U.S. Senate Passes Amended Version of S.386 Bill

On last Wednesday December 02, 2020, the U.S. Senate passed bill S.386, the Fairness for High-Skilled Immigrants Act of 2020. The Senate reached unanimous consent, and the bill was passed as amended. Please note the bill passed by the Senate is significantly different than the H.R. 1044 bill which was passed by the House in July 2019. The Vice President elect was one of the lead sponsors of the H.R.1044 bill.

The Amended S.386 Bill passed by the U.S. Senate makes the following changes:

• The Amended bill will take effect on October 01, 2022. The bill eliminates the 7% country cap for employment-based immigrant visas. Currently, nationals of India and China face a massive backlog. This backlog will be cleared by the elimination of the country cap.
• The bill establishes transition rules for employment-based visas, by reserving a percentage of EB-2 (Employment-Based Second Category) and EB-3 (Employment-Based Third Category) visas for over a period of 9 years for individuals not from the two countries with the largest number of recipients of such visas. For year 1 (30%), year 2 (25%), year 3 (20%), year 4 (15%), years 5 and 6 (10%), and years 7 through 9 (5%), visas are reserved for individuals not from the two countries with the largest number of recipients of such visas. Also, a minimum of 5.75% of all EB-2 or EB-3 green cards will go to immigrants from these non-top 2 countries (India and China) for 9 years prioritizing spouses and minor children of immigrants already in the United States and immigrants awaiting visas abroad.
• In addition, no more than 25 percent of these reserved green cards can go to immigrants from single country. Among the unreserved visas, no more than 85% will be allotted to immigrants from any single country.
• The bill reserved 4,400 EB-3 green cards for nurses and physical therapists for 7 years. The spouses and minor children would not count against this limit.
• The number of H-1B (work visa) and H-4 (dependent visa) individuals approved for a green card is limited to 70% of the total number of employment-based green cards during the first 9 years and 50% for all subsequent years. There will be exceptions for individuals such as doctors and NIW cases.
• The bill also increases the per-country cap on family-based immigrant visas from the current 7% to 15% available in a fiscal year.
• The bill allows applicants to file an employment-based adjustment of the status (EB-AOS) petition after the I-140 has been approved for at least two years, unlike now when an applicant can apply for the adjustment of status only when the priority dates become current in the visa bulletin released from month to month. This provision of the bill protects the aging out children as well. After filing the Adjustment of Status application, the applicants will receive Employment Authorizations in three-year increments. However, the job would have to have wages “commensurate with” those for the employer’s similarly situated U.S. workers in the area. The worker would have to file a Confirmation of Bona Fide Job Offer or Portability with a request for employment authorization, and a signed letter from their employer with the required attestations. One may also be required to file a confirmation of bona fide job offer or portability within 12 months of the green card application being adjudicated. Each confirmation of bona fide job offer or portability, will cost $2000, this is in addition to the fees associated with the Adjustment of Status Petitions.
• The bill requires the employers must post the job requirement for new H-1Bs on government website for at least 30 days. The bill further provides a 30-day extension if the Department of Labor (DOL) cannot get the website up and running within 180 days after this provision goes into effect. Also, if the website still cannot work, no additional H-1B applications will be permitted under the H-1B.
• Now an employer cannot just advertise a job only to H-1Bs and recruiting primarily H-1Bs. The bill also requires the employers to provide W-2 for every H-1B workers for whatever period to DOL.
• Under the new Bill the employers that employ 50 or more workers in the United States and who have a workforce comprising more than 50% H-1B or L-1 visa workers would not be eligible to sponsor new H-1B petitions. They will only be able to sponsor renewals and transfers of H-1B workers already employed.
• The bill requires DOL to charge fee for processing the Labor Condition Application (LCA) filings. Also, this bill intends to implement strict scrutiny for LCA applications and increased fines for violations.
• The bill triples the fine for H-1B LCA violations from $1,000 to $3,000 for non-willful violations, $5,000 to $15,000 for willful violations, and $35,000 to $100,000 for displacement of U.S. workers.
• The bill bars adjustment of status for all “Chinese” who have affiliations with the Chinese Communist Party or with the military forces of the People’s Republic of China.
• The bill bans B-1 visas for anyone who would normally be classified as an H-1B.
• The bill makes changes to the prevailing wage paid to the H-1B employees. The bill requires employers to pay at least the actual wage paid to U.S. workers in the local area who perform substantially the same duties and responsibilities.
• The bill penalizes employers who retaliate against employees who disclose evidence of an H-1B violation to pay them back pay.
• The bill expands the DOL’s audit and investigation authority to a great extent. It allows DOL to conduct compliance surveys or annual audits of any H-1B employer.Requires audits of anyone with 100 H-1B workers if more than 15% of their employees. Eliminates the requirement that the DOL secretary personally certify that reasonable cause exists for an H-1B investigation. Removes the 60-day time limit on investigations.

There are following Pros and Cons of this Bill:

• The pro is that this bill will end the country-based cap for green card allocation and will help in clearing the decades-long backlogs. Also, this bill will protect the aging out children and will allow an Applicant to file AOS Petitions before their dates become current and obtain an employment authorization.
• The Con is that this bill might create a backlog for applicants from all other countries. Also, this bill gives a lot of discretion to any administration to investigate the books and records of employers and possibly harass them.

We will regularly update the blog as soon as any new information is available regarding S.386 bill.

Disclaimer

This article aims to provide new information concerning the recently passed S.386 bill. This article, under no circumstances, acts as legal advice; therefore, for any immigration questions, please contact your Attorney or the Ahluwalia Law Offices, P.C. (Team ALO).