ASSIMILATION Act

(d) Worldwide level of employment-Based immigrants. The worldwide level of employment-based immigrants granted visas in each fiscal year pursuant to section 203(b) shall be not more than 140,000.

(b) Employment-Based immigrants

(1) In general. Visas shall be made available, subject to section 201(d), to qualified immigrants whose admission has been certified by the Secretary of Homeland Security to be in the national interest in accordance with section 101(j)(2).

(2) Standard for certification. The Secretary of Homeland Security shall make the certification described in paragraph (1) with respect to an alien if the alien has established, by a preponderance of the evidence, that—

(A) he or she satisfies at least 1 presumptive positive factor described in paragraph (3);

(B) none of the grounds of inadmissibility listed under paragraph (6) applies to him or her; and

(C) all presumptive negative factors described in paragraph (5) have been rebutted.

(3) Presumptive positive factors

(A) High compensation. The alien has a bona fide offer of employment in the United States for which he or she will receive a salary, or has verified his or her ability to generate self-employment income in the United States, that is at or above the 90th percentile salary for the most relevant occupation code and area of intended employment, as determined under regulations prescribed by the Secretary of Homeland Security, in consultation with the Secretary of Labor.

(B) National interest occupation or shortage service

(i) National interest occupation. The alien has a bona fide offer of employment in a National Interest Occupation for which he or she will receive a salary that is at or above the 75th percentile salary for the relevant occupation code and area of intended employment.

(ii) Shortage position. The alien has committed to provide full-time service for a period of not fewer than 5 years in a federally designated medical, mental-health, dental, veterans, or other statutorily designated shortage position, in accordance with regulations prescribed by the Secretary of Homeland Security, in consultation with the Secretary of Labor.

(C) Strategic Federal support

(i) In general. The alien has received a written certification that—

(I) was executed by—

(aa) the head of a Federal department or agency designated under clause (ii); or

(bb) a Senate-confirmed officer of a Federal department or agency designated under clause (ii) who was appointed by the head of such department or agency to execute certifications under this clause;

(II) identifies a published national priority of the United States that is materially related to the alien’s proposed work; and

(III) states the alien’s proposed work materially advances such national priority.

(ii) Designated departments and agencies. The Federal departments and agencies designated under this clause are—

(I) the Department of Defense;

(II) the Department of Energy;

(III) the Department of Commerce;

(IV) the Department of Health and Human Services;

(V) the Department of Agriculture;

(VI) the Department of Veterans Affairs;

(VII) the National Aeronautics and Space Administration;

(VIII) the National Science Foundation; and

(IX) any other Federal department or agency that has been so designated by an Act of Congress.

(iii) Defined term. In this subparagraph, the term published national priority means a priority identified in a published strategy, plan, directive, funding announcement, or other official document of the applicable Federal department or agency.

(D) Extraordinary ability. The alien demonstrates sustained national or international acclaim in a field materially related to the alien’s proposed endeavor in the United States by providing evidence that satisfies at least 3 of the following criteria:

(i) Receipt of a major nationally or internationally recognized prize or award for excellence in the field, supported by objective evidence of the selectivity, prestige, and significance of the prize or award.

(ii) Authorship of scholarly articles, major published works, patented inventions, or other original contributions of major significance in the field.

(iii) Evidence that the alien’s work has been widely cited, adopted, licensed, commercialized, implemented, or otherwise materially relied upon by recognized public or private entities in the field.

(iv) Participation, by invitation or selection based on expertise, as a judge, peer reviewer, evaluator, or member of a selection panel for the work of others in the same or an allied field.

(v) Service in a leading or critical capacity for an entity with a distinguished reputation, supported by objective evidence of the significance of the alien’s contributions.

(vi) Commanding compensation, equity, or other remuneration demonstrating exceptional standing in the field, as established by objective market evidence.

(E) Entrepreneurship and innovation. The alien provides reliable evidence that—

(i) a startup entity in which the alien holds a substantial ownership interest and central managerial role has received—

(I) not less than $500,000 in qualified investment from qualified United States investors; or

(II) not less than $200,000 in qualifying Federal, State, or local research, development, or commercialization funding;

(ii) the investment or funding referred to in clause (i) is documented by binding investment instruments, grant award documents, audited capitalization records, or such other objective evidence as the Secretary of Homeland Security may prescribe;

(iii) such entity has a credible plan to create not fewer than 5 full-time jobs for workers in the United States during the 3-year period beginning on the date on which the alien is admitted to the United States; and

(iv) the alien’s claim does not rely solely on self-valued assets, unaudited internal valuations, or unsupported projections.

(4) National interest occupation list

(A) In general. The Secretary of Homeland Security, in consultation with the Secretary of Labor, shall establish and maintain a list of occupations designated as National Interest Occupations for purposes of paragraph (3)(B)(i).

(B) Standard. An occupation may be included on the list established pursuant to subparagraph (A) only if the Secretary of Homeland Security determines, based on objective evidence, that such occupation is associated with persistent labor shortages, strategic national need, or other circumstances demonstrating that employment in such occupation materially advances the economic, cultural, or security interests of the United States.

(C) Publication. The list established pursuant to subparagraph (A), and any additions to, or removals from, such list, shall be published in the Federal Register.

(D) Periodic review. Not less frequently than once every 4 years, the Secretary of Homeland Security, in consultation with the Secretary of Labor, shall—

(i) review the list established pursuant to subparagraph (A); and

(ii) add occupations to, or remove occupations from, such list, as appropriate.

(5) Presumptive negative factors. Unless rebutted under paragraph (7), there is a presumption that an alien's request for certification under paragraph (1) should be denied if any of the following factors exists:

(A) Sub-median compensation. With respect to the alien's most recent employment, the alien received compensation that was lower than—

(i) the median wage for the relevant occupation code and area of intended employment; or

(ii) the required prevailing wage in circumstances where a prevailing wage determination is required.

(B) Limited english proficiency. The alien's English proficiency is at a level that is lower than English level B1 on the Common European Framework of Reference scale, or its equivalent, unless the alien meets the criteria described in subparagraph (C) or (D) of paragraph (3) or another exception prescribed by regulation.

(C) Serious employer labor noncompliance. There has been a final order of debarment or other final determination of serious labor law noncompliance during the 5-year period immediately preceding a request for certification under paragraph (1) against the petitioning employer or startup entity.

(D) Insufficient showing of self-sufficiency. The alien fails to establish, through objective evidence, the present ability and prospective capacity to support himself or herself in the United States without reliance on means-tested public benefits.

(6) Grounds of inadmissibility. The Secretary of Homeland Security may not grant a certification to any alien who is inadmissible under paragraph (2), (3), or (6)(C) of section 212(a), unless a waiver to such ground of inadmissibility is available and granted under this Act.

(7) Notice and rebuttal. Before denying certification under paragraph (1) on the basis of a factor described in paragraph (5), the Secretary of Homeland Security shall—

(A) provide written notice to the petitioner that identifies the applicable presumptive negative factors; and

(B) provide the alien not fewer than 60 days to submit evidence to rebut such factors.

(8) Priority order when visa demand exceeds supply

(A) In general. If the number of aliens eligible for certification under this subsection in a fiscal year exceeds the number of visas available under this subsection in such fiscal year, the Secretary of Homeland Security shall prioritize the available visas in the following order:

(i) Aliens who meet a factor described in subparagraph (C) or (D) of paragraph (3).

(ii) Aliens who meet a factor described in paragraph (3)(B).

(iii) Aliens who meet a factor described in paragraph (3)(A).

(iv) Aliens who meet a factor described in paragraph (3)(E).

(B) Priority order within a subgroup. If the number of aliens described in any clause under subparagraph (A) in a fiscal year exceeds the number of visas available for such aliens in such fiscal year, the Secretary of Homeland Security shall prioritize the available visas in the following order:

(i) Aliens who will be receiving a salary or generating self-employment income at a higher applicable wage percentile.

(ii) Earliest priority date.

(9) Rulemaking. Not later than 180 days after the date of the enactment of the ASSIMILATION Act, the Secretary of Homeland Security shall prescribe regulations to carry out this subsection, including rules for—

(A) occupational wage mapping;

(B) English-equivalency standards;

(C) qualified investment requirements;

(D) employer noncompliance penalties; and

(E) self-sufficiency requirements.

(10) Derivative aliens. A spouse or child described in section 203(d) who is accompanying or following to join a principal alien granted a visa under this subsection shall be entitled to the same status and the same order of consideration as such principal alien.