1.This Act may be cited as
the Benefits to Research and American
Innovation through Nationality Statutes Act of 2012
or
the BRAINS
Act
.
2.Immigrant Visas
for certain advanced stem graduates
(a)Section 203(b) of the Immigration and Nationality Act
(8 U.S.C. 1153(b)) is amended—
(1)by redesignating
paragraph (6) as paragraph (7); and
(2)by inserting after
paragraph (5) the following:
(6)Advanced
graduates in science, technology, engineering and mathematics
(A)Notwithstanding section 201, visas shall be made
available, in a number not to exceed 55,000, to qualified immigrants
who—
(i)possess a graduate
degree at the level of master’s or higher in a field of science, technology,
engineering, or mathematics from a United States research institution of higher
education;
(ii)earned a
graduate degree by taking no greater than 25 percent of classes by
correspondence (including courses offered by telecommunications) and by taking
all classes while physically present in the United States;
(iii)have an offer of
employment from a United States employer in a field related to such
degree;
(iv)are the subject
of an approved labor certification as required under section 212(a)(5)(A);
and
(v)will receive a
wage level from the employer that is at least the actual wage level paid by the
employer to all other individuals with similar experience and qualifications
for the specific employment in question.
(B)In
this paragraph:
(i)Field of
science, technology, engeering, or mathematicsThe term
field of science, technology, engineering, or mathematics
means
a field included in the Department of Education’s Classification of
Instructional Programs taxonomy within the summary groups of computer and
information sciences and support services, engineering, mathematics and
statistics, and physical sciences.
(ii)United States
research institution of higher educationThe term United
States research institution of higher education
means an institution in
the United States that—
(I)is described in
section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a));
(II)is classified by
the Director of the National Science Foundation as a research institution or as
otherwise excelling at instruction in a field of science, technology,
engineering, or mathematics;
(III)has been in
existence for at least 10 years;
(IV)does not provide
any commission, bonus, or other incentive payment based directly or indirectly
on success in securing enrollments or financial aid to any persons or entities
engaged in any recruitment or admission activities for nonimmigrant students or
in making decisions regarding the award of student financial assistance to
nonimmigrant students;
(V)is accredited by
an accrediting agency recognized by the Secretary of Education; and
(VI)is not operating
for
profit.
.
(b)Unused visas;
limitation to foreign states
(1)Section 203(b)(1) of such Act (8 U.S.C. 1153(b)(1)) is
amended by striking (4) and (5)
and inserting (4), (5)
and (6)
.
(2)Limitation to
any single foreign stateSection 202(a)(5)(A) of such Act (8
U.S.C. 1152(a)(5)(A)) is amended by striking or (5)
and
inserting (5), or (6)
.
(c)Procedure for
granting immigrant statusSection 204(a)(1)(F) of such Act (8
U.S.C. 1154(a)(1)(F)) is amended—
(1)by striking
or 203(b)(3)
and inserting 203(b)(3), or
203(b)(6)
; and
(2)by striking
Attorney General
and inserting Secretary of Homeland
Security
.
(d)Labor
certification and qualification for certain immigrantsSection
212(a)(5) of such Act (8 U.S.C. 1182(a)(5)) is amended—
(1)in subparagraph
(A)—
(A)in clause
(ii)—
(i)in
subclause (I), by striking , or
at the end and inserting a
semicolon;
(ii)in
subclause (II), by striking the period at the end and inserting ;
or
; and
(iii)by
adding at the end the following:
(III)holds a
doctorate degree in a field of science, technology, engineering, or mathematics
(as defined in section 203(b)(6)(B)(i)) from a United States research
institution of higher education (as defined in section
203(b)(6)(B)(ii)).
;
(B)by redesignating
clauses (iii) and (iv) as clauses (iv) and (v), respectively; and
(C)by inserting after
clause (ii) the following:
(iii)
(I)An employer who files an application under clause (i)
shall submit a job order for the labor the alien seeks to perform to the State
workforce agency in the State in which the alien seeks to perform the labor.
The State workforce agency shall post the job order on its official agency
website for a minimum of 30 days and not later than 3 days after receipt using
the employment statistics system authorized under section 15 of the
Wagner-Peyser Act (29 U.S.C. 49 et seq.).
(II)The
Secretary of Labor shall include links to the official websites of all State
workforce agencies on a single webpage of the official website of the
Department of Labor.
;
and
(2)in subparagraph
(D), by striking (2) or (3)
and inserting (2), (3), or
(6)
.
(e)Further
protecting American workersSection 212(p) of such Act (8 U.S.C.
1182(p)) is amended by adding at the end the following:
(5)To satisfy the
requirement under section 203(b)(6)(A)(iv), an employer must demonstrate that
the total amount of compensation to be paid to the alien (including health
insurance, stock options, and other benefits provided by the employer) must
meet or exceed the total amount of compensation paid by the employer to all
other employees with similar experience and qualifications working in the same
occupational
classification.
.
(f)Not later than June 30, 2017, the Comptroller General of
the United States shall provide to the Congress the results of a study on the
use by the National Science Foundation of the classification authority provided
under section 203(b)(6)(B)(ii)(II) of the Immigration and Nationality Act (8
U.S.C. 1153(b)(6)(B)(ii)(II)), as added by this section.
(g)The Secretary of Homeland Security shall make
available to the public on the official website of the Department of Homeland
Security, and shall update not less than monthly, the following information
(which shall be organized according to month and fiscal year) with respect to
aliens granted status under section 203(b)(6) of the Immigration and
Nationality Act (8 U.S.C. 1153(b)(6)), as added by this section:
(1)The name, city,
and State of each employer who petitioned pursuant to either of such paragraphs
on behalf of one or more aliens who were granted status in the month and fiscal
year to date.
(2)The number of
aliens granted status under either of such paragraphs in the month and fiscal
year to date based upon a petition filed by such employer.
(3)The occupations
for which such alien or aliens were sought by such employer and the job titles
listed by such employer on the petition.
(h)
(1)The amendments made by this section shall take effect on
October 1, 2012, and shall apply with respect to fiscal years beginning on or
after such date.
(2)The
amendments made by subsections (a) through (e) shall be repealed after the
2-year period beginning on the date of the enactment of this Act.
3.
(a)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 in a field of science, technology,
engineering, or mathematics (as defined in section 203(b)(6)(B)(i)) at an
institution of higher education) has a residence in a foreign country which the
alien has no intention of abandoning, and who
.
(b)
(1)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 in a field of science, technology, engineering,
or mathematics (as defined in section 203(b)(6)(B)(i)) at an institution of
higher education, other than a nonimmigrant
.
(2)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 in a
field of science, technology, engineering, or mathematics (as defined in
section 203(b)(6)(B)(i)) at an institution of higher education),
before
H(i)(b)
.
4.Section 222 of
the Immigration and Nationality Act (8 U.S.C. 1202) is amended—
(1)in subsection
(h), in the matter preceding paragraph (1), by inserting except as
provided under subsection (i),
after Act,
; and
(2)by adding at the
end the following:
(i)The Secretary of State shall permit an alien granted
a nonimmigrant visa under subparagraph (E), (H), (I), (L), (O), or (P) of
section 101(a)(15) to apply for a renewal of such visa within the United States
if—
(1)such visa expired
during the 12-month period ending on the date of such application;
(2)the alien is
seeking a nonimmigrant visa under the same subparagraph under which the alien
had previously received a visa; and
(3)the alien has
complied with the immigration laws of the United
States.
.
5.Age-out
protections for childrenSection 101(b)(1) of the Immigration and
Nationality Act (8 U.S.C. 1101(b)) is amended by adding at the end the
following—
(H)Rules for
determining age of a child
(i)Notwithstanding any other provision of the Act, a
determination of whether an alien is a child for the purposes of a petition
under sections 204 and 209 shall be made using the age of the alien on the date
on which the petition is filed with the Secretary of Homeland Security.
(ii)Child of U.S.
citizen fiancéA determination of whether an alien is a child for
the purposes of a petition under section 214 or an application for adjustment
of status under section 245(d) shall be made using the age of the alien on the
date on which the petition is filed with the Secretary of Homeland Security to
classify the alien’s parent as the fiancé of a U.S.
citizen.
.
6.Retention of
priority dates
(a)Section 203(h)(3) of the Immigration and Nationality Act
(8 U.S.C. 1153(h)(3)) is amended to read follows:
(3)Retention of
priority dateIf the age of an alien is determined under
paragraph (1) to be 21 years of age or older for the purposes of subsections
(a)(2)(A) and (d), and a parent of the alien files a petition under section 204
for classification of such alien based upon a relationship described in
subsection (a), the priority date for such petition shall be the original
priority date issued upon receipt of the original family-based or
employment-based petition for which either parent was a
beneficiary.
.
(b)Section 203 of the Immigration and Nationality Act
(8 U.S.C. 1153) is amended by adding at the end the following:
(i)
(1)Subject to subsection (h)(3) and paragraph (2), the
priority date for any petition shall be the date of filing of the petition with
the Secretary of Homeland Security (or the Secretary of State, if applicable),
unless the filing of the petition was preceded by the filing of a labor
certification with the Secretary of Labor, in which case that date shall
constitute the priority date.
(2)Subject to subsection (h)(3), an alien who is the
beneficiary of any petition that was approvable when filed (including
self-petitioners) shall retain the priority date assigned with respect to that
petition in the consideration of any subsequently filed petition (including
self-petitions) of which the alien is a
beneficiary.
.
(c)The amendments made by subsections (a) and (b) shall take
effect on the date of the enactment of this Act and shall apply to any alien
who is a beneficiary of a classification petition pending on or after such
date.
7.Nuclear family
reunifications for high-skilled workersNotwithstanding any other numerical
limitation in law, the number of immigrant visas available to the spouse of an
alien lawfully admitted for permanent residence pursuant to section 203(a)(2)
of the Immigration and Nationality Act (8 U.S.C. 1153(a)(2)) shall be increased
in each fiscal year by the number of aliens who were lawfully admitted for
permanent residence that were removed from the United States in the preceding
fiscal year.