HR 2687 IH, the Bringing Resources from Academia to the Industry of Our Nation Act (BRAIN Act).
Re: allowing aliens completing postsecondary decrees in math, science, engineering, or computer science with jobs paying $60,000 or more to obtain a new 5-year "T visa".
Sponsor: Rep. Zoe Lofgren (D-CA).
Date Introduced: August 3, 1999.
Source: Office of Zoe Lofgren. This document was created by Tech Law Journal by scanning a paper copy and converting to HTML.
See also, Summary of H1B Visa Bills in the 106th Congress.

IN THE HOUSE OF REPRESENTATIVES

MS. LOFGREN introduced the following bill; which was referred to the Committee on _________

A BILL

To amend the Immigration and Nationality Act to establish a 5-year pilot program under which certain aliens completing a postsecondary degree in mathematics, science, engineering, or computer science are permitted to change nonimmigrant classification in order to remain in the United States for a 5-year period for the purpose of working in one of those fields.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

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SECTION 1. SHORT TITLE.

This Act may be cited as the "Bringing Resources from Academia to the Industry of Our Nation Act" or the "BRAIN Act".

SEC. 2. PILOT PROGRAM AUTHORIZING CHANGE IN NONIMMIGRANT STATUS FOR EMPLOYMENT BASED NONIMMIGRANTS WITH DEGREES IN MATHEMATICS, SCIENCE, ENGINEERING, OR COMPUTER SCIENCE.

(a) ESTABLISHMENT OF NONIMMIGRANT CATEGORY.---Section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 101(a)(15)) is amended---

(1) in subparagraph (R), by striking "or" at the end;

(2) in subparagraph (S), by striking the comma at the end and inserting "; or " ; and

(3) by inserting after subparagraph (S) the following:

"(T) subject to section 214(n), an alien who is authorized to change nonimmigrant classification and remain temporarily in the United States to perform services (other than services described in subclause (a) of subparagraph (H)(i) during the period in which such subclause applies, services described in subclause (ii)(a) of subparagraph (H), or services described in subparagraph (0) or (P)) in a special [begin page 3] technical occupation described in section 214(n)(2), who meets the requirements for the occupation specified in section 214(n)(3);".

(b) REQUIREMENTS FOR CHANGE OF NONIMMIGRANT CLASSIFICATION; ENFORCEMENT OF EMPLOYER OBLIGATIONS.---Section 214 of the Immigration and Nationality Act (8 U.S.C. 1184) is amended---

(1) by redesignating the subsection (l) added by section 625(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104-208; 110 Stat. 3009-1820) as subsection (m); and

(2) by adding at the end the following:

"(n)(1) Notwithstanding section 248 or 212(e), or any other provision of this Act, the Attorney General may, under such conditions as the Attorney General may prescribe consistent with this subsection and subsection (c)(10)(A), authorize a change from a nonimmigrant classification under subparagraph (F) or (J) of section 101(a)(15) to a nonimmigrant classification under section 101(a)(15)(T) in the case of any alien lawfully admitted to the United States as a nonimmigrant who is continuing to maintain that status and who is not inadmissible under section 212(a)(9)(B)(i) (or whose inadmissibility under such section is waived under section 212(a)(9)(B)(v)).

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"(2) For purposes of section 101(a)(15 )(T) and paragraph (3), the term 'special technical occupation' means an occupation in a high-technology field---

"(A) that uses the knowledge, skills, and abilities possessed by persons attaining a bachelor's or higher degree with a major in mathematics, science, engineering, or computer science, and requires such knowledge, skills, and abilities as a minimum for entry into the occupation in the United States; and

"(B) with respect to which the annual total compensation (including the value of all wages, salary, bonuses, stock, stock options, and any other similar form of remuneration) equals or exceeds $60,000.

"(3) For purposes of section 101(a)(15)(T), the requirements of this paragraph, with respect to a special technical occupation, are---

"(A) full State licensure to practice in the occupation, if such licensure is required to practice in the occupation;

"(B) not earlier than 90 days prior to initially obtaining nonimmigrant status under such section, having been graduated, with a degree described in paragraph (2)(A) for the occupation, from an institution of higher education (as defined in section [begin page 5] 102(a) of the Higher Education Act of 1965 (20 U.S.C. 1002(a)) inside the United States whose students receive loans under part B or D of title IV of such Act. (20 U.S.C. 1070 et seq.; 20 U.S.C. 1087a et seq.); and

"(C) obtaining a contractual obligation on the part of the employer filing the petition on behalf of the alien under section 214(c)(10)(A) to pay the alien in accordance with paragraph (2)(B) at all times during the period of intended employment in the United States specified in the petition.

"(4) In the case of a nonimmigrant described in section 101(a)(15)(T), the period of authorized stay in the United States as such a nonimmigrant may not exceed 5 years.

"(5) An employer who has filed a petition under subsection (c)(10)(A) with respect to an employee having nonimmigrant status under section 101(a)(15)(T) annually shall submit to the Attorney General a copy of the most recent statement under section 6051 of the Internal Revenue Code of 1986 for the employee. Based on information in any such statement, the Attorney General may initiate an investigation described in paragraph (7)(A) concerning a possible failure, misrepresentation, or violation, without [begin page 6] a complaint described in such paragraph, if the Attorney General has a reasonable basis for such initiation.

"(6)(A) It is a violation of this subparagraph for an employer who has filed a petition under subsection (c)(10)(A) to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner discriminate against an employee (which term, for purposes of this subparagraph, includes a former employee and an applicant for employment) because the employee has disclosed information to the employer, or to any other person, that the employee reasonably believes evidences a failure to meet a condition specified in the petition or a misrepresentation of material facts in the petition, or any rule or regulation pertaining to such subsection, or because the employee cooperates or seeks to cooperate in an investigation or other proceeding concerning the employer's compliance with the requirements of such subsection or any rule or regulation pertaining to such subsection.

"(B) The Attorney General shall devise a process under which a nonimmigrant described in section 101(a)(15)(T) who files a complaint, regarding a violation of subparagraph (A) and is otherwise eligible to remain and work in the United States may be allowed to seek other appropriate employment in the United States for a [begin page 7] period not to exceed the maximum period of stay authorized for such nonimmigrant classification.

"(7)(A) The Attorney General shall establish a process for the receipt, investigation, and disposition of complaints respecting a petitioner's failure to meet a condition specified in a petition under subsection (c)(10)(A), a petitioner's misrepresentation of material facts in such a petition, or a violation of paragraph (6)(A). Complaints may be filed by any aggrieved person or organization (including bargaining representatives). No investigation or hearing shall be conducted on a complaint concerning such a failure, misrepresentation, or violation unless the complaint was filed not later than 12 months after the date of the failure, misrepresentation, or violation, respectively. The Attorney General shall conduct an investigation under this subparagraph if there is reasonable cause to believe that such a failure, misrepresentation, or violation has occurred.

"(B) Under such process, the Attorney General shall provide, within 30 days after the date such a complaint is filed, for a determination as to whether or not a reasonable basis exists to make a finding described in subparagraph (C). If the Attorney General determines that such a reasonable basis exists, the Attorney General shall provide for notice of such determination to the interested parties [begin page 8] and an opportunity for a hearing on the complaint, in accordance with section 556 of title 5, United States Code, within 60 days after the date of the determination. If such a hearing is requested, the Attorney General shall make a finding concerning the matter by not later than 60 days after the date of the hearing. In the case of similar complaints respecting the same petitioner, the Secretary may consolidate the hearings under this subparagraph on such complaints.

"(C) If the Attorney General finds, after notice and opportunity for a hearing, a failure to meet a condition specified in a petition under subsection (c)(10)(A), a petitioner's misrepresentation of material facts in such a petition, or a violation of paragraph (6)(A), the Attorney General---

"(i) shall revoke the status under section 101(a)(15)(T) of any alien having such status employed by the petitioner, beginning 90 days after the date the finding is made, unless the alien has obtained from the Attorney authorization to change employers during the 90-day period;

"(ii) may not approve any other petition filed by the petitioner under subsection (c)(10)(A); and

"(iii) may impose such other administrative remedies (including civil monetary penalties in an [begin page 9] amount not to exceed $10,000 per violation) as the Attorney General determines to be appropriate.

"(D) Notwithstanding any other provision of law, civil money penalties collected under this paragraph shall be deposited in the Treasury in accordance with section 286(t).

"(8)(A) The Attorney General shall submit every 6 months to the Committees on the Judiciary of the House of Representatives and of the Senate a report describing, with respect to petitions under section 101(a)(15)(T) for the previous 6-month period, the number aliens granted nonimmigrant status pursuant to such petitions. Such data shall be reported on a monthly basis for each month in the reporting period.

"(B) The Attorney General shall submit annually to the Committees on the Judiciary of the House of Representatives and of the Senate a report describing, with respect to each workers included in such approved petitions under section 101(a)(15)(T) for the previous fiscal year, the following:

"(i) Occupation.

"(ii) Employer.

"(iii) Annual total compensation.

"(iv) Highest degree completed at an institution of higher education described in paragraph (2)(B).

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"(v) Name of such institution.

"(vi) Concentration or major with respect to such degree.".

(c) COLLECTION AND USE OF FEES.---

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

"(10)(A) The question of providing any alien status as a nonimmigrant under section 101(a)(15)(T) in any specific case or specific cases shall be determined by the Attorney General upon petition of the employer seeking to employ the alien. Such petition shall be made and approved before the status is granted, and, in the case of a petition described in subparagraph (B)(i), the petition shall be made and approved before the alien obtains the degree described in subsection (n)(3)(B). The petition shall be in such form and contain such information as the Attorney General shall prescribe, consistent with subsection (n), and shall specify a period of intended employment. The approval of such a petition shall not, of itself, be construed as establishing that the alien is a nonimmigrant with such status.

"(B) The Attorney General shall impose a fee on an employer filing a petition under subparagraph (A)---

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"(i) initially to grant an alien nonimmigrant status described in section 101(a)(15)(T);

"(ii) to extend the stay of an alien having such status (unless the employer previously has obtained an extension for such alien); or

"(iii) to obtain authorization for an alien having such status to change employers.

"(C) The amount of the fee shall be $500 for each petition filed under clause (ii) or (iii) of subparagraph (B) and $1,000 for each petition filed under subparagraph (B)(i).

"(D) Fees collected under this paragraph shall be deposited in the Treasury in accordance with section 286(t).

(2) ESTABLISHMENT OF ACCOUNT; USE OF FEES.---Section 286 of the Immigration and Nationality Act (8 U.S.C. 1356) is amended by adding at the end the following:

"(t) HIGH-TECH EDUCATION FUND ACCOUNT.---

"(1) IN GENERAL.---There is established in the general fund of the Treasury a separate account, which shall be known as the 'High-Tech Education Fund Account.'. Notwithstanding any other provision of law, there shall be deposited as offsetting receipts into the account all fees collected under section [begin page 12] 214(c)(10) and all civil money penalties collected under section 214(n)(7)(C).

"(2) USE OF FEES FOR K-12 MATHEMATICS, SCIENCE, AND COMPUTER SCIENCE EDUCATION.---Except as provided in paragraph (3), amounts deposited into the High-Tech Education Fund Account shall remain available to the Director of the National Science Foundation until expended to make merit-reviewed grants, under section 3(a)(1) of the National Science Foundation Act of 1950 (43 U.S.C. 1862(a)(1)), for programs that provide opportunities for enrollment in academic enrichment courses in mathematics, science, and computer science for elementary and secondary school students.

"(3) USE OF FEES FOR DUTIES RELATING TO PETITIONS.---3 percent of the amounts deposited into the High-Tech Education Fund Account shall remain available to the Attorney General until expended to carry out duties under subsections (c)(10) and (n) of section 214.".

(d) EFFECTIVE DATE; SUNSET.---

(1) EFFECTIVE DATE.---The amendments made by this section shall take effect beginning with fiscal year 2000.

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(2) SUNSET.---The amendments made by subsections (a), (b), and (c)(1) shall cease to be effective on September 30, 2004, except with respect to any alien having nonimmigrant status pursuant to such amendments before such date. In the case of such an alien, the amendments made by subsections (a) and (b) shall remain in effect until the date on which such nonimmigrant status otherwise would expire (disregarding any potential extension of status).