5-21 amendments by GregSiskind


									Siskind Summary

Greg Siskind (gsiskind@visalaw.com)

Summary of Amendments from 5-21-2013

Hirono 20

Amends Section 2101. On the RPI application, DHS shall collect information DHS determines to be
necessary and appropriate including an explanation of how, when and where the alien entered the US,
the country the alien resided in before entering the US and other demographic information specified by

Extends privacy protections to data on the form.

Feinstein 13

Section 2106 modification. Extends the grant program applicable to supporting RPI adjustments to blue
card adjustments.

Amends Section 4401. A very unrelated amendment was added to this bill that extends the concept of
“dual intent”. Makes the following NIV categories dual intent: E, F-1, F-2, H-1B, H-1C, L, O, P, V, or W.
Deletes physician J-1 dual intent language (This was accidental and is fixed by Klobuchar in the final

Cornyn 4

Changes Section 2101’s provision allowing certain people previously removed to get RPI status if they
get a waiver. Adds a new section to give notice to crime victims if a waiver is granted. If the original
prosecuting agency wants to cooperate with DHS, DHS will make an effort to identify the victim and give
the victim written notice that the alien is being considered for a waiver. The victim will be given the
opportunity to offer an opinion regarding the granting of the waiver. The amendment also states that
the determination on the waiver may not be made solely based on the victim’s consultation.

Flake 4

Amends Section 2101. After the ban on RPIs receiving federal means-tested public benefits a new
requirement is added for HHS to conduct regular audits to ensure that RPIs are not fraudulently
receiving any public benefits. And anyone convicted of fraudulently claiming such a benefit shall have
their RPI status revoked.

Flake 3

Amends Section 2101. Requires RPIs to go through an additional background check at the time of
renewal of the RPI status.

Allows RPI’s spouse/children to get derivative status if they were physically present before 12/31/2012
except from brief, casual, and innocent absences. Also applies to blue card dependents. And applies to
green card applications after ten years for the RPIs.

Hatch-Schumer Deal

Section 4101 changes. The language creates a new concept of having a base H-1B allocation for each
fiscal year and then a possible addition to that base number depending on how strong demand is for H-
1Bs. The cap will float between 115,000 and 180,000 depending on market conditions. The base cap is
115,000. The cap can rise based on the following formula:

    -     If the cap is hit before day 45 then 20,000 more numbers will be made available beginning on
          day 46
    -     If the cap is hit between day 46 and 60, then 15,000 more numbers will be made available on
          day 61
    -     If the cap is hit between days 61 and day 90, then 10,000 more numbers will be made available
          on day 91
    -     If the cap is hit between day 91 and day 275, then 5,000 more numbers will be made available
          on day 276

The cap can also be lowered based on the following formula:

    -     If the number of approved petitions is at between 5,000 and 9,999 fewer than the base
          allocation for that fiscal year, then the base will decrease for the next year by 5,000
    -     If the number of approved petitions is at between 10,000 and 14,999 fewer than the base
          allocation for that fiscal year, then the base will decrease for the next year by 10,000
    -     If the number of approved petitions is at between 55,000 and 19,999 fewer than the base
          allocation for that fiscal year, then the base will decrease for the next year by 15,000
    -     If the number of approved petitions is more than 20,000 fewer than the base allocation for that
          fiscal year, then the base will decrease for the next year by 20,000
Changes Section 4102 regarding work authorization for H-4s. Previous version only gave EADs to H-4s if
their countries reciprocated rights to US employees. New language gives DOS discretion on this issue.

The non-displacement language in Section 4211 is modified and no longer applies to all employers. “For
an H-1B skilled worker dependent employer” that is not an H-1B dependent employer, the employer
cannot have displaced and will not displace a US worker in the 90 days before and after the filing of the
H-1B. H-1B skilled worker dependent employers aren’t subject to the provision unless the employer is
filing the petition with the intent or purpose of displacing a US worker from the position to be occupied
by the beneficiary of the petition or workers are displaced who provide services at government work
sites or are public school teachers. In the case of applications filed by H-1B-dependent employers, the
employer did not displace and will not displace a US worker employer by the employer during the period
180 days before and after the filing of the H-1B.

“H-1B Skilled Worker Dependent” means an employer who employs H-1Bs in the US in a number greater
than 15% of its full-time equivalent workers in the US employed in jobs in O*NET Job Zone 4 and Job
Zone 5. H-1Bs who are intending immigrants don’t count in making this determination.

The Hatch amendment makes changes to S.744’s H-1B recruiting requirements. The amendment
increases recruiting requirements by adding a provision that says an employer must take “good faith
steps” to recruit US workers using procedures that meet industry-wide standards and offering
compensation at least as great as that required to be offered to H-1B non-immigrants. The DOL web site
recruiting is still required and an additional requirement has been added to require posting positions on
a State labor or workforce agency web site.

There is a significant change in the advertising rules. In the original S.744, the employer must have
offered the job to any US worker who applied and is “equally or better qualified” for the job for which
the non-immigrant is sought. Now, this requirement only applies to H-1B skilled worker dependent

Modifies the rules that exempt counting certain employees from the H-1B dependency count if an
employer has filed green card application. Previously, covered employers had to file I-140s for not less
than 90% of the people for whom an employer filed a labor certification during the 1-year period ending
on the date the employer filed an application for a labor certification for the worker. Labor certification
cases pending for longer than a year would be treated as if the employer filed an immigrant status

The language is modified and a “covered employer” is an employer that has filed I-140s for not less than
90% of current employees who were the beneficiaries of labor certifications that were approved during
the 1-year period ending 6 months before the filing of an application for which the number of intending
immigrants is relevant.

A new Section 4225 is added and is entitled “Transparency of High-Skilled Immigration Programs.”
The new Bureau of Immigration and Labor Market Research shall submit an annual report to Congress
providing data on H-1B beneficiaries and employers. A similar report on L-1s is to be prepared annually.
An additional annual report is to be prepared describing the methods employers are using to meet the
good faith recruiting requirements.

Section 4236 is modified to state that the non-displacement provisions do not apply to petitions filed on
behalf of existing employees.

There is a new Section 4237 entitled “Portability for Beneficiaries of Immigrant Petitions.”

Changes the adjustment portability rules. Regardless of whether an employer withdraws an EB-1, EB-2
or EB-3 petition, the petition shall remain valid with respect to a new job if the beneficiary changes jobs
or employers after the petition is approved and the new job is in the same or a similar occupation for
which the petition was approved. Current law requires the petition to be pending 180 days before
portability kicks in. The employer’s legal obligation with respect to the petition shall terminate at the
time the beneficiary changes jobs or employers.

DOL shall develop a method for enabling workers to verify that a new job is in a same or similar

In a very important change, concurrent adjustment applications are available even if a visa number is
not available. In such a case, a supplemental fee of $500 will be collected. Applicants filed under this
provision cannot be approved until a visa number becomes available.

Section 4301 is modified and the anti-outplacement provisions applicable to L-1s are modified. L-1
employers that employ at least 15% of their employees in L-1 status shall not place, outsource, lease, or
otherwise contract for the services or placement of the worker with another employer. The previous
version of S.744 made this provision apply to all L-1 employers. However, employers that are not L-1
dependent will now not have to show that the third party employer has not engaged in displacements.
Instead, like the H-1B provisions, non-dependent employers will pay a $500 fee for outplacements.

Modifies Section 4703 regarding W-1 visas. Complaints regarding displacements of US workers must be
made by an aggrieved applicant, employee or nonimmigrant. Previous version allowed any person to file
a complaint.

Whitehouse 4

Modifies Section 2307. Expands EB-2 category to include “aliens who are members of professions
holding advanced degrees or prospective employees of national security facilities. Now includes
prospective employees, in a research capacity, of Federal national security, science, and technology
laboratories, centers and agencies if the immigrant has been lawfully present in the US for two years
before employment. This two year requirement can be waived if exceptional circumstances exist.

DHS may prescribe policy guidance and rules to carry out this new section including a definition of
“Federal national security, science, and technology laboratories, centers and agencies.”

After a year, these employees are eligible for naturalizing without regard to the residence requirements.

Creates a new un-numbered section entitled “Conditional Permanent Resident Status for Certain
Employment-Based Immigrants”.

Employees of federal labs who get a green card on that basis will get a conditional green card for two
years. The conditions can be removed if the employee documents that he or she met the requirements
noted in Section 2307. Applicants are to be interviewed.

Franken 9

Creates a new as yet unnumbered section entitled “Permissible Use of Assisted Housing By Battered
Immigrants”. The measure allows battered immigrants to be eligible to receive certain public and
assisted housing.

Coons 3

Creates a new section 2320 entitled “Special Immigrant Status for Certain Surviving Spouses and

Adds a new special immigrant section for surviving spouses or children of an employee of the US
government killed abroad in the line of duty if the employee had performed faithful services for a total
of 15 years, or more, and the principal officer of the Foreign Service establishment in his or her
discretion recommends granting special immigrant status and the Secretary of State approves the
recommendation. This section takes effect beginning on 1/31/2013 and are retroactive.

Cornyn 8

Creates a new Section 2308 entitled “Inclusion of communities adversely affected by a recommendation
of the defense base closure and realignment commission as targeted employment areas.”

Adds base closing areas to the types of locations available for EB-5 Targeted Employment Areas.

Hirono 1
Adds a new Section 2320 entitled “Reunification of Certain Families of Filipino Veterans of World War II”

Aliens who are the sons or daughters of a citizen of the US and have a parent (regardless of whether the
parent is living or dead) who was naturalized under Section 405 of the 1990 Immigration Act or title III of
the 1940 Immigration Act are exempt from green card caps.

Coons 9

Amends Section 2313. Eases the INA Section 240A cancellation of removal language by shortening the
number of years one must be a green card holder from 5 to 3. The total number of years of residence is
reduced from 7 to 3.

For non-permanent residents, the presence period is cut from 10 to 5 years.

Unrelated amendment to Section 3101 regarding E-Verify. Requires DHS notify an employer of a
nonconfirmation by electronic correspondence, mail, text message, telephone, or other direct

Grassley 19

Creates a new Section 2244 entitle “Benefits Integrity Programs”

Requires creation of a benefit fraud assessment program to monitor fraud in the new RPI, blue card,
DREAM and U visa programs.

Hirono 11

Modifies Section 2301. Mandates the Comptroller General of the US conduct a study of the new merit-
based immigration system during the first 7 years of the system.

Klobuchar 5

Allows physicians denied a Conrad 30 J-1 waiver because the program has filled up to get an extension
of J-1 status for up to six months to pursue another waiver. Work authorization is available once the
new J-1 waiver application is submitted.

The provision that provides dual intent for J-1 doctors that was inadvertently deleted in the Feinstein
amendment is restored in this amendment.

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