Fairness for High-Skilled Immigrants Act of 2020

In the Senate of the United States, December 2, 2020. Resolved, That the bill from the House of Representa- tives (H.R. 1044) entitled ‘‘An Act to amend the Immigra- tion and Nationality Act to eliminate the per-country numer- ical limitation for employment-based immigrants, to increase the per-country numerical limitation for family-sponsored im- migrants, and for other purposes.’’, do pass with the fol- lowing AMENDMENT: Strike all after the enacting clause and insert the following: SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Fairness for High- 2 Skilled Immigrants Act of 2020’’. 3 SEC. 2. NUMERICAL LIMITATION TO ANY SINGLE FOREIGN 4 STATE. 5 (a) IN GENERAL.—Section 202(a)(2) of the Immigra- 6 tion and Nationality Act (8 U.S.C. 1152(a)(2)) is amended 7 to read as follows: 8 2 † HR 1044 EAS ‘‘(2) PER COUNTRY LEVELS FOR FAMILY-SPON- 1 SORED IMMIGRANTS.—Subject to paragraphs (3) and 2 (4), the total number of immigrant visas made avail- 3 able to natives of any single foreign state or depend- 4 ent area under section 203(a) in any fiscal year may 5 not exceed 15 percent (in the case of a single foreign 6 state) or 2 percent (in the case of a dependent area) 7 of the total number of such visas made available 8 under such section in that fiscal year.’’. 9 (b) CONFORMING AMENDMENTS.—Section 202 of such 10 Act (8 U.S.C. 1152) is amended— 11 (1) in subsection (a)— 12 (A) in paragraph (3), by striking ‘‘both 13 subsections (a) and (b) of section 203’’ and in- 14 serting ‘‘section 203(a)’’; and 15 (B) by striking paragraph (5); and 16 (2) by amending subsection (e) to read as fol- 17 lows: 18 ‘‘(e) SPECIAL RULES FOR COUNTRIES AT CEILING.— 19 If the total number of immigrant visas made available 20 under section 203(a) to natives of any single foreign state 21 or dependent area will exceed the numerical limitation 22 specified in subsection (a)(2) in any fiscal year, immigrant 23 visas shall be allotted to such natives under section 203(a) 24 (to the extent practicable and otherwise consistent with this 25 3 † HR 1044 EAS section and section 203) in a manner so that, except as 1 provided in subsection (a)(4), the proportion of the visas 2 made available under each of paragraphs (1) through (4) 3 of section 203(a) is equal to the ratio of the total visas made 4 available under the respective paragraph to the total visas 5 made available under section 203(a).’’. 6 (c) COUNTRY-SPECIFIC OFFSET.—Section 2 of the Chi- 7 nese Student Protection Act of 1992 (8 U.S.C. 1255 note) 8 is amended— 9 (1) in subsection (a), by striking ‘‘(as defined in 10 subsection (e))’’; 11 (2) by striking subsection (d); and 12 (3) by redesignating subsection (e) as subsection 13 (d). 14 (d) EFFECTIVE DATE.—The amendments made by this 15 section shall take effect on the first day of the second fiscal 16 year beginning after the date of enactment of this Act, and 17 shall apply to that fiscal year and each subsequent fiscal 18 year. 19 (e) TRANSITION RULES FOR EMPLOYMENT-BASED IM- 20 MIGRANTS.— 21 (1) IN GENERAL.—Subject to paragraphs (2) 22 through (4), and notwithstanding title II of the Im- 23 migration and Nationality Act (8 U.S.C. 1151 et 24 seq.), the following rules shall apply: 25 4 † HR 1044 EAS (A) During the first nine fiscal years after 1 the effective date, certain visas will be reserved 2 within the immigrant visas made available 3 under each of paragraphs (2) and (3) of section 4 203(b) of the Immigration and Nationality Act 5 (8 U.S.C. 1153(b)). 6 (B) With regard to immigrant visas made 7 available under paragraphs (2) and (3) of sec- 8 tion 203(b) of the Immigration and Nationality 9 Act (8 U.S.C. 1153(b)) for the first nine fiscal 10 years after the effective date, visas will be re- 11 served for immigrants native to countries other 12 than the two states with the largest aggregate 13 number of natives who are beneficiaries of ap- 14 proved but backlogged petitions for immigrant 15 status under section 203(b) of the Immigration 16 and Nationality Act (8 U.S.C. 1153(b)), as fol- 17 lows: 18 (i) For the first fiscal year after the ef- 19 fective date, 30 percent of the immigrant 20 visas made available under paragraphs (2) 21 and (3) of section 203(b) of the Immigra- 22 tion and Nationality Act (8 U.S.C. 1153(b)) 23 shall be allotted to immigrants who are na- 24 tives of a foreign state or dependent area 25 5 † HR 1044 EAS that is not one of the two states with the 1 largest aggregate numbers of natives wait- 2 ing for immigrant status. 3 (ii) For the second fiscal year after the 4 effective date, 25 percent of the immigrant 5 visas made available under paragraphs (2) 6 and (3) of section 203(b) of the Immigra- 7 tion and Nationality Act (8 U.S.C. 1153(b)) 8 shall be allotted to immigrants who are na- 9 tives of a foreign state or dependent area 10 that is not one of the two states with the 11 largest aggregate numbers of natives wait- 12 ing for immigrant status. 13 (iii) For the third fiscal year after the 14 effective date, 20 percent of the immigrant 15 visas made available under paragraphs (2) 16 and (3) of section 203(b) of the Immigra- 17 tion and Nationality Act (8 U.S.C. 1153(b)) 18 shall be allotted to immigrants who are na- 19 tives of a foreign state or dependent area 20 that is not one of the two states with the 21 largest aggregate numbers of natives wait- 22 ing for immigrant status. 23 (iv) For the fourth fiscal year after the 24 effective date, 15 percent of the immigrant 25 6 † HR 1044 EAS visas made available under paragraphs (2) 1 and (3) of section 203(b) of the Immigra- 2 tion and Nationality Act (8 U.S.C. 1153(b)) 3 shall be allotted to immigrants who are na- 4 tives of a foreign state or dependent area 5 that is not one of the two states with the 6 largest aggregate numbers of natives wait- 7 ing for immigrant status. 8 (v) For the fifth and sixth fiscal years 9 after the effective date, 10 percent of the im- 10 migrant visas made available under para- 11 graphs (2) and (3) of section 203(b) of the 12 Immigration and Nationality Act (8 U.S.C. 13 1153(b)) shall be allotted to immigrants 14 who are natives of a foreign state or de- 15 pendent area that is not one of the two 16 states with the largest aggregate numbers of 17 natives waiting for immigrant status. 18 (vi) For the seventh, eighth, and ninth 19 fiscal years after the effective date, 5 percent 20 of the immigrant visas made available 21 under paragraphs (2) and (3) of section 22 203(b) of the Immigration and Nationality 23 Act (8 U.S.C. 1153(b)) shall be allotted to 24 immigrants who are natives of a foreign 25 7 † HR 1044 EAS state or dependent area that is not one of 1 the two states with the largest aggregate 2 numbers of natives waiting for immigrant 3 status. 4 (C) 5.75 percent of the immigrant visas 5 made available under paragraphs (2) and (3) of 6 section 203(b) of the Immigration and Nation- 7 ality Act (8 U.S.C. 1153(b)) shall be reserved an- 8 nually for the first nine fiscal years after the ef- 9 fective date for immigrants who are native to 10 countries other than the two states with the larg- 11 est aggregate number of natives who are bene- 12 ficiaries of approved but backlogged petitions for 13 immigrant status under such section. Such visas 14 will be made available by the following priority 15 ordering: 16 (i) Derivative dependents described in 17 section 203(d) of the Immigration and Na- 18 tionality Act (8 U.S.C. 1153(d)) who seek to 19 join a principal beneficiary of a petition for 20 an immigrant visa under paragraphs (2) 21 and (3) of section 203(b) of the Immigra- 22 tion and Nationality Act (8 U.S.C. 23 1153(b)). 24 8 † HR 1044 EAS (ii) Immigrants who seek to enter the 1 United States as new arrivals and who have 2 not resided or worked in the United States 3 at any point in the four-year period imme- 4 diately preceding the filing of their petition 5 for an immigrant visa under section 203(b) 6 of the Immigration and Nationality Act (8 7 U.S.C. 1153(b)). 8 (iii) Other immigrants who meet the 9 criteria of this subparagraph. 10 (D) The two states with the largest aggre- 11 gate numbers of natives who are beneficiaries of 12 approved petitions referred to in subparagraphs 13 (B) and (C) are the two states with the largest 14 aggregate number of approved cases awaiting 15 visa number availability for immigrant visas 16 under section 203(b) of the Immigration and Na- 17 tionality Act (8 U.S.C. 1153(b)), as identified by 18 adding the numbers associated with aliens 19 awaiting employment-based immigrant status in 20 the most recent and available Count Of Ap- 21 proved Employment-Based Immigrant Petitions 22 With Priority Dates On Or After the State De- 23 partment’s Visa Bulletin from the Department of 24 Homeland Security and such numbers in the 25 9 † HR 1044 EAS most recent Annual Report of Immigrant Visa 1 Applicants in the Employment-Based Preferences 2 Registered at the National Visa Center from the 3 Department of State (or successor publications). 4 (E) Notwithstanding subparagraphs (A) 5 through (D), for each of the seven fiscal years 6 after the effective date, not fewer than 4,400 of 7 the immigrant visas made available under para- 8 graph (3) of section 203(b) of the Immigration 9 and Nationality Act (8 U.S.C. 1153(b)) and not 10 reserved by subparagraphs (B) and (C) shall be 11 allotted to immigrants who are described in sec- 12 tion 656.5(a) of title 20, Code of Federal Regula- 13 tions (or a successor regulation) and are seeking 14 admission to the United States to work in an oc- 15 cupation described in that section. 16 (F) Family members described in section 17 203(d) of the Immigration and Nationality Act 18 (8 U.S.C. 1153(d)) who are accompanying or fol- 19 lowing to join a principal beneficiary seeking 20 admission under subparagraph (E) shall be enti- 21 tled to an unreserved visa in the same status and 22 in the same order of consideration as such prin- 23 cipal beneficiary, but shall not be counted 24 10 † HR 1044 EAS against the 4,400 immigrant visas allotted under 1 that subparagraph. 2 (2) PER-COUNTRY LEVELS.— 3 (A) RESERVED VISAS.—The number of visas 4 reserved under each of clauses (i) through (iv) of 5 paragraph (1)(B) and each of clauses (i) through 6 (iii) of paragraph (1)(C) made available to na- 7 tives of any single foreign state or dependent 8 area in the appropriate fiscal year may not ex- 9 ceed 25 percent (in the case of a single foreign 10 state) or 2 percent (in the case of a dependent 11 area) of the total number of such visas. 12 (B) UNRESERVED VISAS.—Not more than 13 85 percent of the immigrant visas made avail- 14 able under each of paragraphs (2) and (3) of sec- 15 tion 203(b) of the Immigration and Nationality 16 Act (8 U.S.C. 1153(b)) and not reserved under 17 paragraph (1), for each of the first nine fiscal 18 years after the effective date, may be allotted to 19 immigrants who are natives of any single foreign 20 state. 21 (3) SPECIAL RULE TO PREVENT UNUSED 22 VISAS.—If, with respect to first nine fiscal years after 23 the effective date, the application of paragraphs (1) 24 and (2) would prevent the total number of immigrant 25 11 † HR 1044 EAS visas made available under paragraph (2) or (3) of 1 section 203(b) of the Immigration and Nationality 2 Act (8 U.S.C. 1153(b)) from being issued, such visas 3 may be issued during the remainder of such fiscal 4 year without regard to paragraphs (1) and (2). 5 (4) RULES FOR CHARGEABILITY AND DEPEND- 6 ENTS.—Section 202(b) of the Immigration and Na- 7 tionality Act (8 U.S.C. 1152(b)) shall apply in deter- 8 mining the foreign state to which an alien is charge- 9 able, and section 203(d) of the Immigration and Na- 10 tionality Act (8 U.S.C. 1153(d)) shall apply in allo- 11 cating immigrant visas to dependents, for purposes of 12 this subsection. 13 (5) EFFECTIVE DATE DEFINED.—In this sub- 14 section, the term ‘‘effective date’’ means the first day 15 of the second fiscal year beginning after the date of 16 enactment of this Act. 17 SEC. 3. POSTING AVAILABLE POSITIONS THROUGH THE DE- 18 PARTMENT OF LABOR. 19 (a) DEPARTMENT OF LABOR WEBSITE.—Section 20 212(n) of the Immigration and Nationality Act (8 U.S.C. 21 1182(n)) is amended by adding at the end the following: 22 ‘‘(6) For purposes of complying with paragraph 23 (1)(C)— 24 12 † HR 1044 EAS ‘‘(A) Not later than 180 days after the date 1 of the enactment of the Fairness for High-Skilled 2 Immigrants Act of 2020, the Secretary of Labor 3 shall establish a searchable internet website for 4 posting positions in accordance with paragraph 5 (1)(C) that is available to the public without 6 charge, except that the Secretary may delay the 7 launch of such website for a single period identi- 8 fied by the Secretary by notice in the Federal 9 Register that shall not exceed 30 days. 10 ‘‘(B) The Secretary may work with private 11 companies or nonprofit organizations to develop 12 and operate the internet website described in 13 subparagraph (A). 14 ‘‘(C) The Secretary shall promulgate rules, 15 after notice and a period for comment, to carry 16 out this paragraph.’’. 17 (b) PUBLICATION REQUIREMENT.—The Secretary of 18 Labor shall submit to Congress, and publish in the Federal 19 Register and in other appropriate media, a notice of the 20 date on which the internet website required under section 21 212(n)(6) of the Immigration and Nationality Act, as estab- 22 lished by subsection (a), will be operational. 23 (c) APPLICATION.—The amendment made by sub- 24 section (a) shall apply to any application filed on or after 25 13 † HR 1044 EAS the date that is 90 days after the date described in sub- 1 section (b). 2 (d) INTERNET POSTING REQUIREMENT.—Section 3 212(n)(1)(C) of the Immigration and Nationality Act (8 4 U.S.C. 1182(n)(1)(C)) is amended— 5 (1) by redesignating clause (ii) as subclause (II); 6 (2) by striking ‘‘(i) has provided’’ and inserting 7 the following: 8 ‘‘(ii)(I) has provided’’; and 9 (3) by inserting before clause (ii), as redesig- 10 nated by paragraph (2), the following: 11 ‘‘(i) except in the case of an employer 12 filing a petition on behalf of an H–1B non- 13 immigrant who has already been counted 14 against the numerical limitations and is 15 not eligible for a full 6-year period, as de- 16 scribed in section 214(g)(7), or on behalf of 17 an H–1B nonimmigrant authorized to ac- 18 cept employment under section 214(n), has 19 posted on the internet website described in 20 paragraph (6), for at least 30 calendar 21 days, a description of each position for 22 which a nonimmigrant is sought, that in- 23 cludes— 24 14 † HR 1044 EAS ‘‘(I) the occupational classifica- 1 tion, and if different the employer’s job [Text truncated for display. 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