Changes in the Fairness for High-Skilled Immigrants Act

S386 HR1044

On December 2, 2020, the Senate passed an amended version of the Fairness for High-Skilled Immigrants Act (H.R. 1044, similar known as S. 386). This version is considerably different from that which passed the House of Representatives by a 365 to 65 vote. There are reports that the House Judiciary Committee is opposed to the bill but wishes to find a common ground of agreement. As such, the Senate and the House must negotiate and advance a finalized version before it can be presented to the President for signature and then become the law.

What Is the Fairness for High-Skilled Immigrants Act 2020?

It is important to understand what S. 386 and H.R. 1044 are. Some of the areas that it deals with are:

  • Green card reforms: This amended bill phases out limits that are employment-based per country on green cards. The goal of this legislation is to ensure that all immigrant visa applications based on employment are on a first come/first serve basis. The immigrant’s birthplace should not be considered. Currently, no single area or nation of birth can get more than 7 percent of the total number of green cards issued annually.
  • The phase out period: This differs for different visa types and those from different countries of origin.
  • Backlog in green cards: In terms of receiving a new green card, the only two national groups that are significantly backlogged and also receive wage offers that are significantly higher are Indian and mainland China-born applicants.
  • Nurse and physical therapist guarantees: The bill sets aside 4,400 EB-3 green cards for both physical therapists and nurses for a period of seven years. They are defined as occupations with shortages. Minor children and spouses would also receive green cards at the same time. This language in the Senate bill differs from that in the House. It potentially carves out a new category of immigrants due to shortages.
  • Caps designated for different visa holders: H-1B and H-4 visa holders are limited to no more than 70 percent of all green cards that are employment-based. This will occur during the first nine years after the bill is implemented, after which it will be limited to 50 percent for any year after that.
  • Family-sponsored limit per country for green card increases: The bill raises the limit on green cards to 15 percent for family-sponsored applicants per country. It currently has a limit of 7 percent for those from individual birth places. Thus, the bill more than doubles the limit by increasing it by 8 percent.
  • Status adjustment from temporary visa to green card: This Employment Authorization Document allows the visa holder to work for any employer while remaining in line based on the original employer’s petition. But the Form I-485J must be filed together with the EAD application.
  • Stops aging out of children: Any dependent child of an H-1B holder normally loses their status when they turn 21, along with their eligibility for a green card. This bill extends both past their 21st birthday.
  • Posting of H-1B jobs: The bill requires that new H-1B jobs be posted on the government website for a period of 30 days.
  • Advertising: The bill bans advertising limited only to H-1B applicants.
  • Recruiting: The bill bans recruiting mostly H-1B applicants.
  • Provision of W-2s: The bill says that W-2s for all H-1B workers employed by any company at the discretion of the Department of Labor must be filed.
  • Bans on hiring new H-1B/L-1 workers: If an employer’s workforce is composed of more than half H-1Bs/L-1s, new H-1Bs/L-1s cannot be hired.

Keeping Our Readers Abreast of Changes in the Bill

We will provide our readers with additional changes to the bill and its final disposition in future blogs. If you need help or have questions, please don’t hesitate to contact us at