Beginning of a LONG thread summarizing the negotiated changes to S.386. Senator Durbin and Lee have reached a deal which bodes well for passage, but it is not known yet if there are other opponents. I have not heard about any. 1

Some of these changes are obscure and the lawyers out there will mainly be interested. I’ll try to call out those provisions I think are most of interest to the broader audience. The complete summary will be posted on my blog as soon as this thread is done (link to follow). 2

Section 1. The bill is titled the “Fairness for High-Skilled Immigrants Act of 2020” 3

Sect 2. Numerical Limitation to Any Single Foreign State

Current law imposes a 7% per country cap on employment & family categories. The new language removes the employment caps & raises the per country quotas for family to 15%. This is obviously the heart of this legislation. 4

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. 5

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. 6

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. 7

Sorry - Will repost 8, 9 and 10 - didn't realize I was messing up the thread.

The changes in the bill take effect on the 1st day of the 2nd 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. 8

This was a key point in the negotiations. It replaces the “do no harm” provision because most, if not all, of the people currently in line in the EB categories from rest of world will have their green cards by this point. 9

Transition rules for employment-based immigrants. There’s a nine-year transition beginning on 10/1/2021. 10

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. 11

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. 12

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. 13

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. 14

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. 15

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. 16

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: 17

Derivative dependents seeking to join a principal beneficiary

Immigrants seeking to enter the US as new arrivals who haven’t resided or worked in the US in the 4 years immediately preceding the filing of an immigrant visa petition

Anyone else not from the top 2 countries 18

4,400 green cards are reserved for nurses & physical therapists for the 1st 7 years after enactment. Spouses & kids count against the green card overall quotas in the respective categories, but not against the 4,400. 19

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. 20

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. 21

Section 3. Posting Available Positions Through the Department of Labor 22

LCA rules changed to include a new searchable website for posting H-1B positions that are the subject of LCAs. 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. 23

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: 24

* the occupational classification, and if different the employer’s job title for the position;
* the education, training, or experience qualifications for the position; 25

* the salary or wage range and employee benefits offered;
* the location(s) at which the nonimmigrant(s) will be employed; and
* the process for applying for a position. 26

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 27

* 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. 28

* 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. 29

* 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 30

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. 31

* USCIS will share with DOL information contained in H-1B petitions and the DOL may initiate an investigation based on such information. 32

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. 33

* 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. 34

Tightens actual wage rules to say wages must relate solely to employees having substantially the same duties & responsibilities in the local area, considering experience, qualifications, education, responsibilities, specialized knowledge & other legitimate business factors. 35

* 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. 36

* 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. 37

DOL may conduct surveys on employer compliance and may conduct annual compliance audits of any employer that employs H-1B nonimmigrants. 38

DOL shall conduct annual audits of any employer with more than 100 full-time employees & more than 15% of their workers are on H-1Bs. A summary of the findings shall be made public. If no evidence of misrepresentation or fraud, they will not be audited for 4 more years. 39

Triples the current fines for LCA violations 40

* 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. 41

* Removes the provision that bars investigations from be initiated by information originating at DOL.

* Shortens the hearing requirement to 60 days from 120 days after DOL makes their finding.

* Can’t say I’m happy about this section, but I see it as coming anyway. 42

Section 7. Adjustment of Status For Employment-Based Immigrants – This is the other section that’s a game-changer from the original bill. It’s key because it offers rest of world applicants (and currently backlogged people) most of the benefits of a green card while waiting. 43

* 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. 44

* A dependent filing under this provision can continue to qualify regardless of the dependent’s age or if the principal has died when a visa number becomes available.

* EADs & Advance parole are available 45

* 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. 46

* An applicant for adjustment under this new section must file a Confirmation of Bona Fide Job Offer or Portability with any request for an Employment Authorization Document. Not thrilled with this, but it’s basically the Supplement J requirement. 47

* EADs will be valid for 3 years. That’s a big deal since 1-year EADs are the norm. & 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. 48

* Failing to submit a Confirmation can cause the adjustment to be denied.

* A $2000 fee may be charged for the Confirmation. (not thrilled, but at least it’s for 3 years)

* This section takes effect one year after the date of enactment. 49

REMOVED in final version - Section 8. Protecting Children of Certain Immigrant Workers from Detention and Removal and Aging Out of Lawful Status. 50

This is a section that was taken out by Senator Lee. It would have allowed kids to remain as H-4s after 21 and protected them from removal. I’m not as upset about this as I might have been because a similar protection is offered in Section 7. 51

That’s the end of the bill summary. Overall, I think it’s a fair compromise. The reason is that the do no harm language is largely back with the delayed effective date and 9 year roll out. 52

And the early adjustment language gives people most of the benefits of a green card. Freedom to change employers or start a business. Freedom to travel. In state tuition in most states for the kids. Protection from kids aging out. 53

I know people on both sides are going to find things in this bill they hate. For example, I think the H-1B provisions are overreaching. But nationality discrimination needs to end. This gets us most of the way there (the family country caps need to be next in my view) 54

As promised, this summary is on my blog and can be found at https://www.visalaw.com/siskind-summary-s-386-fairness-high-skilled-immigrants-act-2020-852020/

As I posted yesterday, I'm satisfied that a fair compromise has been reached. It's far from perfect but I congratulate Senators Durbin & Lee for getting to this point. There is still a long way to go (hello House of Representatives), but this seems to be a big hurdle crossed. 56

END OF THREAD. I will do a periscope or Facebook Live after this either passes or doesn't pass. 57