H.R. 3146 (112th): American Innovation and Education Act of 2011

112th Congress, 2011–2013. Text as of Oct 11, 2011 (Introduced).

Status & Summary | PDF | Source: GPO

I

112th CONGRESS

1st Session

H. R. 3146

IN THE HOUSE OF REPRESENTATIVES

October 11, 2011

(for himself, Mr. Griffin of Arkansas, Mr. Ross of Florida, Mr. Yoder, Mr. Sensenbrenner, and Mr. Dold) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Science, Space, and Technology and Education and the Workforce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To amend the Immigration and Nationality Act to promote innovation, investment, and research in the United States, and for other purposes.

1.

Short title

This Act may be cited as the American Innovation and Education Act of 2011.

I

Attracting and Retaining Innovators and Job Creators

101.

U.S. graduates in science, technology, engineering, and mathematics

(a)

Advanced STEM graduates

Section 203(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(1)) is amended—

(1)

in the matter preceding subparagraph (A), by striking (A) through (C) and inserting (A) through (D); and

(2)

by adding at the end the following:

(D)

Advanced graduates in science, technology, engineering and mathematics

An alien is described in this subparagraph if—

(i)

the alien possesses a graduate degree at the level of master’s or higher in a field of science, technology, engineering, or mathematics from a United States institution of higher education that has been designated by the Director of the National Science Foundation as a research institution or as otherwise excelling at instruction in such fields;

(ii)

the alien has an offer of employment from a United States employer in a field related to such degree; and

(iii)

the employer is offering and will offer wages that are at least—

(I)

the actual wage level paid by the employer to all other individuals with similar experience and qualifications in the same occupational classification; or

(II)

the prevailing wage level for the occupational classification in the area of employment;

whichever is greater, based on the best information available as of the time of filing the petition.

.

(b)

Cap exemption

Section 201(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1151(b)(1)) is amended by adding at the end the following:

(F)

Aliens described in paragraph (1)(B) or (1)(D) of section 203(b).

.

(c)

Removing visa hurdles for students

(1)

Providing dual intent

(A)

In general

Section 101(a)(15)(F)(i) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(F)(i)) is amended by striking an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who and inserting an alien who is a bona fide student qualified to pursue a full course of study, who (except for a student qualified to pursue a full course of study at an institution of higher education) has a residence in a foreign country which the alien has no intention of abandoning, and who.

(B)

Conforming amendments

(i)

Section 214(b) of the Immigration and Nationality Act (8 U.S.C. 1184(b)) is amended by striking (other than a nonimmigrant and inserting (other than a nonimmigrant described in section 101(a)(15)(F) if the alien is qualified to pursue a full course of study at an institution of higher education, other than a nonimmigrant.

(ii)

Section 214(h) of the Immigration and Nationality Act (8 U.S.C. 1184(h)) is amended by inserting (F) (if the alien is qualified to pursue a full course of study at an institution of higher education), before H(i)(b).

(2)

Definitions

Section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)) is amended by adding at the end the following:

(52)

The term institution of higher education has the meaning given such term in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)).

(53)

The term employer shall include any group treated as a single employer under subsection (b), (c), (m), or (o) of section 414 of the Internal Revenue Code of 1986.

.

(d)

Conforming amendments

Section 204(a)(1)(F) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(F)) is amended—

(1)

by inserting 203(b)(1)(D), after 203(b)(1)(C),; and

(2)

by striking Attorney General and inserting Secretary of Homeland Security.

102.

Eliminating green card backlogs

(a)

Per Country Levels

Section 202(a) of the Immigration and Nationality Act (8 U.S.C. 1152(a)) is amended—

(1)

in paragraph (2)—

(A)

by striking , (4), and (5) and inserting and (4);

(B)

by striking subsections (a) and (b) of section 203 and inserting section 203(a);

(C)

by striking 7 percent (in the case of a single foreign state) or 2 percent and inserting 15 percent (in the case of a single foreign state) or 5 percent; and

(D)

by striking such subsections and inserting such section; and

(2)

by striking paragraph (5).

(b)

Country-Specific Offset

Section 2 of the Chinese Student Protection Act of 1992 (8 U.S.C. 1255 note) is amended—

(1)

in subsection (a), by striking subsection (e) and inserting subsection (d);

(2)

by striking subsection (d); and

(3)

by redesignating subsection (e) as subsection (d).

II

Investing in the Next Generation of Innovators and Job Creators

201.

Investing in STEM education for U.S. students

Section 204(a)(1)(F) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(F)), as amended by this Act, is further amended—

(1)

by striking (F) and inserting (F)(i); and

(2)

by adding at the end the following:

(ii)
(I)

The Secretary of Homeland Security shall impose a fee on an employer (excluding any employer that is a primary or secondary education institution, an institution of higher education, a nonprofit entity related to or affiliated with any such institution, a nonprofit entity which engages in established curriculum-related clinical training of students registered at any such institution, a nonprofit research organization, or a governmental research organization) filing a petition under clause (i) to employ an alien entitled to classification under subparagraph (B) or (D) of section 203(b)(1), section 203(b)(2), clause (i) or (ii) of section 203(b)(3)(A), section 203(b)(5) or section 203(b)(6).

(II)

The amount of the fee shall be $2,000 for each such petition except that the fee shall be half the amount for each such petition by any employer with not more than 25 full-time equivalent employees who are employed in the United States.

(III)

Fees collected under this clause shall be deposited in the Treasury in accordance with section 286(s).

.

202.

U.S. STEM education and training account

Section 286(s) of the Immigration and Nationality Act (8 U.S.C. 1356(s)) is amended to read as follows:

(s)

STEM education and training account

(1)

In general

There is established in the general fund of the Treasury a separate account, which shall be known as the STEM Education and Training Account. Notwithstanding any other section of this title, there shall be deposited as offsetting receipts into the account all fees collected under section 204(a)(1)(F)(ii) and paragraphs (9) and (11) of section 214(c).

(2)

Low-income STEM scholarship program

60 percent of the amounts deposited into the STEM Education and Training Account shall remain available to the Director of the National Science Foundation until expended for scholarships described in section 414(d) of the American Competitiveness and Workforce Improvement Act of 1998 for low-income students enrolled in a program of study leading to a degree in science, technology, engineering, or mathematics.

(3)

National Science Foundation competitive grant program for K–12 science, technology, engineering and mathematics education

(A)

In general

15 percent of the amounts deposited into the STEM Education and Training Account shall remain available to the Director of the National Science Foundation until expended to carry out a direct or matching grant program to support improvement in K–12 education, including through private-public partnerships.

(B)

Types of programs covered

The Director shall award grants to such programs, including those which support the development and implementation of standards-based instructional materials models and related student assessments that enable K–12 students to acquire an understanding of science, technology, engineering, and mathematics, as well as to develop critical thinking skills; provide systemic improvement in training K–12 teachers and education for students in science, technology, engineering, and mathematics, including by supporting efforts to promote gender-equality among students receiving such instruction; support the professional development of K–12 science, technology, engineering and mathematics teachers in the use of technology in the classroom; stimulate system-wide K–12 reform of science, technology, engineering, and mathematics in rural, economically disadvantaged regions of the United States; provide externships and other opportunities for students to increase their appreciation and understanding of science, technology, engineering, and mathematics (including summer institutes sponsored by an institution of higher education for students in grades 7–12 that provide instruction in such fields); involve partnerships of industry, educational institutions, and community organizations to address the educational needs of disadvantaged communities; provide college preparatory support to expose and prepare students for careers in science, technology, engineering, and mathematics; and provide for carrying out systemic reform activities under section 3(a)(1) of the National Science Foundation Act of 1950 (42 U.S.C. 1862(a)(1)).

(4)

STEM capacity building at minority-serving institutions

(A)

In general

12 percent of the amounts deposited into the STEM Education and Training Account shall remain available to the Director of the National Science Foundation until expended to establish or expand programs to award grants on a competitive, merit-reviewed basis to enhance the quality of undergraduate science, technology, engineering, and mathematics education at minority-serving institutions of higher education and to increase the retention and graduation rates of students pursuing degrees in such fields at such institutions.

(B)

Types of programs covered

Grants awarded under this paragraph shall be awarded to—

(i)

minority-serving institutions of higher education for—

(I)

activities to improve courses and curriculum in science, technology, engineering, and mathematics;

(II)

efforts to promote gender equality among students enrolled in such courses;

(III)

faculty development;

(IV)

stipends for undergraduate students participating in research; and

(V)

other activities consistent with subparagraph (A), as determined by the Director; and

(ii)

to other institutions of higher education to partner with the institutions described in clause (i) for—

(I)

faculty and student development and exchange;

(II)

research infrastructure development;

(III)

joint research projects; and

(IV)

identification and development of minority and low-income candidates for graduate studies in science, technology, engineering and mathematics degree programs.

(C)

Institutions included

In this paragraph, the term minority-serving institutions of higher education shall include—

(i)

colleges eligible to receive funds under the Act of August 30, 1890 (7 U.S.C. 321–326a and 328), including Tuskegee University;

(ii)

1994 Institutions, as defined in section 532 of the Equity in Educational Land-Grant Status Act of 1994 (7 U.S.C. 301 note); and

(iii)

Hispanic-serving institutions, as defined in section 502(a)(5) of the Higher Education Act of 1965 (20 U.S.C. 1101a(a)(5)).

(5)

STEM job training

10 percent of amounts deposited into the STEM Education and Training Account shall remain available to the Secretary of Labor until expended for—

(A)

demonstration programs and projects described in section 414(c) of the American Competitiveness and Workforce Improvement Act of 1998; and

(B)

training programs in the fields of science, technology, engineering, and mathematics for persons who have served honorably in the Armed Forces of the United States and have retired or are retiring from such service.

(6)

Use of fees for duties relating to petitions

1.5 percent of the amounts deposited into the STEM Education and Training Account shall remain available to the Secretary of Homeland Security until expended to carry out duties under paragraphs (1) (E) or (F) of section 204(a) (related to petitions for immigrants described in section 203(b)) and under paragraphs (1) and (9) of section 214(c) (related to petitions made for nonimmigrants described in section 101(a)(15)(H)(i)(b)).

(7)

Use of fees for application processing and enforcement

1.5 percent of the amounts deposited into the STEM Education and Training Account shall remain available to the Secretary of Labor until expended for decreasing the processing time for applications under section 212(a)(5)(A) and section 212(n)(1).

.

III

Reducing Administrative Hurdles To Foster Innovation and Job Creation

301.

Streamlining labor certifications

(a)

In general

Section 212(a)(5)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)(A)) is amended—

(1)

in clause (ii)—

(A)

in subclause (I), by striking or;

(B)

in subclause (II), by striking the period and inserting , or;

(C)

by adding at the end the following new subclause:

(III)

is the beneficiary of a labor certification application filed by an employer designated as an Established U.S. Recruiter under clause (vii).

; and

(2)

by adding at the end the following new clauses:

(v)

Processing standards

(I)

Timeframes

The Secretary of Labor shall adjudicate an application for certification under clause (i) not later than 120 days after the date on which the application is filed. In the event that additional information or documentation is requested by the Secretary during such 120-day period, the Secretary shall adjudicate the application not later than 60 days after the date on which such information or documentation is received.

(II)

Notice within 30 days of deficiencies

The employer shall be notified in writing within 30 days of the date of filing if the application does not meet the standards (other than that described in clause (i)(I)) for approval. If the application does not meet such standards, the notice shall include the reasons therefor and the Secretary shall provide an opportunity for the prompt resubmission of a modified application.

(vi)

Fees

(I)

Application fee

In addition to any other fees authorized by law, the Secretary of Labor shall impose a fee on an employer that submits an application for certification under clause (i). The amount of the fee shall be $295 for each such application.

(II)

Premium processing

The Secretary of Labor is authorized to establish and collect an optional premium fee for processing of applications for certification under clause (i). This fee shall be set at $1,000 and shall be paid in addition to the application fee under subclause (I). For an application in which the premium processing fee is paid, the Secretary shall adjudicate the application not later than 30 days after the date on which the application is filed. In the event that additional information or documentation is requested by the Secretary with respect to such application during the 30-day period, the Secretary shall adjudicate the application not later than 30 days after the date on which such information or documentation is received. If the Secretary does not comply with these timeframes, the Secretary shall refund the premium processing fee to the applicant.

(III)

Deposit of fees

Fees collected under subclauses (I) and (II) shall be deposited in the Treasury in accordance with section 286(w).

(IV)

Prohibition on employer accepting reimbursement of fee

An employer subject to a fee under this clause shall not require or accept reimbursement of or other compensation for all or part of the cost of such fee, directly or indirectly, from the alien on whose behalf the application is filed.

(vii)

Established U.S. recruiters

(I)

In general

The Secretary of Labor shall establish a process for employers to apply for designation as an Established U.S. Recruiter. An employer seeking such designation must file an application with the Secretary stating the following:

(aa)

At least 80 percent of the employer’s workforce in the United States are United States workers.

(bb)

At least 80 percent of the employer’s new hires in the United States in the 5 years preceding the filing of the application are United States workers.

(cc)

The employer regularly posts employment opportunities on a publicly accessible Internet website and has engaged in at least 3 other forms of active recruitment on an annual basis over the preceding 3 years.

(dd)

The employer will continue to engage in the recruitment efforts described in item (cc) during the certification period.

For the purposes of this clause, the term United States worker shall include an alien with a pending or approved petition under subparagraph (E) or (F) of section 204(a)(1).
(II)

Designation

(aa)

Timely adjudications

The Secretary of Labor shall adjudicate an application for designation under subclause (I) not later than 30 days after the date on which the application is filed. In the event that additional information or documentation is requested by the Secretary, the Secretary shall adjudicate the application not later than 30 days after the receipt of such information or documentation.

(bb)

Application fee

In addition to any other fees authorized by law, the Secretary of Labor may impose a fee on an employer that submits an application for designation under subclause (I). The amount of the fee shall be $500 for each such application. Fees collected under this clause shall be deposited in the Treasury in accordance with section 286(w).

(cc)

Period of designation

Unless terminated under item (dd), a designation issued under this clause shall be valid for 3 years.

(dd)

Termination

The Secretary of Labor may terminate a designation under subclause (I) if the Secretary determines that the employer—

(AA)

did not fulfill the requirements of such subclause at the time the certification was issued; or

(BB)

failed to meet the requirements under subclause (I)(ee) during the designation period described in item (cc).

(III)

Active recruitment

For the purposes of this clause active recruitment means any of the following:

(aa)

Employee referral program

The employer operates an employee referral program that includes meaningful incentives for employees to refer workers for job openings.

(bb)

In-house recruiters

The employer retains an in-house recruiter on a full-time basis to recruit workers for job openings.

(cc)

Job fairs

The employer recruits workers at job fairs that are advertised in newspaper advertisements in which the employer is named as a participant in such fairs.

(dd)

Military recruiting

The employer recruits workers during recruiting events that are organized by the Armed Forces of the United States.

(ee)

On-campus recruiting

The employer recruits workers at institutions of higher education during recruiting events that are organized by such institutions.

(ff)

Private employment firms

The employer regularly engages private employment firms or placement agencies to recruit workers for job openings.

(gg)

Trade or professional organizations

The employer regularly advertises with trade or professional organizations to recruit workers for job openings.

.

(b)

Establishment of account and use of funds

Section 286 of the Immigration and Nationality Act (8 U.S.C. 1356) is amended by adding at the end the following new subsection:

(w)

Labor certification application fee account

(1)

In general

There is established in the general fund of the Treasury a separate account, which shall be known as the Labor Certification Application Fee Account. Notwithstanding any other section of this title, there shall be deposited as offsetting receipts into the account all fees collected under section 212(a)(5)(A).

(2)

Use of fees

Amounts deposited into the Labor Certification Application Fee Account shall remain available to the Secretary of Labor until expended for carrying out labor certification activities under section 212(a)(5)(A) (including providing premium processing services) and to make infrastructure improvements in the adjudications and customer-service processes related to such activities.

.

302.

Streamlining petitions for established employers

Section 214(c) of the Immigration and Nationality Act (8 U.S.C. 1184) is amended by adding at the end the following:

(15)

The Secretary of Homeland Security shall establish a pre-certification procedure for employers who file multiple petitions described in this subsection or section 203(b). Such precertification procedure shall enable an employer to avoid repeatedly submitting documentation that is common to multiple petitions and establish, through a single filing, criteria relating to the employer and the offered employment opportunity.

.

303.

Premium processing

Section 286(u) of the Immigration and Nationality Act (8 U.S.C. 1356(u)) is amended—

(1)

by striking is authorized to and inserting shall; and

(2)

at the end of the first sentence, by striking applications. and inserting applications, including an administrative appeal of any decision on an employment-based immigrant petition..