Great news for Silicon Valley: Two Republican Senators have reintroduced legislation to bring more well-educated, highly-skilled immigrants to the U.S. to live and work.

Alcorn Immigration Law supports immigration for innovation. We recognize that immigrants stay in jobs longer and are a source of human capital worth investing in and nurturing and applaud Senators Orrin Hatch of Utah and Jeff Flake of Arizona, who introduced the legislation, the Immigration Innovation (I-Squared) Act.

Introduced for the third time, the Immigration Innovation Act would reform the H-1B and employment-based green-card programs. But the legislation faces tough prospects with President Trump maintaining a hardline on immigration.

H-1B Lottery

The proposed Immigration Innovation Act would change the annual H-1B lottery by:

• Increasing the number of H-1B visas available each year from 65,000 to 85,000.
• Adding an option to increase the number of H-1B visas available by another 110,000 to meet demand.
• Removing the 20,000 cap on H-1B visa holders who have advanced degrees.
• Not counting H-1Bs awarded to advanced degree holders toward the overall cap.
• Giving immigrants with U.S. master’s degrees or higher, foreign Ph.D.’s, or a U.S. STEM (science, technology, engineering or mathematics) priority in the H-1B lottery.

H-1B Employers

The legislation attempts to address criticisms of the H-1B program. Critics contend the H-1B visas allow companies to replace skilled American workers with cheaper labor from other countries. Since 2015, when the spouses of some H-1B recipients who have been eligible for work permits, critics have also asserted that these H-1B spouses take jobs away from Americans.

H-1B recipients themselves have contended that the program prevents them from changing jobs or creating startups without risking deportation.

Accordingly, I-Squared would:

• Penalize employers who fail to employ an H-1B worker for more than three months during the individual’s first year of work authorization.
• Prohibit employers from hiring an H-1B visa holder to replace a U.S. worker.
• Boost the H-1B salary level at which the salary-based exemption takes effect for H-1B dependent employers from $60,000 to $100,000
• Raise the education-based exemption for H-1B dependent employers from H-1B hires with a master’s degree to an H-1B hire with a U.S. Ph.D.
• Eliminate all exemptions for “super-dependent” H-1B employers.
• Allow the spouses and dependent children of H-1B holders to work if certain conditions are met.
• Establish a grace period during which H-1B visa holders can change jobs without losing their visa.
• Increase fees for H-1B visas to fund state-administered grants to promote STEM education and worker training.

Green Cards

The Immigration Innovation Act would increase the number of green cards available by:

• Eliminating the per-country limit for employment-based green cards, while adjusting per-country caps for family-based green cards.
• Allowing the recapture of green card numbers that were approved by Congress in previous years but not used.
• Exempting the following from the cap on employment-based green cards:
  • Spouses and children of employment-based green-card holders.
  • Those with a U.S. STEM master’s or higher degree.
  • Certain individuals with extraordinary ability in the arts and sciences.
• Enabling individuals to change jobs earlier in the green-card process without losing their place in the green-card line.
• Creating a new conditional green-card category that allows U.S. employers to sponsor university-educated foreign professionals through a separate H-1B path.
• Increases employment-based green card fees and directs those funds to fund state-administered grants to promote STEM education and worker training.
• Enable F-1 student visa holders to seek permanent residence (a green card) while a student or during Optional Practical Training (OPT).

Challenges Ahead

The Immigration Innovation Act faces big challenges in Congress and from President Trump.

When the Immigration Innovation Act was introduced in the Senate in past Congresses, the House had introduced a similar bill. However, not this time. A House companion bill has yet to be introduced.

Granted, few of the provisions in the proposed Immigration Innovation Act fall in line with the regulatory priorities the Trump administration announced for this year. Namely, giving priority to the most highly skilled H-1B candidates. But the Department of Homeland Security is already working on eliminating the Obama-era regulation that allows the H-1B spouses to apply for work permits.

Ultimately, the intent of the legislation runs counter to Trump’s efforts to curb immigration and his “Buy American and Hire American” executive order, which prioritizes hiring U.S. workers.

Contact Us

Right now, it’s unlikely any proposed changes will be implemented before the H-1B lottery, which begins on April 2.

Still, the Alcorn Immigration Law team is closely watching what happens with the Immigration Innovation Act and the H-1B visa program. We believe in immigration for innovation. Please contact us if you would like a consultation about options for yourself or your employees.