Senators Hatch and Flake Introduce Immigration and Innovation Act Improving H-1b and Skilled Worker Immigration Programs

Senators Orrin Hatch and Jeff Flake introduced the Immigration and Innovation Act on January 25, 2018 in the Senate, which proposes significant changes to the H-1b program and employment-based immigration system. The bill incorporates many common sense fixes favorable to U.S. employers, and enjoys broad support in the tech community and business organizations.

Hopefully, the bill will be seriously considered in the current Congress. Nevertheless, although there may be sufficient support in the Senate for passage of this forward looking bill, expect it to hit a wall in the House.

The Hatch/Flake Senate bill includes:


  • H-1b Cap rises and falls to a maximum of 195,000 based on economic conditions, but no lower than 85,000 visas;
  • Unlimited number of U.S. Masters cap H-1b exemptions (visas) provided H-1b employer attests that green card has started, or will be within 1 year.
  • Codifies work authorization for spouses of H-1b beneficiaries who have pending or approved employment-based green card petition;
  • In years where demand for H-1b visa demand outstrips supply, selection preference goes to (1) beneficiaries with a U.S. master’s or higher; (2) beneficiaries abroad holding doctorate or higher, who have earned a doctoral degree outside the U.S.; (3) beneficiaries holding a U.S. bachelors or higher in a STEM field; and (4) all other beneficiaries;
  • Monetary penalties for speculative H-1b petitioners failure to withdraw petitions;
  • Bars employers from hiring H-1b workers with the “purpose and intent” of displacing a U.S. worker or compelling U.S. to train an H-1b worker as a replacement;
  • No H-1b amendment required where worker is moved to a new city provided employer obtains a new LCA;
  • When seeking subsequent petitions for the same beneficiary, USCIS and State must defer to prior approvals absent material error, changed circumstances, or new material information;
  • H-1b numerical limitations do not apply where employer sponsors beneficiary for permanent residence;
  • Would increase “retraining” filing fees according to size of employer ($2,000 or $4,000) and increases fees with increases in annual H-1b cap allotment.

Employment Based Permanent Residence

  • Eliminates per country limits which have created decades-long waits for green cards for workers from India and China;
  • Recaptures unused visas from FY 1993 to FY 2013;
  • No longer counts spouses and children toward numerical visa allotment, instead counting only principals;
  • No visa limits on persons holding a U.S. STEM master’s or higher degree, individuals with an approved EB-1 petition for extraordinary ability or outstanding professor/researcher.
  • Permits employees with an approved I-140 to file for green card even if an immigrant visa is not immediately available by paying a $500 supplemental fee. Applications may not be approved until an immigrant visa becomes available;
  • Would create 35,000 new "conditional" immigrant visas. Sponsoring employers must (1) meet wage, non-displacement, and recruitment requirements; (2) fully participate in E-Verify; and (3) pay a $10,000 fee.


  • Increases minimum prevailing wages when using DOL surveys
  • Permits foreign students to be intending immigrants;
  • Requires DOL to determine whether additional occupations should be presumed to be in short supply and allowed to bypass labor certification process.