Fairness for High-Skilled Immigrants Act, passes through the Senate

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PassRight

The U.S. Senate recently passed the amended “Fairness for High-Skilled Immigrants Act of 2020”.

The Act which had been introduced on February 7, 2019, was intended to amend the Immigration and Nationality Act (INA) to eliminate the per-country numerical limitations for employment-based immigrant visas and increase the per-country limitations for family-sponsored immigrants on a phased-in basis.

However, it took one whole year for the bill to pass through the Senate, and on December 2, 2020, lawmakers agreed and passed the bill by Unanimous Consent.

This new bill includes a range of new H-1B restrictions sought by Senator Dick Durbin as well as caps on the number of immigrant visas that could go to H-1B visa holders and restrictions of certain Chinese nationals that were sought by Senator Rick Scott. Some of the provisions of the bill passed by the U.S. Senate include the following:

Table of Contents

For the 50-50 employers

Beginning 180 days after enactment, U.S. employers with 50 or more employees in the U.S., and whose U.S. workforce consists of at least 50% H-1B and other nonimmigrant workers, will be unable to sponsor foreign nationals for the H-1B category. Note: This restriction would not apply to renewal applications filed on behalf of current H-1B employees or H-1B employees seeking to change employers. Besides, the Senate’s bill would apply the “single employer” definition from the Internal Revenue Code (IRC) when calculating whether 50% of the H-1B employer’s labor force is comprised of nonimmigrant workers. Under this IRC definition, an employer may be an entity or multiple entities of a controlled group of companies.

For All Employers

Establishes additional recruitment and posting requirements for all H-1B sponsoring employers;
Grants federal agencies new investigatory and enforcement authority over the H-1B program;
Imposes a filing fee to submit a Labor Condition Application (LCA) in order to fund an “H-1B Administration, Oversight, Investigation, and Enforcement Account;”
Eliminates the B-1 in place of the H-1 program (Note: There is already a U.S. Department of State proposed rule to eliminate this category).

To our understanding, the bill is not final and there are several provisions in the bill that are apparently unacceptable to key House Members so it is unlikely that they will consider voting it.

If a compromise is reached and if the bill were to be enacted, the fact the law would not take effect for 180 days after enactment means that it will not impact U.S. employers in the upcoming H-1B registration/lottery selection process for the fiscal year 2022 (October 1, 2021, to September 30, 2022). As the bill is still under debate, the final version remains unknown.