Given the opposition of the former Judiciary Committee chair, Senator Charles Grassley (R-IA), who had blocked a similar bill in 2011, the Fairness for High-Skilled Immigrants Act of 2019 (S. 386) had been given little chance of passage until this week, when a deal was reached with the bill’s sponsor, Senator Mike Lee (R-UT), to include language to address a number of Senator Grassley’s longstanding concerns with the H-1B visa program.

Background

The Immigration and Nationality Act provides for 140,000 employment-based and 226,000 family-based immigrant visas annually. (These limits may be exceeded when the prior year's allocation was not fully utilized.) In addition, there are limits to the percentage of immigrant visas that may be allotted based on an immigrant's country of birth. As a result of these “per country” limits, immigrants from high-immigration countries must wait in line longer than those from lower-immigration countries. S. 386, introduced in February 2019 by Senator Lee and cosponsored by 31 senators on both sides of the aisle, would alleviate what many see as a discriminatory system by increasing the per-country cap on family-based immigrant visas from 7 percent of the total number of such visas available that year to 15 percent and eliminating the 7 percent cap for employment-based immigrant visas altogether. The bill would also remove an offset that has reduced the number of visas for individuals from China.

Indian nationals waiting in the green card line would benefit most from the elimination of the per-country levels for employment-based immigration. According to the State Department Visa Bulletin for July 2019, the cutoff dates for employment-based 2nd (EB-2, workers with advanced degrees or exceptional ability) and 3rd (EB-3, skilled and other workers) preference visa categories for India are currently set at April and July 2009, respectively. The bill also establishes transition rules for employment-based visas from FY2020-FY2022 by reserving a percentage of EB-2 and EB-3 visas for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85 percent shall be allotted to immigrants from any single country. The bill does not provide a transition for EB-5 (investor) visas.

New H-1B Measures

The new H-1B measures would include:

DEPARTMENT OF LABOR (DOL) WEBSITE POSTING REQUIREMENT: Requires that employers post information about jobs being offered to H-1B nonimmigrants on a DOL website for no less than 30 calendar days before a company may file an LCA for an H-1B worker.





NEW APPLICATION REQUIREMENTS: Prohibits employers from stating a preference for H-1B workers in job advertisements.





W-2 REPORTING TO DOL: Provides DOL with the authority to obtain an H-1B employer’s W-2 wage and tax statements with respect to the H-1B nonimmigrants it employs.





LCA FEES: Authorizes the collection by DOL of a fee for filing an LCA to cover “the average paperwork processing costs and other administrative costs.”





ELIMINATION OF B-1 IN LIEU OF H-1B: Eliminates the State Department practice of issuing B-1 in lieu of H-1B visas to employees of overseas companies to work in the United States on short-term projects. The practice has long been criticized by Senator Grassley as a way to avoid H-1B numerical caps and the H-1B LCA obligations.





WHISTLEBLOWER PROTECTIONS: Strengthens whistleblower protections for employees who raise concerns about their employer’s actions regarding LCA compliance.





INFORMATION SHARING BETWEEN USCIS AND DOL: Allows for the free flow of information regarding employer noncompliance.





LCA REVIEW: Expands DOL authority for review of LCAs beyond ensuring completeness and no obvious inaccuracies to include scrutiny of clear indicators of fraud or misrepresentation of material facts.





CLARIFICATION ON PREVAILING WAGE REQUIREMENTS: Clarifies employers’ existing obligation to pay H-1B workers the greater of the actual wages of employees with substantially the same duties and responsibilities or the prevailing wage, calculated with reference to the geographic area of employment.





LCA AUDITS AND SURVEYS: Permits annual compliance audits of H-1B employers and mandates same for H-1B-dependent employers if they committed a willful violation of LCA requirements in the prior year.





LCA INVESTIGATIONS: Expands DOL’s investigative authority for LCA violations by allowing investigations to be based on anonymous complaints; eliminating the arbitrary 60-day deadline on investigations; and permitting investigations for general compliance with LCA requirements, not limited to willful violations.

The H-1B amendment to S. 386 was filed on June 17, 2019, by Senator Lee. In addition to Senators Lee and Grassley, the compromise bill reportedly has the support of Senators Kamala Harris (D-CA) and Kevin Cramer (R-ND) among other co-sponsors. It is not clear whether or when the Senate Judiciary Committee will consider the bill.

Companion House Bill

The language of the companion bill in the House of Representatives, H.R. 1044, is currently limited to addressing the per-country level issues. As with S. 386, the House bill would also remove an offset that has reduced the number of visas for individuals from China. If H.R. 1044 and S. 386 were to pass as currently constituted, a conference committee would need to be convened to reconcile the two versions. So far, Representative Zoe Lofgren (D-CA-19), chair of the Subcommittee on Immigration and Citizenship and sponsor of H.R. 1044, has not commented on the H-1B amendment to the Senate bill. She did file a motion on June 18, 2019, to place H.R. 1044 on the Consensus Calendar in the House. The House has to hear at least one bill from this calendar most weeks that they are in session.