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					Siskind Summary –

A Section by Section Review of the SKILLS Visa Act (the Issa Bill)
including House Judiciary Committee Amendments

By Greg Siskind (copyright 2013)

gsiskind@visalaw.com
Section 1. Short Title.

The name of the bill is the “Supplying Knowledge Based Immigrants and Lifting Levels of STEM

Visas Act” or “SKILLS Visa Act”.



Section 2. Table of Contents.

The bill is divided in to 3 main sections – Immigrant Visa Reforms, Nonimmigrant Visa Reforms
and Reforms applying to both.



Section 3. Sense of Congress.

A portion of the fees should be used to support STEM education efforts (Chaffetz
Amendment 23) including to help disadvantaged individuals (Jeffrey's Amendment 23A).



Title I – Immigrant Visa Reforms

Section 101. Immigrant Visas for Certain Advanced Stem Graduates.

Raises the employment-based green card cap.
FY 2013 – 140,000

FY 2014 and beyond – 195,000 (minus the number of visas under NACARA that will now go
back to that category because the Green Card Lottery is repealed.

Creates a new EB-6 category for “aliens holding doctorate degrees from US doctoral institutions
of higher education in science, technology, engineering or mathematics.
55,000 visas per year minus the NACARA subtraction previously applicable to the lottery are
available to those with doctorates in STEM fields from US doctoral institutions of higher
education or have successfully completed a dental, medical, or veterinary residency program,
have received a medical degree (MD) in a program that prepares individuals for the
independent professional practice of medicine, have received a dentistry degree (DDS, DMD) in
a program that prepares individuals for the independent professional practice of dental
medicine, have received a veterinary degree (DVM) in a program that prepares individuals for
the independent professional practice of veterinary medicine, or have received an osteopathic
medicine/osteopathy degree (DO) in a program that prepares individuals for the independent
professional practice of osteopathic medicine from an institution that meets this section’s

definition of “United States doctoral institution of higher education”. Not less than 85% of the
courses required for these degrees, including online classes, must have been while physically
present in the US. Labrador Amendment 19 modified this from original requirement that all
courses be in the US.

Definitions –

“distance education”

“field of science, technology, engineering or mathematics” means a field included in the

Department of Education’s Classification of Instructional Programs taxonomy within the
summary groups of computer and information sciences and support services, engineering,
biological and biomedical sciences, mathematics and statistics, physical sciences and
geography/cartography, advanced/graduate dentistry and oral sciences and nursing.

“United States doctoral institution of higher education” means an institution

   -    Described in section 101(a) of the Higher Education Act of 1965 or is a proprietary
        institution of higher education defined in section 101(b) of that act.

   -    Classified by the Carnegie Foundation for the Advancement of Teaching on 1/1/2013 as
        a doctorate-granting university with a very high or high level of research activity or
        classified by the National Science Foundation after the date of enactment as having
        equivalent research activity to those institutions classified by Carnegie as described
        here.

   -    Has been in existence for at least 10 years, and

   -    Is accredited by an accrediting body that is itself accredited by either the Department of
        Education or by the Council for Higher Education Accreditation.

EB-6 cases will require a labor certification unless DHS grants a national interest waiver. Prior
PERM approvals will be honored.
EB-7s - If there are leftover numbers out of the 55,000 in a given year can go to master’s

degree STEM professional if the degree was part of a master’s program requiring at least 2

years of enrollment or part of a 5-year combined bachelors-master’s program in a STEM field.

The applicant must have taken not less than 85% of master’s courses in a STEM field or by
distance education while physically present in the US. The underlying bachelors degree must be
in a STEM field. Labor certifications are required for these individuals as well though a national
interest waiver option is provided. Prior PERM approvals will be honored. Labrador
Amendment 19 modified this from original requirement that all courses be in the US.



For EB-6 and EB-7 cases, USCIS will have 60 days to adjudicate the cases. If an RFE is
issued, USCIS will have 30 days to respond after the RFE response is received.

The Department of Labor will have 180 days to issue a decision on an EB-6 or EB-7 labor
certification case. If a request for additional evidence is issued, DOL will have 60 days to decide
after a response is received.

DHS must publish online information on employer petitioners under the new categories.

Effective date: 10/1/2014 and shall apply with respect to fiscal years beginning on or after that
date. DHS may accept cases before this date for people applying in currently existing
categories.



Section 102. Immigrant Visas for Entrepreneurs

There’s a new EB-8 category for alien entrepreneurs. It will have 10,000 visas plus any leftover
from the EB-1, EB-2, and EB-3 categories.

EB-8-1 entrepreneurs – This category is for aliens intending to engage in a new commercial
enterprise (including a limited partnership) in the US with respect to which the person has
completed an investment agreement requiring an investment of at least $500,000 on the part of
a venture capital fund whose investment advisor is a qualified venture capital entity or
two or more qualified angel investors (of which at least one such investor is providing
$100,000). The investment must benefit the US economy and during the 3-year period
beginning on the date the visa is issued, crate full-time jobs for at least 5 us workers within the
enterprise and raise not less than an additional $1,000,000 in capital investment or generate not
less than $1,000,000 in revenue. (Chabot Amendment 5 extended from two to three years.
Chabot Amendment 7 changed #of angel investors from one to two. Lofgren Amendment
15 modified venture capital fund language.)
Definitions –

   -    Investment – doesn’t include assets acquired by unlawful means

   -    Investment Advisor - Lofgren Amendment 15

   -    Qualified Angel Investor – an individual who is an accredited investor, is a US citizen or
        lawful permanent resident and has made at least 2 equity investments in each of the 3
        years before the date of the petition (Chabot Amendment 7 eliminated $50,000
        minimum investment requirement)

   -    Qualified Venture Capital Entity - Lofgren Amendment 15

   -    Qualified Venture Capital Operating Company – definition eliminated by Lofgren
        15.

   -    Venture Capital Fund - Lofgren Amendment 15



The amounts described in this paragraph are to be adjusted beginning within six months based
on movement in the Consumer Price Index.



EB-8-2 Treaty Investors. This is a new green card category specifically designed to offer a path
to permanent residency for E-2 nonimmigrant visa holders. The category doesn’t cover
employees of the treaty investor. One is eligible in this category if he or she is an E-2
nonimmigrant who has maintained status for at least 10 years, has benefited the US economy,
and created full-time employment for not fewer than 5 US workers for a minimum of ten years.

Definitions –

“full-time employment”

“United States worker” – employee who is a US citizen or national, lawful permanent resident, or
refugee/asylee or someone otherwise authorized to work in the US

Alien entrepreneurs and their dependents will be granted conditional permanent residency.
DHS will provide notice to affected entrepreneurs at or about the beginning of the 90 day period
before the conditional period ends.

Conditional residency can be terminated if DHS believes the investment was intended solely as
a means of evading immigration law, the required capital to be invested was not invested or
actively in the process of being invested, the alien was not sustaining the actions required for
the green card throughout the alien’s residence in the US, or the alien was not otherwise
conforming to the requirements.

A petition to remove conditions must be filed in the 90 day period prior to the third anniversary
of conditional permanent residency. A late application may be accepted if there is good cause.
A personal interview is required for the removal of conditions. (Chabot Amendment 5
extended from two to three years).

Conditional status may be extended for a year and within 30 days of the end of that year, the
alien must file a new conditions removal petition.

The removal of conditions petition must demonstrate that any requisite capital has been or was
actively in the process of being invested, the alien sustained the actions required under the
statute, the required employment creation has taken place or the is in the process of being
created and the alien is otherwise complying with the EB-8 rules.

The conditional residency period will count toward the naturalization residency requirements.

Effective Date – The amendments take effect of October 1, 2013 and shall apply with respect to
fiscal years beginning on or after such date.



Section 103. Additional Employment-Based Immigrant Visas.

Employment-based green cards are increased from 195,000 to 235,000.

EB-1s are set to 40,040 rather than the current 28.6%.

EB-2 is set at 55,040 rather than the current 28.6%.

EB-3 is set at 55,040 rather than the current 28.6%.

EB-4 is set at 9,940 rather than the current 7.1%.

EB-5 is set at 9,940 rather than the current 7.1%.

The changes made in this section take effect on October 1, 2013 and shall apply with respect to
fiscal years beginning on after such date.

Adjustment of status applications based on EB-1, EB-2, EB-3, EB-4 may be filed even
without a priority date being available for H-1B, L-1, O-1 and F-1 or M-1 OPTs. However,
the underlying immigrant petition must have been approved. (Chaffetz Amendment 17)



Section 104. Employment Creation Immigrant Visas.

Capital required for EB-5 investments may not be obtained by unlawful means.
The required investment amounts for EB-5s will be increased based on changes in the
Consumer Price Index. The adjustments will begin after the date of enactment of the bill.
Adjustments will take place on an annual basis.

The conditional period for an EB-5 period may be extended for an additional year in DHS’s
discretion and a new removal of conditions petition may be filed within 30 days of the end of that
additional year.

Targeted Employment Area definition is tightened to only include an area which has an
unemployment rate of 150% and fits entirely within a geographical unit the Secretary of Labor
has determined has an unemployment rate of 150+%.

The Regional Center EB-5 program is permanently reauthorized.

Aggravated felons, inadmissible persons and those with fraud convictions cannot participate in
the running of a regional center. Background checks on persons involved with regional centers
shall be conducted by DHS.

Regional center applications must certify compliance with securities laws. Regional center
designation may be revoked if securities laws are violated.

Effective dates – Except for the provisions on inflation adjustments to the investment amounts,
the amendments in this section take effect on the date of enactment and apply to investor
petitions and regional center applications.



Section 105. Family-Sponsored Immigrant Visas.

The amount of family-based immigration subject to quotas is changed as follows:

480,000 in FY 2013 (same as current amount)

505,000 from FY 2014 to FY 2023

440,000 beginning in FY 2024

The minimum number of green cards to be allocated to family-based preference
categories is being raised to 251,000 from FY 2014 to FY 2023 and then reduced to
186,000 beginning in FY 2024. (HJC Manager's Amendment)

The siblings green card category is eliminated.

The section takes effect on October 1, 2013. Puts off elimination of sibling category until
FY 2024. (HJC Manager's Amendment)
Section 106. Elimination of Diversity Immigrant Program.

The diversity visa lottery is eliminated. The section takes effect on October 1, 2013 and applies
with respect to fiscal years beginning on or after this date.

Section 107. Numerical Limitation to Any Single Foreign State.

Per country limits are eliminated for employment-based categories. For family cases, the limit is
raised from 7 to 15%.

The provision takes effect on October 1, 2013.

There is a transition provision that provides for a portion of visas that would go to the biggest
demand countries to be allocated to rest of world and no country can have more than 25%
during the transition period. For the two states that are not considered “rest of world” in the
transition period, neither state can have more than 85% of the visas.



Section 108. Physicians.

The Conrad 30 J-1 waiver program is permanently reauthorized.

Issa Amendment 16 eliminates original J-1 increase provision and replaces it with
language that will allow a state to get a five slot increase per year up to 60 if 90% of slots
in that state were used in the prior year. The number will only increase further if 90% of
slots for all states using at least 1 waiver were used in the prior fiscal year.

Conrad waivers can be increased in 5 slot increments if 90% of waivers available across the
country are used (excluding states that use less than 5 waivers). Once the slot usage goes to
45 slots, the threshold for further increases is 95% and any state issuing at least 1 waiver will be
included. Slot allocations can decrease as demand decreases.

Academic medical centers can apply for 3 public interest waivers per year outside the Conrad
30 limit. State health agencies are required to recommend the waivers.

Physicians are required to apply for an H-1B after getting a J-1 waiver within 90 days of getting
the waiver or within 90 days of completing training. Current rule is tied to 90 days within getting
the waiver.

For physician transfers during the J-1 waiver service period, in addition to the current process, a
transfer is permitted if the original sponsoring agency agrees to the transfer. Also, if a doctor is
willing to work an extra year in a shortage area, they do not need to show exceptional
circumstances exist.
New contract clauses are required for J-1 cases. The maximum on call hours must be specified.
The contract must specify who pays for malpractice premiums. All work locations must be
specified in the agreement and it must indicate that no additional locations will be added without
the approval of the sponsoring agency. And J-1 contracts may not contain non-compete
provisions.

Physicians are granted a 120 day grace period to find new employment if their employment is
terminated during the three year J-1 service period.

Physicians coming to train on J-1 visas will be considered dual intent. Dual intent status also
applies to visitor visas for doctors coming to take entrance exams for medical training programs.

Doctors can work in any status (not just H-1B) while serving their three year service period after
getting J-1 waiver.

Extends flex to physician national interest waivers. The five year service requirement is counted
from the date service begins and not the date the I-140 is filed.

A foreign medical degree deemed adequate to participate in an accredited residency program
meets the EB-2 advanced degree requirement.

Physicians unable to get waivers with programs that fill up will be able to get J-1 extensions and
can get work authorization while they pursue a new waiver.

The amendments take effect on the date of enactment. Portions take effect on October 1, 2013.



Section 109. Permanent Priority Dates.

Creates a new section 203(i) that states that the priority date for any employment-based petition
is the date the petition is filed with USCIS or the date of filing of a labor certification with the
Department of Labor.

In the case of later employment-based petitions filed (including self-petitions), the original
priority date will be retained if the earlier filing was approvable when filed.

Effective date – October 1, 2013 and applies to any people who are the beneficiaries of petitions
pending on or after that date.



Section 110. Set Aside for Heath Care Workers.

Workers required to get a health care certificate under INA 212(a)(5)(c) who work in under
served or rural areas will have a set aside of 4000 green cards in the EB-3 category.
Unused numbers will roll in to the next year. (Sensenbrenner Amendment #3)
TITLE II – NONIMMIGRANT VISA REFORMS



Section 201. H-1B Visas.

The H-1B cap is raised from 65,000 to 155,000 for FY 2014 and beyond.

The master’s cap allocation of 20,000 is modified. It now covers STEM professionals covered in
the new EB-6 and EB-7 categories and is doubled to 40,000.

If at least 80% of the workers in the same job category as the H-1B worker are US
workers, the employer must pay at least the actual wage (as opposed to the prevailing
wage. (HJC Manager's Amendment). But if there are 25 or more workers, the prevailing
wage must be paid which in the case of 80% employers, must be the median of the
bottom half of the calculated wages. (Lofgren 1B).

Spouses of H-1Bs (H-4s) can work.

The Department of State is to be charged with evaluating whether a foreign degree is equivalent
to a US bachelors or higher degree. DOS may contract with public or private entities in
conducting such verifications. DOS may impose a fee for the verification process and the funds
will go to a separate Treasury account designed to fund DOS’ verification responsibility.

Adds a new section that limits H-1B petitions to universities, governmental or non-profit entities
or businesses licensed in accordance with any applicable state or local business licensing
requirements and used exclusively for business purposes.

The employer must be a governmental entity, have aggregate gross assets of not less than
$50,000, or provides appropriate documentation of business activity under regulations to be
issued by DHS.

The Department of Labor shall have subpoena powers to assure employer compliance with the
H-1B rules. This also extends to H-1B1 and E-3 cases.

Ends the practice of B-1 in lieu of H-1B for employers without US operations.

Effective dates – Takes effect on the date of enactment and applies to people issued visas or
getting H-1B status beginning in fiscal year 2014. The H-4 work authorization provision take
effect immediately after passage and apply to anyone already here on H-4 status as well as
people not yet here. The anti-fraud amendments relating to DOS educational verifications and
possessing a business license take effect upon enactment and apply to petitions filed on or after
that date. The measures giving DOL new investigation and subpoena powers take effect on the
date of enactment and apply to all petitions filed before, on, or after that date. The B-1 in lieu of
H-1B provision takes effect on the date of enactment and applies to people admitted on or after
that date.
Employers subject to two random investigations cannot be the subject of a random
investigation again within four years unless something was found in one of the earlier
investigations. HJC Manager's Amendment.



Section 202. L Visas.

A new section is added to INA 214(c)(2) covering L petitions. For L-1B specialized knowledge
employees who will be working a cumulative period of six months over a two year period, the
employer will pay either the actual wage paid to similarly employed workers at the employer or
the prevailing wage, whichever is higher. The employer must provide working conditions that will
not adversely affect working conditions of workers similarly employed. (HJC Manager's
Amendment decreased period from three to two years)

If at least 80% of the workers in the same job category as the L-1 worker are US workers,
the employer must pay at least the actual wage (as opposed to the prevailing wage. (HJC
Manager's Amendment). But if there are 25 or more workers, the prevailing wage must
be paid which in the case of 80% employers, must be the median of the bottom half of the
calculated wages. (Lofgren 1B).



This section takes effect on the date of enactment and applies to employers of people issued
visas on or after the date of enactment.



Section 203. O Visas.

Adds portability to the O-1 visa category and applies same statute section as covers H-1B
portability.

For film and television productions, makes clear that peer group consultations are only advisory,
any such opinions recommending denial must be in writing, DHS must consider the “exigencies

and scheduling of the production”, DHS shall append to a decision any such opinion and, upon
making the decision, DHS shall immediately provide a copy of the decision to the consulting
labor and management organizations. No new consultation will be required if a person is
returning to the US within three years of the issuance of a previous favorable consultation.

This section is effective on the date of enactment and applies to new O-1 petitions and to
consultation decisions made before, on, or after that date.



Section 204. Mexican and Canadian Professionals.
Adds an actual/prevailing wage requirement to the TN category. Also, the job must provide
working conditions that will not adversely affect the working conditions of workers similarly
employed. DOL will have investigatory powers related to this new section.

If at least 80% of the workers in the same job category as the TN worker are US workers,
the employer must pay at least the actual wage (as opposed to the prevailing wage. (HJC
Manager's Amendment). But if there are 25 or more workers, the prevailing wage must
be paid which in the case of 80% employers, must be the median of the bottom half of the
calculated wages. (Lofgren 1B).



Section 205. H-1B1 Visas.

If at least 80% of the workers in the same job category as the H-1B1worker are US
workers, the employer must pay at least the actual wage (as opposed to the prevailing
wage. (HJC Manager's Amendment). But if there are 25 or more workers, the prevailing
wage must be paid which in the case of 80% employers, must be the median of the
bottom half of the calculated wages. (Lofgren 1B).



Section 206. Students.

Dual intent will be extended to F-1 students coming in to pursue bachelors or higher degrees in
STEM fields (as the term is defined in TITLE I of this bill) as well as to optional practical training
periods following such studies. This only applies to schools that have agreed to report to DHS
information on the attendance of each nonimmigrant student. Spouses and children of such F-
1s will also be covered. Canadian and Mexican commuter students in non-STEM fields are also
covered.

Adds an actual/prevailing wage requirement to OPT periods. DOL will have investigatory
powers related to this new section.

If at least 80% of the workers in the same job category as the F-1 worker are US workers,
the employer must pay at least the actual wage (as opposed to the prevailing wage. (HJC
Manager's Amendment). But if there are 25 or more workers, the prevailing wage must
be paid which in the case of 80% employers, must be the median of the bottom half of the
calculated wages. (Lofgren 1B).



Effective dates – The dual intent provisions take effect upon enactment and apply to all who
have or are granted F-1 status on or after that date. Regarding the new prevailing wage
requirement, it applies to employers where the student begins post-course OPT on or after the
date of enactment.
Section 207. Extension of Employment Eligibility While Visa Extension Petition Pending.

Clarifies that the following nonimmigrants are granted an automatic 240 day work authorization
extension if a timely extension application is filed:

A, E, G, H, I, J, L, O, P, Q, R, or TN.

Effective date: Takes effect on the date of enactment and applies to applications filed before, on
or after that date.



Section 208. Fraud Detection and Prevention Fee.

Adds the $500 fraud fee to H-1B1, E-3 and TN cases.



Section 209. Technical Corrections.

Fixes the fact that there are two INA section 212(t) sections. The second one is now
redesignated INA section 212(u).



TITLE III – REFORMS AFFECTING BOTH IMMIGRANT AND NON-IMMGRANT VISAS

Subtitle A on STEM Funding was deleted by the HJC Manager's Amendment.

Subtitle B – Other Reforms



Section 301. Prevailing Wages.

DOL will use a three level wage system (the current number is 4). An employer must pay a
Level 2 or 3 wage. HJC Manager's Amendment eliminated provision that would allow
payin Level 1 DOL wages to workers who have started work with their employers within
one year of graduation from a US university.

Level 1 shall be the mean of the lowest two-thirds of wages surveyed, but in no case less than
80% of the mean of the wages surveyed.

Level 2 is the mean of the wages surveyed.

Level 3 is the mean of the highest two-thirds of the wages surveyed.

HJC Manager's Amendment restores employer's ability to use private wage surveys.
Effective date – This section takes effect on the date of enactment and applies to employers
with regard to PERMs and LCAs filed on or after such date, to employers with regard to people
issued visas or NIV status on or after such date, and to employer with regard to OPT beginning
after this date.



Section 302. Streamlining Petitions for Established Employers.

DHS shall establish a pre-certification process for employers who file multiple petitions
described in INA 214(c) – H, L, O, P, Q – and INA 204(a)(1)(F) – EB-1 outstanding researchers
and professors, EB-1 multinational executives and managers, EB-2 advanced degree and
exceptional ability professionals and EB-3 skilled workers, professionals and other workers.
Such precertification shall allow employers to avoid repeatedly filing documents common to
multiple petitions. This section takes effect on the date of enactment and applies to petitions
filed beginning 180 days after such date.

				
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