On January 25, 2018, Senators Orrin Hatch (R-UT) and Jeff Flake (R-AZ) introduced the Immigration Innovation Act of 2018. The bill aims to amend the Immigration and Nationality Act to authorize additional visas for well-educated aliens to live and work in the United States. If enacted, the bill, known as “I-Squared,” would make significant changes to the U.S. employment-based immigration system. Among the many reforms offered by I-Squared are:
- Increasing the H-1B statutory cap from 65,000 to 85,000. The U.S. Master’s cap of 20,000 would be retained, while allowing for an unlimited number of exemptions for individuals with a U.S. Masters or above (any field), if the employer attests that it has started or will start the green card process within one year);
- Authorizing employment for spouses of H-1B visa holders where the H-1B Beneficiary has a pending or approved Labor Certification (LC) or I-140 petition, but requires the H-4 employer to certify that it is offering and will pay the greater of the actual wage paid to similarly situated employees or the prevailing wage;
- “Super Dependent” Employers or employers with more than 50 employees and more than 50% of those employees on H-1B must always attest to and document evidence of recruitment and non-displacement (without consideration of exempt H-1B nonimmigrant’s);
- Increasing base ACWIA fees according to size of employer ($2,000 or $4,000).
- Eliminating per country limits for employment-based visas and increasing per country limit for family-based visas to 15%; Requiring recapture of unused visas from FY 1993 to FY 2013; and making exempt from numerical limitations: dependents of EB immigrants, individuals with a U.S. STEM master’s or higher degree, individuals with an approved EB - 1 petition for extraordinary ability or outstanding professor/researcher.
- Permitting EB immigrants (and derivatives) with an approved I -140 to file for adjustment even if an immigrant visa is not immediately available by paying a $500 supplemental fee, although Applications may not be approved until an immigrant visa becomes available.
- Creating new employment-based conditional immigrant visa (35,000 per year) for individuals who have a university degree; have received an offer of employment from a qualifying U.S. employer; and will satisfy the requirements of EB-1, EB-2, or EB-3. Sponsoring employers must meet wage, non-displacement, and recruitment requirements; fully participate in E-Verify; and pay a $10,000 fee (and processing fee TBD). H-1B dependent employers and debarred employers are excluded. Conditional residents must renew their status annually and must show they are working their way through the immigrant visa process.
The bill also offers welcome protections for American workers by prohibiting employers from hiring an H-1B worker with the intent of displacing a U.S. worker or conditioning the U.S. worker’s pay or performance review on his or her willingness to train his or her H-1B replacement.