I 

112TH CONGRESS 

1ST SESSION H. R. 2161 

To amend the Immigration and Nationality Act to promote innovation, 

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

IN THE HOUSE OF REPRESENTATIVES 

JUNE 14, 2011 

Ms. ZOE LOFGREN of California (for herself, Mr. CAPUANO, Ms. CHU, Mr. 

CONYERS, Ms. ESHOO, Mr. GUTIERREZ, Mr. HEINRICH, Mr. HONDA, 

Mrs. MALONEY, Mr. GEORGE MILLER of California, Mr. POLIS, Ms. 

LINDA T. SA ́NCHEZ of California, Mr. SCHIFF, and Mr. RUSH) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Education and the Workforce, for a period to be subsequently determined by the Speaker, in each 

case for consideration of such provisions as fall within the jurisdiction of 

the committee concerned 

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 TITLE. 

4 This Act may be cited as— 

5 (1) the ‘‘Immigration Driving Entrepreneurship 

6 in America Act of 2011’’; or 


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1 (2) the ‘‘IDEA Act of 2011’’. 

2 TITLE I—ATTRACTING AND RE3 TAINING INNOVATORS AND 

4 JOB CREATORS 

5 SEC. 101. U.S. GRADUATES IN SCIENCE, TECHNOLOGY, EN6 GINEERING, AND MATHEMATICS. 

7 (a) ADVANCED STEM GRADUATES.—Section 

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

9 U.S.C. 1153(b)(1)) is amended— 

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

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

12 through (D)’’; and 

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

14 ‘‘(D) ADVANCED GRADUATES IN SCIENCE, 

15 TECHNOLOGY, ENGINEERING AND MATHE16 MATICS.—An alien is described in this subpara17 graph if— 

18 ‘‘(i) the alien possesses a graduate de19 gree at the level of master’s or higher in 

20 a field of science, technology, engineering, 

21 or mathematics from a United States insti22 tution of higher education that has been 

23 designated by the Director of the National 

24 Science Foundation as a research instituVerDate Mar 15 2010 04:49 Jun 15, 2011 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2161.IH H2161

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1 tion or as otherwise excelling at instruction 

2 in such fields; 

3 ‘‘(ii) the alien has an offer of employ4 ment from a United States employer in a 

5 field related to such degree; and 

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

7 offer wages that are at least— 

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

9 the employer to all other individuals 

10 with similar experience and qualifica11 tions in the same occupational classi12 fication; or 

13 ‘‘(II) the prevailing wage level for 

14 the occupational classification in the 

15 area of employment; 

16 whichever is greater, based on the best in17 formation available as of the time of filing 

18 the petition.’’. 

19 (b) CAP EXEMPTION.—Section 201(b)(1) of the Im20 migration and Nationality Act (8 U.S.C. 1151(b)(1)) is 

21 amended by adding at the end the following: 

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

23 (1)(D) of section 203(b).’’. 

24 (c) REMOVING VISA HURDLES FOR STUDENTS.— 

25 (1) PROVIDING DUAL INTENT.— 


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1 (A) IN GENERAL.—Section 

2 101(a)(15)(F)(i) of the Immigration and Na3 tionality Act (8 U.S.C. 1101(a)(15)(F)(i)) is 

4 amended by striking ‘‘an alien having a resi5 dence in a foreign country which he has no in6 tention of abandoning, who is a bona fide stu7 dent qualified to pursue a full course of study 

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

9 fide student qualified to pursue a full course of 

10 study, who (except for a student qualified to 

11 pursue a full course of study at an institution 

12 of higher education) has a residence in a for13 eign country which the alien has no intention of 

14 abandoning, and who’’. 

15 (B) CONFORMING AMENDMENTS.— 

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

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

18 amended by striking ‘‘(other than a non19 immigrant’’ and inserting ‘‘(other than a 

20 nonimmigrant described in section 

21 101(a)(15)(F) if the alien is qualified to 

22 pursue a full course of study at an institu23 tion of higher education, other than a non24 immigrant’’. 


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

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

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

4 qualified to pursue a full course of study at 

5 an institution of higher education),’’ before 

6 ‘‘H(i)(b)’’. 

7 (2) EXTENSIONS IN CASES OF LENGTHY ADJU8 DICATIONS.— 

9 (A) IN GENERAL.—Section 214 of the Im10 migration and Nationality Act (8 U.S.C. 1154) 

11 is amended by adding at the end the following: 

12 ‘‘(s) EXTENSIONS IN CASES OF LENGTHY ADJUDICA13 TIONS.— 

14 ‘‘(1) EXEMPTION FROM LIMITATIONS.—Not15 withstanding subsection (c)(2)(D), (g)(4) and (m), 

16 the authorized stay of an alien described in para17 graph (2) may be extended pursuant to paragraph 

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

19 of any of the following: 

20 ‘‘(A) An application for labor certification 

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

22 certification is required or used by an alien to 

23 obtain status under section 203(b). 


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

2 to accord the alien a status under section 

3 203(b). 

4 ‘‘(2) ALIENS DESCRIBED.—An alien is de5 scribed in this paragraph if the alien was previously 

6 issued a visa or otherwise provided nonimmigrant 

7 status under— 

8 ‘‘(A) section 101(a)(15)(F); 

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

10 ‘‘(C) section 101(a)(15)(L). 

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

12 of Homeland Security shall extend the stay of an 

13 alien who qualifies for an extension under paragraph 

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

15 decision is made— 

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

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

18 application is granted, to deny a petition de19 scribed in paragraph (1)(B) filed on behalf of 

20 the alien pursuant to such grant; 

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

22 paragraph (1)(B); or 

23 ‘‘(C) to grant or deny the alien’s applica24 tion for an immigrant visa or adjustment of 


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1 status to that of an alien lawfully admitted for 

2 permanent residence. 

3 Work authorization shall be provided to an alien 

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

5 (B) CONFORMING AMENDMENT.—Section 

6 106 of the American Competitiveness in the 

7 21st Century Act is amended by striking sub8 sections (a) and (b). 

9 (3) DEFINITIONS.—Section 101(a) of the Immi10 gration and Nationality Act (8 U.S.C. 1101(a)) is 

11 amended by adding at the end the following: 

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

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

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

15 1001(a)). 

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

17 group treated as a single employer under subsection 

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

19 Revenue Code of 1986.’’. 

20 (d) CONFORMING AMENDMENTS.—Section 

21 204(a)(1)(F) of the Immigration and Nationality Act (8 

22 U.S.C. 1154(a)(1)(F)) is amended— 

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

24 ‘‘203(b)(1)(C),’’; and 


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

3 SEC. 102. ENTREPRENEURS WHO ESTABLISH BUSINESSES 

4 AND CREATE JOBS IN THE UNITED STATES. 

5 (a) START-UP BUSINESS AND JOB CREATION

6 VISAS.—Section 203(b) of the Immigration and Nation7 ality Act (8 U.S.C. 1153(b)) is amended— 

8 (1) by redesignating paragraph (6) as para9 graph (7); and 

10 (2) by inserting after paragraph (5) the fol11 lowing: 

12 ‘‘(6) START-UP ENTREPRENEURS.— 

13 ‘‘(A) IN GENERAL.—Visas shall be made 

14 available, notwithstanding subsection (a)(2) or 

15 (d) of section 201 or the matter preceding para16 graph (1) of this subsection, to qualified immi17 grants who are described in subparagraph (B) 

18 or (C). 

19 ‘‘(B) VENTURE CAPITAL-BACKED START20 UP ENTREPRENEURS.—An alien is described in 

21 this subparagraph if the alien intends to engage 

22 in a new commercial enterprise (including a 

23 limited partnership or similar entity) in the 

24 United States— 


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1 ‘‘(i) with respect to which the alien 

2 has completed an investment agreement re3 quiring an investment in the enterprise in 

4 an amount not less than $500,000 on the 

5 part of— 

6 ‘‘(I) a qualified venture capital 

7 operating company; 

8 ‘‘(II) 1 or more qualified angel 

9 investors (of which at least 1 such in10 vestor is providing $100,000 of the re11 quired investment); or 

12 ‘‘(III) a qualified business entity; 

13 and 

14 ‘‘(ii) which will benefit the United 

15 States economy and, during the 2-year pe16 riod beginning on the date on which the 

17 visa is issued under this paragraph, will— 

18 ‘‘(I) create full-time employment 

19 for at least 3 United States workers; 

20 ‘‘(II) raise not less than an addi21 tional $1,000,000 in capital invest22 ment; or 

23 ‘‘(III) generate not less than 

24 $1,000,000 in revenue. 


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1 ‘‘(C) SELF-SPONSORED START-UP ENTRE2 PRENEURS.—An alien is described in this sub3 paragraph if— 

4 ‘‘(i) the alien has engaged in a new 

5 commercial enterprise (including a limited 

6 partnership or similar entity) in the United 

7 States that benefits the United States 

8 economy; 

9 ‘‘(ii) the enterprise has created full10 time employment for at least 3 United 

11 States workers; and 

12 ‘‘(iii) by not later than the end of the 

13 2-year period beginning on the date on 

14 which the visa is issued under this para15 graph, the enterprise will create full-time 

16 employment for a total of at least 10 

17 United States workers (which total may in18 clude the employment described in clause 

19 (ii)). 

20 ‘‘(D) METHODOLOGIES.—The Secretary of 

21 Homeland Security, in consultation with the 

22 Secretary of Commerce, shall recognize reason23 able methodologies for determining the number 

24 of direct and indirect jobs created by a commer25 cial enterprise, including such jobs that are esVerDate Mar 15 2010 04:49 Jun 15, 2011 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2161.IH H2161

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1 timated to have been created indirectly through 

2 revenues generated from increased exports, im3 proved regional productivity, or increased do4 mestic capital investment resulting from the 

5 commercial enterprise. 

6 ‘‘(E) DEFINITIONS.—For purposes of this 

7 paragraph: 

8 ‘‘(i) FULL-TIME EMPLOYMENT.—The 

9 term ‘full-time employment’ means employ10 ment in a position that requires at least 35 

11 hours of service per week at any time, re12 gardless of who fills the position. Such em13 ployment may be satisfied on a full-time 

14 equivalent basis by calculating the number 

15 of full-time employees that could have been 

16 employed if the reported number of hours 

17 worked by part-time employees had been 

18 worked by full-time employees. Full-time 

19 equivalent employment shall be calculated 

20 by dividing the part-time hours paid by the 

21 standard number of hours for full-time em22 ployees. 

23 ‘‘(ii) INVESTMENT.—The term ‘invest24 ment’ does not include any assets acquired, 

25 directly or indirectly, by unlawful means. 


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1 ‘‘(iii) QUALIFIED ANGEL INVESTOR.— 

2 The term ‘qualified angel investor’ means, 

3 with respect to a qualified immigrant, an 

4 individual who— 

5 ‘‘(I) is an accredited investor (as 

6 defined in section 230.501(a) of title 

7 17, Code of Federal Regulations (as 

8 in effect on April 1, 2010)); 

9 ‘‘(II) is a United States citizen or 

10 an alien lawfully admitted to the 

11 United States for permanent resi12 dence; and 

13 ‘‘(III) has made at least 2 equity 

14 investments of not less than $50,000 

15 in each of the 3 years before the date 

16 of a petition by the qualified immi17 grant for classification under this 

18 paragraph. 

19 ‘‘(iv) QUALIFIED BUSINESS ENTITY.— 

20 The term ‘qualified business entity’ means, 

21 with respect to a qualified immigrant, an 

22 entity that— 

23 ‘‘(I) has been operating for a pe24 riod beginning on a date that is not 

25 less than 2 years before the date of 


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1 the petition for classification under 

2 this paragraph; 

3 ‘‘(II) employs not fewer than 10 

4 United States workers in the United 

5 States; and 

6 ‘‘(III) has employed the alien for 

7 not less than 1 year on the date of the 

8 petition for classification under this 

9 paragraph. 

10 ‘‘(v) QUALIFIED VENTURE CAPITAL

11 OPERATING COMPANY.—The term ‘quali12 fied venture capital operating company’ 

13 means, with respect to a qualified immi14 grant, an entity that— 

15 ‘‘(I) is classified as a ‘venture 

16 capital operating company’ under sec17 tion 2510.3–101(d) of title 29, Code 

18 of Federal Regulations (as in effect on 

19 July 1, 2009); 

20 ‘‘(II) is based in the United 

21 States; 

22 ‘‘(III) in the determination of the 

23 Secretary of Homeland Security, is 

24 owned and controlled by United 

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1 mitted to the United States for per2 manent residence; 

3 ‘‘(IV) has capital commitments of 

4 not less than $10,000,000; 

5 ‘‘(V) has been operating for a pe6 riod of at least 2 years before the date 

7 of the petition for classification under 

8 this paragraph; and 

9 ‘‘(VI) has made at least 2 invest10 ments of not less than $500,000 in 

11 each of the 2 years before the date of 

12 the petition for classification under 

13 this paragraph. 

14 ‘‘(vi) UNITED STATES WORKER.—The 

15 term ‘United States worker’ means an em16 ployee (other than the immigrant or the 

17 immigrant’s spouse, sons, or daughters) 

18 who— 

19 ‘‘(I) is a citizen or national of the 

20 United States; or 

21 ‘‘(II) is an alien who is lawfully 

22 admitted for permanent residence, is 

23 admitted as a refugee under section 

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1 thorized to be employed in the United 

2 States.’’. 

3 (b) PROCEDURE FOR GRANTING IMMIGRANT STA4 TUS.—Section 204(a)(1)(H) of the Immigration and Na5 tionality Act (8 U.S.C. 1154(a)(1)(H)) is amended by 

6 striking ‘‘section 203(b)(5)’’ and inserting ‘‘paragraph (5) 

7 or (6) of section 203(b)’’. 

8 (c) CONDITIONAL PERMANENT RESIDENT STATUS.— 

9 Section 216A of the Immigration and Nationality Act (8 

10 U.S.C. 1186b) is amended— 

11 (1) by striking ‘‘Attorney General’’ each place 

12 such term appears and inserting ‘‘Secretary of 

13 Homeland Security’’; 

14 (2) in subsection (b)(1)— 

15 (A) in subparagraph (A), by striking ‘‘in16 vestment’’ and inserting ‘‘investment or engage17 ment’’; 

18 (B) by amending subparagraph (B) to read 

19 as follows: 

20 ‘‘(B) the requisite investment or engage21 ment was not made or was not sustained 

22 throughout the period of the alien’s residence in 

23 the United States; or’’; and 


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1 (C) in subparagraph (C), by striking ‘‘sec2 tion 203(b)(5)’’ and inserting ‘‘paragraph (5) 

3 or 6 of section 203(b), as applicable’’; 

4 (3) in subsection (d)(1)— 

5 (A) in the matter preceding subparagraph 

6 (A), by striking ‘‘the alien’’; 

7 (B) by amending subparagraph (A) to read 

8 as follows: 

9 ‘‘(A) the requisite investment or engage10 ment was made and was sustained throughout 

11 the period of the alien’s residence in the United 

12 States; and’’; 

13 (C) in subparagraph (B), by striking ‘‘sec14 tion 203(b)(5)’’ and inserting ‘‘paragraph (5) 

15 or (6) of section 203(b), as applicable’’; and 

16 (4) in subsection (f)— 

17 (A) in paragraph (1), by striking ‘‘section 

18 203(b)(5)’’ and inserting ‘‘paragraph (5) or (6) 

19 of section 203(b)’’; and 

20 (B) in paragraph (3), by inserting ‘‘or 

21 similar entity’’ before the period. 

22 (d) CAP EXEMPTION.—Section 201(b)(1) of the Im23 migration and Nationality Act (8 U.S.C. 1151(b)(1)), as 

24 amended by section 101(b) of this Act, is further amended 


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1 by striking the period at the end and inserting ‘‘or section 

2 203(b)(6).’’. 

3 SEC. 103. ELIMINATING GREEN CARD BACKLOGS. 

4 (a) RECAPTURING IMMIGRANT VISAS LOST TO BU5 REAUCRATIC DELAY.— 

6 (1) EMPLOYMENT-BASED IMMIGRANTS.—Sec7 tion 201(d) of the Immigration and Nationality Act 

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

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

10 IMMIGRANTS.— 

11 ‘‘(1) IN GENERAL.—The worldwide level of em12 ployment-based immigrants under this subsection for 

13 a fiscal year is equal to the sum of— 

14 ‘‘(A) 140,000; 

15 ‘‘(B) the number computed under para16 graph (2); and 

17 ‘‘(C) the number computed under para18 graph (3). 

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

20 computed under this paragraph for a fiscal year is 

21 the difference, if any, between the maximum number 

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

23 (relating to family-sponsored immigrants) during the 

24 previous fiscal year and the number of visas issued 

25 under that section during that year. 


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

2 under this paragraph is the difference, if any, be3 tween— 

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

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

6 established under paragraph (1) for fiscal 

7 years 1992 through 2011; and 

8 ‘‘(ii) the number of visas actually 

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

10 subsection, during such fiscal years; and 

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

12 after fiscal year 2011 pursuant to an immi13 grant visa number issued under section 203(b), 

14 subject to this subsection, during fiscal years 

15 1992 through 2011.’’. 

16 (2) FAMILY-SPONSORED IMMIGRANTS.—Section 

17 201(c) of the Immigration and Nationality Act (8 

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

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

20 IMMIGRANTS.— 

21 ‘‘(1) IN GENERAL.— 

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

23 worldwide level of family-sponsored immigrants 

24 under this subsection for a fiscal year is equal 

25 to— 


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1 ‘‘(i) 480,000 minus the number com2 puted under paragraph (2); plus 

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

4 under paragraph (3) and the number com5 puted under paragraph (4). 

6 ‘‘(B) In no case shall the number com7 puted under subparagraph (A)(i) be less than 

8 226,000. 

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

10 computed under this paragraph for a fiscal year is 

11 the number of aliens described in subparagraph (A) 

12 or (B) of subsection (b)(2) who were issued immi13 grant visas, or who otherwise acquired the status of 

14 an alien lawfully admitted to the United States for 

15 permanent residence, in the previous fiscal year. 

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

17 computed under this paragraph for a fiscal year is 

18 the difference, if any, between the maximum number 

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

20 (relating to employment-based immigrants) during 

21 the previous fiscal year and the number of visas 

22 issued under that section during that year. 

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

24 under this paragraph is the difference, if any, be25 tween— 


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

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

3 established under paragraph (1) for fiscal 

4 years 1992 through 2011; and 

5 ‘‘(ii) the number of visas actually 

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

7 subsection, during such fiscal years; and 

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

9 after fiscal year 2011 pursuant to an immi10 grant visa number issued under section 203(a), 

11 subject to this subsection, during fiscal years 

12 1992 through 2011.’’. 

13 (b) SPOUSES AND MINOR CHILDREN.—Section 

14 201(b)(1) of the Immigration and Nationality Act (8 

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

16 amended by adding at the end the following: 

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

18 an alien admitted as an employment-based im19 migrant under section 203(b).’’. 

20 (c) ELIMINATING EMPLOYMENT-BASED PER COUN21 TRY LEVELS.—Section 202(a) of the Immigration and 

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

23 (1) in paragraph (2)— 

24 (A) by striking ‘‘, (4), and (5)’’ and insert25 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 (d) COUNTRY-SPECIFIC OFFSET.—Section 2 of the 

11 Chinese Student Protection Act of 1992 (8 U.S.C. 1255 

12 note) is amended— 

13 (1) in subsection (a), by striking ‘‘subsection 

14 (e)’’ and inserting ‘‘subsection (d)’’; 

15 (2) by striking subsection (d); and 

16 (3) by redesignating subsection (e) as sub17 section (d). 

18 SEC. 104. IMMIGRANT ENTREPRENEURS AND INNOVATORS 

19 PRESENT IN THE UNITED STATES. 

20 Section 245 of the Immigration and Nationality Act 

21 (8 U.S.C. 1255) is amended by adding at the end the fol22 lowing: 

23 ‘‘(n) IMMIGRANT ENTREPRENEURS AND INNOVATORS

24 PRESENT IN THE UNITED STATES.—An alien who is eligi25 ble to receive an immigrant visa under paragraph (1)(D) 


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1 or (6) of section 203(b) may adjust status pursuant to 

2 subsection (a) and notwithstanding paragraph (2), (7), or 

3 (8) of subsection (c) and paragraphs (6)(A) and (7) of 

4 section 212(a), if the alien was present in the United 

5 States on the date of the enactment of the IDEA Act of 

6 2011 and has been continuously present since that date.’’. 

7 TITLE II—INVESTING IN THE 

8 NEXT GENERATION OF 

9 INNOVATORS AND JOB CRE10 ATORS 

11 SEC. 201. INVESTING IN STEM EDUCATION FOR U.S. STU12 DENTS. 

13 Section 204(a)(1)(F) of the Immigration and Nation14 ality Act (8 U.S.C. 1154(a)(1)(F)), as amended by this 

15 Act, is further amended— 

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

17 and 

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

19 ‘‘(ii)(I) The Secretary of Homeland Secu20 rity shall impose a fee on an employer (exclud21 ing any employer that is a primary or sec22 ondary education institution, an institution of 

23 higher education, a nonprofit entity related to 

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1 riculum-related clinical training of students reg2 istered at any such institution, a nonprofit re3 search organization, or a governmental research 

4 organization) filing a petition under clause (i) 

5 to employ an alien entitled to classification 

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

7 203(b)(1), section 203(b)(2), clause (i) or (ii) of 

8 section 203(b)(3)(A), section 203(b)(5) or sec9 tion 203(b)(6). 

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

11 $2,000 for each such petition except that the 

12 fee shall be half the amount for each such peti13 tion by any employer with not more than 25 

14 full-time equivalent employees who are em15 ployed in the United States. 

16 ‘‘(III) Fees collected under this clause 

17 shall be deposited in the Treasury in accordance 

18 with section 286(s).’’. 

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

20 Section 286(s) of the Immigration and Nationality 

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

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

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

24 general fund of the Treasury a separate account, 

25 which shall be known as the ‘STEM Education and 


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1 Training Account’. Notwithstanding any other sec2 tion of this title, there shall be deposited as offset3 ting receipts into the account all fees collected under 

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

5 (11) of section 214(c). 

6 ‘‘(2) LOW-INCOME STEM SCHOLARSHIP PRO7 GRAM.—Sixty percent of the amounts deposited into 

8 the STEM Education and Training Account shall 

9 remain available to the Director of the National 

10 Science Foundation until expended for scholarships 

11 described in section 414(d) of the American Com12 petitiveness and Workforce Improvement Act of 

13 1998 for low-income students enrolled in a program 

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

15 engineering, or mathematics. 

16 ‘‘(3) NATIONAL SCIENCE FOUNDATION COM17 PETITIVE GRANT PROGRAM FOR K–12 SCIENCE, 

18 TECHNOLOGY, ENGINEERING AND MATHEMATICS

19 EDUCATION.— 

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

21 amounts deposited into the STEM Education 

22 and Training Account shall remain available to 

23 the Director of the National Science Founda24 tion until expended to carry out a direct or 

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1 ment in K–12 education, including through pri2 vate-public partnerships. 

3 ‘‘(B) TYPES OF PROGRAMS COVERED.— 

4 The Director shall award grants to such pro5 grams, including those which support the devel6 opment and implementation of standards-based 

7 instructional materials models and related stu8 dent assessments that enable K–12 students to 

9 acquire an understanding of science, technology, 

10 engineering, and mathematics, as well as to de11 velop critical thinking skills; provide systemic 

12 improvement in training K–12 teachers and 

13 education for students in science, technology, 

14 engineering, and mathematics, including by 

15 supporting efforts to promote gender-equality 

16 among students receiving such instruction; sup17 port the professional development of K–12 

18 science, technology, engineering and mathe19 matics teachers in the use of technology in the 

20 classroom; stimulate system-wide K–12 reform 

21 of science, technology, engineering, and mathe22 matics in rural, economically disadvantaged re23 gions of the United States; provide externships 

24 and other opportunities for students to increase 

25 their appreciation and understanding of science, 


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1 technology, engineering, and mathematics (in2 cluding summer institutes sponsored by an in3 stitution of higher education for students in 

4 grades 7–12 that provide instruction in such 

5 fields); involve partnerships of industry, edu6 cational institutions, and community organiza7 tions to address the educational needs of dis8 advantaged communities; provide college pre9 paratory support to expose and prepare stu10 dents for careers in science, technology, engi11 neering, and mathematics; and provide for car12 rying out systemic reform activities under sec13 tion 3(a)(1) of the National Science Foundation 

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

15 ‘‘(4) STEM CAPACITY BUILDING AT MINORITY16 SERVING INSTITUTIONS.— 

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

18 amounts deposited into the STEM Education 

19 and Training Account shall remain available to 

20 the Director of the National Science Founda21 tion until expended to establish or expand pro22 grams to award grants on a competitive, merit23 reviewed basis to enhance the quality of under24 graduate science, technology, engineering, and 

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1 stitutions of higher education and to increase 

2 the retention and graduation rates of students 

3 pursuing degrees in such fields at such institu4 tions. 

5 ‘‘(B) TYPES OF PROGRAMS COVERED.— 

6 Grants awarded under this paragraph shall be 

7 awarded to— 

8 ‘‘(i) minority-serving institutions of 

9 higher education for— 

10 ‘‘(I) activities to improve courses 

11 and curriculum in science, technology, 

12 engineering, and mathematics; 

13 ‘‘(II) efforts to promote gender 

14 equality among students enrolled in 

15 such courses; 

16 ‘‘(III) faculty development; 

17 ‘‘(IV) stipends for undergraduate 

18 students participating in research; 

19 and 

20 ‘‘(V) other activities consistent 

21 with subparagraph (A), as determined 

22 by the Director; and 

23 ‘‘(ii) to other institutions of higher 

24 education to partner with the institutions 

25 described in clause (i) for— 


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1 ‘‘(I) faculty and student develop2 ment and exchange; 

3 ‘‘(II) research infrastructure de4 velopment; 

5 ‘‘(III) joint research projects; 

6 and 

7 ‘‘(IV) identification and develop8 ment of minority and low-income can9 didates for graduate studies in 

10 science, technology, engineering and 

11 mathematics degree programs. 

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

13 paragraph, the term ‘minority-serving institu14 tions of higher education’ shall include— 

15 ‘‘(i) colleges eligible to receive funds 

16 under the Act of August 30, 1890 (7 

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

18 Tuskegee University; 

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

20 section 532 of the Equity in Educational 

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

22 301 note); and 

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

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


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

2 1101a(a)(5)). 

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

4 amounts deposited into the STEM Education and 

5 Training Account shall remain available to the Sec6 retary of Labor until expended for— 

7 ‘‘(A) demonstration programs and projects 

8 described in section 414(c) of the American 

9 Competitiveness and Workforce Improvement 

10 Act of 1998; and 

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

12 science, technology, engineering, and mathe13 matics for persons who have served honorably 

14 in the Armed Forces of the United States and 

15 have retired or are retiring from such service. 

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

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

18 amounts deposited into the STEM Education and 

19 Training Account shall remain available to the Sec20 retary of Homeland Security until expended to carry 

21 out duties under paragraphs (1) (E) or (F) of sec22 tion 204(a) (related to petitions for immigrants de23 scribed in section 203(b)) and under paragraphs (1) 

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


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1 for nonimmigrants described in section 

2 101(a)(15)(H)(i)(b)). 

3 ‘‘(7) USE OF FEES FOR APPLICATION PROC4 ESSING AND ENFORCEMENT.—One and one-half per5 cent of the amounts deposited into the STEM Edu6 cation and Training Account shall remain available 

7 to the Secretary of Labor until expended for de8 creasing the processing time for applications under 

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

10 SEC. 203. ACCESS TO STUDENT VISAS FOR IMMIGRANT STU11 DENTS PRESENT IN THE UNITED STATES. 

12 Notwithstanding paragraphs (6)(A) and (7) of sec13 tion 212(a) of the Immigration and Nationality Act (8 

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

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

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

17 1101(a)(15)(F)) if the alien— 

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

19 course of study at a United States institution of 

20 higher education; 

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

22 date of the enactment of this Act and has been con23 tinuously present since that date; and 

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

25 the alien initially entered the United States. 


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1 TITLE III—REDUCING ADMINIS2 TRATIVE HURDLES TO FOS3 TER INNOVATION AND JOB 

4 CREATION 

5 SEC. 301. STREAMLINING LABOR CERTIFICATIONS. 

6 (a) IN GENERAL.—Section 212(a)(5)(A) of the Im7 migration and Nationality Act (8. U.S.C. 1182(a)(5)(A)) 

8 is amended— 

9 (1) in clause (ii)— 

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

11 (B) in subclause (II), by striking the pe12 riod and inserting ‘‘, or’’; 

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

14 subclause: 

15 ‘‘(III) is the beneficiary of a 

16 labor certification application filed by 

17 an employer designated as an Estab18 lished U.S. Recruiter under clause 

19 (vii).’’; and 

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

21 clauses: 

22 ‘‘(v) PROCESSING STANDARDS.— 

23 ‘‘(I) TIMEFRAMES.—The Sec24 retary of Labor shall adjudicate an 

25 application for certification under 


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1 clause (i) not later than 120 days 

2 after the date on which the applica3 tion is filed. In the event that addi4 tional information or documentation is 

5 requested by the Secretary during 

6 such 120-day period, the Secretary 

7 shall adjudicate the application not 

8 later than 60 days after the date on 

9 which such information or documenta10 tion is received. 

11 ‘‘(II) NOTICE WITHIN 30 DAYS OF

12 DEFICIENCIES.—The employer shall 

13 be notified in writing within 30 days 

14 of the date of filing if the application 

15 does not meet the standards (other 

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

17 for approval. If the application does 

18 not meet such standards, the notice 

19 shall include the reasons therefor and 

20 the Secretary shall provide an oppor21 tunity for the prompt resubmission of 

22 a modified application. 

23 ‘‘(vi) FEES.— 

24 ‘‘(I) APPLICATION FEE.—In ad25 dition to any other fees authorized by 


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1 law, the Secretary of Labor shall im2 pose a fee on an employer that sub3 mits an application for certification 

4 under clause (i). The amount of the 

5 fee shall be $295 for each such appli6 cation. 

7 ‘‘(II) PREMIUM PROCESSING.— 

8 The Secretary of Labor is authorized 

9 to establish and collect an optional 

10 premium fee for processing of applica11 tions for certification under clause (i). 

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

13 shall be paid in addition to the appli14 cation fee under subclause (I). For an 

15 application in which the premium 

16 processing fee is paid, the Secretary 

17 shall adjudicate the application not 

18 later than 30 days after the date on 

19 which the application is filed. In the 

20 event that additional information or 

21 documentation is requested by the 

22 Secretary with respect to such appli23 cation during the 30-day period, the 

24 Secretary shall adjudicate the applica25 tion not later than 30 days after the 


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1 date on which such information or 

2 documentation is received. If the Sec3 retary does not comply with these 

4 timeframes, the Secretary shall refund 

5 the premium processing fee to the ap6 plicant. 

7 ‘‘(III) DEPOSIT OF FEES.—Fees 

8 collected under subclauses (I) and (II) 

9 shall be deposited in the Treasury in 

10 accordance with section 286(w). 

11 ‘‘(IV) PROHIBITION ON EM12 PLOYER ACCEPTING REIMBURSEMENT

13 OF FEE.—An employer subject to a 

14 fee under this clause shall not require 

15 or accept reimbursement of or other 

16 compensation for all or part of the 

17 cost of such fee, directly or indirectly, 

18 from the alien on whose behalf the ap19 plication is filed. 

20 ‘‘(vii) ESTABLISHED U.S. RECRUIT21 ERS.— 

22 ‘‘(I) IN GENERAL.—The Sec23 retary of Labor shall establish a proc24 ess for employers to apply for des25 ignation as an Established U.S. ReVerDate Mar 15 2010 04:49 Jun 15, 2011 Jkt 099200 PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 E:\BILLS\H2161.IH H2161

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1 cruiter. An employer seeking such 

2 designation must file an application 

3 with the Secretary stating the fol4 lowing: 

5 ‘‘(aa) At least 80 percent of 

6 the employer’s workforce in the 

7 United States are United States 

8 workers. 

9 ‘‘(bb) At least 80 percent of 

10 the employer’s new hires in the 

11 United States in the 5 years pre12 ceding the filing of the applica13 tion are United States workers. 

14 ‘‘(cc) The employer regularly 

15 posts employment opportunities 

16 on a publicly accessible Internet 

17 Web site and has engaged in at 

18 least 3 other forms of active re19 cruitment on an annual basis 

20 over the preceding 3 years. 

21 ‘‘(dd) The employer will con22 tinue to engage in the recruit23 ment efforts described in item 

24 (cc) during the certification pe25 riod. 


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1 For the purposes of this clause, the 

2 term ‘United States worker’ shall in3 clude an alien with a pending or ap4 proved petition under subparagraph 

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

6 ‘‘(II) DESIGNATION.— 

7 ‘‘(aa) TIMELY ADJUDICA8 TIONS.—The Secretary of Labor 

9 shall adjudicate an application 

10 for designation under subclause 

11 (I) not later than 30 days after 

12 the date on which the application 

13 is filed. In the event that addi14 tional information or documenta15 tion is requested by the Sec16 retary, the Secretary shall adju17 dicate the application not later 

18 than 30 days after the receipt of 

19 such information or documenta20 tion. 

21 ‘‘(bb) APPLICATION FEE.— 

22 In addition to any other fees au23 thorized by law, the Secretary of 

24 Labor may impose a fee on an 

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1 cation for designation under sub2 clause (I). The amount of the fee 

3 shall be $500 for each such ap4 plication. Fees collected under 

5 this clause shall be deposited in 

6 the Treasury in accordance with 

7 section 286(w). 

8 ‘‘(cc) PERIOD OF DESIGNA9 TION.—Unless terminated under 

10 item (dd), a designation issued 

11 under this clause shall be valid 

12 for 3 years. 

13 ‘‘(dd) TERMINATION.—The 

14 Secretary of Labor may termi15 nate a designation under sub16 clause (I) if the Secretary deter17 mines that the employer— 

18 ‘‘(AA) did not fulfill the 

19 requirements of such sub20 clause at the time the cer21 tification was issued; or 

22 ‘‘(BB) failed to meet 

23 the requirements under sub24 clause (I)(ee) during the 


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1 designation period described 

2 in item (cc). 

3 ‘‘(III) ACTIVE RECRUITMENT.— 

4 For the purposes of this clause ‘active 

5 recruitment’ means any of the fol6 lowing: 

7 ‘‘(aa) EMPLOYEE REFERRAL

8 PROGRAM.—The employer oper9 ates an employee referral pro10 gram that includes meaningful 

11 incentives for employees to refer 

12 workers for job openings. 

13 ‘‘(bb) IN-HOUSE RECRUIT14 ERS.—The employer retains an 

15 in-house recruiter on a full-time 

16 basis to recruit workers for job 

17 openings. 

18 ‘‘(cc) JOB FAIRS.—The em19 ployer recruits workers at job 

20 fairs that are advertised in news21 paper advertisements in which 

22 the employer is named as a par23 ticipant in such fairs. 

24 ‘‘(dd) MILITARY RECRUIT25 ING.—The employer recruits 


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1 workers during recruiting events 

2 that are organized by the Armed 

3 Forces of the United States. 

4 ‘‘(ee) ON-CAMPUS RECRUIT5 ING.—The employer recruits 

6 workers at institutions of higher 

7 education during recruiting 

8 events that are organized by such 

9 institutions. 

10 ‘‘(ff) PRIVATE EMPLOYMENT

11 FIRMS.—The employer regularly 

12 engages private employment 

13 firms or placement agencies to 

14 recruit workers for job openings. 

15 ‘‘(gg) TRADE OR PROFES16 SIONAL ORGANIZATIONS.—The 

17 employer regularly advertises 

18 with trade or professional organi19 zations to recruit workers for job 

20 openings.’’. 

21 (b) ESTABLISHMENT OF ACCOUNT AND USE OF

22 FUNDS.—Section 286 of the Immigration and Nationality 

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

24 following new subsection: 


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1 ‘‘(w) LABOR CERTIFICATION APPLICATION FEE AC2 COUNT.— 

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

4 general fund of the Treasury a separate account, 

5 which shall be known as the ‘Labor Certification Ap6 plication Fee Account’. Notwithstanding any other 

7 section of this title, there shall be deposited as off8 setting receipts into the account all fees collected 

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

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

11 the Labor Certification Application Fee Account 

12 shall remain available to the Secretary of Labor 

13 until expended for carrying out labor certification 

14 activities under section 212(a)(5)(A) (including pro15 viding premium processing services) and to make in16 frastructure improvements in the adjudications and 

17 customer-service processes related to such activi18 ties.’’. 

19 SEC. 302. STREAMLINING PETITIONS FOR ESTABLISHED 

20 EMPLOYERS. 

21 Section 214(c) of the Immigration and Nationality 

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

23 the following: 

24 ‘‘(15) The Secretary of Homeland Security shall es25 tablish a pre-certification procedure for employers who file 


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1 multiple petitions described in this subsection or section 

2 203(b). Such precertification procedure shall enable an 

3 employer to avoid repeatedly submitting documentation 

4 that is common to multiple petitions and establish, 

5 through a single filing, criteria relating to the employer 

6 and the offered employment opportunity.’’. 

7 SEC. 303. PREMIUM PROCESSING. 

8 Section 286(u) of the Immigration and Nationality 

9 Act (8 U.S.C. 1356(u)) is amended— 

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

11 ‘‘shall’’; and 

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

13 ‘‘applications.’’ and inserting ‘‘applications, includ14 ing an administrative appeal of any decision on an 

15 employment-based immigrant petition.’’. 

16 TITLE IV—PROTECTING 

17 AMERICAN WORKERS 

18 SEC. 401. STRENGTHENING THE PREVAILING WAGE SYS19 TEM TO PROTECT AMERICAN WORKERS. 

20 Section 212(p) of the Immigration and Nationality 

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

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

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1 sification by metropolitan statistical area in the 

2 United States. Such survey, or other survey ap3 proved by the Secretary of Labor, shall provide 3 

4 levels of wages commensurate with experience, edu5 cation, and level of supervision. Such wage levels 

6 shall be determined as follows: 

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

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

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

10 wages surveyed. 

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

12 wages surveyed. 

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

14 the highest two-thirds of wages surveyed. 

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

16 paid pursuant to section 203(b)(1)(D) and sub17 sections (a)(5)(A), (n)(1)(A)(i)(II), and 

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

19 of the wage level determined pursuant to those sec20 tions. 

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

22 an occupational classification in an area of employ23 ment for purposes of section 203(b)(1)(D) and sub24 sections (a)(5)(A), (n)(1)(A)(i)(II), and 


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1 (t)(1)(A)(i)(II) of this section in the case of an em2 ployee of— 

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

4 a related or affiliated nonprofit entity, or 

5 ‘‘(B) a nonprofit research organization or 

6 a Governmental research organization, 

7 the prevailing wage level shall only take into account 

8 employees at such institutions and organizations in 

9 the area of employment. 

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

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

12 opportunity is covered by professional sports league 

13 rules or regulations, the wage set forth in those 

14 rules or regulations shall be considered as not ad15 versely affecting the wages of United States workers 

16 similarly employed and be considered the prevailing 

17 wage.’’. 

18 SEC. 402. REFORMING THE H–1B VISA PROGRAM TO PRO19 TECT AMERICAN WORKERS. 

20 (a) STRENGTHENING WAGE PROTECTIONS.—Section 

21 214(g)(3) of the Immigration and Nationality Act (8 

22 U.S.C. 1184(g)(3)) is amended— 

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

24 Aliens who’’; and 

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


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1 ‘‘(B) If, on any given date, the number of peti2 tions filed under subparagraph (A) exceeds the num3 ber of visas remaining under paragraph (1), the Sec4 retary shall consider such petitions in the following 

5 order: 

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

7 level meets or exceeds the wage set by section 

8 212(p)(1)(C); 

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

10 level meets or exceeds the wage set by section 

11 212(p)(1)(B); and 

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

13 (b) PROHIBITING DISPLACEMENT OF U.S. WORK14 ERS.— 

15 (1) PROHIBITING DISPLACEMENT BY EM16 PLOYER.—Section 212(n)(1)(E) of the Immigration 

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

18 amended— 

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

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

21 and inserting ‘‘The’’; and 

22 (B) by striking clause (ii). 

23 (2) PROHIBITING DISPLACEMENT BY THIRD24 PARTY EMPLOYER.—Section 212(n)(1)(F) of the Im25 migration and Nationality Act (8 U.S.C. 


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

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

3 the’’ and inserting ‘‘The’’. 

4 (3) DEFINITION OF DISPLACE.—Section 

5 212(n)(4)(B) of the Immigration and Nationality 

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

7 (A) inserting ‘‘and skills’’ after ‘‘respon8 sibilities’’; and 

9 (B) inserting ‘‘working in the same divi10 sion, project or product line’’ after ‘‘experi11 ence’’. 

12 (c) STRENGTHENING RECRUITMENT REQUIRE13 MENTS.— 

14 (1) REQUIRING RECRUITMENT OF U.S. WORK15 ERS.— 

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

17 of the Immigration and Nationality Act (8 

18 U.S.C. 1182(n)(1)(G)(i)) is amended by strik19 ing ‘‘In the case of an application described in 

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

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

22 (B) DEPENDENT EMPLOYERS.—Section 

23 212(n)(1)(G)(ii) of the Immigration and Na24 tionality Act (8 U.S.C. 1182(n)(1)(G)(ii)) is 

25 amended to read as follows: 


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1 ‘‘(ii) The employer shall be required 

2 to comply with additional supervised re3 cruitment activities as specified by the Sec4 retary of the Labor if the employer— 

5 ‘‘(I) employs 50 or more employ6 ees in the United States and less than 

7 50 percent of such employees are 

8 United States workers; and 

9 ‘‘(II) is offering wages below the 

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

11 (relating to the mean wage for the oc12 cupational classification in the area of 

13 employment). 

14 For purposes of this clause, the term 

15 ‘United States worker’ shall include an 

16 alien with a pending or approved petition 

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

18 204(a)(1).’’. 

19 (C) RECRUITMENT REPORT.—Section 

20 212(n)(1) of the Immigration and Nationality 

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

22 flush text following subparagraph (G), by strik23 ing ‘‘Nothing in subparagraph (G)’’ and insert24 ing ‘‘An employer required to recruit under sub25 paragraph (G) shall submit to the Secretary, 


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1 along with an application under this paragraph, 

2 a recruitment report containing evidence that 

3 the employer posted the employment oppor4 tunity on a publicly accessible Internet Web site 

5 and engaged in at least 3 other forms of active 

6 recruitment (as defined in subsection 

7 (a)(5)(A)(vii)(III)). The employer shall main8 tain an audit file of recruitment activities, in9 cluding information on United States worker 

10 applicants, for 3 years after the date the appli11 cation was filed with the Secretary. Nothing in 

12 Subparagraph (G)’’. 

13 (2) EXCEPTION FOR EMPLOYERS WHO PAY IN14 CREASED WAGES.—Section 212(n)(1)(G) of the Im15 migration and Nationality Act (8 U.S.C. 

16 1182(n)(1)(G)), as amended by this subsection, is 

17 further amended by adding at the end the following: 

18 ‘‘(iii) The conditions described in 

19 clause (i) shall not apply to an application 

20 filed with respect to the employment of an 

21 H–1B nonimmigrant— 

22 ‘‘(I) who is described in subpara23 graph (A), (B), or (C) of section 

24 203(b)(1); or 


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1 ‘‘(II) if the wages being offered 

2 to such nonimmigrant meet or exceed 

3 the wage level set by subsection 

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

5 for the occupational classification in 

6 the area of employment) and the ap7 plicant is designated as an Estab8 lished U.S. Recruiter under section 

9 212(a)(5)(A)(vii).’’. 

10 (3) ELIMINATING REDUNDANT TESTING OF

11 LABOR MARKET.—Section 212(a)(5)(D) of the Im12 migration and Nationality Act (8 U.S.C. 

13 1182(a)(5)(D)) is amended— 

14 (A) by striking ‘‘The grounds’’ and insert15 ing ‘‘(i) Except as provided in clause (ii), the 

16 grounds’’; and 

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

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

19 seeking admission or adjustment of status who 

20 is presently a nonimmigrant described under 

21 section 101(a)(15)(H)(i)(b) if— 

22 ‘‘(I) the alien obtained such non23 immigrant status based on a petition filed 

24 after the effective date of the IDEA Act of 

25 2011; 


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1 ‘‘(II) the alien is the subject of a peti2 tion described in section 204(a)(1)(F) and 

3 is seeking admission or adjustment of sta4 tus through such petition; and 

5 ‘‘(III) the petition described in sub6 clause (II) was filed by the alien’s em7 ployer within 18 months after the date on 

8 which the alien obtained nonimmigrant 

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

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

11 (1) IN GENERAL.—Section 212(n)(2) of the Im12 migration and Nationality Act (8 U.S.C. 

13 1182(n)(2)) is amended to read as follows: 

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

15 shall establish a process for the receipt, investiga16 tion, and disposition of complaints, which may be 

17 filed by any aggrieved person or organization (in18 cluding bargaining representatives), respecting an 

19 employer’s compliance with this subsection. The Sec20 retary, either pursuant to this complaint process or 

21 otherwise, may investigate employers as necessary to 

22 determine such compliance. The Secretary shall 

23 audit at least 5 percent of the employers who file ap24 plications under paragraph (1) in a given year to de25 termine compliance with this subsection. 


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

2 finds, after notice and an opportunity for a hear3 ing— 

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

5 the conditions of the application described 

6 under paragraph (1), a misrepresentation of a 

7 material fact in such application, or a violation 

8 of subparagraph (C) or (D)— 

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

10 addition to any other remedy authorized by 

11 law, impose such administrative remedies 

12 (including civil monetary penalties in an 

13 amount not to exceed $10,000 per viola14 tion) as the Secretary determines to be ap15 propriate; and 

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

17 approve applications with respect to that 

18 employer under paragraph (1) during a pe19 riod of at least 1 year but not more than 

20 5 years for aliens to be employed by the 

21 employer; and 

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

23 the conditions of the application described 

24 under paragraph (1) or a misrepresentation of 

25 a material fact in such application, in the 


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1 course of which failure or misrepresentation the 

2 employer displaced a United States worker em3 ployed by the employer within the period begin4 ning 180 days before and ending 180 days after 

5 the date of filing of any visa petition supported 

6 by the application— 

7 ‘‘(I) the Secretary of Labor shall im8 pose such administrative remedies (includ9 ing civil monetary penalties in an amount 

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

11 Secretary determines to be appropriate; 

12 and 

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

14 approve applications with respect to that 

15 employer under paragraph (1) during a pe16 riod of at least 5 years for aliens to be em17 ployed by the employer. 

18 ‘‘(C) DISCRIMINATION OR RETALIATION PRO19 HIBITED.—It is a violation of this subparagraph for 

20 an employer who has filed an application under this 

21 subsection to intimidate, threaten, restrain, coerce, 

22 discharge, or in any other manner discriminate or 

23 retaliate against an employee (including a former 

24 employee or an applicant for employment) because 

25 the employee— 


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1 ‘‘(i) has disclosed information to the em2 ployer, or to any other person, that the em3 ployee reasonably believes evidences a violation 

4 of this subsection, or any rule or regulation per5 taining to this subsection; or 

6 ‘‘(ii) seeks legal assistance or counsel re7 lated to any such violation, or cooperates, or 

8 seeks to cooperate, in an investigation or other 

9 proceeding concerning the employer’s compli10 ance with the requirements of this subsection, 

11 or any rule or regulation pertaining to this sub12 section. 

13 The Secretary of Labor and the Secretary of Home14 land Security shall devise a process under which an 

15 H–1B nonimmigrant who files a complaint regarding 

16 a violation of this subparagraph and is otherwise eli17 gible to remain and work in the United States may 

18 be allowed to seek other appropriate employment in 

19 the United States for a period not to exceed the 

20 maximum period of stay authorized for such non21 immigrant classification. 

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

23 this subparagraph for an employer who has filed an 

24 application under this subsection— 


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

2 pay a penalty for ceasing employment with the 

3 employer prior to a date agreed to by the non4 immigrant and the employer; or 

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

6 any other form of compensation from an alien 

7 with respect to a fee imposed on the employer 

8 under section 214(c)(9). 

9 ‘‘(E) BENCHING PROHIBITED.— 

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

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

12 filed an application under this subsection and 

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

14 nonimmigrant has entered into employment 

15 with the employer, in nonproductive status due 

16 to a decision by the employer (based on factors 

17 such as lack of work), or due to the non18 immigrant’s lack of a permit or license, to fail 

19 to pay the nonimmigrant full-time wages in ac20 cordance with paragraph (1)(a) for all such 

21 nonproductive time (if the nonimmigrant was 

22 designated as a full-time employee on the peti23 tion filed under section 214(c)(1)) or otherwise 

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1 tion consistent with the rate of pay identified 

2 on such petition. 

3 ‘‘(ii) EXCEPTIONS.— 

4 ‘‘(I) In the case of an H–1B non5 immigrant who has not yet entered into 

6 employment with an employer who has had 

7 approved an application under this sub8 section, and a petition under section 

9 214(c)(1), with respect to the non10 immigrant, subclause (i) shall apply to the 

11 employer beginning 30 days after the date 

12 the nonimmigrant first is admitted into the 

13 United States pursuant to the petition, or 

14 60 days after the date the nonimmigrant 

15 becomes eligible to work for the employer 

16 (in the case of a nonimmigrant who is 

17 present in the United States on the date of 

18 the approval of the petition). 

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

20 failure to pay wages to an H–1B non21 immigrant for nonproductive time due to 

22 non-work-related factors, such as the vol23 untary request of the nonimmigrant for an 

24 absence or circumstances rendering the 

25 nonimmigrant unable to work. 


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1 ‘‘(III) Clause (i) shall not be con2 strued as prohibiting an employer that is a 

3 school or other educational institution from 

4 applying to an H–1B nonimmigrant an es5 tablished salary practice of the employer, 

6 under which the employer pays to H–1B 

7 nonimmigrants and United States workers 

8 in the same occupational classification an 

9 annual salary in disbursements over fewer 

10 than 12 months, if— 

11 ‘‘(aa) the nonimmigrant agrees to 

12 the compressed annual salary pay13 ments prior to the commencement of 

14 the employment; and 

15 ‘‘(bb) the application of the sal16 ary practice to the nonimmigrant does 

17 not otherwise cause the nonimmigrant 

18 to violate any condition of the non19 immigrant’s authorization under this 

20 chapter to remain in the United 

21 States. 

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

23 This subparagraph shall not be construed as 

24 superseding subparagraph (G). 


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1 ‘‘(F) TREATMENT.—It is a violation of para2 graph (1)(A) for an employer who has filed an appli3 cation under this subsection to fail to offer to an H– 

4 1B nonimmigrant, during the nonimmigrant’s period 

5 of authorized employment, benefits and eligibility for 

6 benefits (including the opportunity to participate in 

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

8 opportunity to participate in retirement and savings 

9 plans; and cash bonuses and noncash compensation, 

10 such as stock options (whether or not based on per11 formance)) on the same basis, and in accordance 

12 with the same criteria, as the employer offers to 

13 United States workers. 

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

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

16 that recovery of back wages, fees or costs is nec17 essary to address a violation of this subsection or 

18 any other law, the Secretary of Labor may recover 

19 such back wages, fees or costs on behalf of the work20 er. 

21 ‘‘(H) GOOD FAITH COMPLIANCE.— 

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

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

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1 dural failure to meet such requirements, if 

2 there was a good faith attempt to comply with 

3 the requirements. 

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

5 ‘‘(I) the Department of Labor (or an6 other enforcement agency) has explained to 

7 the person or entity the basis for the fail8 ure; 

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

10 provided a period of not less than 10 busi11 ness days (beginning after the date of the 

12 explanation) within which to correct such 

13 failure; and 

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

15 corrected the failure voluntarily within 

16 such period. 

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

18 of an investigation, is found to have violated the 

19 prevailing wage requirements set forth in para20 graph (1)(A), shall not be assessed fines or 

21 other penalties for such violation if the person 

22 or entity can establish that the manner in 

23 which the prevailing wage was calculated was 

24 consistent with recognized industry standards 

25 and practices. 


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

2 a person or entity that has engaged in or is en3 gaging in a pattern or practice of willful viola4 tions of this paragraph. 

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

6 The Secretary of Labor is authorized to take other 

7 such actions, including issuing subpoenas and seek8 ing appropriate injunctive relief and specific per9 formance of contractual obligations, as may be nec10 essary to assure employer compliance with the terms 

11 and conditions under this subsection. The rights and 

12 remedies provided to H–1B nonimmigrants by this 

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

14 other contractual or statutory rights and remedies of 

15 such nonimmigrants, and are not intended to alter 

16 or affect such rights and remedies. 

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

18 term ‘substantial failure’ means the repeated, reck19 less or willful failure to comply with the require20 ments of this section that constitute a significant de21 viation from the requirements of this section or the 

22 terms and conditions of an application filed under 

23 this section.’’. 

24 (2) CONFORMING AMENDMENT.—Section 

25 212(n) of the Immigration and Nationality Act (8 


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

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

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

4 (e) ELIMINATING H–1B EXTENSIONS FOR EXCLU5 SIVELY TEMPORARY WORKERS.—Section 214(g)(4) of the 

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

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

8 (f) INCREASED PORTABILITY FOR H–1B EMPLOY9 EES.— 

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

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

12 1184(g)(4)), as amended by this Act, is further 

13 amended by adding at the end the following: 

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

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

16 nonimmigrant’s employer, or otherwise ceases em17 ployment with the employer, the nonimmigrant’s sta18 tus shall continue for 60 days or until the last date 

19 of the previously approved status, whichever is ear20 lier.’’. 

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

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

23 1154(j)) is amended by— 

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

25 ‘‘(a)(1)(F)’’; 


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

2 or similar occupational classification as the job 

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

4 ‘‘if the new job—’’; and 

5 (C) inserting at the end the following: 

6 ‘‘(1) is in the same or similar occupational clas7 sification as the job for which the petition was filed; 

8 or 

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

10 that is in a field related to the job for which the pe11 tition was filed and involves an increase in wages of 

12 at least 5 percent.’’. 

13 (3) RETENTION OF PRIORITY DATE.—Section 

14 203 of the Immigration and Nationality Act (8 

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

16 amended by adding at the end the following new 

17 subsection: 

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

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

20 with the Secretary of Homeland Security or the Secretary 

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

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

23 case the date of filing of such labor certification shall con24 stitute the priority date. The beneficiary of any petition 

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1 proved petition filed on the beneficiary’s behalf, regardless 

2 of the category of subsequent petitions.’’. 

3 (4) EMPLOYMENT OF SPOUSES.—Section 

4 214(c)(2)(E) of the Immigration and Nationality 

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

6 ‘‘section 101(a)(15)(L)’’ and inserting ‘‘subpara7 graph (H) or (L) of section 101(a)(15)’’. 

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

9 FASHION MODELS.— 

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

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

12 1101(a)(15)(H)(i)(b)) is amended— 

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

14 and 

15 (B) by striking ‘‘or, in the case of a fash16 ion model, is of distinguished merit and abil17 ity’’. 

18 (2) ADDITION TO P NONIMMIGRANT CLASSI19 FICATION.— 

20 (A) NEW CLASSIFICATION.—Section 

21 101(a)(15)(P) of the Immigration and Nation22 ality Act (8 U.S.C. 1101(a)(15)(P)) is amend23 ed— 

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

25 the end; 


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

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

3 (ii), (iii), or (iv)’’; 

4 (iii) by redesignating clause (iv) as 

5 clause (v); 

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

7 following: 

8 ‘‘(iv) is a fashion model who is of dis9 tinguished merit and ability and who is 

10 seeking to enter the United States tempo11 rarily to perform fashion modeling services 

12 that involve events or productions which 

13 have a distinguished reputation or that are 

14 performed for an organization or establish15 ment that has a distinguished reputation 

16 for, or a record of, utilizing prominent 

17 modeling talent; or’’; and 

18 (v) by striking ‘‘having a foreign resi19 dence which the alien has no intention of 

20 abandoning’’. 

21 (B) AUTHORIZED PERIOD OF STAY.—Sec22 tion 214(a)(2) of the Immigration and Nation23 ality Act (8 U.S.C. 1184(a)(2)) is amended— 


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

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

3 place that term appears; and 

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

5 after ‘‘athlete’’. 

6 (C) CONSULTATION.— 

7 (i) IN GENERAL.—Section 

8 214(c)(4)(D) of the Immigration and Na9 tionality Act (8 U.S.C. 1184(c)(4)(D)) is 

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

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

12 (ii) ADVISORY OPINION.—Section 

13 214(c)(6)(A) of the Immigration and Na14 tionality Act (8 U.S.C. 1184(c)(6)(A)) is 

15 amended by inserting at the end new 

16 clause to read as follows— 

17 ‘‘(iv) To meet the consultation re18 quirement of paragraph (4)(D), in the case 

19 of a petition for a nonimmigrant described 

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

21 the petitioner shall submit with the peti22 tion an advisory opinion from a peer 

23 group, labor organization, or other person 

24 or persons of its choosing with expertise in 

25 the field of fashion modeling.’’ 


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1 (iii) EXPEDITED PROCEDURES.—Sec2 tion 214(c)(6)(E)(i) of the Immigration 

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

4 1184(c)(6)(E)(i)) is amended by striking 

5 ‘‘artists or entertainers’’ and inserting 

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

7 (3) CONFORMING AMENDMENTS.—Section 214 

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

9 (8 U.S.C. 1184 (a) and (c)) are amended by striking 

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

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

12 (4) CONSTRUCTION.—Nothing in this sub13 section shall be construed as preventing an alien who 

14 is a fashion model from obtaining nonimmigrant sta15 tus under section 101(a)(15)(O)(i) of the Immigra16 tion and Nationality Act (8 U.S.C. 

17 1101(a)(15)(O)(i)) if such alien is otherwise quali18 fied for such status. 

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

20 AMERICAN WORKERS. 

21 (a) REQUIRING PREVAILING WAGE FOR CERTAIN L– 

22 1B NONIMMIGRANTS.—Section 214(c)(2) of the Immigra23 tion and Nationality Act (8 U.S.C. 1184(c)(2)) is amend24 ed by adding at the end the following: 


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

2 may be admitted or provided status under sec3 tion 101(a)(15)(L) unless the employer has 

4 filed with the Secretary of Labor an application 

5 stating that the employer— 

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

7 the period of authorized employment wages 

8 that are at least— 

9 ‘‘(aa) the actual wage level paid 

10 by the employer to all other individ11 uals with similar experience and quali12 fications for the specific employment 

13 in question, or 

14 ‘‘(bb) the prevailing wage level 

15 for the occupational classification in 

16 the area of employment, 

17 whichever is greater, based on the best in18 formation available as of the time of filing 

19 the application; and 

20 ‘‘(II) will provide working conditions 

21 for such alien that will not adversely affect 

22 the working conditions of workers similarly 

23 employed. 

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

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1 cialized knowledge under section 101(a)(15)(L) 

2 and the alien— 

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

4 States for a cumulative period of time in 

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

6 or 

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

8 States for a cumulative period of time in 

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

10 will be stationed primarily at the worksite 

11 of an employer other than the petitioning 

12 employer or its affiliate, subsidiary, or par13 ent, including pursuant to an outsourcing, 

14 leasing, or other contracting agreement. 

15 ‘‘(iii) An employer may comply with the re16 quirements of clause (i) by establishing that the 

17 total amount of compensation to be paid by the 

18 employer to the alien (including the value of 

19 benefits paid by the employer to the alien in the 

20 alien’s home country, employer-provided hous21 ing or housing allowances, employer-provided 

22 vehicles or transportation allowances, and other 

23 benefits provided to the alien as an incident of 

24 the assignment in the United States) meets or 

25 exceeds the total amount of compensation paid 


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1 by the employer to all other employees with 

2 similar experience and qualifications working in 

3 the same occupational classification.’’. 

4 (b) INVESTIGATION AND DISPOSITION OF COM5 PLAINTS AGAINST L–1 EMPLOYERS.—Section 214(c)(2) 

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

7 1184(c)(2)), as amended by this section, is further amend8 ed by adding at the end the following: 

9 ‘‘(H)(i) The Secretary of Labor shall es10 tablish a process for the receipt, investigation 

11 and disposition of complaints, which may be 

12 filed by any aggrieved person or organization 

13 (including bargaining representatives), respect14 ing an employer’s compliance with this para15 graph and the conditions of an application 

16 under paragraph (1) for a nonimmigrant under 

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

18 pursuant to this complaint process or otherwise, 

19 may investigate employers as necessary to de20 termine such compliance. The Secretary shall 

21 audit at least 5 percent of the employers who 

22 file applications under subparagraph (G) in a 

23 given year to determine compliance with this 

24 subsection. 


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

2 and an opportunity for a hearing, a substantial 

3 failure to meet any of the conditions of this 

4 paragraph, a misrepresentation of a material 

5 fact in an application under paragraph (1) for 

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

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

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

9 any other remedy authorized by law, im10 pose such administrative remedies (includ11 ing civil monetary penalties in an amount 

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

13 Secretary determines to be appropriate; 

14 and 

15 ‘‘(II) the Secretary may not approve 

16 applications with respect to that employer 

17 under paragraph (1) for a nonimmigrant 

18 under section 101(a)(15)(L) during a pe19 riod of at least 1 year but not more than 

20 5 years for aliens to be employed by the 

21 employer. 

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

23 for an employer who has filed an application 

24 under paragraph (1) for a nonimmigrant under 

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


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1 restrain, coerce, discharge, or in any other man2 ner discriminate or retaliate against an em3 ployee (including a former employee or an ap4 plicant for employment) because the em5 ployee— 

6 ‘‘(I) has disclosed information to the 

7 employer, or to any other person, that the 

8 employee reasonably believes evidences a 

9 violation of this subsection, or any rule or 

10 regulation pertaining to this subsection; or 

11 ‘‘(II) seeks legal assistance or counsel 

12 related to any such violation, or cooper13 ates, or seeks to cooperate, in an investiga14 tion or other proceeding concerning the 

15 employer’s compliance with the require16 ments of this subsection, or any rule or 

17 regulation pertaining to this subsection. 

18 The Secretary shall devise a process under 

19 which a nonimmigrant under section 

20 101(a)(15)(L) who files a complaint regarding 

21 a violation of this subparagraph and is other22 wise eligible to remain and work in the United 

23 States may be allowed to seek other appropriate 

24 employment in the United States for a period 


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1 not to exceed the maximum period of stay au2 thorized for such nonimmigrant classification. 

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

4 for an employer who has filed an application 

5 under paragraph (1) for a nonimmigrant under 

6 section 101(a)(15)(L)— 

7 ‘‘(I) to require such nonimmigrant to 

8 pay a penalty for ceasing employment with 

9 the employer prior to a date agreed to by 

10 the nonimmigrant and the employer; or 

11 ‘‘(II) to require or accept reimburse12 ment or any other form of compensation 

13 from an alien with respect to a fee imposed 

14 on the employer related to such applica15 tion. 

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

17 and an opportunity for a hearing, that recovery 

18 of back wages, fees or costs is necessary to ad19 dress a violation of this subparagraph or any 

20 other law, the Secretary may recover such back 

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

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

23 other such actions, including issuing subpoenas 

24 and seeking appropriate injunctive relief and 

25 specific performance of contractual obligations, 


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1 as may be necessary to assure employer compli2 ance with the terms and conditions under this 

3 paragraph. The rights and remedies provided to 

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

5 this paragraph are in addition to, and not in 

6 lieu of, any other contractual or statutory 

7 rights and remedies of such nonimmigrants, 

8 and are not intended to alter or affect such 

9 rights and remedies. 

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

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

12 to have complied with the requirements of this 

13 paragraph, notwithstanding a technical or pro14 cedural failure to meet such requirements, if 

15 there was a good faith attempt to comply with 

16 the requirements. 

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

18 if— 

19 ‘‘(aa) the Secretary of Homeland 

20 Security (or another enforcement 

21 agency) has explained to the person or 

22 entity the basis for the failure; 

23 ‘‘(bb) the person or entity has 

24 been provided a period of not less 

25 than 10 business days (beginning 


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1 after the date of the explanation) 

2 within which to correct such failure; 

3 and 

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

5 corrected the failure voluntarily within 

6 such period. 

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

8 course of an investigation, is found to have 

9 violated the prevailing wage requirements 

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

11 assessed fines or other penalties for such 

12 violation if the person or entity can estab13 lish that the manner in which the pre14 vailing wage was calculated was consistent 

15 with recognized industry standards and 

16 practices. 

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

18 not apply to a person or entity that has 

19 engaged in or is engaging in a pattern or 

20 practice of willful violations of this para21 graph. 

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

23 the repeated, reckless or willful failure to com24 ply with the requirements of this paragraph 

25 that constitute a significant deviation from the 


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1 requirements of this paragraph or the terms 

2 and conditions of an application filed under 

3 paragraph (1) for nonimmigrants under section 

4 101(a)(15)(L).’’. 

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

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

7 1184(c)(2)), as amended by this section, is further amend8 ed by striking ‘‘Attorney General’’ each place such term 

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

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

11 214(c)(8) of the Immigration and Nationality Act (8 

12 U.S.C. 1184(c)(8)) is amended— 

13 (1) by striking ‘‘Attorney General’’ and insert14 ing ‘‘Secretary of Homeland Security or Secretary of 

15 State, as appropriate,’’; 

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

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

18 ‘‘(F) The number of applications for non19 immigrants described under section 

20 101(a)(15)(L), based on an approved blanket 

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

22 been filed. 

23 ‘‘(G) The number of applications for non24 immigrants described under section 

25 101(a)(15)(L), based on an approved blanket 


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

2 been approved.’’. 

3 (e) REPORT ON L–1 BLANKET PETITION PROC4 ESS.—Not later than 12 months after the date of the en5 actment of this Act, the Inspector General of the Depart6 ment of Homeland Security, in cooperation with the In7 spector General of the Department of State, shall submit 

8 to the Committee on the Judiciary of the House of Rep9 resentatives and the Committee on the Judiciary of the 

10 Senate a report regarding the use of blanket petitions 

11 under section 214(c)(2)(A) of the Immigration and Na12 tionality Act (8 U.S.C. 1184(c)(2)(A)). Such report shall 

13 assess the efficiency and reliability of the process for re14 viewing such blanket petitions and adjudicating visa appli15 cations filed under an approved blanket petition, including 

16 whether the process includes adequate safeguards against 

17 fraud and abuse. 

18 TITLE V—PROMOTING INVEST19 MENT IN THE AMERICAN 

20 ECONOMY 

21 SEC. 501. EB–5 EMPLOYMENT CREATION INVESTOR PRO22 GRAM. 

23 (a) AUTHORIZATION OF EB–5 EMPLOYMENT CRE24 ATION REGIONAL CENTER PROGRAM.—Section 203(b)(5) 

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


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1 1153(b)(5)) is amended by adding at the end the following 

2 new subparagraph: 

3 ‘‘(E) SET-ASIDE FOR EMPLOYMENT CRE4 ATION REGIONAL CENTERS.— 

5 ‘‘(i) IN GENERAL.—Of the visas other6 wise available under this paragraph, the 

7 Secretary of State, together with the Sec8 retary of Homeland Security, shall set 

9 aside at least 5,000 visas for a program in10 volving regional centers designated by the 

11 Secretary of Homeland Security, on the 

12 basis of a general proposal, for the pro13 motion of economic growth, including im14 proved regional productivity, job creation, 

15 or increased domestic capital investment. A 

16 regional center shall have jurisdiction over 

17 a specific geographic area, which shall be 

18 described in the proposal and consistent 

19 with the purpose of concentrating pooled 

20 investment in defined economic zones. The 

21 establishment of a regional center under 

22 this subparagraph may be based on gen23 eral predictions, contained in the proposal, 

24 concerning the kinds of new commercial 

25 enterprises that will receive capital from 


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1 aliens under this paragraph, the jobs that 

2 will be created (directly or indirectly) as a 

3 result of such capital investments and the 

4 other positive economic effects such capital 

5 investments will have. 

6 ‘‘(ii) METHODOLOGIES.—In deter7 mining compliance with this subparagraph, 

8 and notwithstanding requirements applica9 ble to investors not involving regional cen10 ters, the Secretary of Homeland Security, 

11 in consultation with the Secretary of Com12 merce, shall recognize reasonable meth13 odologies for determining the number of 

14 jobs created by a designated regional cen15 ter, including such jobs that are estimated 

16 to have been created indirectly through 

17 revenues generated from increased exports, 

18 improved regional productivity, or in19 creased domestic capital investment result20 ing from the regional center. The Sec21 retary may consider estimated job creation 

22 outside the geographic boundary of a des23 ignated regional center if such estimate is 

24 supported by substantial evidence and con25 stitutes no more than 50 percent of the 


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1 overall number of jobs estimated to be cre2 ated by such regional center. 

3 ‘‘(iii) PREAPPROVAL OF NEW COM4 MERCIAL ENTERPRISES.—The Secretary of 

5 Homeland Security shall establish a 

6 preapproval procedure for commercial en7 terprises that— 

8 ‘‘(I) allows a regional center to 

9 apply to the Secretary for approval of 

10 a new commercial enterprise before 

11 any alien files a petition for classifica12 tion under this paragraph by reason 

13 of investment in the new commercial 

14 enterprise; 

15 ‘‘(II) in considering an applica16 tion under subclause (I), requires that 

17 the Secretary make final decisions on 

18 all issues under this paragraph other 

19 than those issues unique to each indi20 vidual investor in the new commercial 

21 enterprise; and 

22 ‘‘(III) requires that the Secretary 

23 eliminate the need for the repeated 

24 submission of documentation that is 

25 common to multiple petitions for clasVerDate Mar 15 2010 04:49 Jun 15, 2011 Jkt 099200 PO 00000 Frm 00077 Fmt 6652 Sfmt 6201 E:\BILLS\H2161.IH H2161

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1 sification under this paragraph 

2 through a regional center. 

3 ‘‘(iv) FEE FOR REGIONAL CENTER

4 DESIGNATION.—In addition to any other 

5 fees authorized by law, the Secretary of 

6 Homeland Security shall impose a fee to 

7 apply for designation as an EB–5 regional 

8 center under this paragraph. Fees collected 

9 under this paragraph shall be deposited in 

10 the Treasury in accordance with section 

11 286(y).’’. 

12 (b) TARGETED EMPLOYMENT AREAS.—Section 

13 203(b)(5)(B) of the Immigration and Nationality Act (8 

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

15 (1) TARGETED EMPLOYMENT AREA DEFINED.— 

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

17 ‘‘(ii) TARGETED EMPLOYMENT AREA

18 DEFINED.—In this paragraph, the term 

19 ‘targeted employment area’ means— 

20 ‘‘(I) a rural area; 

21 ‘‘(II) an area that has experi22 enced high unemployment (of at least 

23 150 percent of the national average 

24 rate) within the preceding 12 months; 


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1 ‘‘(III) a county that has had a 20 

2 percent or more decrease in popu3 lation since 1970; or 

4 ‘‘(IV) an area that is within the 

5 boundaries established for purposes of 

6 a State or Federal economic develop7 ment incentive program, including 

8 areas defined as Enterprise Zones, 

9 Renewal Communities and Empower10 ment Zones.’’. 

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

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

13 (3) EFFECT OF PRIOR DETERMINATION.—By 

14 adding at the end the following: 

15 ‘‘(iv) EFFECT OF PRIOR DETERMINA16 TION.—In a case in which a geographic 

17 area is determined under clause (ii) to be 

18 a targeted employment area, such deter19 mination shall remain in effect during the 

20 2-year period beginning on the date of the 

21 determination for purposes of any alien 

22 seeking a visa reserved under this subpara23 graph.’’. 


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1 (c) CALCULATING JOB CREATION.—Section 

2 203(b)(5)(D) of such Act (8 U.S.C. 1153(b)(5)(D)) is 

3 amended to read as follows: 

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

5 paragraph, the term ‘full-time employment’ 

6 means employment in a position that requires 

7 at least 35 hours of service per week at any 

8 time, regardless of who fills the position. Such 

9 employment may be satisfied on a full-time 

10 equivalent basis by calculating the number of 

11 full-time employees that could have been em12 ployed if the reported number of hours worked 

13 by part-time employees had been worked by 

14 full-time employees. Full-time equivalent em15 ployment shall be calculated by dividing the 

16 part-time hours paid by the standard number of 

17 hours for full-time employees.’’. 

18 (d) CAPITAL.—Section 203(b)(5)(C) of the Immigra19 tion and Nationality Act (8 U.S.C. 1153(b)(5)(C)) is 

20 amended by adding at the end the following: 

21 ‘‘(iv) CAPITAL DEFINED.—For pur22 poses of this paragraph, the term ‘capital’ 

23 does not include any assets acquired, di24 rectly or indirectly, by unlawful means.’’. 


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

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

3 1153(b)(5)(A)), is amended by adding ‘‘or similar entity’’ 

4 after ‘‘including a limited partnership’’. 

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

6 216A(d)(2) of the Immigration and Nationality Act (8 

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

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

9 later than the fourth anniversary) shall be substituted for 

10 the second anniversary in applying the preceding sentence 

11 if the applicant demonstrates that the applicant has at12 tempted to follow the applicant’s business model in good 

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

14 petition that is based on circumstances outside of the ap15 plicant’s control, and demonstrates that such cir16 cumstances will be able to be resolved within the specified 

17 period.’’. 

18 (g) STUDY.— 

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

20 Security, in appropriate consultation with the Sec21 retary of Commerce and other interested parties, 

22 shall conduct a study concerning— 

23 (A) current job creation counting method24 ology and initial projections under section 


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1 203(b)(5) of the Immigration and Nationality 

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

3 (B) how to best promote the employment 

4 creation program described in such section 

5 overseas to potential immigrant investors. 

6 (2) REPORT.—The Secretary of Homeland Se7 curity shall submit a report to the Committee on the 

8 Judiciary of the House of Representatives and the 

9 Committee on the Judiciary of the Senate not later 

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

11 Act containing the results of the study conducted 

12 under paragraph (1). 

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

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

15 every 2 years thereafter, the Secretary of Homeland Secu16 rity shall submit a report to the Committee on the Judici17 ary of the House of Representatives and the Committee 

18 on the Judiciary of the Senate that measures the economic 

19 impact of the regional center program described in section 

20 203(b)(5)(E) of the Immigration and Nationality Act (8 

21 U.S.C. 1153(b)(5)(E)), including— 

22 (1) foreign and domestic capital investment; 

23 (2) the number of jobs directly and indirectly 

24 created; 


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1 (3) any other economic benefits related to for2 eign investment under such program; and 

3 (4) the number of petitions under such section 

4 approved or denied for each regional center. 

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

6 date of the enactment of this Act, the Secretary of Home7 land Security shall prescribe regulations to implement the 

8 amendments made by this section. 

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

10 Section 245 of the Immigration and Nationality Act 

11 (8 U.S.C. 1255) is amended— 

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

13 paragraph (1), by striking ‘‘(1), (2), or (3)’’ and in14 serting ‘‘(1), (2), (3), (5), or (6)’’; and 

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

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

17 204 for classification under paragraph (5) or (6) of section 

18 203(b), approval of the petition would make a visa imme19 diately available to the alien beneficiary, the alien bene20 ficiary’s adjustment application under this section shall be 

21 considered to be properly filed whether the application is 

22 submitted concurrently with, or subsequent to, the visa pe23 tition.’’. 


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1 SEC. 503. FEES; PREMIUM PROCESSING. 

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

3 Section 286 of the Immigration and Nationality Act (8 

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

5 by adding at the end the following: 

6 ‘‘(y) IMMIGRANT ENTREPRENEUR ACCOUNT.— 

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 ‘Immigrant Entre10 preneur Account’. Notwithstanding any other provi11 sion of law, there shall be deposited as offsetting re12 ceipts into the account all fees collected under para13 graph (5) or (6) of section 203(b) of this Act or sec14 tion 610(b) of the Departments of Commerce, Jus15 tice, and State, the Judiciary, and Related Agencies 

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

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

18 section may only be used by the Secretary of Home19 land Security to administer and operate the employ20 ment creation program described in paragraph (5) 

21 or (6) of section 203(b).’’. 

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

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

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

25 of a petition filed under section 204(a)(1)(H) for classi26 fication under paragraph (5) or (6) of section 203(b), if 


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1 the petitioner desires a guarantee of a decision on the peti2 tion in 60 days or less, the premium processing fee under 

3 this subsection shall be set at $2,500 and shall be depos4 ited as offsetting receipts in the Immigrant Entrepreneur 

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

Æ 


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