On December 2, 2020, the US Senate passed by unanimous consent S. 386. Because the bill language differs from HR 1044, passed by the House in 2019, it must be reconciled with that bill and both Houses would need to vote again on the new version OR the House could pass a bill with language identical to S.386. And then it would need to be signed by President Trump. The odds are not great given the fact that the Senate and House will likely adjourn in two weeks. Nevertheless, this is the only immigration bill to pass the US Senate during President Trump’s time in office and is notable because it got the support of the entire Senate.
Section 1. The bill is titled the “Fairness for High-Skilled Immigrants Act of 2020”
Section 2. Numerical Limitation to Any Single Foreign State.
– The previous version of INA Section 202(a) imposed 7% per country quota limits on employment and family categories. The new language removes the employment limits and raises the per country quotas for family categories to 15%.
– INA Section 202(a)(5) is removed. This provision covers how leftover employment-based green card numbers are to be reallocated to per country backlogs. That is not necessary when per country quotas no longer exist.
– INA Section 202(e), covering rules for countries at ceiling, is amended to remove provisions relating to employment-based quotas and is now written to apply to family categories only.
– The Chinese Student Protection Act of 1992 had language reducing both family and employment-based per country limits for Chinese nationals to offset green cards provided under the Chinese Student Protection Act. That language is now eliminated.
– Effective Date – The changes in the bill shall take effect on the first day of the second fiscal year after the date of enactment. That would mean that if the bill is passed before October 1, 2020, it would apply to fiscal years beginning with fiscal year 2022 which starts October 1, 2021.
– Transition rules for employment-based immigrants. There’s a nine-year transition beginning on 10/1/2021.
– For Fiscal Year 2022, 30% of EB-2 and EB-3 visas shall be allocated to immigrants who are natives of states that are not one of the two states with the largest aggregate number of natives who are beneficiaries for immigrant status in those categories.
– For Fiscal Year 2023, 25% of EB-2 and EB-3 visas shall be allocated to immigrants who are natives of states that are not one of the two states with the largest aggregate number of natives who are beneficiaries for immigrant status in those categories.
– For Fiscal Year 2024, 20% of EB-2 and EB-3 visas shall be allocated to immigrants who are natives of states that are not one of the two states with the largest aggregate number of natives who are beneficiaries for immigrant status in those categories.
– For Fiscal Year 2025, 15% of EB-2 and EB-3 visas shall be allocated to immigrants who are natives of states that are not one of the two states with the largest aggregate number of natives who are beneficiaries for immigrant status in those categories.
– For Fiscal Year 2026 and 2027, 10% of EB-2 and EB-3 visas shall be allocated to immigrants who are natives of states that are not one of the two states with the largest aggregate number of natives who are beneficiaries for immigrant status in those categories.
– For Fiscal Year 2028, 2029 and 2030, 5% of EB-2 and EB-3 visas shall be allocated to immigrants who are natives of states that are not one of the two states with the largest aggregate number of natives who are beneficiaries for immigrant status in those categories.
– 5.75% of the total visas made available under the EB-2 and EB-3 categories for the 1st nine fiscal years after the effective date are also reserved for people from countries not in the largest state states and will be made available in the following priority order:
o Derivative dependents seeking to join a principal beneficiary
o Immigrants seeking to enter the US as new arrivals who haven’t resided or worked in the US in the four years immediately preceding the filing of an immigrant visa petition
o Anyone else not from the top two countries
– 4,400 green cards are reserved for nurses and physical therapists for the first seven fiscal years after enactment. Spouses and children count against the green card overall quotas in the respective categories, but not against the 4,400 limit. They’re considered in the same order as the principle applicant so families will immigrate together.
– With respect to the reserved allocations for the first four fiscal years after the effective date and the 5.75% allocations for the first nine fiscal years after the effective date, no more than 25% can go to any one country.
– With respect to the unreserved number for the first four fiscal years after the effective date, no more than 85% can go to one state’s natives.
– These limits may be overridden if enforcing them would prevent the maximum number of available green cards from being issued.
Section 3. Posting Available Positions Through the Department of Labor
– INA Section 212(n)(6) is changed to include a new searchable website for posting H-1B positions that are the subject of Labor Condition Applications. DOL must create the site within 180 days of enactment. A delay of up to 30 days is permitted. Within 90 days of the completion of the site, postings will begin.
– The posting requirement doesn’t apply to people already counted against the H-1B cap or those who are H-1B portable.
– Postings must last at least 30 calendar days and include the following:
o the occupational classification, and if different the employer’s job title for the position;
o the education, training, or experience qualifications for the position;
o the salary or wage range and employee benefits offered;
o the location(s) at which the nonimmigrant(s) will be employed; and
o the process for applying for a position.
Section 4. H-1B Employer Application Requirements
– Labor Condition Applications must now provide prevailing wage methodology
– Employers may not advertise a position as being only available to H-1B workers or that H-1B workers will be given a preference
– Employers may not primarily recruit individuals who are or will be H-1B nonimmigrants.
– If an employer has previously employed an H-1B nonimmigrant, the employer must submit the W-2s of the H-1B with an H-1B application.
– If an employer employs 50 or more employees in the US, the sum of the employer’s H-1B and L-1 employees does not exceed 50% of the total number employees at the company. Employers will be treated as a single employer based on Section 414 of the Internal Revenue Code.
– The 50/50 rule only affects new applications and will take effect 180 days after the date of enactment.
– DOL will be able to charge a fee for LCA filings.
– Eliminates B-1 in lieu of H-1B
Section 5. Investigation and Disposition of Complaints Against H-1B Employers.
– Employers who violate the rules allowing whistleblowing regarding H-1B violations can be held liable to the prospective, current or former employee for lost wages and benefits.
– USCIS will share with DOL information contained in H-1B petitions and the DOL may initiate an investigation based on such information.
Section 6. Labor Condition Applications
– For H-1B dependent employers, the public disclosure of wage rates, dates of need and other information will now be done via the web in addition to the previous method of publication.
– Allows the DOL to review the dependent employer disclosures for indications of fraud and an LCA will not be certified if there are indicators of fraud or misrepresentation of material fact or is obviously inaccurate.
– Tightens actual wage rules to say that the actual wages must relate solely to employees having substantially the same duties and responsibilities in the geographical area of intended employment, considering experience, qualifications, education, job responsibility and function, specialized knowledge and other legitimate business factors.
– The prevailing wages must reflect the best available information for the geographical area within normal commuting distance of the actual address of employment at which the H-1B nonimmigrant is or will be employed.
– Changes the DOL’s investigative requirements regarding complaints made regarding LCA compliance. DOL may initiate an investigation to determine whether a failure or misrepresentation has occurred.
– DOL may conduct surveys on employer compliance and may conduct annual compliance audits of any employer that employs H-1B nonimmigrants.
– DOL shall conduct annual compliance audits of any employer with more than 100 full-time employees and more than 15% of their workers are on H-1Bs. A summary of the findings shall be made available to the public. If such an employer is audited and there is no evidence of misrepresentation or fraud, , they will not be audited for four more years.
– Triples fines for LCA violations
– Lessens the requirements to launch an LCA investigation by removing the requirement for the DOL Secretary to personally certify reasonable cause exists and the Secretary approves of it.
– Removes the provision that bars investigations from be initiated by information originating at DOL.
– Shortens the investigation hearing requirement to 60 days from 120 days after DOL makes their initial determination
Section 7. Adjustment of Status For Employment-Based Immigrants
– A nonimmigrant who is in legal status (excluding B and C nonimmigrants) and any eligible dependents who has filed an immigrant petition may file an adjustment application if the immigrant petition has been approved more than two years prior even if a visa is not available.
– A dependent who files under this provision can continue to qualify regardless of the dependent’s age or if the principal is deceased when a visa number becomes available.
– EADs and Advance parole are available
– An adjustment filed under this section may not be approved until a visa number becomes available.
– Imposes a requirement that the duties, hours and compensation offered to a worker working pursuant to an adjustment application must be commensurate with the terms applicable to a similarly situated US worker in the same area of employment.
– An applicant for adjustment pursuant to this new section must file a Confirmation of Bona Fide Job Offer or Portability with any request for an Employment Authorization Document. EADs will be valid for three years. And a letter must be provided from a current or prospective employer attesting that the terms and conditions of employment are commensurate with similarly situated US workers.
– Failing to submit a Confirmation can cause the adjustment to be denied.
– A $2000 fee may be charged for the Confirmation.
– This section takes effect one year after the date of enactment.
Section 8. Limit on Adjustment of Status from H-1B Nonimmigrant or H-4 Nonimmigrant to EB Immigrant.
– INA Section 245 is amended to add a new section (o). Any H-1B (or someone in H-1B status in the last two years), as well as the H-4 spouses and minor children, is limited to using no more than 70% of the available employment-based immigrant visas in a fiscal year. Nine years after this section is effective, that limit will drop to 50%.
– There is an exception for graduates of medical schools who are performing services as a member of the medical profession or has been granted a national interest waiver-based EB-2.
– The effective date of this section is October 1st of the second fiscal year after the bill is enacted.
– If immigrant visas are not issued, they would be claimed by any person limited by this section.
Section 9. Prohibition on Admission on Adjustment of Status of Aliens Affiliated With the Military Forces of the People’s Republic of China or the Chinese Communist Party.
– DHS shall not admit or adjust status of any alien affiliated with the Chinese military or the Chinese Communist Party as determined by DHS, in consultation with DOS, DOD, the AG, and the Director of National Intelligence. “Affiliated with” is not defined, though the language looks to be present tense so would not affect people who are no longer a part of or “affiliated with” either organization.