Fairness for High-Skilled Immigrants Act (S.386/H.R.1044) is Problematic, May Become Law

December 14, 2020

Attached to a time-sensitive government spending bill, on December 2, 2020, the Senate passed an amended version of the Fairness for High-Skilled Immigrants Act, opening the way for negotiation with the House of Representatives and possible signing into law before Congress adjourns for the year on December 18. 

Unfortunately, the bill is flawed for the reasons described below. We recommend that employers and individuals contact their members of Congress to voice opposition to this bill, encourage thoughtful, comprehensive hearings in the new year, and support the previously-introduced Resolving Extended Limbo for Immigrant Employees and Families (RELIEF) Act, which is a more balanced approach to solving the immigration backlog.

The S.386 bill is problematic for the following reasons:

• It will create a significant green card backlog for all countries in the employment-based categories because while eliminating per-country quotas, it does not increase the overall number of green cards. This may help Indians in the short term, but certainly will impact all others by creating long waits and eventually, new Indian applicants will experience long waiting periods.
• It bars adjustment of status for all Chinese “affiliated” with the Chinese Communist Party. As described by the American Immigration Lawyers Association (AILA), this bill “would ban many Chinese nationals from becoming US lawful permanent residents and citizens, falsely equating their place of birth with the ideology of China’s leadership. This provision undermines the spirit and purpose of a bill that was originally intended to ensure that people are granted visas based on their skills and not their country of origin.”
• It adds many more requirements of H-1B sponsors, such as
  • Posting all H-1B positions on a public website of the Department of Labor for 30 days
  • Attestations that the job opening is available to all workers (this is currently not required for H-1B visas)
  • A fee for Labor Condition Applications (LCA)
  • Providing all W-2s for every H-1B worker over whatever period DOL requests

For a more detailed analysis of the S.386 bill, see this article.

We will continue to provide legislative updates on our website.