[Congressional Record Volume 166, Number 203 (Wednesday, December 2, 2020)]
[Senate]
[Pages S7183-S7186]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 2690. Mr. LEE proposed an amendment to the bill H.R. 1044, 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; as follows:
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
[[Page S7184]]
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.'';
[[Page S7185]]
(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
[[Page S7186]]
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 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.
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