II 

112TH CONGRESS 

2D SESSION S. 3553 

To amend the Immigration and Nationality Act to enhance national security, 

combat illegal immigration, and promote job creation, innovation, investment, and research in the United States, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 19, 2012 

Mr. SCHUMER (for himself, Mr. COONS, and Mr. WHITEHOUSE) introduced 

the following bill; which was read twice and referred to the Committee 

on the Judiciary 

A BILL 

To amend the Immigration and Nationality Act to enhance 

national security, combat illegal immigration, and promote job creation, 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 the ‘‘Benefits to Research 

5 and American Innovation through Nationality Statutes 

6 Act of 2012’’ or the ‘‘BRAINS Act’’. 


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1 SEC. 2. IMMIGRANT VISAS FOR CERTAIN ADVANCED STEM 

2 GRADUATES. 

3 (a) ADVANCED STEM GRADUATES.—Section 203(b) 

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

5 1153(b)) is amended— 

6 (1) by redesignating paragraph (6) as para7 graph (7); and 

8 (2) by inserting after paragraph (5) the fol9 lowing: 

10 ‘‘(6) ADVANCED GRADUATES IN SCIENCE, 

11 TECHNOLOGY, ENGINEERING AND MATHEMATICS.— 

12 ‘‘(A) IN GENERAL.—Notwithstanding sec13 tion 201, visas shall be made available, in a 

14 number not to exceed 55,000, to qualified im15 migrants who— 

16 ‘‘(i) possess a graduate degree at the 

17 level of master’s or higher in a field of 

18 science, technology, engineering, or mathe19 matics from a United States research insti20 tution of higher education; 

21 ‘‘(ii) earned a graduate degree by tak22 ing no greater than 25 percent of classes 

23 by correspondence (including courses of24 fered by telecommunications) and by tak25 ing all classes while physically present in 

26 the United States; 


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1 ‘‘(iii) have an offer of employment 

2 from a United States employer in a field 

3 related to such degree; 

4 ‘‘(iv) are the subject of an approved 

5 labor certification as required under sec6 tion 212(a)(5)(A); and 

7 ‘‘(v) will receive a wage level from the 

8 employer that is at least the actual wage 

9 level paid by the employer to all other indi10 viduals with similar experience and quali11 fications for the specific employment in 

12 question. 

13 ‘‘(B) DEFINITIONS.—In this paragraph: 

14 ‘‘(i) FIELD OF SCIENCE, TECH15 NOLOGY, ENGEERING, OR MATHEMATICS.— 

16 The term ‘field of science, technology, en17 gineering, or mathematics’ means a field 

18 included in the Department of Education’s 

19 Classification of Instructional Programs 

20 taxonomy within the summary groups of 

21 computer and information sciences and 

22 support services, engineering, mathematics 

23 and statistics, and physical sciences. 

24 ‘‘(ii) UNITED STATES RESEARCH IN25 STITUTION OF HIGHER EDUCATION.—The 


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1 term ‘United States research institution of 

2 higher education’ means an institution in 

3 the United States that— 

4 ‘‘(I) is described in section 

5 101(a) of the Higher Education Act 

6 of 1965 (20 U.S.C. 1001(a)); 

7 ‘‘(II) is classified by the Director 

8 of the National Science Foundation as 

9 a research institution or as otherwise 

10 excelling at instruction in a field of 

11 science, technology, engineering, or 

12 mathematics; 

13 ‘‘(III) has been in existence for 

14 at least 10 years; 

15 ‘‘(IV) does not provide any com16 mission, bonus, or other incentive pay17 ment based directly or indirectly on 

18 success in securing enrollments or fi19 nancial aid to any persons or entities 

20 engaged in any recruitment or admis21 sion activities for nonimmigrant stu22 dents or in making decisions regard23 ing the award of student financial as24 sistance to nonimmigrant students; 


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1 ‘‘(V) is accredited by an accred2 iting agency recognized by the Sec3 retary of Education; and 

4 ‘‘(VI) is not operating for prof5 it.’’. 

6 (b) UNUSED VISAS; LIMITATION TO FOREIGN

7 STATES.— 

8 (1) UNUSED VISAS.—Section 203(b)(1) of such 

9 Act (8 U.S.C. 1153(b)(1)) is amended by striking 

10 ‘‘(4) and (5)’’ and inserting ‘‘(4), (5) and (6)’’. 

11 (2) LIMITATION TO ANY SINGLE FOREIGN

12 STATE.—Section 202(a)(5)(A) of such Act (8 U.S.C. 

13 1152(a)(5)(A)) is amended by striking ‘‘or (5)’’ and 

14 inserting ‘‘(5), or (6)’’. 

15 (c) PROCEDURE FOR GRANTING IMMIGRANT STA16 TUS.—Section 204(a)(1)(F) of such Act (8 U.S.C. 

17 1154(a)(1)(F)) is amended— 

18 (1) by striking ‘‘or 203(b)(3)’’ and inserting 

19 ‘‘203(b)(3), or 203(b)(6)’’; and 

20 (2) by striking ‘‘Attorney General’’ and insert21 ing ‘‘Secretary of Homeland Security’’. 

22 (d) LABOR CERTIFICATION AND QUALIFICATION FOR

23 CERTAIN IMMIGRANTS.—Section 212(a)(5) of such Act (8 

24 U.S.C. 1182(a)(5)) is amended— 

25 (1) in subparagraph (A)— 


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1 (A) in clause (ii)— 

2 (i) in subclause (I), by striking ‘‘, or’’ 

3 at the end and inserting a semicolon; 

4 (ii) in subclause (II), by striking the 

5 period at the end and inserting ‘‘; or’’; and 

6 (iii) by adding at the end the fol7 lowing: 

8 ‘‘(III) holds a doctorate degree in 

9 a field of science, technology, engi10 neering, or mathematics (as defined in 

11 section 203(b)(6)(B)(i)) from a 

12 United States research institution of 

13 higher education (as defined in section 

14 203(b)(6)(B)(ii)).’’; 

15 (B) by redesignating clauses (iii) and (iv) 

16 as clauses (iv) and (v), respectively; and 

17 (C) by inserting after clause (ii) the fol18 lowing: 

19 ‘‘(iii) JOB ORDER.— 

20 ‘‘(I) IN GENERAL.—An employer 

21 who files an application under clause 

22 (i) shall submit a job order for the 

23 labor the alien seeks to perform to the 

24 State workforce agency in the State in 

25 which the alien seeks to perform the 


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1 labor. The State workforce agency 

2 shall post the job order on its official 

3 agency website for a minimum of 30 

4 days and not later than 3 days after 

5 receipt using the employment statis6 tics system authorized under section 

7 15 of the Wagner-Peyser Act (29 

8 U.S.C. 49 et seq.). 

9 ‘‘(II) LINKS.—The Secretary of 

10 Labor shall include links to the offi11 cial websites of all State workforce 

12 agencies on a single webpage of the 

13 official website of the Department of 

14 Labor.’’; and 

15 (2) in subparagraph (D), by striking ‘‘(2) or 

16 (3)’’ and inserting ‘‘(2), (3), or (6)’’. 

17 (e) FURTHER PROTECTING AMERICAN WORKERS.— 

18 Section 212(p) of such Act (8 U.S.C. 1182(p)) is amended 

19 by adding at the end the following: 

20 ‘‘(5) To satisfy the requirement under section 

21 203(b)(6)(A)(iv), an employer must demonstrate 

22 that the total amount of compensation to be paid to 

23 the alien (including health insurance, stock options, 

24 and other benefits provided by the employer) must 

25 meet or exceed the total amount of compensation 


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1 paid by the employer to all other employees with 

2 similar experience and qualifications working in the 

3 same occupational classification.’’. 

4 (f) GAO STUDY.—Not later than June 30, 2017, the 

5 Comptroller General of the United States shall provide to 

6 the Congress the results of a study on the use by the Na7 tional Science Foundation of the classification authority 

8 provided under section 203(b)(6)(B)(ii)(II) of the Immi9 gration and Nationality Act (8 U.S.C. 

10 1153(b)(6)(B)(ii)(II)), as added by this section. 

11 (g) PUBLIC INFORMATION.—The Secretary of Home12 land Security shall make available to the public on the 

13 official website of the Department of Homeland Security, 

14 and shall update not less than monthly, the following in15 formation (which shall be organized according to month 

16 and fiscal year) with respect to aliens granted status 

17 under section 203(b)(6) of the Immigration and Nation18 ality Act (8 U.S.C. 1153(b)(6)), as added by this section: 

19 (1) The name, city, and State of each employer 

20 who petitioned pursuant to either of such para21 graphs on behalf of one or more aliens who were 

22 granted status in the month and fiscal year to date. 

23 (2) The number of aliens granted status under 

24 either of such paragraphs in the month and fiscal 


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1 year to date based upon a petition filed by such em2 ployer. 

3 (3) The occupations for which such alien or 

4 aliens were sought by such employer and the job ti5 tles listed by such employer on the petition. 

6 (h) EFFECTIVE DATE; SUNSET.— 

7 (1) EFFECTIVE DATE.—The amendments made 

8 by this section shall take effect on October 1, 2012, 

9 and shall apply with respect to fiscal years beginning 

10 on or after such date. 

11 (2) SUNSET.—The amendments made by sub12 sections (a) through (e) shall be repealed after the 

13 2-year period beginning on the date of the enact14 ment of this Act. 

15 SEC. 3. STUDENT VISA REFORM. 

16 (a) IN GENERAL.—Section 101(a)(15)(F)(i) of the 

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

18 1101(a)(15)(F)(i)) is amended by striking ‘‘an alien hav19 ing a residence in a foreign country which he has no inten20 tion of abandoning, who is a bona fide student qualified 

21 to pursue a full course of study and who’’ and inserting 

22 ‘‘an alien who is a bona fide student qualified to pursue 

23 a full course of study, who (except for a student qualified 

24 to pursue a full course of study in a field of science, tech25 nology, engineering, or mathematics (as defined in section 


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1 203(b)(6)(B)(i)) at an institution of higher education) has 

2 a residence in a foreign country which the alien has no 

3 intention of abandoning, and who’’. 

4 (b) CONFORMING AMENDMENTS.— 

5 (1) Section 214(b) of the Immigration and Na6 tionality Act (8 U.S.C. 1184(b)) is amended by 

7 striking ‘‘(other than a nonimmigrant’’ and inserting 

8 ‘‘(other than a nonimmigrant described in section 

9 101(a)(15)(F) if the alien is qualified to pursue a 

10 full course of study in a field of science, technology, 

11 engineering, or mathematics (as defined in section 

12 203(b)(6)(B)(i)) at an institution of higher edu13 cation, other than a nonimmigrant’’. 

14 (2) Section 214(h) of the Immigration and Na15 tionality Act (8 U.S.C. 1184(h)) is amended by in16 serting ‘‘(F) (if the alien is qualified to pursue a full 

17 course of study in a field of science, technology, en18 gineering, or mathematics (as defined in section 

19 203(b)(6)(B)(i)) at an institution of higher edu20 cation),’’ before ‘‘H(i)(b)’’. 

21 SEC. 4. VISA REVALIDATION. 

22 Section 222 of the Immigration and Nationality Act 

23 (8 U.S.C. 1202) is amended— 


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1 (1) in subsection (h), in the matter preceding 

2 paragraph (1), by inserting ‘‘except as provided 

3 under subsection (i),’’ after ‘‘Act,’’; and 

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

5 ‘‘(i) VISA REVALIDATION.—The Secretary of State 

6 shall permit an alien granted a nonimmigrant visa under 

7 subparagraph (E), (H), (I), (L), (O), or (P) of section 

8 101(a)(15) to apply for a renewal of such visa within the 

9 United States if— 

10 ‘‘(1) such visa expired during the 12-month pe11 riod ending on the date of such application; 

12 ‘‘(2) the alien is seeking a nonimmigrant visa 

13 under the same subparagraph under which the alien 

14 had previously received a visa; and 

15 ‘‘(3) the alien has complied with the immigra16 tion laws of the United States.’’. 

17 SEC. 5. AGE-OUT PROTECTIONS FOR CHILDREN. 

18 Section 101(b)(1) of the Immigration and Nationality 

19 Act (8 U.S.C. 1101(b)) is amended by adding at the end 

20 the following— 

21 ‘‘(H) RULES FOR DETERMINING AGE OF A

22 CHILD.— 

23 ‘‘(i) IMMIGRANT PETITIONS.—Not24 withstanding any other provision of the 

25 Act, a determination of whether an alien is 


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1 a child for the purposes of a petition under 

2 sections 204 and 209 shall be made using 

3 the age of the alien on the date on which 

4 the petition is filed with the Secretary of 

5 Homeland Security. 

6 ‘‘(ii) CHILD OF U.S. CITIZEN

7 FIANCE ́.—A determination of whether an 

8 alien is a child for the purposes of a peti9 tion under section 214 or an application 

10 for adjustment of status under section 

11 245(d) shall be made using the age of the 

12 alien on the date on which the petition is 

13 filed with the Secretary of Homeland Secu14 rity to classify the alien’s parent as the 

15 fiance ́ of a U.S. citizen.’’. 

16 SEC. 6. RETENTION OF PRIORITY DATES. 

17 (a) IN GENERAL.—Section 203(h)(3) of the Immi18 gration and Nationality Act (8 U.S.C. 1153(h)(3)) is 

19 amended to read follows: 

20 ‘‘(3) RETENTION OF PRIORITY DATE.—If the 

21 age of an alien is determined under paragraph (1) 

22 to be 21 years of age or older for the purposes of 

23 subsections (a)(2)(A) and (d), and a parent of the 

24 alien files a petition under section 204 for classifica25 tion of such alien based upon a relationship deVerDate Mar 15 2010 03:43 Sep 20, 2012 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S3553.IS S3553

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1 scribed in subsection (a), the priority date for such 

2 petition shall be the original priority date issued 

3 upon receipt of the original family-based or employ4 ment-based petition for which either parent was a 

5 beneficiary.’’. 

6 (b) PERMANENT PRIORITY DATES.—Section 203 of 

7 the Immigration and Nationality Act (8 U.S.C. 1153) is 

8 amended by adding at the end the following: 

9 ‘‘(i) PERMANENT PRIORITY DATES.— 

10 ‘‘(1) IN GENERAL.—Subject to subsection 

11 (h)(3) and paragraph (2), the priority date for any 

12 petition shall be the date of filing of the petition 

13 with the Secretary of Homeland Security (or the 

14 Secretary of State, if applicable), unless the filing of 

15 the petition was preceded by the filing of a labor 

16 certification with the Secretary of Labor, in which 

17 case that date shall constitute the priority date. 

18 ‘‘(2) SUBSEQUENT PETITIONS.—Subject to sub19 section (h)(3), an alien who is the beneficiary of any 

20 petition that was approvable when filed (including 

21 self-petitioners) shall retain the priority date as22 signed with respect to that petition in the consider23 ation of any subsequently filed petition (including 

24 self-petitions) of which the alien is a beneficiary.’’. 


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1 (c) EFFECTIVE DATE.—The amendments made by 

2 subsections (a) and (b) shall take effect on the date of 

3 the enactment of this Act and shall apply to any alien who 

4 is a beneficiary of a classification petition pending on or 

5 after such date. 

6 SEC. 7. NUCLEAR FAMILY REUNIFICATIONS FOR HIGH7 SKILLED WORKERS. 

8 Notwithstanding any other numerical limitation in 

9 law, the number of immigrant visas available to the spouse 

10 of an alien lawfully admitted for permanent residence pur11 suant to section 203(a)(2) of the Immigration and Nation12 ality Act (8 U.S.C. 1153(a)(2)) shall be increased in each 

13 fiscal year by the number of aliens who were lawfully ad14 mitted for permanent residence that were removed from 

15 the United States in the preceding fiscal year. 

Æ 


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