Immigration Reform Bill More Than Doubles Temporary Visas for Skilled Workers

Proposal would open up backlogged green cards for workers, create ‘trusted employer’ program

Roy Maurer By Roy Maurer January 31, 2018
Immigration Reform Bill More Than Doubles Temporary Visas for Skilled Workers

Running counter to proposals from President Donald Trump to limit legal immigration, recently introduced legislation would more than double the number of temporary H-1B visas available to skilled workers.

The Immigration Innovation Act, sponsored by Sens. Orrin Hatch, R-Utah, and Jeff Flake, R-Ariz., could be subsumed into the broader bipartisan compromise on immigration currently being hashed out in Congress, but the odds of that happening are not high.  

Previous versions of the legislation, dubbed the "I-Squared Act," have not made much progress despite bipartisan support, and expanding the annual allotment of temporary work visas doesn't fit with Trump's "Hire American" agenda.

"The chances of passage 'as is' are low, particularly because this version lost some of the bipartisan support of earlier versions," said Elizabeth Stern, a partner in Mayer Brown's Washington, D.C., office and leader of the firm's Global Mobility & Migration practice. "But the bill represents a critical aspect of our country's future in that it promotes recruitment and cultivation of top talent in the STEM [science, technology, engineering and mathematics] fields from the U.S. and abroad. It also avoids the blunt, erroneous conclusion that the IT sector's use of H-1B visas is fraught with fraud and abuse, instead focusing on concrete avenues to stem specific abuses."

Hatch has said his bill addresses White House concerns by ensuring that the visa program is not used to outsource jobs or undercut U.S. wages and highlights merit-based immigration, with its focus on high-skilled, in-demand technology workers, that the Trump administration often speaks about.

"The Immigration Innovation Act will help ensure that our companies have access to the world's best and brightest and are able to fill jobs in highly technical, specialized fields for which there is a shortage of American labor," Hatch said. The bill also provides hundreds of millions of dollars in new funding for STEM education and worker training programs through increases in visa fees.

The measure is supported by the Society for Human Resource Management (SHRM); the Council for Global Immigration (CFGI), a SHRM affiliate; and the U.S. Chamber of Commerce, as well as the tech sector, which says it needs access to more skilled workers.

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The proposal would increase the number of H-1B visas allowed each year to 85,000 from 65,000 and would create a moving cap allowing as many as 195,000 total visas if employers say they need more workers.

"Everyone agrees the H-1B system needs reform," said Rebecca Peters, director of government affairs at CFGI. "I-Squared provides a critical balance in reforming the H-1B by enhancing protections, education and training for U.S. workers, while providing a market-based cap that may increase or decrease with demand, responding in more real-time than today's cap and allowing for improved workforce planning."

Key Provisions

In addition to increasing the number of visas available, the latest iteration of the Immigration Innovation Act would:

  • Prioritize which workers are granted cap-subject visas, favoring workers with advanced degrees instead of a random lottery.
  • Retain the 20,000-visa cap exemption for petitioners of U.S. advanced degree-holders, but lift it for those employers who certify that they have or will sponsor an H-1B worker with a U.S. advanced degree for a green card within one year of visa approval. 
  • Prohibit employers from hiring an H-1B worker with the intent to replace a U.S. worker or allow a replaced U.S. worker to train an H-1B replacement.
  • Require employers granted at least five cap-subject approvals to document that those H-1B workers are employed in the U.S. for at least three months of the first year following approval or face a significant penalty. This "anti-hoarding" measure is meant to be a disincentive to companies filing for more visas than they plan to use—a tactic companies use to try to beat the odds of the visa lottery. The measure should create more open slots for smaller employers that are not able to flood the system with petitions, Stern said.
  • Provide work authorization for spouses of H-1B visa holders who file for green cards. The Department of Homeland Security plans to issue a proposal to remove the work eligibility of spouses, according to its 2017 agenda.
  • Raise to $100,000 from $60,000 the H-1B salary level at which the salary-based exemption from certain recruitment and nondisplacement requirements take effect for H-1B-dependent employers. It would also limit the education-based exemption to H-1B hires with a U.S. Ph.D. The bill eliminates exemptions for employers with a workforce of more than 50 percent H-1B workers entirely.
  • Establish a voluntary trusted employer pre-certification program for those organizations that repeatedly file multiple petitions. "A voluntary trusted employer program will allow employers to register one time upfront with the government the information and documentation common to multiple petitions they have to file repeatedly today," Peters said. "Ultimately this will save government resources that can be directed to top agency priorities and save employer resources that can be directed back to innovation and job creation."

Green Card Reforms

The legislation would eliminate the annual per-country caps for employment-based green cards and recapture green card numbers that were approved by Congress in previous years but not used. It also exempts spouses and children of employment-based green card holders, and holders of U.S. advanced STEM degrees from a worldwide numerical cap on employment-based green cards and creates a new pool of 34,000 employment-based green cards for university-educated foreign professionals as an H-1B alternative.

"Eliminating per-country limits for employment-based green cards will largely benefit Indian and Chinese nationals who have been waiting in the visa queue for years," Stern said.

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