 years of age or younger on the date 

2 the alien initially entered the United States. 

3 TITLE III—REDUCING ADMINIS4 TRATIVE HURDLES TO FOS5 TER INNOVATION AND JOB 

6 CREATION 

7 SEC. 301. STREAMLINING LABOR CERTIFICATIONS. 

8 (a) IN GENERAL.—Section 212(a)(5)(A) of the Im9 migration and Nationality Act (8 U.S.C. 1182(a)(5)(A)) 

10 is amended— 

11 (1) in clause (ii)— 

12 (A) in subclause (I), by striking ‘‘or’’; 

13 (B) in subclause (II), by striking the pe14 riod and inserting ‘‘, or’’; 

15 (C) by adding at the end the following new 

16 subclause: 

17 ‘‘(III) is the beneficiary of a 

18 labor certification application filed by 

19 an employer designated as an Estab20 lished U.S. Recruiter under clause 

21 (vii).’’; and 

22 (2) by adding at the end the following new 

23 clauses: 

24 ‘‘(v) PROCESSING STANDARDS.— 


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1 ‘‘(I) TIMEFRAMES.—The Sec2 retary of Labor shall adjudicate an 

3 application for certification under 

4 clause (i) not later than 120 days 

5 after the date on which the applica6 tion is filed. In the event that addi7 tional information or documentation is 

8 requested by the Secretary during 

9 such 120-day period, the Secretary 

10 shall adjudicate the application not 

11 later than 60 days after the date on 

12 which such information or documenta13 tion is received. 

14 ‘‘(II) NOTICE WITHIN 30 DAYS OF

15 DEFICIENCIES.—The employer shall 

16 be notified in writing within 30 days 

17 of the date of filing if the application 

18 does not meet the standards (other 

19 than that described in clause (i)(I)) 

20 for approval. If the application does 

21 not meet such standards, the notice 

22 shall include the reasons therefor and 

23 the Secretary shall provide an oppor24 tunity for the prompt resubmission of 

25 a modified application. 


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1 ‘‘(vi) FEES.— 

2 ‘‘(I) APPLICATION FEE.—In ad3 dition to any other fees authorized by 

4 law, the Secretary of Labor shall im5 pose a fee on an employer that sub6 mits an application for certification 

7 under clause (i). The amount of the 

8 fee shall be $295 for each such appli9 cation. 

10 ‘‘(II) PREMIUM PROCESSING.— 

11 The Secretary of Labor is authorized 

12 to establish and collect an optional 

13 premium fee for processing of applica14 tions for certification under clause (i). 

15 This fee shall be set at $1,000 and 

16 shall be paid in addition to the appli17 cation fee under subclause (I). For an 

18 application in which the premium 

19 processing fee is paid, the Secretary 

20 shall adjudicate the application not 

21 later than 30 days after the date on 

22 which the application is filed. In the 

23 event that additional information or 

24 documentation is requested by the 

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1 cation during the 30-day period, the 

2 Secretary shall adjudicate the applica3 tion not later than 30 days after the 

4 date on which such information or 

5 documentation is received. If the Sec6 retary does not comply with these 

7 timeframes, the Secretary shall refund 

8 the premium processing fee to the ap9 plicant. 

10 ‘‘(III) DEPOSIT OF FEES.—Fees 

11 collected under subclauses (I) and (II) 

12 shall be deposited in the Treasury in 

13 accordance with section 286(w). 

14 ‘‘(IV) PROHIBITION ON EM15 PLOYER ACCEPTING REIMBURSEMENT

16 OF FEE.—An employer subject to a 

17 fee under this clause shall not require 

18 or accept reimbursement of or other 

19 compensation for all or part of the 

20 cost of such fee, directly or indirectly, 

21 from the alien on whose behalf the ap22 plication is filed. 

23 ‘‘(vii) ESTABLISHED U.S. RECRUIT24 ERS.— 


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25 

•S 1986 IS

1 ‘‘(I) IN GENERAL.—The Sec2 retary of Labor shall establish a proc3 ess for employers to apply for des4 ignation as an Established U.S. Re5 cruiter. An employer seeking such 

6 designation must file an application 

7 with the Secretary stating the fol8 lowing: 

9 ‘‘(aa) At least 80 percent of 

10 the employer’s workforce in the 

11 United States are United States 

12 workers. 

13 ‘‘(bb) At least 80 percent of 

14 the employer’s new hires in the 

15 United States in the 5 years pre16 ceding the filing of the applica17 tion are United States workers. 

18 ‘‘(cc) The employer regularly 

19 posts employment opportunities 

20 on a publicly accessible Internet 

21 Web site and has engaged in at 

22 least 3 other forms of active re23 cruitment on an annual basis 

24 over the preceding 3 years. 


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•S 1986 IS

1 ‘‘(dd) The employer will con2 tinue to engage in the recruit3 ment efforts described in item 

4 (cc) during the certification pe5 riod. 

6 For the purposes of this clause, the 

7 term ‘United States worker’ shall in8 clude an alien with a pending or ap9 proved petition under subparagraph 

10 (E) or (F) of section 204(a)(1). 

11 ‘‘(II) DESIGNATION.— 

12 ‘‘(aa) TIMELY ADJUDICA13 TIONS.—The Secretary of Labor 

14 shall adjudicate an application 

15 for designation under subclause 

16 (I) not later than 30 days after 

17 the date on which the application 

18 is filed. In the event that addi19 tional information or documenta20 tion is requested by the Sec21 retary, the Secretary shall adju22 dicate the application not later 

23 than 30 days after the receipt of 

24 such information or documenta25 tion. 


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•S 1986 IS

1 ‘‘(bb) APPLICATION FEE.— 

2 In addition to any other fees au3 thorized by law, the Secretary of 

4 Labor may impose a fee on an 

5 employer that submits an appli6 cation for designation under sub7 clause (I). The amount of the fee 

8 shall be $500 for each such ap9 plication. Fees collected under 

10 this clause shall be deposited in 

11 the Treasury in accordance with 

12 section 286(w). 

13 ‘‘(cc) PERIOD OF DESIGNA14 TION.—Unless terminated under 

15 item (dd), a designation issued 

16 under this clause shall be valid 

17 for 3 years. 

18 ‘‘(dd) TERMINATION.—The 

19 Secretary of Labor may termi20 nate a designation under sub21 clause (I) if the Secretary deter22 mines that the employer— 

23 ‘‘(AA) did not fulfill the 

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•S 1986 IS

1 clause at the time the cer2 tification was issued; or 

3 ‘‘(BB) failed to meet 

4 the requirements under sub5 clause (I)(ee) during the 

6 designation period described 

7 in item (cc). 

8 ‘‘(III) ACTIVE RECRUITMENT.— 

9 For the purposes of this clause ‘active 

10 recruitment’ means any of the fol11 lowing: 

12 ‘‘(aa) EMPLOYEE REFERRAL

13 PROGRAM.—The employer oper14 ates an employee referral pro15 gram that includes meaningful 

16 incentives for employees to refer 

17 workers for job openings. 

18 ‘‘(bb) IN-HOUSE RECRUIT19 ERS.—The employer retains an 

20 in-house recruiter on a full-time 

21 basis to recruit workers for job 

22 openings. 

23 ‘‘(cc) JOB FAIRS.—The em24 ployer recruits workers at job 

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•S 1986 IS

1 paper advertisements in which 

2 the employer is named as a par3 ticipant in such fairs. 

4 ‘‘(dd) MILITARY RECRUIT5 ING.—The employer recruits 

6 workers during recruiting events 

7 that are organized by the Armed 

8 Forces of the United States. 

9 ‘‘(ee) ON-CAMPUS RECRUIT10 ING.—The employer recruits 

11 workers at institutions of higher 

12 education during recruiting 

13 events that are organized by such 

14 institutions. 

15 ‘‘(ff) PRIVATE EMPLOYMENT

16 FIRMS.—The employer regularly 

17 engages private employment 

18 firms or placement agencies to 

19 recruit workers for job openings. 

20 ‘‘(gg) TRADE OR PROFES21 SIONAL ORGANIZATIONS.—The 

22 employer regularly advertises 

23 with trade or professional organi24 zations to recruit workers for job 

25 openings.’’. 


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•S 1986 IS

1 (b) ESTABLISHMENT OF ACCOUNT AND USE OF

2 FUNDS.—Section 286 of the Immigration and Nationality 

3 Act (8 U.S.C. 1356) is amended by adding at the end the 

4 following new subsection: 

5 ‘‘(w) LABOR CERTIFICATION APPLICATION FEE AC6 COUNT.— 

7 ‘‘(1) IN GENERAL.—There is established in the 

8 general fund of the Treasury a separate account, 

9 which shall be known as the ‘Labor Certification Ap10 plication Fee Account’. Notwithstanding any other 

11 section of this title, there shall be deposited as off12 setting receipts into the account all fees collected 

13 under section 212(a)(5)(A). 

14 ‘‘(2) USE OF FEES.—Amounts deposited into 

15 the Labor Certification Application Fee Account 

16 shall remain available to the Secretary of Labor 

17 until expended for carrying out labor certification 

18 activities under section 212(a)(5)(A) (including pro19 viding premium processing services) and to make in20 frastructure improvements in the adjudications and 

21 customer-service processes related to such activi22 ties.’’. 


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•S 1986 IS

1 SEC. 302. STREAMLINING PETITIONS FOR ESTABLISHED 

2 EMPLOYERS. 

3 Section 214(c) of the Immigration and Nationality 

4 Act (8 U.S.C. 1184) is amended by adding at the end the 

5 following: 

6 ‘‘(15) The Secretary of Homeland Security shall es7 tablish a pre-certification procedure for employers who file 

8 multiple petitions described in this subsection or section 

9 203(b). Such precertification procedure shall enable an 

10 employer to avoid repeatedly submitting documentation 

11 that is common to multiple petitions and establish, 

12 through a single filing, criteria relating to the employer 

13 and the offered employment opportunity.’’. 

14 SEC. 303. PREMIUM PROCESSING. 

15 Section 286(u) of the Immigration and Nationality 

16 Act (8 U.S.C. 1356(u)) is amended— 

17 (1) by striking ‘‘is authorized to’’ and inserting 

18 ‘‘shall’’; and 

19 (2) at the end of the first sentence, by striking 

20 ‘‘applications.’’ and inserting ‘‘applications, includ21 ing an administrative appeal of any decision on an 

22 employment-based immigrant petition.’’. 


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•S 1986 IS

1 TITLE IV—PROTECTING 

2 AMERICAN WORKERS 

3 SEC. 401. STRENGTHENING THE PREVAILING WAGE SYS4 TEM TO PROTECT AMERICAN WORKERS. 

5 Section 212(p) of the Immigration and Nationality 

6 Act (8 U.S.C. 1182(p)) is amended to read as follows: 

7 ‘‘(p) COMPUTATION OF PREVAILING WAGE LEVEL.— 

8 ‘‘(1) The Secretary of Labor shall make avail9 able to employers a governmental survey to deter10 mine the prevailing wage for each occupational clas11 sification by metropolitan statistical area in the 

12 United States. Such survey, or other survey ap13 proved by the Secretary of Labor, shall provide 3 

14 levels of wages commensurate with experience, edu15 cation, and level of supervision. Such wage levels 

16 shall be determined as follows: 

17 ‘‘(A) The first level shall be the mean of 

18 the lowest two-thirds of wages surveyed, but in 

19 no case less than 80 percent of the mean of the 

20 wages surveyed. 

21 ‘‘(B) The second level shall be the mean of 

22 wages surveyed. 

23 ‘‘(C) The third level shall be the mean of 

24 the highest two-thirds of wages surveyed. 


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•S 1986 IS

1 ‘‘(2) The prevailing wage level required to be 

2 paid pursuant to section 203(b)(1)(D) and sub3 sections (a)(5)(A), (n)(1)(A)(i)(II), and 

4 (t)(1)(A)(i)(II) of this section shall be 100 percent 

5 of the wage level determined pursuant to those sec6 tions. 

7 ‘‘(3) In computing the prevailing wage level for 

8 an occupational classification in an area of employ9 ment for purposes of section 203(b)(1)(D) and sub10 sections (a)(5)(A), (n)(1)(A)(i)(II), and 

11 (t)(1)(A)(i)(II) of this section in the case of an em12 ployee of— 

13 ‘‘(A) an institution of higher education, or 

14 a related or affiliated nonprofit entity, or 

15 ‘‘(B) a nonprofit research organization or 

16 a Governmental research organization, 

17 the prevailing wage level shall only take into account 

18 employees at such institutions and organizations in 

19 the area of employment. 

20 ‘‘(4) With respect to a professional athlete (as 

21 defined in subsection (a)(5)(A)(iii)(II)) when the job 

22 opportunity is covered by professional sports league 

23 rules or regulations, the wage set forth in those 

24 rules or regulations shall be considered as not ad25 versely affecting the wages of United States workers 


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•S 1986 IS

1 similarly employed and be considered the prevailing 

2 wage.’’. 

3 SEC. 402. REFORMING THE H–1B VISA PROGRAM TO PRO4 TECT AMERICAN WORKERS. 

5 (a) STRENGTHENING WAGE PROTECTIONS.—Section 

6 214(g)(3) of the Immigration and Nationality Act (8 

7 U.S.C. 1184(g)(3)) is amended— 

8 (1) by striking ‘‘Aliens who’’ and inserting ‘‘(A) 

9 Aliens who’’; and 

10 (2) by adding at the end the following: 

11 ‘‘(B) If, on any given date, the number of peti12 tions filed under subparagraph (A) exceeds the num13 ber of visas remaining under paragraph (1), the Sec14 retary shall consider such petitions in the following 

15 order: 

16 ‘‘(i) petitions in which the offered wage 

17 level meets or exceeds the wage set by section 

18 212(p)(1)(C); 

19 ‘‘(ii) petitions in which the offered wage 

20 level meets or exceeds the wage set by section 

21 212(p)(1)(B); and 

22 ‘‘(iii) any remaining petitions.’’. 

23 (b) PROHIBITING DISPLACEMENT OF U.S. WORK24 ERS.— 


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•S 1986 IS

1 (1) PROHIBITING DISPLACEMENT BY EM2 PLOYER.—Section 212(n)(1)(E) of the Immigration 

3 and Nationality Act (8 U.S.C. 1182(n)(1)(E)) is 

4 amended— 

5 (A) in clause (i) by striking ‘‘In the case 

6 of an application described in clause (ii), the’’ 

7 and inserting ‘‘The’’; and 

8 (B) by striking clause (ii). 

9 (2) PROHIBITING DISPLACEMENT BY THIRD10 PARTY EMPLOYER.—Section 212(n)(1)(F) of the Im11 migration and Nationality Act (8 U.S.C. 

12 1182(n)(1)(F)) is amended by striking ‘‘In the case 

13 of an application described in subparagraph (E)(ii), 

14 the’’ and inserting ‘‘The’’. 

15 (3) DEFINITION OF DISPLACE.—Section 

16 212(n)(4)(B) of the Immigration and Nationality 

17 Act (8 U.S.C. 1182(n)(4)(B)) is amended by— 

18 (A) inserting ‘‘and skills’’ after ‘‘respon19 sibilities’’; and 

20 (B) inserting ‘‘working in the same divi21 sion, project or product line’’ after ‘‘experi22 ence’’. 

23 (c) STRENGTHENING RECRUITMENT REQUIRE24 MENTS.— 


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•S 1986 IS

1 (1) REQUIRING RECRUITMENT OF U.S. WORK2 ERS.— 

3 (A) IN GENERAL.—Section 212(n)(1)(G)(i) 

4 of the Immigration and Nationality Act (8 

5 U.S.C. 1182(n)(1)(G)(i)) is amended by strik6 ing ‘‘In the case of an application described in 

7 subparagraph (E)(ii), subject to clause (ii)’’ and 

8 inserting ‘‘Subject to clauses (ii) and (iii)’’. 

9 (B) DEPENDENT EMPLOYERS.—Section 

10 212(n)(1)(G)(ii) of the Immigration and Na11 tionality Act (8 U.S.C. 1182(n)(1)(G)(ii)) is 

12 amended to read as follows: 

13 ‘‘(ii) The employer shall be required 

14 to comply with additional supervised re15 cruitment activities as specified by the Sec16 retary of the Labor if the employer— 

17 ‘‘(I) employs 50 or more employ18 ees in the United States and less than 

19 50 percent of such employees are 

20 United States workers; and 

21 ‘‘(II) is offering wages below the 

22 wage level set by subsection (p)(1)(B) 

23 (relating to the mean wage for the oc24 cupational classification in the area of 

25 employment). 


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•S 1986 IS

1 For purposes of this clause, the term 

2 ‘United States worker’ shall include an 

3 alien with a pending or approved petition 

4 under subparagraph (E) or (F) of section 

5 204(a)(1).’’. 

6 (C) RECRUITMENT REPORT.—Section 

7 212(n)(1) of the Immigration and Nationality 

8 Act (8 U.S.C. 1182(n)(1)) is amended, in the 

9 flush text following subparagraph (G), by strik10 ing ‘‘Nothing in subparagraph (G)’’ and insert11 ing ‘‘An employer required to recruit under sub12 paragraph (G) shall submit to the Secretary, 

13 along with an application under this paragraph, 

14 a recruitment report containing evidence that 

15 the employer posted the employment oppor16 tunity on a publicly accessible Internet Web site 

17 and engaged in at least 3 other forms of active 

18 recruitment (as defined in subsection 

19 (a)(5)(A)(vii)(III)). The employer shall main20 tain an audit file of recruitment activities, in21 cluding information on United States worker 

22 applicants, for 3 years after the date the appli23 cation was filed with the Secretary. Nothing in 

24 Subparagraph (G)’’. 


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•S 1986 IS

1 (2) EXCEPTION FOR EMPLOYERS WHO PAY IN2 CREASED WAGES.—Section 212(n)(1)(G) of the Im3 migration and Nationality Act (8 U.S.C. 

4 1182(n)(1)(G)), as amended by this subsection, is 

5 further amended by adding at the end the following: 

6 ‘‘(iii) The conditions described in 

7 clause (i) shall not apply to an application 

8 filed with respect to the employment of an 

9 H–1B nonimmigrant— 

10 ‘‘(I) who is described in subpara11 graph (A), (B), or (C) of section 

12 203(b)(1); or 

13 ‘‘(II) if the wages being offered 

14 to such nonimmigrant meet or exceed 

15 the wage level set by subsection 

16 (p)(1)(B) (relating to the mean wage 

17 for the occupational classification in 

18 the area of employment) and the ap19 plicant is designated as an Estab20 lished U.S. Recruiter under section 

21 212(a)(5)(A)(vii).’’. 

22 (3) ELIMINATING REDUNDANT TESTING OF

23 LABOR MARKET.—Section 212(a)(5)(D) of the Im24 migration and Nationality Act (8 U.S.C. 

25 1182(a)(5)(D)) is amended— 


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•S 1986 IS

1 (A) by striking ‘‘The grounds’’ and insert2 ing ‘‘(i) Except as provided in clause (ii), the 

3 grounds’’; and 

4 (B) by adding at the end the following: 

5 ‘‘(ii) Clause (i) shall not apply to an alien 

6 seeking admission or adjustment of status who 

7 is presently a nonimmigrant described under 

8 section 101(a)(15)(H)(i)(b) if— 

9 ‘‘(I) the alien obtained such non10 immigrant status based on a petition filed 

11 after the effective date of the IDEA Act of 

12 2011; 

13 ‘‘(II) the alien is the subject of a peti14 tion described in section 204(a)(1)(F) and 

15 is seeking admission or adjustment of sta16 tus through such petition; and 

17 ‘‘(III) the petition described in sub18 clause (II) was filed by the alien’s em19 ployer within 18 months after the date on 

20 which the alien obtained nonimmigrant 

21 status under section 101(a)(15)(H)(i)(b).’’. 

22 (d) IMPROVING PROTECTIONS FOR U.S. WORKERS.— 

23 (1) IN GENERAL.—Section 212(n)(2) of the Im24 migration and Nationality Act (8 U.S.C. 

25 1182(n)(2)) is amended to read as follows: 


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•S 1986 IS

1 ‘‘(2)(A) IN GENERAL.—The Secretary of Labor 

2 shall establish a process for the receipt, investiga3 tion, and disposition of complaints, which may be 

4 filed by any aggrieved person or organization (in5 cluding bargaining representatives), respecting an 

6 employer’s compliance with this subsection. The Sec7 retary, either pursuant to this complaint process or 

8 otherwise, may investigate employers as necessary to 

9 determine such compliance. The Secretary shall 

10 audit at least 5 percent of the employers who file ap11 plications under paragraph (1) in a given year to de12 termine compliance with this subsection. 

13 ‘‘(B) PENALTIES.—If the Secretary of Labor 

14 finds, after notice and an opportunity for a hear15 ing— 

16 ‘‘(i) a substantial failure to meet any of 

17 the conditions of the application described 

18 under paragraph (1), a misrepresentation of a 

19 material fact in such application, or a violation 

20 of subparagraph (C) or (D)— 

21 ‘‘(I) the Secretary of Labor shall, in 

22 addition to any other remedy authorized by 

23 law, impose such administrative remedies 

24 (including civil monetary penalties in an 

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•S 1986 IS

1 tion) as the Secretary determines to be ap2 propriate; and 

3 ‘‘(II) the Secretary of Labor may not 

4 approve applications with respect to that 

5 employer under paragraph (1) during a pe6 riod of at least 1 year but not more than 

7 5 years for aliens to be employed by the 

8 employer; and 

9 ‘‘(ii) a substantial failure to meet any of 

10 the conditions of the application described 

11 under paragraph (1) or a misrepresentation of 

12 a material fact in such application, in the 

13 course of which failure or misrepresentation the 

14 employer displaced a United States worker em15 ployed by the employer within the period begin16 ning 180 days before and ending 180 days after 

17 the date of filing of any visa petition supported 

18 by the application— 

19 ‘‘(I) the Secretary of Labor shall im20 pose such administrative remedies (includ21 ing civil monetary penalties in an amount 

22 not to exceed $35,000 per violation) as the 

23 Secretary determines to be appropriate; 

24 and 


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•S 1986 IS

1 ‘‘(II) the Secretary of Labor may not 

2 approve applications with respect to that 

3 employer under paragraph (1) during a pe4 riod of at least 5 years for aliens to be em5 ployed by the employer. 

6 ‘‘(C) DISCRIMINATION OR RETALIATION PRO7 HIBITED.—It is a violation of this subparagraph for 

8 an employer who has filed an application under this 

9 subsection to intimidate, threaten, restrain, coerce, 

10 discharge, or in any other manner discriminate or 

11 retaliate against an employee (including a former 

12 employee or an applicant for employment) because 

13 the employee— 

14 ‘‘(i) has disclosed information to the em15 ployer, or to any other person, that the em16 ployee reasonably believes evidences a violation 

17 of this subsection, or any rule or regulation per18 taining to this subsection; or 

19 ‘‘(ii) seeks legal assistance or counsel re20 lated to any such violation, or cooperates, or 

21 seeks to cooperate, in an investigation or other 

22 proceeding concerning the employer’s compli23 ance with the requirements of this subsection, 

24 or any rule or regulation pertaining to this sub25 section. 


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•S 1986 IS

1 The Secretary of Labor and the Secretary of Home2 land Security shall devise a process under which an 

3 H–1B nonimmigrant who files a complaint regarding 

4 a violation of this subparagraph and is otherwise eli5 gible to remain and work in the United States may 

6 be allowed to seek other appropriate employment in 

7 the United States for a period not to exceed the 

8 maximum period of stay authorized for such non9 immigrant classification. 

10 ‘‘(D) PROHIBITED FEES.—It is a violation of 

11 this subparagraph for an employer who has filed an 

12 application under this subsection— 

13 ‘‘(i) to require an H–1B nonimmigrant to 

14 pay a penalty for ceasing employment with the 

15 employer prior to a date agreed to by the non16 immigrant and the employer; or 

17 ‘‘(ii) to require or accept reimbursement or 

18 any other form of compensation from an alien 

19 with respect to a fee imposed on the employer 

20 under section 214(c)(9). 

21 ‘‘(E) BENCHING PROHIBITED.— 

22 ‘‘(i) IN GENERAL.—It is a violation of 

23 paragraph (1)(A) for an employer, who has 

24 filed an application under this subsection and 

25 who places an H–1B nonimmigrant, after the 


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•S 1986 IS

1 nonimmigrant has entered into employment 

2 with the employer, in nonproductive status due 

3 to a decision by the employer (based on factors 

4 such as lack of work), or due to the non5 immigrant’s lack of a permit or license, to fail 

6 to pay the nonimmigrant full-time wages in ac7 cordance with paragraph (1)(a) for all such 

8 nonproductive time (if the nonimmigrant was 

9 designated as a full-time employee on the peti10 tion filed under section 214(c)(1)) or otherwise 

11 for such hours as are designated on such peti12 tion consistent with the rate of pay identified 

13 on such petition. 

14 ‘‘(ii) EXCEPTIONS.— 

15 ‘‘(I) In the case of an H–1B non16 immigrant who has not yet entered into 

17 employment with an employer who has had 

18 approved an application under this sub19 section, and a petition under section 

20 214(c)(1), with respect to the non21 immigrant, subclause (i) shall apply to the 

22 employer beginning 30 days after the date 

23 the nonimmigrant first is admitted into the 

24 United States pursuant to the petition, or 

25 60 days after the date the nonimmigrant 


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•S 1986 IS

1 becomes eligible to work for the employer 

2 (in the case of a nonimmigrant who is 

3 present in the United States on the date of 

4 the approval of the petition). 

5 ‘‘(II) Clause (i) does not apply to a 

6 failure to pay wages to an H–1B non7 immigrant for nonproductive time due to 

8 non-work-related factors, such as the vol9 untary request of the nonimmigrant for an 

10 absence or circumstances rendering the 

11 nonimmigrant unable to work. 

12 ‘‘(III) Clause (i) shall not be con13 strued as prohibiting an employer that is a 

14 school or other educational institution from 

15 applying to an H–1B nonimmigrant an es16 tablished salary practice of the employer, 

17 under which the employer pays to H–1B 

18 nonimmigrants and United States workers 

19 in the same occupational classification an 

20 annual salary in disbursements over fewer 

21 than 12 months, if— 

22 ‘‘(aa) the nonimmigrant agrees to 

23 the compressed annual salary pay24 ments prior to the commencement of 

25 the employment; and 


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•S 1986 IS

1 ‘‘(bb) the application of the sal2 ary practice to the nonimmigrant does 

3 not otherwise cause the nonimmigrant 

4 to violate any condition of the non5 immigrant’s authorization under this 

6 chapter to remain in the United 

7 States. 

8 ‘‘(iii) RELATION TO SUBPARAGRAPH (G).— 

9 This subparagraph shall not be construed as 

10 superseding subparagraph (G). 

11 ‘‘(F) TREATMENT.—It is a violation of para12 graph (1)(A) for an employer who has filed an appli13 cation under this subsection to fail to offer to an H– 

14 1B nonimmigrant, during the nonimmigrant’s period 

15 of authorized employment, benefits and eligibility for 

16 benefits (including the opportunity to participate in 

17 health, life, disability, and other insurance plans; the 

18 opportunity to participate in retirement and savings 

19 plans; and cash bonuses and noncash compensation, 

20 such as stock options (whether or not based on per21 formance)) on the same basis, and in accordance 

22 with the same criteria, as the employer offers to 

23 United States workers. 

24 ‘‘(G) BACK WAGES.—If the Secretary of Labor 

25 finds, after notice and an opportunity for a hearing, 


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•S 1986 IS

1 that recovery of back wages, fees or costs is nec2 essary to address a violation of this subsection or 

3 any other law, the Secretary of Labor may recover 

4 such back wages, fees or costs on behalf of the work5 er. 

6 ‘‘(H) GOOD FAITH COMPLIANCE.— 

7 ‘‘(i) Except as provided in clauses (ii) and 

8 (iii), a person or entity is considered to have 

9 complied with the requirements of this sub10 section, notwithstanding a technical or proce11 dural failure to meet such requirements, if 

12 there was a good faith attempt to comply with 

13 the requirements. 

14 ‘‘(ii) Clause (i) shall not apply if— 

15 ‘‘(I) the Department of Labor (or an16 other enforcement agency) has explained to 

17 the person or entity the basis for the fail18 ure; 

19 ‘‘(II) the person or entity has been 

20 provided a period of not less than 10 busi21 ness days (beginning after the date of the 

22 explanation) within which to correct such 

23 failure; and 


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•S 1986 IS

1 ‘‘(III) the person or entity has not 

2 corrected the failure voluntarily within 

3 such period. 

4 ‘‘(iii) A person or entity that, in the course 

5 of an investigation, is found to have violated the 

6 prevailing wage requirements set forth in para7 graph (1)(A), shall not be assessed fines or 

8 other penalties for such violation if the person 

9 or entity can establish that the manner in 

10 which the prevailing wage was calculated was 

11 consistent with recognized industry standards 

12 and practices. 

13 ‘‘(iv) Clauses (i) and (iii) shall not apply to 

14 a person or entity that has engaged in or is en15 gaging in a pattern or practice of willful viola16 tions of this paragraph. 

17 ‘‘(I) AUTHORITY TO ENSURE COMPLIANCE.— 

18 The Secretary of Labor is authorized to take other 

19 such actions, including issuing subpoenas and seek20 ing appropriate injunctive relief and specific per21 formance of contractual obligations, as may be nec22 essary to assure employer compliance with the terms 

23 and conditions under this subsection. The rights and 

24 remedies provided to H–1B nonimmigrants by this 

25 subsection are in addition to, and not in lieu of, any 


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•S 1986 IS

1 other contractual or statutory rights and remedies of 

2 such nonimmigrants, and are not intended to alter 

3 or affect such rights and remedies. 

4 ‘‘(J) SUBSTANTIAL FAILURE DEFINED.—The 

5 term ‘substantial failure’ means the repeated, reck6 less or willful failure to comply with the require7 ments of this section that constitute a significant de8 viation from the requirements of this section or the 

9 terms and conditions of an application filed under 

10 this section.’’. 

11 (2) CONFORMING AMENDMENT.—Section 

12 212(n) of the Immigration and Nationality Act (8 

13 U.S.C. 1182(n)) is amended by striking paragraphs 

14 (3) and (5) and redesignating paragraph (4), as 

15 amended by this section, as paragraph (3). 

16 (e) ELIMINATING H–1B EXTENSIONS FOR EXCLU17 SIVELY TEMPORARY WORKERS.—Section 214(g)(4) of the 

18 Immigration and Nationality Act (8 U.S.C. 1184(g)(4)) 

19 is amended by striking ‘‘6’’ and inserting ‘‘3’’. 

20 (f) INCREASED PORTABILITY FOR H–1B EMPLOY21 EES.— 

22 (1) GRACE PERIOD.—Section 214(g)(4) of the 

23 Immigration and Nationality Act (8 U.S.C. 

24 1184(g)(4)), as amended by this Act, is further 

25 amended by adding at the end the following: 


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•S 1986 IS

1 ‘‘(C) If a nonimmigrant described in section 

2 101(a)(15)(H)(i)(b) is terminated or laid off by the 

3 nonimmigrant’s employer, or otherwise ceases em4 ployment with the employer, the nonimmigrant’s sta5 tus shall continue for 60 days or until the last date 

6 of the previously approved status, whichever is ear7 lier.’’. 

8 (2) ALLOWING PROMOTIONS.—Section 204(j) of 

9 the Immigration and Nationality Act (8 U.S.C. 

10 1154(j)) is amended by— 

11 (A) striking ‘‘(a)(1)(D)’’ and inserting 

12 ‘‘(a)(1)(F)’’; 

13 (B) striking ‘‘if the new job is in the same 

14 or similar occupational classification as the job 

15 for which the petition was filed.’’ and inserting 

16 ‘‘if the new job—’’; and 

17 (C) inserting at the end the following: 

18 ‘‘(1) is in the same or similar occupational clas19 sification as the job for which the petition was filed; 

20 or 

21 ‘‘(2) is in a different occupational classification 

22 that is in a field related to the job for which the pe23 tition was filed and involves an increase in wages of 

24 at least 5 percent.’’. 


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•S 1986 IS

1 (3) RETENTION OF PRIORITY DATE.—Section 

2 203 of the Immigration and Nationality Act (8 

3 U.S.C. 1153), as amended by this Act, is further 

4 amended by adding at the end the following new 

5 subsection: 

6 ‘‘(i) RETENTION OF PRIORITY DATE.—The priority 

7 date for any immigrant petition shall be the date of filing 

8 with the Secretary of Homeland Security or the Secretary 

9 of State, unless the filing was preceded by the filing of 

10 a labor certification with the Secretary of Labor, in which 

11 case the date of filing of such labor certification shall con12 stitute the priority date. The beneficiary of any petition 

13 shall retain the earliest priority date based on any ap14 proved petition filed on the beneficiary’s behalf, regardless 

15 of the category of subsequent petitions.’’. 

16 (4) EMPLOYMENT OF SPOUSES.—Section 

17 214(c)(2)(E) of the Immigration and Nationality 

18 Act (8 U.S.C. 1184(c)(2)(E)) is amended by striking 

19 ‘‘section 101(a)(15)(L)’’ and inserting ‘‘subpara20 graph (H) or (L) of section 101(a)(15)’’. 

21 (g) ELIMINATION OF H–1B CLASSIFICATION FOR

22 FASHION MODELS.— 

23 (1) IN GENERAL.—Section 101(a)(15)(H)(i)(b) 

24 of the Immigration and Nationality Act (8 U.S.C. 

25 1101(a)(15)(H)(i)(b)) is amended— 


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•S 1986 IS

1 (A) by striking ‘‘or as a fashion model’’; 

2 and 

3 (B) by striking ‘‘or, in the case of a fash4 ion model, is of distinguished merit and abil5 ity’’. 

6 (2) ADDITION TO P NONIMMIGRANT CLASSI7 FICATION.— 

8 (A) NEW CLASSIFICATION.—Section 

9 101(a)(15)(P) of the Immigration and Nation10 ality Act (8 U.S.C. 1101(a)(15)(P)) is amend11 ed— 

12 (i) in clause (iii), by striking ‘‘or’’ at 

13 the end; 

14 (ii) in clause (iv), by striking ‘‘clause 

15 (i), (ii), or (iii)’’ and inserting ‘‘clause (i), 

16 (ii), (iii), or (iv)’’; 

17 (iii) by redesignating clause (iv) as 

18 clause (v); 

19 (iv) by inserting after clause (iii) the 

20 following: 

21 ‘‘(iv) is a fashion model who is of dis22 tinguished merit and ability and who is 

23 seeking to enter the United States tempo24 rarily to perform fashion modeling services 

25 that involve events or productions which 


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•S 1986 IS

1 have a distinguished reputation or that are 

2 performed for an organization or establish3 ment that has a distinguished reputation 

4 for, or a record of, utilizing prominent 

5 modeling talent; or’’; and 

6 (v) by striking ‘‘having a foreign resi7 dence which the alien has no intention of 

8 abandoning’’. 

9 (B) AUTHORIZED PERIOD OF STAY.—Sec10 tion 214(a)(2) of the Immigration and Nation11 ality Act (8 U.S.C. 1184(a)(2)) is amended— 

12 (i) in paragraph (B) by inserting ‘‘(i), 

13 (ii), and (iii)’’ after ‘‘1101(a)(15)(P)’’ each 

14 place that term appears; and 

15 (ii) by inserting ‘‘or fashion model’’ 

16 after ‘‘athlete’’. 

17 (C) CONSULTATION.— 

18 (i) IN GENERAL.—Section 

19 214(c)(4)(D) of the Immigration and Na20 tionality Act (8 U.S.C. 1184(c)(4)(D)) is 

21 amended by striking ‘‘clause (i) or (iii)’’ 

22 and inserting ‘‘clause (i), (iii), or (iv)’’. 

23 (ii) ADVISORY OPINION.—Section 

24 214(c)(6)(A) of the Immigration and Na25 tionality Act (8 U.S.C. 1184(c)(6)(A)) is 


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1 amended by inserting at the end new 

2 clause to read as follows: 

3 ‘‘(iv) To meet the consultation re4 quirement of paragraph (4)(D), in the case 

5 of a petition for a nonimmigrant described 

6 in section 101(a)(15)(P)(iv) of this Act, 

7 the petitioner shall submit with the peti8 tion an advisory opinion from a peer 

9 group, labor organization, or other person 

10 or persons of its choosing with expertise in 

11 the field of fashion modeling.’’ 

12 (iii) EXPEDITED PROCEDURES.—Sec13 tion 214(c)(6)(E)(i) of the Immigration 

14 and Nationality Act (8 U.S.C. 

15 1184(c)(6)(E)(i)) is amended by striking 

16 ‘‘artists or entertainers’’ and inserting 

17 ‘‘artists, entertainers, or fashion models’’. 

18 (3) CONFORMING AMENDMENTS.—Section 214 

19 (a) and (c) of the Immigration and Nationality Act 

20 (8 U.S.C. 1184 (a) and (c)) are amended by striking 

21 the term ‘‘Attorney General’’ each place it appears 

22 and inserting ‘‘Secretary of Homeland Security’’. 

23 (4) CONSTRUCTION.—Nothing in this sub24 section shall be construed as preventing an alien who 

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1 tus under section 101(a)(15)(O)(i) of the Immigra2 tion and Nationality Act (8 U.S.C. 

3 1101(a)(15)(O)(i)) if such alien is otherwise quali4 fied for such status. 

5 SEC. 403. REFORMING THE L VISA PROGRAM TO PROTECT 

6 AMERICAN WORKERS. 

7 (a) REQUIRING PREVAILING WAGE FOR CERTAIN L– 

8 1B NONIMMIGRANTS.—Section 214(c)(2) of the Immigra9 tion and Nationality Act (8 U.S.C. 1184(c)(2)) is amend10 ed by adding at the end the following: 

11 ‘‘(G)(i) No alien described in clause (ii) 

12 may be admitted or provided status under sec13 tion 101(a)(15)(L) unless the employer has 

14 filed with the Secretary of Labor an application 

15 stating that the employer— 

16 ‘‘(I) is offering and will offer during 

17 the period of authorized employment wages 

18 that are at least— 

19 ‘‘(aa) the actual wage level paid 

20 by the employer to all other individ21 uals with similar experience and quali22 fications for the specific employment 

23 in question, or 


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1 ‘‘(bb) the prevailing wage level 

2 for the occupational classification in 

3 the area of employment, 

4 whichever is greater, based on the best in5 formation available as of the time of filing 

6 the application; and 

7 ‘‘(II) will provide working conditions 

8 for such alien that will not adversely affect 

9 the working conditions of workers similarly 

10 employed. 

11 ‘‘(ii) An alien is described in this clause if 

12 the alien will serve in a capacity involving spe13 cialized knowledge under section 101(a)(15)(L) 

14 and the alien— 

15 ‘‘(I) will be employed in the United 

16 States for a cumulative period of time in 

17 excess of 18 months over a 3-year period, 

18 or 

19 ‘‘(II) will be employed in the United 

20 States for a cumulative period of time in 

21 excess of 90 days over a 3-year period and 

22 will be stationed primarily at the worksite 

23 of an employer other than the petitioning 

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1 ent, including pursuant to an outsourcing, 

2 leasing, or other contracting agreement. 

3 ‘‘(iii) An employer may comply with the re4 quirements of clause (i) by establishing that the 

5 total amount of compensation to be paid by the 

6 employer to the alien (including the value of 

7 benefits paid by the employer to the alien in the 

8 alien’s home country, employer-provided hous9 ing or housing allowances, employer-provided 

10 vehicles or transportation allowances, and other 

11 benefits provided to the alien as an incident of 

12 the assignment in the United States) meets or 

13 exceeds the total amount of compensation paid 

14 by the employer to all other employees with 

15 similar experience and qualifications working in 

16 the same occupational classification.’’. 

17 (b) INVESTIGATION AND DISPOSITION OF COM18 PLAINTS AGAINST L–1 EMPLOYERS.—Section 214(c)(2) 

19 of the Immigration and Nationality Act (8 U.S.C. 

20 1184(c)(2)), as amended by this section, is further amend21 ed by adding at the end the following: 

22 ‘‘(H)(i) The Secretary of Labor shall es23 tablish a process for the receipt, investigation 

24 and disposition of complaints, which may be 

25 filed by any aggrieved person or organization 


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1 (including bargaining representatives), respect2 ing an employer’s compliance with this para3 graph and the conditions of an application 

4 under paragraph (1) for a nonimmigrant under 

5 section 101(a)(15)(L). The Secretary, either 

6 pursuant to this complaint process or otherwise, 

7 may investigate employers as necessary to de8 termine such compliance. The Secretary shall 

9 audit at least 5 percent of the employers who 

10 file applications under subparagraph (G) in a 

11 given year to determine compliance with this 

12 subsection. 

13 ‘‘(ii) If the Secretary finds, after notice 

14 and an opportunity for a hearing, a substantial 

15 failure to meet any of the conditions of this 

16 paragraph, a misrepresentation of a material 

17 fact in an application under paragraph (1) for 

18 a nonimmigrant under section 101(a)(15)(L), 

19 or a violation of clause (iii) or (iv)— 

20 ‘‘(I) the Secretary shall, in addition to 

21 any other remedy authorized by law, im22 pose such administrative remedies (includ23 ing civil monetary penalties in an amount 

24 not to exceed $10,000 per violation) as the 


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1 Secretary determines to be appropriate; 

2 and 

3 ‘‘(II) the Secretary may not approve 

4 applications with respect to that employer 

5 under paragraph (1) for a nonimmigrant 

6 under section 101(a)(15)(L) during a pe7 riod of at least 1 year but not more than 

8 5 years for aliens to be employed by the 

9 employer. 

10 ‘‘(iii) It is a violation of this subparagraph 

11 for an employer who has filed an application 

12 under paragraph (1) for a nonimmigrant under 

13 section 101(a)(15)(L) to intimidate, threaten, 

14 restrain, coerce, discharge, or in any other man15 ner discriminate or retaliate against an em16 ployee (including a former employee or an ap17 plicant for employment) because the em18 ployee— 

19 ‘‘(I) has disclosed information to the 

20 employer, or to any other person, that the 

21 employee reasonably believes evidences a 

22 violation of this subsection, or any rule or 

23 regulation pertaining to this subsection; or 

24 ‘‘(II) seeks legal assistance or counsel 

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1 ates, or seeks to cooperate, in an investiga2 tion or other proceeding concerning the 

3 employer’s compliance with the require4 ments of this subsection, or any rule or 

5 regulation pertaining to this subsection. 

6 The Secretary shall devise a process under 

7 which a nonimmigrant under section 

8 101(a)(15)(L) who files a complaint regarding 

9 a violation of this subparagraph and is other10 wise eligible to remain and work in the United 

11 States may be allowed to seek other appropriate 

12 employment in the United States for a period 

13 not to exceed the maximum period of stay au14 thorized for such nonimmigrant classification. 

15 ‘‘(iv) It is a violation of this subparagraph 

16 for an employer who has filed an application 

17 under paragraph (1) for a nonimmigrant under 

18 section 101(a)(15)(L)— 

19 ‘‘(I) to require such nonimmigrant to 

20 pay a penalty for ceasing employment with 

21 the employer prior to a date agreed to by 

22 the nonimmigrant and the employer; or 

23 ‘‘(II) to require or accept reimburse24 ment or any other form of compensation 

25 from an alien with respect to a fee imposed 


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1 on the employer related to such applica2 tion. 

3 ‘‘(v) If the Secretary finds, after notice 

4 and an opportunity for a hearing, that recovery 

5 of back wages, fees or costs is necessary to ad6 dress a violation of this subparagraph or any 

7 other law, the Secretary may recover such back 

8 wages, fees or costs on behalf of the worker. 

9 ‘‘(vi) The Secretary is authorized to take 

10 other such actions, including issuing subpoenas 

11 and seeking appropriate injunctive relief and 

12 specific performance of contractual obligations, 

13 as may be necessary to assure employer compli14 ance with the terms and conditions under this 

15 paragraph. The rights and remedies provided to 

16 nonimmigrants under section 101(a)(15)(L) by 

17 this paragraph are in addition to, and not in 

18 lieu of, any other contractual or statutory 

19 rights and remedies of such nonimmigrants, 

20 and are not intended to alter or affect such 

21 rights and remedies. 

22 ‘‘(vii)(I) Except as provided in subclauses 

23 (II) and (III), a person or entity is considered 

24 to have complied with the requirements of this 

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1 cedural failure to meet such requirements, if 

2 there was a good faith attempt to comply with 

3 the requirements. 

4 ‘‘(II) Subclause (I) shall not apply 

5 if— 

6 ‘‘(aa) the Secretary of Homeland 

7 Security (or another enforcement 

8 agency) has explained to the person or 

9 entity the basis for the failure; 

10 ‘‘(bb) the person or entity has 

11 been provided a period of not less 

12 than 10 business days (beginning 

13 after the date of the explanation) 

14 within which to correct such failure; 

15 and 

16 ‘‘(cc) the person or entity has not 

17 corrected the failure voluntarily within 

18 such period. 

19 ‘‘(III) A person or entity that, in the 

20 course of an investigation, is found to have 

21 violated the prevailing wage requirements 

22 set forth in subparagraph (G), shall not be 

23 assessed fines or other penalties for such 

24 violation if the person or entity can estab25 lish that the manner in which the preVerDate Mar 15 2010 20:33 Dec 21, 2011 Jkt 019200 PO 00000 Frm 00062 Fmt 6652 Sfmt 6201 E:\BILLS\S1986.IS S1986

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1 vailing wage was calculated was consistent 

2 with recognized industry standards and 

3 practices. 

4 ‘‘(IV) Subclauses (I) and (III) shall 

5 not apply to a person or entity that has 

6 engaged in or is engaging in a pattern or 

7 practice of willful violations of this para8 graph. 

9 ‘‘(viii) The term ‘substantial failure’ means 

10 the repeated, reckless or willful failure to com11 ply with the requirements of this paragraph 

12 that constitute a significant deviation from the 

13 requirements of this paragraph or the terms 

14 and conditions of an application filed under 

15 paragraph (1) for nonimmigrants under section 

16 101(a)(15)(L).’’. 

17 (c) TECHNICAL AMENDMENT.—Section 214(c)(2) of 

18 the Immigration and Nationality Act (8 U.S.C. 

19 1184(c)(2)), as amended by this section, is further amend20 ed by striking ‘‘Attorney General’’ each place such term 

21 appears and inserting ‘‘Secretary of Homeland Security’’. 

22 (d) REPORT ON L–1 NONIMMIGRANTS.—Section 

23 214(c)(8) of the Immigration and Nationality Act (8 

24 U.S.C. 1184(c)(8)) is amended— 


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1 (1) by striking ‘‘Attorney General’’ and insert2 ing ‘‘Secretary of Homeland Security or Secretary of 

3 State, as appropriate,’’; 

4 (2) by inserting ‘‘(L),’’ after ‘‘(H),’’; and 

5 (3) by adding at the end the following: 

6 ‘‘(F) The number of applications for non7 immigrants described under section 

8 101(a)(15)(L), based on an approved blanket 

9 petition under paragraph (2)(A), which have 

10 been filed. 

11 ‘‘(G) The number of applications for non12 immigrants described under section 

13 101(a)(15)(L), based on an approved blanket 

14 petition under paragraph (2)(A), which have 

15 been approved.’’. 

16 (e) REPORT ON L–1 BLANKET PETITION PROC17 ESS.—Not later than 12 months after the date of the en18 actment of this Act, the Inspector General of the Depart19 ment of Homeland Security, in cooperation with the In20 spector General of the Department of State, shall submit 

21 to the Committee on the Judiciary of the House of Rep22 resentatives and the Committee on the Judiciary of the 

23 Senate a report regarding the use of blanket petitions 

24 under section 214(c)(2)(A) of the Immigration and Na25 tionality Act (8 U.S.C. 1184(c)(2)(A)). Such report shall 


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1 assess the efficiency and reliability of the process for re2 viewing such blanket petitions and adjudicating visa appli3 cations filed under an approved blanket petition, including 

4 whether the process includes adequate safeguards against 

5 fraud and abuse. 

6 TITLE V—PROMOTING INVEST7 MENT IN THE AMERICAN 

8 ECONOMY 

9 SEC. 501. EB–5 EMPLOYMENT CREATION INVESTOR PRO10 GRAM. 

11 (a) AUTHORIZATION OF EB–5 EMPLOYMENT CRE12 ATION REGIONAL CENTER PROGRAM.—Section 203(b)(5) 

13 of the Immigration and Nationality Act (8 U.S.C. 

14 1153(b)(5)) is amended by adding at the end the following 

15 new subparagraph: 

16 ‘‘(E) SET-ASIDE FOR EMPLOYMENT CRE17 ATION REGIONAL CENTERS.— 

18 ‘‘(i) IN GENERAL.—Of the visas other19 wise available under this paragraph, the 

20 Secretary of State, together with the Sec21 retary of Homeland Security, shall set 

22 aside at least 5,000 visas for a program in23 volving regional centers designated by the 

24 Secretary of Homeland Security, on the 

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1 motion of economic growth, including im2 proved regional productivity, job creation, 

3 or increased domestic capital investment. A 

4 regional center shall have jurisdiction over 

5 a specific geographic area, which shall be 

6 described in the proposal and consistent 

7 with the purpose of concentrating pooled 

8 investment in defined economic zones. The 

9 establishment of a regional center under 

10 this subparagraph may be based on gen11 eral predictions, contained in the proposal, 

12 concerning the kinds of new commercial 

13 enterprises that will receive capital from 

14 aliens under this paragraph, the jobs that 

15 will be created (directly or indirectly) as a 

16 result of such capital investments and the 

17 other positive economic effects such capital 

18 investments will have. 

19 ‘‘(ii) METHODOLOGIES.—In deter20 mining compliance with this subparagraph, 

21 and notwithstanding requirements applica22 ble to investors not involving regional cen23 ters, the Secretary of Homeland Security, 

24 in consultation with the Secretary of Com25 merce, shall recognize reasonable methVerDate Mar 15 2010 20:33 Dec 21, 2011 Jkt 019200 PO 00000 Frm 00066 Fmt 6652 Sfmt 6201 E:\BILLS\S1986.IS S1986

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1 odologies for determining the number of 

2 jobs created by a designated regional cen3 ter, including such jobs that are estimated 

4 to have been created indirectly through 

5 revenues generated from increased exports, 

6 improved regional productivity, or in7 creased domestic capital investment result8 ing from the regional center. The Sec9 retary may consider estimated job creation 

10 outside the geographic boundary of a des11 ignated regional center if such estimate is 

12 supported by substantial evidence and con13 stitutes no more than 50 percent of the 

14 overall number of jobs estimated to be cre15 ated by such regional center. 

16 ‘‘(iii) PREAPPROVAL OF NEW COM17 MERCIAL ENTERPRISES.—The Secretary of 

18 Homeland Security shall establish a 

19 preapproval procedure for commercial en20 terprises that— 

21 ‘‘(I) allows a regional center to 

22 apply to the Secretary for approval of 

23 a new commercial enterprise before 

24 any alien files a petition for classifica25 tion under this paragraph by reason 


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1 of investment in the new commercial 

2 enterprise; 

3 ‘‘(II) in considering an applica4 tion under subclause (I), requires that 

5 the Secretary make final decisions on 

6 all issues under this paragraph other 

7 than those issues unique to each indi8 vidual investor in the new commercial 

9 enterprise; and 

10 ‘‘(III) requires that the Secretary 

11 eliminate the need for the repeated 

12 submission of documentation that is 

13 common to multiple petitions for clas14 sification under this paragraph 

15 through a regional center. 

16 ‘‘(iv) FEE FOR REGIONAL CENTER

17 DESIGNATION.—In addition to any other 

18 fees authorized by law, the Secretary of 

19 Homeland Security shall impose a fee to 

20 apply for designation as an EB–5 regional 

21 center under this paragraph. Fees collected 

22 under this paragraph shall be deposited in 

23 the Treasury in accordance with section 

24 286(y).’’. 


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1 (b) TARGETED EMPLOYMENT AREAS.—Section 

2 203(b)(5)(B) of the Immigration and Nationality Act (8 

3 U.S.C. 1153(b)(5)(B)) is amended as follows: 

4 (1) TARGETED EMPLOYMENT AREA DEFINED.— 

5 In clause (ii), to read as follows: 

6 ‘‘(ii) TARGETED EMPLOYMENT AREA

7 DEFINED.—In this paragraph, the term 

8 ‘targeted employment area’ means— 

9 ‘‘(I) a rural area; 

10 ‘‘(II) an area that has experi11 enced high unemployment (of at least 

12 150 percent of the national average 

13 rate) within the preceding 12 months; 

14 ‘‘(III) a county that has had a 20 

15 percent or more decrease in popu16 lation since 1970; or 

17 ‘‘(IV) an area that is within the 

18 boundaries established for purposes of 

19 a State or Federal economic develop20 ment incentive program, including 

21 areas defined as Enterprise Zones, 

22 Renewal Communities and Empower23 ment Zones.’’. 

24 (2) RURAL AREA DEFINED.—In clause (iii), by 

25 striking ‘‘within a metropolitan statistical area or’’. 


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1 (3) EFFECT OF PRIOR DETERMINATION.—By 

2 adding at the end the following: 

3 ‘‘(iv) EFFECT OF PRIOR DETERMINA4 TION.—In a case in which a geographic 

5 area is determined under clause (ii) to be 

6 a targeted employment area, such deter7 mination shall remain in effect during the 

8 2-year period beginning on the date of the 

9 determination for purposes of any alien 

10 seeking a visa reserved under this subpara11 graph.’’. 

12 (c) CALCULATING JOB CREATION.—Section 

13 203(b)(5)(D) of such Act (8 U.S.C. 1153(b)(5)(D)) is 

14 amended to read as follows: 

15 ‘‘(D) FULL-TIME EMPLOYMENT.—In this 

16 paragraph, the term ‘full-time employment’ 

17 means employment in a position that requires 

18 at least 35 hours of service per week at any 

19 time, regardless of who fills the position. Such 

20 employment may be satisfied on a full-time 

21 equivalent basis by calculating the number of 

22 full-time employees that could have been em23 ployed if the reported number of hours worked 

24 by part-time employees had been worked by 

25 full-time employees. Full-time equivalent emVerDate Mar 15 2010 20:33 Dec 21, 2011 Jkt 019200 PO 00000 Frm 00070 Fmt 6652 Sfmt 6201 E:\BILLS\S1986.IS S1986

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1 ployment shall be calculated by dividing the 

2 part-time hours paid by the standard number of 

3 hours for full-time employees.’’. 

4 (d) CAPITAL.—Section 203(b)(5)(C) of the Immigra5 tion and Nationality Act (8 U.S.C. 1153(b)(5)(C)) is 

6 amended by adding at the end the following: 

7 ‘‘(iv) CAPITAL DEFINED.—For pur8 poses of this paragraph, the term ‘capital’ 

9 does not include any assets acquired, di10 rectly or indirectly, by unlawful means.’’. 

11 (e) TYPE OF INVESTMENT.—Section 203(b)(5)(A) of 

12 the Immigration and Nationality Act (8 U.S.C. 

13 1153(b)(5)(A)), is amended by adding ‘‘or similar entity’’ 

14 after ‘‘including a limited partnership’’. 

15 (f) EXTENSION.—Subparagraph (A) of section 

16 216A(d)(2) of the Immigration and Nationality Act (8 

17 U.S.C. 1186b(d)(2)(A)) is amended by adding at the end 

18 the following: ‘‘A date specified by the applicant (but not 

19 later than the fourth anniversary) shall be substituted for 

20 the second anniversary in applying the preceding sentence 

21 if the applicant demonstrates that the applicant has at22 tempted to follow the applicant’s business model in good 

23 faith, provides an explanation for the delay in filing the 

24 petition that is based on circumstances outside of the ap25 plicant’s control, and demonstrates that such cirVerDate Mar 15 2010 20:33 Dec 21, 2011 Jkt 019200 PO 00000 Frm 00071 Fmt 6652 Sfmt 6201 E:\BILLS\S1986.IS S1986

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1 cumstances will be able to be resolved within the specified 

2 period.’’. 

3 (g) STUDY.— 

4 (1) IN GENERAL.—The Secretary of Homeland 

5 Security, in appropriate consultation with the Sec6 retary of Commerce and other interested parties, 

7 shall conduct a study concerning— 

8 (A) current job creation counting method9 ology and initial projections under section 

10 203(b)(5) of the Immigration and Nationality 

11 Act (8 U.S.C. 1153(b)(5)); and 

12 (B) how to best promote the employment 

13 creation program described in such section 

14 overseas to potential immigrant investors. 

15 (2) REPORT.—The Secretary of Homeland Se16 curity shall submit a report to the Committee on the 

17 Judiciary of the House of Representatives and the 

18 Committee on the Judiciary of the Senate not later 

19 than 1 year after the date of the enactment of this 

20 Act containing the results of the study conducted 

21 under paragraph (1). 

22 (h) BIENNIAL REPORT.—Beginning on the date that 

23 is one year after the date of enactment of this Act, and 

24 every 2 years thereafter, the Secretary of Homeland Secu25 rity shall submit a report to the Committee on the JudiciVerDate Mar 15 2010 20:33 Dec 21, 2011 Jkt 019200 PO 00000 Frm 00072 Fmt 6652 Sfmt 6201 E:\BILLS\S1986.IS S1986

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1 ary of the House of Representatives and the Committee 

2 on the Judiciary of the Senate that measures the economic 

3 impact of the regional center program described in section 

4 203(b)(5)(E) of the Immigration and Nationality Act (8 

5 U.S.C. 1153(b)(5)(E)), including— 

6 (1) foreign and domestic capital investment; 

7 (2) the number of jobs directly and indirectly 

8 created; 

9 (3) any other economic benefits related to for10 eign investment under such program; and 

11 (4) the number of petitions under such section 

12 approved or denied for each regional center. 

13 (i) RULEMAKING.—Not later than 120 days after the 

14 date of the enactment of this Act, the Secretary of Home15 land Security shall prescribe regulations to implement the 

16 amendments made by this section. 

17 SEC. 502. CONCURRENT FILING; ADJUSTMENT OF STATUS. 

18 Section 245 of the Immigration and Nationality Act 

19 (8 U.S.C. 1255) is amended— 

20 (1) in subsection (k), in the matter preceding 

21 paragraph (1), by striking ‘‘(1), (2), or (3)’’ and in22 serting ‘‘(1), (2), (3), (5), or (6)’’; and 

23 (2) by adding at the end the following: 

24 ‘‘(n) If, at the time a petition is filed under section 

25 204 for classification under paragraph (5) or (6) of section 


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1 203(b), approval of the petition would make a visa imme2 diately available to the alien beneficiary, the alien bene3 ficiary’s adjustment application under this section shall be 

4 considered to be properly filed whether the application is 

5 submitted concurrently with, or subsequent to, the visa pe6 tition.’’. 

7 SEC. 503. FEES; PREMIUM PROCESSING. 

8 (a) ESTABLISHMENT OF ACCOUNT; USE OF FEES.— 

9 Section 286 of the Immigration and Nationality Act (8 

10 U.S.C. 1356), as amended by this Act, is further amended 

11 by adding at the end the following: 

12 ‘‘(y) IMMIGRANT ENTREPRENEUR ACCOUNT.— 

13 ‘‘(1) IN GENERAL.—There is established in the 

14 general fund of the Treasury a separate account, 

15 which shall be known as the ‘Immigrant Entre16 preneur Account’. Notwithstanding any other provi17 sion of law, there shall be deposited as offsetting re18 ceipts into the account all fees collected under para19 graph (5) or (6) of section 203(b) of this Act or sec20 tion 610(b) of the Departments of Commerce, Jus21 tice, and State, the Judiciary, and Related Agencies 

22 Appropriations Act, 1993 (8 U.S.C. 1153 note). 

23 ‘‘(2) USE OF FEES.—Fees collected under this 

24 section may only be used by the Secretary of Home25 land Security to administer and operate the employVerDate Mar 15 2010 20:33 Dec 21, 2011 Jkt 019200 PO 00000 Frm 00074 Fmt 6652 Sfmt 6201 E:\BILLS\S1986.IS S1986

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1 ment creation program described in paragraph (5) 

2 or (6) of section 203(b).’’. 

3 (b) PREMIUM PROCESSING.—Section 286(u) of the 

4 Immigration and Nationality Act (8 U.S.C. 1356(u)) is 

5 amended by adding at the end the following: ‘‘In the case 

6 of a petition filed under section 204(a)(1)(H) for classi7 fication under paragraph (5) or (6) of section 203(b), if 

8 the petitioner desires a guarantee of a decision on the peti9 tion in 60 days or less, the premium processing fee under 

10 this subsection shall be set at $2,500 and shall be depos11 ited as offsetting receipts in the Immigrant Entrepreneur 

12 Account established under subsection (y).’’. 

Æ 


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