Determination of industrial need for immigrant labor

Title II of the Immigration and Nationality Act is amended by inserting after section 203 the following: 203A. Determination of industrial need for labor (a) Establishment of board There is established within the Office of the Under Secretary for Economic Affairs at the Department of Commerce the Skilled Migration and Recruitment of Talent Board (referred to in this section as the SMART Board or the Board) to determine levels for certain categories of immigrants with the purpose of improving real wage growth, economic growth, innovation, and the long-term fiscal outlook of the United States, without undermining the labor market for Americans. (1) Appointment The Board shall have five voting members appointed by the President, by and with the advice and consent of the Senate. (2) Qualifications To be eligible to be appointed as a member of the Board, an individual shall have the expertise necessary to evaluate the economic, fiscal, and labor market effects of immigrant and nonimmigrant aliens in the United States and to make the determinations required under this section, including expertise in public finance, economic growth, labor economics, or the economics of innovation. (3) Terms (A) In general Except as otherwise provided in this section, each member of the Board shall be appointed to a term of 5 years. (B) Initial staggered terms Of the members first appointed to the Board— (i) the members each shall be appointed to a term expiring in the first, second, third, fourth, and fifth calendar years beginning after the date of enactment of this Act, respectively; and (ii) each term shall expire on December 31 of the applicable calendar year. (C) Vacancies If a vacancy occurs, the President may only appoint a new member of the Board to fill the vacancy and serve the remainder of the term by advice and consent of the Senate. (4) Compensation Each member of the Board shall be a full-time employee and shall be compensated at a rate equal to the annual rate of basic pay prescribed for level III of the Executive Schedule under section 5314 of title 5, United States Code. (5) Voting Each member of the Board shall have an equal vote in all decisions of the Board. (6) Quorum 4 members of the Board shall constitute a quorum. (7) Decisions Unless otherwise specified, decisions of the Board shall be made by majority vote of the members constituting a quorum. (b) Aggregate and industrial numerical limitations (1) Aggregate numerical limitations For the first covered fiscal year and each fiscal year thereafter, there shall be established in accordance with this subsection— (A) an aggregate numerical limitation for employment-based immigrants under section 201(d); and (B) an aggregate numerical limitation for nonimmigrant workers described in section 101(a)(15)(H)(i)(b). (2) Industrial numerical limitations (A) In general For the second covered fiscal year and each fiscal year thereafter, the Board shall allocate each aggregate numerical limitation among industries by determining, for each industry— (i) an industrial numerical limitation for employment-based immigrants under section 201(d); and (ii) an industrial numerical limitation for nonimmigrant workers described in section 101(a)(15)(H)(i)(b). (B) Allocation requirement For each fiscal year for which industrial numerical limitations are in effect, the sum of the industrial numerical limitations determined under clause (i) of subparagraph (A) shall equal the aggregate numerical limitation described in paragraph (1)(A), and the sum of the industrial numerical limitations determined under clause (ii) of subparagraph (A) shall equal the aggregate numerical limitation described in paragraph (1)(B). (C) First covered fiscal year No industrial numerical limitation shall apply with respect to the first covered fiscal year, and numbers subject to an aggregate numerical limitation shall be available during that fiscal year without regard to industry. (3) Initial determination (A) In general Not later than 1 year after the date on which a quorum of the Board is first appointed, the Board shall determine, and publish in the Federal Register, the aggregate numerical limitations described in paragraph (1) for the first covered fiscal year. (B) Nonimmigrant level The aggregate numerical limitation described in paragraph (1)(B) for the first covered fiscal year shall be 85,000. (C) Stable employment-based level The aggregate numerical limitation described in paragraph (1)(A) for the first covered fiscal year shall be the level that the Board estimates is necessary to ensure that net lawful migration to the United States during the first covered fiscal year is equal to the sum of— (i) the annual baseline; and (ii) the transitional shortfall, if any. (D) Annual baseline In this paragraph, the term annual baseline means the average annual net lawful migration to the United States during the three complete fiscal years preceding the date of enactment of this Act. (E) Transitional shortfall In this paragraph, the term transitional shortfall means the amount (if any), as estimated by the Board, by which— (i) the product obtained by multiplying the annual baseline by the number of fiscal years in the period consisting of each fiscal year that begins after the date of enactment of this Act and ends before the first day of the first covered fiscal year; exceeds (ii) net lawful migration to the United States during the period consisting of each fiscal year that begins after the date of enactment of this Act and ends before the first day of the first covered fiscal year. (F) Interim rule For any fiscal year beginning before the first day of the first covered fiscal year, the numerical limitations in effect under sections 201(d) and 214(g)(1)(A) on the day before the date of enactment of this Act shall continue to apply. (G) Baseline for subsequent determinations For purposes of paragraph (6)(A), the aggregate numerical limitation described in paragraph (1)(A) for the first covered fiscal year shall be treated as being equal to the level that the Board estimates is necessary to ensure that net lawful migration to the United States during the first covered fiscal year is equal to the annual baseline, determined without regard to the transitional shortfall, and the Board shall include that level in the publication required under subparagraph (A). (4) Annual determinations (A) In general Not later than July 1 of the calendar year in which the second covered fiscal year begins, and not later than July 1 of each calendar year thereafter, the Board shall determine, and publish in the Federal Register, the aggregate numerical limitations under paragraph (1), and the industrial numerical limitations under paragraph (2), for the fiscal year beginning on October 1 of that calendar year. (B) Late determinations A determination made after July 1 shall take effect at the beginning of the second succeeding fiscal year, and the numerical limitations in effect for the current fiscal year shall remain in effect for the intervening fiscal year. (C) Continuation in the absence of a determination If, for any fiscal year, the Board does not make a determination required under this subsection, including by reason of the absence of a quorum, the aggregate and industrial numerical limitations in effect for the preceding fiscal year shall remain in effect and shall be treated as the limitations determined for that fiscal year for purposes of this subsection. (5) Industrial limitations for the second covered fiscal year For the second covered fiscal year, the industrial numerical limitation for an industry under clause (i) or (ii) of paragraph (2)(A) shall equal the product of— (A) the corresponding aggregate numerical limitation determined for the second covered fiscal year; and (B) that industry’s share of the total number of visas issued, and grants or adjustments of status made, subject to the corresponding aggregate numerical limitation during the first three quarters of the first covered fiscal year, determined on the basis of the industry of the petitioning employer. (6) Limitations on determinations (A) Aggregate limitations An aggregate numerical limitation determined under this subsection shall not exceed the corresponding aggregate numerical limitation for the previous fiscal year by more than ten percent and shall not be lower than the corresponding aggregate numerical limitation for the previous fiscal year by more than ten percent. (B) Industrial limitations Beginning with determinations for the third covered fiscal year, an industrial numerical limitation determined under this subsection shall not exceed the corresponding industrial numerical limitation for the previous fiscal year by more than one tenth of the corresponding aggregate numerical limitation, and shall not be lower than the corresponding industrial numerical limitation for the previous fiscal year by more than one tenth of the corresponding aggregate numerical limitation. (C) Undersubscribed limitations An industrial numerical limitation for an industry shall not be increased compared to the previous fiscal year’s limitation if the number of applicants with respect to that industry was less than the industrial numerical limitation for that industry in the most recently completed fiscal year for which an industrial numerical limitation was in effect. (7) Consideration of information In making determinations under this subsection, the Board shall consider the following: (A) Annual industry-specific and national unemployment rates identified in the American Community Survey conducted by the United States Census Bureau, for the purpose of reducing the national unemployment rate if such rates exceed a level considered healthy for the Nation. (B) Annual industry-specific and national vacancy rates identified in the Job Openings and Labor Turnover Survey program of the Bureau of Labor Statistics, for the purpose of reducing such rates if such rates exceed a level considered healthy for the Nation. (C) Industry centrality and domestic supply of commodities identified in the Interactive Access to Input-Output Accounts Data tool of the Bureau of Economic Analysis, for the purpose of maximizing national gross domestic product. (D) Wage growth and suppression trends identified in the American Community Survey conducted by the United States Census Bureau or by the Bureau of Labor Statistics, for the purpose of maximizing the national average wage growth. (E) Industry contributions to total factor productivity growth identified in data series published by the Bureau of Labor Statistics’ Office of Productivity and Technology. (F) Employment rates, wages, entrepreneurship rates, and contributions to public and private sector research and development identified in the National Survey of College Graduates, Current Population Survey, American Community Survey, the National Center for Education Statistics’ and decennial Census. (G) Immigrants’ contributions to research in critical and emerging science and technology fields identified in the National Survey of College Graduates and the National Science Foundation’s Science and Engineering Indicators. (H) Peer-reviewed journal publications on immigration’s effects on productivity, innovation, industry formation, economic growth, and Federal, State and local government budgets. (I) Other relevant data sources related to the effects of immigration on economic growth, labor market outcomes, scientific or technological innovation, or fiscal policy. (8) Definitions In this subsection: (A) First covered fiscal year The term first covered fiscal year means the first fiscal year beginning not less than 90 days after the date on which the Board publishes the initial determination under paragraph (3). (B) Second covered fiscal year; third covered fiscal year The terms second covered fiscal year and third covered fiscal year mean the first fiscal year and the second fiscal year, respectively, beginning after the end of the first covered fiscal year. (c) Special rules for clergy (1) Numerical limitation The numerical limitation for each fiscal year for special immigrants described in section 101(a)(27)(C) shall be 2,500. (2) Exclusion from calculation The calculation of the numerical limitation for employment-based immigrants under section 201(d) under subsection (b) shall not include a calculation for such special immigrants, and visas allocated under this subsection shall not be counted toward such numerical limitation. (d) Information gathering regarding labor supply The Board may collect interest information from aliens residing outside the United States to determine the supply of foreign labor in the industries identified by the Board as having a need under subsection (b). (e) Reporting requirements Annual determinations shall be accompanied by a report to the leadership of both Houses of Congress, and the House and Senate Committees on the Budget and Judiciary, each detailing— (1) the estimated fiscal impact of the determination compared with the fiscal impact of no adjustment to industrial and aggregate numerical limitations; and (2) the characteristics of the applicants and selected immigrants and nonimmigrants in aggregate and for each industry, including the offered wage, occupation, education, age, and the number of points earned under the points system. (f) Provision of data On request of the Board, and notwithstanding any other provision of law, the Secretary of Homeland Security and the Secretary of State shall provide to the Board, not later than 60 days after the request, such data regarding petitions, applications, registrations, and visa issuances under sections 201(d), 203(b), and 101(a)(15)(H)(i)(b), including the offered wage, occupation, industry, educational attainment, and age of beneficiaries, as the Board determines necessary to carry out this section, in a form that does not include personally identifiable information. (g) Staff (1) In general The Board may, without regard to the provisions of title 5, United States Code, governing appointments in the competitive service, appoint an Executive Director and such additional personnel as may be necessary to enable the Board to perform its duties. The Board may fix the compensation of the Executive Director and other personnel without regard to chapter 51 and subchapter III of chapter 53 of such title, except that the rate of pay may not exceed the rate payable for level V of the Executive Schedule under section 5316 of such title. (2) Administrative support The Secretary of Commerce shall provide the Board, on a reimbursable or non-reimbursable basis, such administrative support services, office space, and equipment as the Board may require to carry out its duties. (3) Detailees On request of the Board, the head of any Federal department or agency may detail, on a reimbursable or non-reimbursable basis, any personnel of that department or agency to the Board to assist it in carrying out its duties. (h) Meetings (1) In general The Board shall meet not less frequently than twice each calendar year. (2) Closed sessions Meetings of the Board shall not be open to the public. The Board shall not be considered an advisory committee for purposes of chapter 10 of title 5, United States Code (also known as the Federal Advisory Committee Act), and its meetings shall not be subject to section 552b of title 5, United States Code (commonly known as the Government in the Sunshine Act). (3) Minutes The Board shall keep minutes of each meeting, including a record of all votes taken, and shall publish a summary of each meeting within 90 days, redacted as necessary to protect confidential commercial or statistical information. (i) Judicial review A determination made by the Board under this section— (1) shall not be subject to subchapter II of chapter 5 of title 5, United States Code, also known as the Administrative Procedure Act; and (2) shall not be subject to review in any court, except that an action may be brought under chapter 7 of such title to review whether a determination exceeds the limitations described in subsection (b)(6). (j) Definition In this section, the term industry means the two-digit level identified by the North American Industry Classification System that was in effect for the preceding fiscal year..