[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1044 Engrossed Amendment Senate (EAS)]
<DOC>
In the Senate of the United States,
December 2, 2020.
Resolved, That the bill from the House of Representatives (H.R.
1044) entitled ``An Act to amend the Immigration and Nationality Act to
eliminate the per-country numerical limitation for employment-based
immigrants, to increase the per-country numerical limitation for
family-sponsored immigrants, and for other purposes.'', do pass with
the following
AMENDMENT:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fairness for High-Skilled Immigrants
Act of 2020''.
SEC. 2. NUMERICAL LIMITATION TO ANY SINGLE FOREIGN STATE.
(a) In General.--Section 202(a)(2) of the Immigration and
Nationality Act (8 U.S.C. 1152(a)(2)) is amended to read as follows:
``(2) Per country levels for family-sponsored immigrants.--
Subject to paragraphs (3) and (4), the total number of
immigrant visas made available to natives of any single foreign
state or dependent area under section 203(a) in any fiscal year
may not exceed 15 percent (in the case of a single foreign
state) or 2 percent (in the case of a dependent area) of the
total number of such visas made available under such section in
that fiscal year.''.
(b) Conforming Amendments.--Section 202 of such Act (8 U.S.C. 1152)
is amended--
(1) in subsection (a)--
(A) in paragraph (3), by striking ``both
subsections (a) and (b) of section 203'' and inserting
``section 203(a)''; and
(B) by striking paragraph (5); and
(2) by amending subsection (e) to read as follows:
``(e) Special Rules for Countries at Ceiling.--If the total number
of immigrant visas made available under section 203(a) to natives of
any single foreign state or dependent area will exceed the numerical
limitation specified in subsection (a)(2) in any fiscal year, immigrant
visas shall be allotted to such natives under section 203(a) (to the
extent practicable and otherwise consistent with this section and
section 203) in a manner so that, except as provided in subsection
(a)(4), the proportion of the visas made available under each of
paragraphs (1) through (4) of section 203(a) is equal to the ratio of
the total visas made available under the respective paragraph to the
total visas made available under section 203(a).''.
(c) Country-specific Offset.--Section 2 of the Chinese Student
Protection Act of 1992 (8 U.S.C. 1255 note) is amended--
(1) in subsection (a), by striking ``(as defined in
subsection (e))'';
(2) by striking subsection (d); and
(3) by redesignating subsection (e) as subsection (d).
(d) Effective Date.--The amendments made by this section shall take
effect on the first day of the second fiscal year beginning after the
date of enactment of this Act, and shall apply to that fiscal year and
each subsequent fiscal year.
(e) Transition Rules for Employment-based Immigrants.--
(1) In general.--Subject to paragraphs (2) through (4), and
notwithstanding title II of the Immigration and Nationality Act
(8 U.S.C. 1151 et seq.), the following rules shall apply:
(A) During the first nine fiscal years after the
effective date, certain visas will be reserved within
the immigrant visas made available under each of
paragraphs (2) and (3) of section 203(b) of the
Immigration and Nationality Act (8 U.S.C. 1153(b)).
(B) With regard to immigrant visas made available
under paragraphs (2) and (3) of section 203(b) of the
Immigration and Nationality Act (8 U.S.C. 1153(b)) for
the first nine fiscal years after the effective date,
visas will be reserved for immigrants native to
countries other than the two states with the largest
aggregate number of natives who are beneficiaries of
approved but backlogged petitions for immigrant status
under section 203(b) of the Immigration and Nationality
Act (8 U.S.C. 1153(b)), as follows:
(i) For the first fiscal year after the
effective date, 30 percent of the immigrant
visas made available under paragraphs (2) and
(3) of section 203(b) of the Immigration and
Nationality Act (8 U.S.C. 1153(b)) shall be
allotted to immigrants who are natives of a
foreign state or dependent area that is not one
of the two states with the largest aggregate
numbers of natives waiting for immigrant
status.
(ii) For the second fiscal year after the
effective date, 25 percent of the immigrant
visas made available under paragraphs (2) and
(3) of section 203(b) of the Immigration and
Nationality Act (8 U.S.C. 1153(b)) shall be
allotted to immigrants who are natives of a
foreign state or dependent area that is not one
of the two states with the largest aggregate
numbers of natives waiting for immigrant
status.
(iii) For the third fiscal year after the
effective date, 20 percent of the immigrant
visas made available under paragraphs (2) and
(3) of section 203(b) of the Immigration and
Nationality Act (8 U.S.C. 1153(b)) shall be
allotted to immigrants who are natives of a
foreign state or dependent area that is not one
of the two states with the largest aggregate
numbers of natives waiting for immigrant
status.
(iv) For the fourth fiscal year after the
effective date, 15 percent of the immigrant
visas made available under paragraphs (2) and
(3) of section 203(b) of the Immigration and
Nationality Act (8 U.S.C. 1153(b)) shall be
allotted to immigrants who are natives of a
foreign state or dependent area that is not one
of the two states with the largest aggregate
numbers of natives waiting for immigrant
status.
(v) For the fifth and sixth fiscal years
after the effective date, 10 percent of the
immigrant visas made available under paragraphs
(2) and (3) of section 203(b) of the
Immigration and Nationality Act (8 U.S.C.
1153(b)) shall be allotted to immigrants who
are natives of a foreign state or dependent
area that is not one of the two states with the
largest aggregate numbers of natives waiting
for immigrant status.
(vi) For the seventh, eighth, and ninth
fiscal years after the effective date, 5
percent of the immigrant visas made available
under paragraphs (2) and (3) of section 203(b)
of the Immigration and Nationality Act (8
U.S.C. 1153(b)) shall be allotted to immigrants
who are natives of a foreign state or dependent
area that is not one of the two states with the
largest aggregate numbers of natives waiting
for immigrant status.
(C) 5.75 percent of the immigrant visas made
available under paragraphs (2) and (3) of section
203(b) of the Immigration and Nationality Act (8 U.S.C.
1153(b)) shall be reserved annually for the first nine
fiscal years after the effective date for immigrants
who are native to countries other than the two states
with the largest aggregate number of natives who are
beneficiaries of approved but backlogged petitions for
immigrant status under such section. Such visas will be
made available by the following priority ordering:
(i) Derivative dependents described in
section 203(d) of the Immigration and
Nationality Act (8 U.S.C. 1153(d)) who seek to
join a principal beneficiary of a petition for
an immigrant visa under paragraphs (2) and (3)
of section 203(b) of the Immigration and
Nationality Act (8 U.S.C. 1153(b)).
(ii) Immigrants who seek to enter the
United States as new arrivals and who have not
resided or worked in the United States at any
point in the four-year period immediately
preceding the filing of their petition for an
immigrant visa under section 203(b) of the
Immigration and Nationality Act (8 U.S.C.
1153(b)).
(iii) Other immigrants who meet the
criteria of this subparagraph.
(D) The two states with the largest aggregate
numbers of natives who are beneficiaries of approved
petitions referred to in subparagraphs (B) and (C) are
the two states with the largest aggregate number of
approved cases awaiting visa number availability for
immigrant visas under section 203(b) of the Immigration
and Nationality Act (8 U.S.C. 1153(b)), as identified
by adding the numbers associated with aliens awaiting
employment-based immigrant status in the most recent
and available Count Of Approved Employment-Based
Immigrant Petitions With Priority Dates On Or After the
State Department's Visa Bulletin from the Department of
Homeland Security and such numbers in the most recent
Annual Report of Immigrant Visa Applicants in the
Employment-Based Preferences Registered at the National
Visa Center from the Department of State (or successor
publications).
(E) Notwithstanding subparagraphs (A) through (D),
for each of the seven fiscal years after the effective
date, not fewer than 4,400 of the immigrant visas made
available under paragraph (3) of section 203(b) of the
Immigration and Nationality Act (8 U.S.C. 1153(b)) and
not reserved by subparagraphs (B) and (C) shall be
allotted to immigrants who are described in section
656.5(a) of title 20, Code of Federal Regulations (or a
successor regulation) and are seeking admission to the
United States to work in an occupation described in
that section.
(F) Family members described in section 203(d) of
the Immigration and Nationality Act (8 U.S.C. 1153(d))
who are accompanying or following to join a principal
beneficiary seeking admission under subparagraph (E)
shall be entitled to an unreserved visa in the same
status and in the same order of consideration as such
principal beneficiary, but shall not be counted against
the 4,400 immigrant visas allotted under that
subparagraph.
(2) Per-country levels.--
(A) Reserved visas.--The number of visas reserved
under each of clauses (i) through (iv) of paragraph
(1)(B) and each of clauses (i) through (iii) of
paragraph (1)(C) made available to natives of any
single foreign state or dependent area in the
appropriate fiscal year may not exceed 25 percent (in
the case of a single foreign state) or 2 percent (in
the case of a dependent area) of the total number of
such visas.
(B) Unreserved visas.--Not more than 85 percent of
the immigrant visas made available under each of
paragraphs (2) and (3) of section 203(b) of the
Immigration and Nationality Act (8 U.S.C. 1153(b)) and
not reserved under paragraph (1), for each of the first
nine fiscal years after the effective date, may be
allotted to immigrants who are natives of any single
foreign state.
(3) Special rule to prevent unused visas.--If, with respect
to first nine fiscal years after the effective date, the
application of paragraphs (1) and (2) would prevent the total
number of immigrant visas made available under paragraph (2) or
(3) of section 203(b) of the Immigration and Nationality Act (8
U.S.C. 1153(b)) from being issued, such visas may be issued
during the remainder of such fiscal year without regard to
paragraphs (1) and (2).
(4) Rules for chargeability and dependents.--Section 202(b)
of the Immigration and Nationality Act (8 U.S.C. 1152(b)) shall
apply in determining the foreign state to which an alien is
chargeable, and section 203(d) of the Immigration and
Nationality Act (8 U.S.C. 1153(d)) shall apply in allocating
immigrant visas to dependents, for purposes of this subsection.
(5) Effective date defined.--In this subsection, the term
``effective date'' means the first day of the second fiscal
year beginning after the date of enactment of this Act.
SEC. 3. POSTING AVAILABLE POSITIONS THROUGH THE DEPARTMENT OF LABOR.
(a) Department of Labor Website.--Section 212(n) of the Immigration
and Nationality Act (8 U.S.C. 1182(n)) is amended by adding at the end
the following:
``(6) For purposes of complying with paragraph (1)(C)--
``(A) Not later than 180 days after the date of the
enactment of the Fairness for High-Skilled Immigrants
Act of 2020, the Secretary of Labor shall establish a
searchable internet website for posting positions in
accordance with paragraph (1)(C) that is available to
the public without charge, except that the Secretary
may delay the launch of such website for a single
period identified by the Secretary by notice in the
Federal Register that shall not exceed 30 days.
``(B) The Secretary may work with private companies
or nonprofit organizations to develop and operate the
internet website described in subparagraph (A).
``(C) The Secretary shall promulgate rules, after
notice and a period for comment, to carry out this
paragraph.''.
(b) Publication Requirement.--The Secretary of Labor shall submit
to Congress, and publish in the Federal Register and in other
appropriate media, a notice of the date on which the internet website
required under section 212(n)(6) of the Immigration and Nationality
Act, as established by subsection (a), will be operational.
(c) Application.--The amendment made by subsection (a) shall apply
to any application filed on or after the date that is 90 days after the
date described in subsection (b).
(d) Internet Posting Requirement.--Section 212(n)(1)(C) of the
Immigration and Nationality Act (8 U.S.C. 1182(n)(1)(C)) is amended--
(1) by redesignating clause (ii) as subclause (II);
(2) by striking ``(i) has provided'' and inserting the
following:
``(ii)(I) has provided''; and
(3) by inserting before clause (ii), as redesignated by
paragraph (2), the following:
``(i) except in the case of an employer
filing a petition on behalf of an H-1B
nonimmigrant who has already been counted
against the numerical limitations and is not
eligible for a full 6-year period, as described
in section 214(g)(7), or on behalf of an H-1B
nonimmigrant authorized to accept employment
under section 214(n), has posted on the
internet website described in paragraph (6),
for at least 30 calendar days, a description of
each position for which a nonimmigrant is
sought, that includes--
``(I) the occupational
classification, and if different the
employer's job title for the position,
in which the nonimmigrant(s) will be
employed;
``(II) the education, training, or
experience qualifications for the
position;
``(III) the salary or wage range
and employee benefits offered;
``(IV) the location(s) at which the
nonimmigrant(s) will be employed; and
``(V) the process for applying for
a position; and''.
SEC. 4. H-1B EMPLOYER PETITION REQUIREMENTS.
(a) Wage Determination Information.--Section 212(n)(1)(D) of the
Immigration and Nationality Act (8 U.S.C. 1182(n)(1)(D)) is amended by
inserting ``the prevailing wage determination methodology used under
subparagraph (A)(i)(II),'' after ``shall contain''.
(b) New Application Requirements.--Section 212(n)(1) of the
Immigration and Nationality Act (8 U.S.C. 1182(n)(1)) is amended by
inserting after subparagraph (G)(ii) the following:
``(H)(i) The employer, or a person or entity acting on the
employer's behalf, has not advertised any available position
specified in the application in an advertisement that states or
indicates that--
``(I) such position is only available to an
individual who is or will be an H-1B nonimmigrant; or
``(II) an individual who is or will be an H-1B
nonimmigrant shall receive priority or a preference in
the hiring process for such position.
``(ii) The employer has not primarily recruited individuals
who are or who will be H-1B nonimmigrants to fill such
position.
``(I) If the employer, in a previous period specified by
the Secretary, employed one or more H-1B nonimmigrants, the
employer shall submit to the Secretary the Internal Revenue
Service Form W-2 Wage and Tax Statements filed by the employer
with respect to the H-1B nonimmigrants for such period.''.
(c) Additional Requirement for New H-1B Petitions.--
(1) In general.--Section 212(n)(1) of the Immigration and
Nationality Act (8 U.S.C. 1182(n)(1)), as amended by subsection
(b), is further amended by inserting after subparagraph (I),
the following:
``(J)(i) If the employer employs 50 or more employees in
the United States, the sum of the number of such employees who
are H-1B nonimmigrants plus the number of such employees who
are nonimmigrants described in section 101(a)(15)(L) does not
exceed 50 percent of the total number of employees.
``(ii) Any group treated as a single employer under
subsection (b), (c), (m), or (o) of section 414 of the Internal
Revenue Code of 1986 shall be treated as a single employer for
purposes of clause (i).''.
(2) Rule of construction.--Nothing in subparagraph (J) of
section 212(n)(1) of the Immigration and Nationality Act (8
U.S.C. 1182(n)(1)), as added by paragraph (1), may be construed
to prohibit renewal applications or change of employer
applications for H-1B nonimmigrants employed by an employer on
the date of enactment of this Act.
(3) Effective date.--The amendment made by this subsection
shall take effect on the date that is 180 days after the date
of enactment of this Act.
(d) Labor Condition Application Fee.--Section 212(n) of the
Immigration and Nationality Act (8 U.S.C. 1182(n)), as amended by
section 3(a), is further amended by adding at the end the following:
``(7)(A) The Secretary of Labor shall promulgate a regulation that
requires applicants under this subsection to pay an administrative fee
to cover the average paperwork processing costs and other
administrative costs.
``(B)(i) Fees collected under this paragraph shall be deposited as
offsetting receipts within the general fund of the Treasury in a
separate account, which shall be known as the `H-1B Administration,
Oversight, Investigation, and Enforcement Account' and shall remain
available until expended.
``(ii) The Secretary of the Treasury shall refund amounts in such
account to the Secretary of Labor for salaries and related expenses
associated with the administration, oversight, investigation, and
enforcement of the H-1B nonimmigrant visa program.''.
(e) Elimination of B-1 in Lieu of H-1.--Section 214(g) of the
Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended by adding
at the end the following:
``(12)(A) Unless otherwise authorized by law, an alien normally
classifiable under section 101(a)(15)(H)(i) who seeks admission to the
United States to provide services in a specialty occupation described
in paragraph (1) or (3) of subsection (i) may not be issued a visa or
admitted under section 101(a)(15)(B) for such purpose.
``(B) Nothing in this paragraph may be construed to authorize the
admission of an alien under section 101(a)(15)(B) who is coming to the
United States for the purpose of performing skilled or unskilled labor
if such admission is not otherwise authorized by law.''.
SEC. 5. INVESTIGATION AND DISPOSITION OF COMPLAINTS AGAINST H-1B
EMPLOYERS.
(a) Investigation, Working Conditions, and Penalties.--Section
212(n)(2)(C) of the Immigration and Nationality Act (8 U.S.C.
1182(n)(2)(C)) is amended by striking clause (iv) and inserting the
following:
``(iv)(I) An employer that has filed an application under this
subsection violates this clause by taking, failing to take, or
threatening to take or fail to take a personnel action, or
intimidating, threatening, restraining, coercing, blacklisting,
discharging, or discriminating in any other manner against an employee
because the employee--
``(aa) disclosed information that the employee reasonably
believes evidences a violation of this subsection or any rule
or regulation pertaining to this subsection; or
``(bb) cooperated or sought to cooperate with the
requirements under this subsection or any rule or regulation
pertaining to this subsection.
``(II) An employer that violates this clause shall be liable to the
employee harmed by such violation for lost wages and benefits.
``(III) In this clause, the term `employee' includes--
``(aa) a current employee;
``(bb) a former employee; and
``(cc) an applicant for employment.''.
(b) Information Sharing.--Section 212(n)(2)(H) of the Immigration
and Nationality Act (8 U.S.C. 1182(n)(2)(H)) is amended to read as
follows:
``(H)(i) The Director of U.S. Citizenship and Immigration Services
shall provide the Secretary of Labor with any information contained in
the materials submitted by employers of H-1B nonimmigrants as part of
the petition adjudication process that indicates that the employer is
not complying with visa program requirements for H-1B nonimmigrants.
``(ii) The Secretary may initiate and conduct an investigation and
hearing under this paragraph after receiving information of
noncompliance under this subparagraph.''.
SEC. 6. LABOR CONDITION APPLICATIONS.
(a) Application Review Requirements.--Section 212(n)(1) of the
Immigration and Nationality Act (8 U.S.C. 1182(n)(1)) is amended, in
the undesignated matter following subparagraph (I), as added by section
4(b)--
(1) in the fourth sentence, by inserting ``, and through
the internet website of the Department of Labor, without
charge.'' after ``Washington, D.C.'';
(2) in the fifth sentence, by striking ``only for
completeness'' and inserting ``for completeness, clear
indicators of fraud or misrepresentation of material fact,'';
(3) in the sixth sentence, by striking ``or obviously
inaccurate'' and inserting ``, presents clear indicators of
fraud or misrepresentation of material fact, or is obviously
inaccurate''; and
(4) by adding at the end the following: ``If the
Secretary's review of an application identifies clear
indicators of fraud or misrepresentation of material fact, the
Secretary may conduct an investigation and hearing in
accordance with paragraph (2).''.
(b) Ensuring Prevailing Wages Are for Area of Employment and Actual
Wages Are for Similarly Employed.--Section 212(n)(1)(A) of the
Immigration and Nationality Act (8 U.S.C. 1182(n)(1)(A)) is amended--
(1) in clause (i), in the undesignated matter following
subclause (II), by striking ``and'' at the end;
(2) in clause (ii), by striking the period at the end and
inserting ``, and''; and
(3) by adding at the end the following:
``(iii) will ensure that--
``(I) the actual wages or range
identified in clause (i) relate solely
to employees having substantially the
same duties and responsibilities as the
H-1B nonimmigrant in the geographical
area of intended employment,
considering experience, qualifications,
education, job responsibility and
function, specialized knowledge, and
other legitimate business factors,
except in a geographical area there are
no such employees, and
``(II) the prevailing wages
identified in clause (ii) 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.''.
(c) Procedures for Investigation and Disposition.--Section
212(n)(2)(A) of the Immigration and Nationality Act (8 U.S.C.
1182(n)(2)(A)) is amended--
(1) by striking ``(2)(A) Subject'' and inserting
``(2)(A)(i) Subject'';
(2) by striking the fourth sentence; and
(3) by adding at the end the following:
``(ii)(I) Upon receipt of a complaint under clause
(i), the Secretary may initiate an investigation to
determine whether such a failure or misrepresentation
has occurred.
``(II) The Secretary may conduct--
``(aa) surveys of the degree to which
employers comply with the requirements under
this subsection; and
``(bb) subject to subclause (IV), annual
compliance audits of any employer that employs
H-1B nonimmigrants during the applicable
calendar year.
``(III) Subject to subclause (IV), the Secretary
shall--
``(aa) conduct annual compliance audits of
each employer that employs more than 100 full-
time equivalent employees who are employed in
the United States if more than 15 percent of
such full-time employees are H-1B
nonimmigrants; and
``(bb) make available to the public an
executive summary or report describing the
general findings of the audits conducted under
this subclause.
``(IV) In the case of an employer subject to an
annual compliance audit in which there was no finding
of a willful failure to meet a condition under
subparagraph (C)(ii), no further annual compliance
audit shall be conducted with respect to such employer
for a period of not less than 4 years, absent evidence
of misrepresentation or fraud.''.
(d) Penalties for Violations.--Section 212(n)(2)(C) of the
Immigration and Nationality Act (8 U.S.C. 1182(n)(2)(C)) is amended -
(1) in clause (i)--
(A) in the matter preceding subclause (I), by
striking ``a condition of paragraph (1)(B), (1)(E), or
(1)(F)'' and inserting ``a condition of paragraph
(1)(B), (1)(E), (1)(F), (1)(H), or 1(I)''; and
(B) in subclause (I), by striking ``$1,000'' and
inserting ``$3,000'';
(2) in clause (ii)(I), by striking ``$5,000'' and inserting
``$15,000'';
(3) in clause (iii)(I), by striking ``$35,000'' and
inserting ``$100,000''; and
(4) in clause (vi)(III), by striking ``$1,000'' and
inserting ``$3,000''.
(e) Initiation of Investigations.--Section 212(n)(2)(G) of the
Immigration and Nationality Act (8 U.S.C. 1182(n)(2)(G)) is amended--
(1) in clause (i), by striking ``In the case of an
investigation'' in the second sentence and all that follows
through the period at the end of the clause;
(2) in clause (ii), in the first sentence, by striking
``and whose identity'' and all that follows through ``failure
or failures.'' and inserting ``the Secretary of Labor may
conduct an investigation into the employer's compliance with
the requirements under this subsection.'';
(3) in clause (iii), by striking the second sentence;
(4) by striking clauses (iv) and (v);
(5) by redesignating clauses (vi), (vii), and (viii) as
clauses (iv), (v), and (vi), respectively;
(6) in clause (iv), as so redesignated--
(A) by striking``clause (viii)'' and inserting
``clause (vi)''; and
(B) by striking ``meet a condition described in
clause (ii)'' and inserting ``comply with the
requirements under this subsection'';
(7) by amending clause (v), as so redesignated, to read as
follows:
``(v)(I) The Secretary of Labor shall provide
notice to an employer of the intent to conduct an
investigation under clause (i) or (ii).
``(II) The notice shall be provided in such a
manner, and shall contain sufficient detail, to permit
the employer to respond to the allegations before an
investigation is commenced.
``(III) The Secretary is not required to comply
with this clause if the Secretary determines that such
compliance would interfere with an effort by the
Secretary to investigate or secure compliance by the
employer with the requirements of this subsection.
``(IV) A determination by the Secretary under this
clause shall not be subject to judicial review.'';
(8) in clause (vi), as so redesignated, by striking ``An
investigation'' in the first sentence and all that follows
through ``the determination.'' in the second sentence and
inserting ``If the Secretary of Labor, after an investigation
under clause (i) or (ii), determines that a reasonable basis
exists to make a finding that the employer has failed to comply
with the requirements under this subsection, the Secretary
shall provide interested parties with notice of such
determination and an opportunity for a hearing in accordance
with section 556 of title 5, United States Code, not later than
60 days after the date of such determination.''; and
(9) by adding at the end the following:
``(vii) If the Secretary of Labor, after a hearing,
finds that the employer has violated a requirement
under this subsection, the Secretary may impose a
penalty pursuant to subparagraph (C).''.
SEC. 7. ADJUSTMENT OF STATUS FOR EMPLOYMENT-BASED IMMIGRANTS.
(a) Adjustment of Status for Employment-based Immigrants.--
(1) In general.--Section 245 of such Act (8 U.S.C. 1255) is
amended by adding at the end the following:
``(n) Adjustment of Status for Employment-based Immigrants.--
``(1) In general.--An alien who has status under section
214, other than an alien described in subsection (c) (as
remedied by subsection (k), as amended by the Fairness for
High-Skilled Immigrants Act of 2020) or subparagraph (B) or (C)
of section 101(a)(15), and any eligible dependents of such
alien, who has filed a petition or on whose behalf a petition
has been filed for immigrant status pursuant to subparagraph
(E) or (F) of section 204(a)(1), may file an application with
the Secretary of Homeland Security for adjustment of status if
such petition was approved not less than two years before the
date on which the application for adjustment of status is
filed, regardless of whether an immigrant visa is immediately
available on that date. For any dependent child who files an
application under this subsection, that individual may continue
to qualify as a dependent child for purposes of the application
regardless of the individual's age or whether the principal
beneficiary is deceased at the time an immigrant visa becomes
available. Except as otherwise provided in paragraphs (3), (4),
and (5), an alien who files an application under this
subsection shall be eligible for work authorization and travel
permission on the same terms as an alien who files an
application under subsection (a).
``(2) Availability.--An adjustment of status application
filed pursuant to paragraph (1) may not be approved until the
date on which an immigrant visa becomes available. An
admissible alien who has properly filed such an application
shall have the same status as an alien who files under
subsection (a).
``(3) Duties, hours, and compensation.--The terms and
conditions of a qualifying employment position offered to an
alien who has filed a petition or on whose behalf a petition
has been filed, for immigrant status pursuant to subparagraph
(E) or (F) of section 204(a)(1), including duties, hours, and
compensation, during the period following the filing of an
application for adjustment under paragraph (1) and before a
visa becomes immediately available, must be commensurate with
the terms and conditions applicable to the employer's similarly
situated United States workers in the area of employment. If
the employer does not employ and has not recently employed more
than two similarly situated U.S. workers in the area of
employment, the employer nevertheless remains obligated to
attest that the terms and conditions of the alien's employment
are commensurate with the terms and conditions of employment
for other similarly situated United States workers in the area
of employment. `Similarly situated United States workers'
includes United States workers performing similar duties,
subject to similar supervision, and with similar educational
backgrounds, industry expertise, employment experience, levels
of responsibility, and skill sets as the alien in the same
geographic area of employment as the alien. The duties, hours,
and compensation of such aliens are `commensurate' with those
offered to United States workers employed by the employer in
the same area of employment when the employer can show that the
duties, hours, and compensation are consistent with the range
of such terms and conditions the employer has offered or would
offer to similarly situated United States employees.
``(4) Enforcement.--A principal applicant applying for
adjustment pursuant to paragraph (1) shall file a Confirmation
of Bona Fide Job Offer or Portability with any request for an
employment authorization document. Any employment authorization
document issued to such a principal applicant shall expire
after three years, and another Confirmation of Bona Fide Offer
or Portability shall be filed with any request for a renewal of
employment authorization. No final decision on an application
under paragraph (1) may be issued without a filing of a
Confirmation of Bona Fide Job Offer or Portability by the
principal applicant received within 12 months of such decision.
A principal applicant shall provide sufficient information to
verify compliance with paragraph (3), and an indication that
the filing is to ensure compliance for an adjustment applicant
under this subsection, when the applicant files a Confirmation.
A principal applicant shall also provide a signed letter from
his or her current or prospective employer attesting that the
terms and conditions of the alien's employment are commensurate
with the terms and conditions of employment for other similarly
situated United States workers in the area of employment. If a
required Confirmation is not timely received by United States
Citizenship and Immigration Services, the underlying
Application to Adjust Status filed under paragraph (1),
including the applications for eligible dependents, shall be
denied. In adjudicating the Application to Adjust Status, when
an immigrant visa becomes available, United States Citizenship
and Immigration Services shall request the filing of a
Confirmation of Bona Fide Job Offer or Portability if a
Confirmation of Bona Fide Job Offer or Portability has not been
filed within the previous 12 months and may consider the
validity of any Confirmation filing that has not already been
reviewed and found satisfactory. If the most recent
Confirmation filing or prior filings not previously found
satisfactory do not warrant a finding of compliance with
section 204(j) or paragraph (3), United States Citizenship and
Immigration Services shall issue a Notice of Intent to Deny the
underlying Application to Adjust Status providing an
opportunity for further evidence to be submitted on such
deficiency after which any applicant that does not meet his or
her burden of proof shall receive a denial of the underlying
Application to Adjust Status and the applications of eligible
dependents.
``(5) Limitation on work authorization.--An alien who was
neither authorized to work nor eligible to request work
authorization at the time an application was filed under
paragraph (1) shall not be eligible to receive work
authorization pursuant to paragraph (1) or section
274a.12(c)(9) of title 8, Code of Federal Regulations.
``(6) Confirmations of bona fide job offer or portability
fee.--
``(A) In general.-- Notwithstanding any other
provision of law, the Secretary of Homeland Security
shall charge and collect a fee in the amount of $2,000
for each Confirmation of Bona Fide Job Offer or
Portability filed under this subsection.
``(B) Deposits.--The fees collected under
subparagraph (A) shall be deposited and used as
follows:
``(i) Fifty percent of such fees shall be
deposited into the Immigration Examinations Fee
Account established by section 286(m) and
available as provided in this subsection.
``(ii) Fifty percent of such fees shall be
deposited into the Treasury as miscellaneous
receipts.''.
(b) Conforming Amendment.-- Section 245(k) of the Immigration and
Nationality Act (8 U.S.C. 1255(k)) is amended by adding ``or (n)''
after ``pursuant to subsection (a)''.
(c) Effective Date.--
(1) This section and the amendments made by this section--
(A) shall take effect one year after the date of
enactment of this Act; and
(B) except as provided in paragraph (2), shall
cease to have effect as of the date that is nine years
after that date of enactment.
(2) This section shall continue in effect with respect to
any alien who has filed an application under this section any
time prior to the date on which this section otherwise ceases
to have effect.
SEC. 8. LIMIT ON ADJUSTMENT OF STATUS FROM H-1B NONIMMIGRANT OR H-4
NONIMMIGRANT TO EB IMMIGRANT.
(a) In General.--Section 245 of the Immigration and Nationality Act
(8 U.S.C. 1235), as amended by section 7, is further amended by adding
at the end the following:
``(o) Limit on Adjustment of Status From H-1B Nonimmigrant or H-4
Nonimmigrant to EB Immigrant.--
``(1) In general.--In applying this section to an alien who
is (or has been during the most recent 2-year period) a
nonimmigrant described in section 101(a)(15)(H)(i)(b), or to
the spouse or any minor children of such alien who is (or has
been during the most recent 2-year period) an H-4
nonimmigrant--
``(A) the number of such aliens (including the
spouses and children of such aliens) granted an
adjustment of status to that of an immigrant described
in section 203(b) or otherwise issued an immigrant visa
under this Act in a fiscal year--
``(i) during the period beginning on the
date of enactment of this subsection and ending
on the date on which the ninth fiscal year
after the effective date ends, may not exceed
70 percent of the total number of employment-
based immigrants admitted in such fiscal year;
and
``(ii) after the date on which the ninth
fiscal year after the effective date ends, may
not exceed 50 percent of the total number of
employment-based immigrants admitted in such
fiscal year; and
``(B) the limitations set forth in subparagraph (A)
shall not apply to any such alien (or the spouse or
children of such alien) if such alien--
``(i) has graduated from medical school and
will be performing services in the United
States as a member of the medical profession;
or
``(ii) has been granted a national interest
waiver by U.S. Citizenship and Immigration
Services under section 203(b)(2)(B).
``(2) Effective date defined.--In this subsection, the term
`effective date' means the first day of the second fiscal year
beginning after the date of enactment of this subsection.''.
(b) Unused Employment-based Immigrant Visas.--Any immigrant visas
reserved under section 203(b) of the Immigration and Nationality Act (8
U.S.C. 1153(b)) for employment-based immigrants that are not needed for
an employment-based immigrant may be issued to aliens described in
subparagraph in section 101(a)(15)(H)(i)(b) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)).
SEC. 9. PROHIBITION ON ADMISSION OR ADJUSTMENT OF STATUS OF ALIENS
AFFILIATED WITH THE MILITARY FORCES OF THE PEOPLE'S
REPUBLIC OF CHINA OR THE CHINESE COMMUNIST PARTY.
The Secretary of Homeland Security shall not adjust status of any
alien affiliated with the military forces of the People's Republic of
China or the Chinese Communist Party, as determined by the Secretary of
Homeland Security, in consultation with the Secretary of State, the
Secretary of Defense, the Attorney General, the Secretary of the
Treasury, and the Director of National Intelligence.
Attest:
Secretary.
116th CONGRESS
2d Session
H.R. 1044
_______________________________________________________________________
AMENDMENT