The cap will increase and decrease based on two factors: (1) the percentage by which cap subject nonimmigrant visa petitions approved for a fiscal year exceeds or fails to meet the cap (i.e., the demand), and (2) the percentage increase and decrease in the fiscal years with respect to the number of unemployed in the U.S. (i.e., the unemployment rate in the U.S.)
With respect to H-1B wage rates that are required to be paid, the Senate bill provides the following:
If the employer is an H-1B dependent employer, the employer must offer wages that are not less than Level 2 wages. As a result, H-1B dependent employers may not pay level 1 wages to an H-1B employee, as they are now permitted. The bill provides new guidelines for computing the prevailing wage levels for most H-1B employers. It eliminates the four (4) level wage system that currently exists, and provides three (3) levels of wages, based on experience, education, and level of supervision, and provides new definitions with respect to those wage levels. Level 1 is defined as the lowest two-thirds of wages surveyed by the government, but in no case less than 80% of the mean of the wages surveyed. Level 2 is the mean of wages surveyed. Level 3 shall be the mean of the highest two-thirds of wages surveyed. These new definitions for Level 1, Level 2, and Level 3 will likely result in H-1B employers to pay their H-1B workers more than what they currently may be paying them under the current wage level system. If the H-1B employer is a nonprofit institution of higher education, the bill creates a four level (4) wage system.
Senate bill (S. 744) has provisions to reallocate the distribution of employment-based visas issued each fiscal year. Every fiscal year (October 1st to September 30th), the government allocates 140,000 employment-based visas. These employment based visas are divided by each employment-based category by percentage. Once the visas have been used up before the end of the fiscal year (because of demand), foreign nationals will have to wait until the next fiscal year in order to be issued an immigrant visa (i.e., green card), even if their priority date is current and their green card application is complete and ready to be approved. By making the EB-1 category exempt from the numerical limitation of the 140,000 employment-based visas possible each fiscal year, it allows more people to receive immigrant visas (i.e., green cards), than would have in prior fiscal years.