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Senator Introduces Bill To Facilitate Access to Skilled Workers
05/02/2006
Senate Immigration Subcommittee Chairman John Cornyn introduced the Securing Knowledge, Innovation, and Leadership Act of 2006, or SKIL Act (S. 2691) today. The bill appears to have wide support from the business community. Prior to introduction, Senator Cornyn worked closely with the immigrant and business communities, including the American Council on International Personnel (ACIP) and the Compete America Coalition, to identify and propose the removal of the obstacles U.S. employers face in recruiting and retaining the most qualified workers.
If enacted, the SKIL Act would provide substantial relief to the current backlog and visa shortage that have hindered the recruitment and retention of highly educated and highly skilled professionals from around the world, including those educated at U.S. universities but unable to stay in the U.S. as a result of the visa shortage. Specifically, the SKIL bill would provide the following changes to current law:
1. Increasing the Annual H-1B Quota and Providing Exemptions
Increases the annual H-1B cap to 115,000 from 65,000, with a 20% increase for the following year if the quota is reached.
Modifies the existing 20,000 cap exemption to apply to persons holding master's or higher degree from a foreign institution (current law limits eligibility to U.S. institutions), and exempts from the cap persons who have earned a master's or higher degree from a U.S. institution, as well as those who have been awarded "medical specialty certification based on post-doctoral training and experience in the United States."
2. Increasing the Quota and Providing Exemptions for Employment-Based Immigrant Visa Categories
Increases the annual cap on employment-based visas from 140,000 to 290,000, and allows for the recapture of unused visas from FY 2001 to 2005.
Exempts from the quota persons who:
o Hold a master's or higher degree from a U.S. institution;
o Were awarded "medical specialty certification based on post-doctoral training and experience in the United States";
o Are spouses or minor children of the principal applicant;
o Hold a master's or higher degree in science, technology, engineering or mathematics (STEM) (from any country) and who have worked in the U.S. for at least three years in a related field;
o Are deemed to have "extraordinary ability" or are eligible for "national interest" waivers as defined in immigration law; or
o Are employed in an occupation that the Department of Labor (DOL) deems to be lacking sufficient "able, willing, qualified and available" U.S. workers.
Applies "equally qualified" standard for purposes of labor certification to those who received a master's or higher degree from a U.S. institution, or who were awarded "medical specialty certification based on post-doctoral training and experience in the United States." Under current law, employers are typically required to consider all minimally qualified U.S. workers for a position even if less qualified than the foreign national for whom the employer is seeking certification. Under the "equally qualified" standard, only job applicants who are equally or better qualified than the foreign national listed on the labor certification would need to be considered.
3. Relaxes Restriction on Recruitment of U.S.-Educated Talent
Extends optional practical training from 12 to 24 months.
Removes the bar on immigrant intent for F-1 students studying at institutions of higher learning or engaging in optional practical training in a STEM field.
4. Streamlines the Visa and Labor Certification Process
Allows L visa holders to extend the visa beyond the period of authorized stay if there is a pending adjustment application.
Allows those with approved labor certifications to apply for adjustment of status by paying a $500 fee, even if there is no visa immediately available.
Permits domestic visa revalidation, meaning that professionals working in the U.S. on nonimmigrant visas would not have to leave the country to renew their visas.
Requires DOL to process all backlogged applications filed prior to the implementation of the PERM system within 60 days of the bill's enactment.
Requires the labor agency to respond to prevailing wage determination requests within 20 days, and to respond to employers who submit an acceptable alternative wage survey within 30 days.
Requires DOL to establish a process to make technical corrections on labor certifications without requiring employers to conduct additional recruitment.
Requires the Department of Homeland Security (DHS) to establish, within 180 days of enactment, a pre-certification process for employers who file multiple visa petitions, and a similar process for premium processing of employment-based immigrant petitions.
Allows premium processing of employment-based immigrant visa petitions with payment of an additional fee.
Fragomen will closely monitor the SKIL bill as it moves through the legislative process along with developments in the ongoing immigration reform efforts in the Senate. We will provide regular updates as developments occur.
Copyright © 2006 by Fragomen, Del Rey, Bernsen & Loewy, LLP
