Siskind Summary: A Section by Section Review of S.386 – The Fairness for High-Skilled Immigrants Act of 2019
By Greg Siskind
Siskind Susser, PC
Section 1. Short Title.
The Act is called the “Fairness for High-Skilled Immigrants Act of 2019.” Note: This bill is the companion to HR 1044 in the House which passed in July 2019. There are significant differences between the two and this article attempts to note them.
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 as if enacted on at the beginning of the fiscal year after the date of enactment of the Act and shall apply to fiscal years beginning after that. NOTE – This is different than HR 1044 which would take effect on October 1, 2019.
Transition rules for employment-based immigrants
No one who is the beneficiary of an immigrant petition approved prior to the date of enactment of this bill shall receive a visa later than they otherwise would have had the bill not been enacted. In other words, the current system of allocating visa numbers will remain in place until everyone from the “Rest of World” countries (ROW) with a current priority date at the time the bill passes has received their green cards. This is the so-called “do no harm” provision and will operate simultaneously with the reserved visa language described below. Presumably, a comparison will be made of how quickly a ROW applicant would receive a green card under either the new system or the system prior to enactment and the one which favors the ROW national will be used.
For the first three fiscal years after the bill is enacted, everyone in EB-2 and EB-3 from ROW (excluding top two visa users (presumably China and India but not necessarily if there’s a big shift in usage) will receive a reserved allocation as follows:
– For the first year, 15% shall be allotted to those ROW countries
– For the second year, 10% shall be allotted to those ROW countries
– For the third year, 5% shall be allotted to those ROW countries
For the first nine fiscal years after the bill is enacted, 5.75% of the total pool of EB-2 and EB-3 green cards shall be reserved for ROW (excluding top two visa users (presumably China and India but not necessarily if there’s a big shift in usage) and shall be available in the following order:
– Dependent children under 21 seeking to join a parent beneficiary
– Immigrants who seek to enter as a new arrival and who have not resided or worked in the US at any point in the four-year period immediately preceding the filing of their petition for an employment-based immigrant petition
– Remaining ROW immigrants
4,400 immigrant visas are allocated annually for nurses and physical therapists for Fiscal Years 2020 through 2026. Family members are not counted against the 4,400 (though they are counted against the total green card allotment). NOTE: this language specifically notes that children DO count against the employment-based green card numbers which would arguably settle the question of whether the language of the statute requires children be counted against EB numbers.
During the years visa numbers are reserved as described above (where there are 5 to 15% allocations and a 5.75% allocation each year), no more than 25% of those reserved visas can go to nationals of one country or 2% in the case of a dependent area. During the first three fiscal years after the date of enactment, no more than 85% of the unreserved visas can go to natives of any single country. This is largely similar to the House bill except the House bill doesn’t have the 5.75% additional reserve.
During the first nine fiscal years after enactment, these limits may be overridden if enforcing them would prevent the maximum number of available green cards from being issued. This is similar to the House provision, but that bill only covers the first three fiscal years after enactment.
The current rules on changeability and dependents in INA Sections 202(b) and 203(d) shall apply to the new system created by this bill.
Section 3. Posting Available Positions Through the Department of Labor.
Note: This is a section that does not have a comparable part in the House bill.
Section 212(n)(6) of the INA is amended to require that within 180 days of enactment of this bill, the Secretary of Labor shall create a searchable web site for publicly posting H-1B positions for 30 days. DOL may postpone the launch one time for a period of up to 30 days. Once the site is ready, DOL will post a notice and Internet postings by H-1B employers will be required by employers filing H-1Bs within 90 days of that date.
The postings will be required in all H-1B petitions except for those individuals already counted against the H-1B cap and not eligible for a full 6-year H-1B extension or on behalf of an H-1B beneficiary who has accepted employment based on H-1B portability. Postings must be online for at least 30 calendar days and must include
– The occupational classification and, if different, the employer’s job title;
– The education, training, or experience qualifications for the position;
– The salary or wage range and employee benefits offered;
– The location or locations where the H-1B will be employed; and
– The process for applying for a position.
Section 4. Employer Application Requirements.
No comparable section in HR 1044.
Employers and people acting on an employer’s behalf are not allowed to advertise that a position is only available to H-1B workers or H-1B workers will otherwise be given favor or priority. Employers may also not primarily recruit people who will be H-1B nonimmigrants to fill a position.
Employers who have previously submitted an H-1B in a time period specified by the DOL shall submit W-2s for such employees.
Employers employing 50 or more workers in the US may not employ more than half of those workers on H-1B visas or L-1 visas. Employers with multiple entities will be treated as a single employer if they meet the single employer provisions of Section 414 of the Internal Revenue Code.
DOL shall create a rule requiring applicants to pay an administrative fee to cover the administrative costs of the LCA. Funds are to be deposited in an account called the “H-1B Administration, Oversight, Investigation, and Enforcement Account” and the Treasury Department is to refund amounts to the DOL to cover salaries and other expenses associated with administration, oversight, investigation and enforcement of the H-1B program.
The “B-1 in lieu of H-1B” option is eliminated by saying that any worker normally classifiable as an H-1B cannot seek a B visa for that purpose. The B visa also may not be used to authorize the admission of an alien coming to the US for the purpose of performing skilled or unskilled labor if the admission is not otherwise authorized by law (e.g. a domestic servant accompanying an employer in the US on a non-immigrant work visa).
Section 5. Investigation and Disposition of Complaints Against H-1B Employers.
No comparable version in House.
The anti-retaliation clause in the LCA rules is enhanced. Employers are barred from retaliating against an employee because the employee disclosed information that the employee reasonably believes shows a violation of the LCA rules and employers will be liable to pay lost wages and benefits back to the employee. The term employee includes current and former employees as well as applicants for employment. USCIS shall provide information from whistleblowing employees to DOL and DOL may conduct an investigation and hearing based on information of noncompliance under this section.
Section 6. Labor Condition Applications.
No comparable House version.
The DOL will be required to publish the list of LCA applicants on its web site. DOL is required to make this information publicly available now, but the requirement to post online is new.
The law currently requires DOL to review filed LCAs only for completeness and obvious inaccuracies. The bill would expand this to include “clear indicators of fraud or misrepresentation of material fact.” DOL shall be authorized to conduct an investigation of clear fraud or misrepresentation findings.
To meet “actual wage” requirements, employers must ensure that the wages or wage ranges provided as part of the public access file requirements relate to employees having substantially the same duties and responsibilities as the H-1B worker in the geographic area. That comparison must factor in experience, qualifications, education, job responsibility and function, specialized knowledge and other legitimate business factors.
The “prevailing wage” must reflect the best available information for the geographic area within normal commuting distance of the actual address of employment where the H-1B worker will be employed.
DOL may conduct surveys of the degree to which employers comply with the DOL LCA requirements.
DOL may conduct an annual compliance audit of any H-1B employer. If no willful violations are found, DOL will not audit the employer for four years.
Fines for LCA violations would be tripled from current amounts.
DOL will provide a notice to an employer of an intent to investigate under the LCA rules. The notice shall contain enough details to allow the employer to respond before the investigation is started. DOL can ignore this if it determines this would interfere with an effort by DOL to investigate or secure compliance by the employer. Judicial review is not permitted. DOL must provide a notice to an employer of a finding of violation and provide an opportunity for a hearing within 60 days after the determination.
Section 7. Adjustment of Status for Employment-Based Immigrants.
No comparable version in the House.
Non-immigrants in valid status who have an immigrant visa petition filed under an EB-1, EB-2 or EB-3 category may file an application with USCIS to adjust status if the petition has been approved or if the petition has been pending for more than 270 days, regardless of whether an immigrant visa is immediately available at the time the application is filed. Dependents filing to adjust based on this provision can continue to qualify as a dependent child regardless of the individual’s age or whether the principal beneficiary has died. Applicants filing to adjust based on this provision shall be eligible for work and travel authorization. The adjustment application may not be approved until after the immigrant visa becomes available.
Certain non-immigrants are not included. They are
– Alien crewmen
– Anyone not in lawful status at the time of filing (with the exception of those qualifying based on Section 245(k) which protects some people with short-term violations
– People admitted in transit without a visa
– Certain people admitted as a nonimmigrant without a visa
– Aliens in B or C status.
For employment authorization applications, the terms and conditions of employment, including hours, duties and compensation, from the period of filing the adjustment application until a visa becomes available, must be commensurate to the employer’s similarly employed US workers. If the employer lacks two similarly employed workers, the employer must attest that the terms and conditions of employment are commensurate with similarly employed workers in the local area. That includes people with similar education and experience in the local geographic area.
The applicant must file an I-485 Supplement J form with any employment authorization application and with renewal applications. Employment Authorization Documents will be valid for three years. The application must also be accompanied by supporting documentation to show the terms and conditions are commensurate with US workers including providing a verification letter from an employer or prospective employer.
Any applicants to adjust who are not authorized to work or eligible to request work authorization at the time the adjustment is filed shall not be eligible to apply for work authorization under this section. An exception is made if the person can demonstrate compelling circumstances justifying the granting of the work authorization.
This section takes effect on the date the bill is enacted. The adjustment benefit provided by this section expires nine years after the date the bill is enacted. Adjustment applications filed before this section sunsets are not affected.