A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Thursday, December 3, 2020

"Fairness for High-Skilled Immigrants Act of 2020" passed by Senate

Remember the controversial S. 386 bill that was kicking around before COVID paralyzed the United States?  Apparently, after some behind the scene negotiations and compromises, a revised version of bill was passed by Senate today by unanimous consent.  It is actually the H.R. 1044 bill from the House with some additional provisions and changes.  

This new version of the bill, entitled “Fairness for High-Skilled Immigrants Act of 2020,” still keeps the key provisions of the previous version regarding elimination of the per-country cap when allocating employment-based immigrant visa numbers.  

New provisions were added to the bill, including some new restrictions and some benefits:

  • Allow applicants and their dependents who have approved I-140 visa petitions for at least two years to file for I-485 adjustment of status, regardless of priority date.
  • Preserve the eligibility of minor children for adjustment of status one they have summitted the I-485 application, even after they have reached the age of 21. 
  • Restrict the number of adjustment applicants who have held H-1B / H-4 status within the last 2 years to 50% of the annual employment visa quota.   Medical professionals and individuals granted national interest waivers are exempt from this cap.  During the transitional period (first 9 fiscal years), the cap will be set at 70%.  Also unused employment visa numbers can be used by H-1B/ H-4 applicants.
  • Prohibit adjustment of status to any individual who is “affiliated with the military forces of the People’s Republic of China or the Chinese Communist Party”.
  • Impose employer requirements.  Employers would be required to post job openings before sponsoring an H-1B worker.  They must also submit W-2 pay statements of former H-1B workers to prove compliance. 

  • Employers with 50 or more employees in the United States that have a workforce made up of more than 50% H-1B or L-1 workers would not be allowed to sponsor new H-1B petitions, except to file for petitions to extend H-1B status or transfer employees.  

The House must also pass the bill or a modified version before the bill can be sent to the President for signature.  Timing is tight as this Congressional session will end on 12/18/2020.   If not passed in this session the bill must be re-introduced again next year. Given the current fluid political dynamics and other legislative priorities, it is difficult to predict the chances for the bill to become law.  Stay tuned for further updates. 

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