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[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1044 Engrossed Amendment Senate (EAS)]

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                  In the Senate of the United States,

                                                      December 2, 2020.
    Resolved, That the bill from the House of Representatives (H.R. 
1044) entitled ``An Act to amend the Immigration and Nationality Act to 
eliminate the per-country numerical limitation for employment-based 
immigrants, to increase the per-country numerical limitation for 
family-sponsored immigrants, and for other purposes.'', do pass with 
the following

                               AMENDMENT:

            Strike all after the enacting clause and insert the 
      following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Fairness for High-Skilled Immigrants 
Act of 2020''.

SEC. 2. NUMERICAL LIMITATION TO ANY SINGLE FOREIGN STATE.

    (a) In General.--Section 202(a)(2) of the Immigration and 
Nationality Act (8 U.S.C. 1152(a)(2)) is amended to read as follows:
            ``(2) Per country levels for family-sponsored immigrants.--
        Subject to paragraphs (3) and (4), the total number of 
        immigrant visas made available to natives of any single foreign 
        state or dependent area under section 203(a) in any fiscal year 
        may not exceed 15 percent (in the case of a single foreign 
        state) or 2 percent (in the case of a dependent area) of the 
        total number of such visas made available under such section in 
        that fiscal year.''.
    (b) Conforming Amendments.--Section 202 of such Act (8 U.S.C. 1152) 
is amended--
            (1) in subsection (a)--
                    (A) in paragraph (3), by striking ``both 
                subsections (a) and (b) of section 203'' and inserting 
                ``section 203(a)''; and
                    (B) by striking paragraph (5); and
            (2) by amending subsection (e) to read as follows:
    ``(e) Special Rules for Countries at Ceiling.--If the total number 
of immigrant visas made available under section 203(a) to natives of 
any single foreign state or dependent area will exceed the numerical 
limitation specified in subsection (a)(2) in any fiscal year, immigrant 
visas shall be allotted to such natives under section 203(a) (to the 
extent practicable and otherwise consistent with this section and 
section 203) in a manner so that, except as provided in subsection 
(a)(4), the proportion of the visas made available under each of 
paragraphs (1) through (4) of section 203(a) is equal to the ratio of 
the total visas made available under the respective paragraph to the 
total visas made available under section 203(a).''.
    (c) Country-specific Offset.--Section 2 of the Chinese Student 
Protection Act of 1992 (8 U.S.C. 1255 note) is amended--
            (1) in subsection (a), by striking ``(as defined in 
        subsection (e))'';
            (2) by striking subsection (d); and
            (3) by redesignating subsection (e) as subsection (d).
    (d) Effective Date.--The amendments made by this section shall take 
effect on the first day of the second fiscal year beginning after the 
date of enactment of this Act, and shall apply to that fiscal year and 
each subsequent fiscal year.
    (e) Transition Rules for Employment-based Immigrants.--
            (1) In general.--Subject to paragraphs (2) through (4), and 
        notwithstanding title II of the Immigration and Nationality Act 
        (8 U.S.C. 1151 et seq.), the following rules shall apply:
                    (A) During the first nine fiscal years after the 
                effective date, certain visas will be reserved within 
                the immigrant visas made available under each of 
                paragraphs (2) and (3) of section 203(b) of the 
                Immigration and Nationality Act (8 U.S.C. 1153(b)).
                    (B) With regard to immigrant visas made available 
                under paragraphs (2) and (3) of section 203(b) of the 
                Immigration and Nationality Act (8 U.S.C. 1153(b)) for 
                the first nine fiscal years after the effective date, 
                visas will be reserved for immigrants native to 
                countries other than the two states with the largest 
                aggregate number of natives who are beneficiaries of 
                approved but backlogged petitions for immigrant status 
                under section 203(b) of the Immigration and Nationality 
                Act (8 U.S.C. 1153(b)), as follows:
                            (i) For the first fiscal year after the 
                        effective date, 30 percent of the immigrant 
                        visas made available under paragraphs (2) and 
                        (3) of section 203(b) of the Immigration and 
                        Nationality Act (8 U.S.C. 1153(b)) shall be 
                        allotted to immigrants who are natives of a 
                        foreign state or dependent area that is not one 
                        of the two states with the largest aggregate 
                        numbers of natives waiting for immigrant 
                        status.
                            (ii) For the second fiscal year after the 
                        effective date, 25 percent of the immigrant 
                        visas made available under paragraphs (2) and 
                        (3) of section 203(b) of the Immigration and 
                        Nationality Act (8 U.S.C. 1153(b)) shall be 
                        allotted to immigrants who are natives of a 
                        foreign state or dependent area that is not one 
                        of the two states with the largest aggregate 
                        numbers of natives waiting for immigrant 
                        status.
                            (iii) For the third fiscal year after the 
                        effective date, 20 percent of the immigrant 
                        visas made available under paragraphs (2) and 
                        (3) of section 203(b) of the Immigration and 
                        Nationality Act (8 U.S.C. 1153(b)) shall be 
                        allotted to immigrants who are natives of a 
                        foreign state or dependent area that is not one 
                        of the two states with the largest aggregate 
                        numbers of natives waiting for immigrant 
                        status.
                            (iv) For the fourth fiscal year after the 
                        effective date, 15 percent of the immigrant 
                        visas made available under paragraphs (2) and 
                        (3) of section 203(b) of the Immigration and 
                        Nationality Act (8 U.S.C. 1153(b)) shall be 
                        allotted to immigrants who are natives of a 
                        foreign state or dependent area that is not one 
                        of the two states with the largest aggregate 
                        numbers of natives waiting for immigrant 
                        status.
                            (v) For the fifth and sixth fiscal years 
                        after the effective date, 10 percent of the 
                        immigrant visas made available under paragraphs 
                        (2) and (3) of section 203(b) of the 
                        Immigration and Nationality Act (8 U.S.C. 
                        1153(b)) shall be allotted to immigrants who 
                        are natives of a foreign state or dependent 
                        area that is not one of the two states with the 
                        largest aggregate numbers of natives waiting 
                        for immigrant status.
                            (vi) For the seventh, eighth, and ninth 
                        fiscal years after the effective date, 5 
                        percent of the immigrant visas made available 
                        under paragraphs (2) and (3) of section 203(b) 
                        of the Immigration and Nationality Act (8 
                        U.S.C. 1153(b)) shall be allotted to immigrants 
                        who are natives of a foreign state or dependent 
                        area that is not one of the two states with the 
                        largest aggregate numbers of natives waiting 
                        for immigrant status.
                    (C) 5.75 percent of the immigrant visas made 
                available under paragraphs (2) and (3) of section 
                203(b) of the Immigration and Nationality Act (8 U.S.C. 
                1153(b)) shall be reserved annually for the first nine 
                fiscal years after the effective date for immigrants 
                who are native to countries other than the two states 
                with the largest aggregate number of natives who are 
                beneficiaries of approved but backlogged petitions for 
                immigrant status under such section. Such visas will be 
                made available by the following priority ordering:
                            (i) Derivative dependents described in 
                        section 203(d) of the Immigration and 
                        Nationality Act (8 U.S.C. 1153(d)) who seek to 
                        join a principal beneficiary of a petition for 
                        an immigrant visa under paragraphs (2) and (3) 
                        of section 203(b) of the Immigration and 
                        Nationality Act (8 U.S.C. 1153(b)).
                            (ii) Immigrants who seek to enter the 
                        United States as new arrivals and who have not 
                        resided or worked in the United States at any 
                        point in the four-year period immediately 
                        preceding the filing of their petition for an 
                        immigrant visa under section 203(b) of the 
                        Immigration and Nationality Act (8 U.S.C. 
                        1153(b)).
                            (iii) Other immigrants who meet the 
                        criteria of this subparagraph.
                    (D) The two states with the largest aggregate 
                numbers of natives who are beneficiaries of approved 
                petitions referred to in subparagraphs (B) and (C) are 
                the two states with the largest aggregate number of 
                approved cases awaiting visa number availability for 
                immigrant visas under section 203(b) of the Immigration 
                and Nationality Act (8 U.S.C. 1153(b)), as identified 
                by adding the numbers associated with aliens awaiting 
                employment-based immigrant status in the most recent 
                and available Count Of Approved Employment-Based 
                Immigrant Petitions With Priority Dates On Or After the 
                State Department's Visa Bulletin from the Department of 
                Homeland Security and such numbers in the most recent 
                Annual Report of Immigrant Visa Applicants in the 
                Employment-Based Preferences Registered at the National 
                Visa Center from the Department of State (or successor 
                publications).
                    (E) Notwithstanding subparagraphs (A) through (D), 
                for each of the seven fiscal years after the effective 
                date, not fewer than 4,400 of the immigrant visas made 
                available under paragraph (3) of section 203(b) of the 
                Immigration and Nationality Act (8 U.S.C. 1153(b)) and 
                not reserved by subparagraphs (B) and (C) shall be 
                allotted to immigrants who are described in section 
                656.5(a) of title 20, Code of Federal Regulations (or a 
                successor regulation) and are seeking admission to the 
                United States to work in an occupation described in 
                that section.
                    (F) Family members described in section 203(d) of 
                the Immigration and Nationality Act (8 U.S.C. 1153(d)) 
                who are accompanying or following to join a principal 
                beneficiary seeking admission under subparagraph (E) 
                shall be entitled to an unreserved visa in the same 
                status and in the same order of consideration as such 
                principal beneficiary, but shall not be counted against 
                the 4,400 immigrant visas allotted under that 
                subparagraph.
            (2) Per-country levels.--
                    (A) Reserved visas.--The number of visas reserved 
                under each of clauses (i) through (iv) of paragraph 
                (1)(B) and each of clauses (i) through (iii) of 
                paragraph (1)(C) made available to natives of any 
                single foreign state or dependent area in the 
                appropriate fiscal year may not exceed 25 percent (in 
                the case of a single foreign state) or 2 percent (in 
                the case of a dependent area) of the total number of 
                such visas.
                    (B) Unreserved visas.--Not more than 85 percent of 
                the immigrant visas made available under each of 
                paragraphs (2) and (3) of section 203(b) of the 
                Immigration and Nationality Act (8 U.S.C. 1153(b)) and 
                not reserved under paragraph (1), for each of the first 
                nine fiscal years after the effective date, may be 
                allotted to immigrants who are natives of any single 
                foreign state.
            (3) Special rule to prevent unused visas.--If, with respect 
        to first nine fiscal years after the effective date, the 
        application of paragraphs (1) and (2) would prevent the total 
        number of immigrant visas made available under paragraph (2) or 
        (3) of section 203(b) of the Immigration and Nationality Act (8 
        U.S.C. 1153(b)) from being issued, such visas may be issued 
        during the remainder of such fiscal year without regard to 
        paragraphs (1) and (2).
            (4) Rules for chargeability and dependents.--Section 202(b) 
        of the Immigration and Nationality Act (8 U.S.C. 1152(b)) shall 
        apply in determining the foreign state to which an alien is 
        chargeable, and section 203(d) of the Immigration and 
        Nationality Act (8 U.S.C. 1153(d)) shall apply in allocating 
        immigrant visas to dependents, for purposes of this subsection.
            (5) Effective date defined.--In this subsection, the term 
        ``effective date'' means the first day of the second fiscal 
        year beginning after the date of enactment of this Act.

SEC. 3. POSTING AVAILABLE POSITIONS THROUGH THE DEPARTMENT OF LABOR.

    (a) Department of Labor Website.--Section 212(n) of the Immigration 
and Nationality Act (8 U.S.C. 1182(n)) is amended by adding at the end 
the following:
            ``(6) For purposes of complying with paragraph (1)(C)--
                    ``(A) Not later than 180 days after the date of the 
                enactment of the Fairness for High-Skilled Immigrants 
                Act of 2020, the Secretary of Labor shall establish a 
                searchable internet website for posting positions in 
                accordance with paragraph (1)(C) that is available to 
                the public without charge, except that the Secretary 
                may delay the launch of such website for a single 
                period identified by the Secretary by notice in the 
                Federal Register that shall not exceed 30 days.
                    ``(B) The Secretary may work with private companies 
                or nonprofit organizations to develop and operate the 
                internet website described in subparagraph (A).
                    ``(C) The Secretary shall promulgate rules, after 
                notice and a period for comment, to carry out this 
                paragraph.''.
    (b) Publication Requirement.--The Secretary of Labor shall submit 
to Congress, and publish in the Federal Register and in other 
appropriate media, a notice of the date on which the internet website 
required under section 212(n)(6) of the Immigration and Nationality 
Act, as established by subsection (a), will be operational.
    (c) Application.--The amendment made by subsection (a) shall apply 
to any application filed on or after the date that is 90 days after the 
date described in subsection (b).
    (d) Internet Posting Requirement.--Section 212(n)(1)(C) of the 
Immigration and Nationality Act (8 U.S.C. 1182(n)(1)(C)) is amended--
            (1) by redesignating clause (ii) as subclause (II);
            (2) by striking ``(i) has provided'' and inserting the 
        following:
                            ``(ii)(I) has provided''; and
            (3) by inserting before clause (ii), as redesignated by 
        paragraph (2), the following:
                            ``(i) except in the case of an employer 
                        filing a petition on behalf of an H-1B 
                        nonimmigrant who has already been counted 
                        against the numerical limitations and is not 
                        eligible for a full 6-year period, as described 
                        in section 214(g)(7), or on behalf of an H-1B 
                        nonimmigrant authorized to accept employment 
                        under section 214(n), has posted on the 
                        internet website described in paragraph (6), 
                        for at least 30 calendar days, a description of 
                        each position for which a nonimmigrant is 
                        sought, that includes--
                                    ``(I) the occupational 
                                classification, and if different the 
                                employer's job title for the position, 
                                in which the nonimmigrant(s) will be 
                                employed;
                                    ``(II) the education, training, or 
                                experience qualifications for the 
                                position;
                                    ``(III) the salary or wage range 
                                and employee benefits offered;
                                    ``(IV) the location(s) at which the 
                                nonimmigrant(s) will be employed; and
                                    ``(V) the process for applying for 
                                a position; and''.

SEC. 4. H-1B EMPLOYER PETITION REQUIREMENTS.

    (a) Wage Determination Information.--Section 212(n)(1)(D) of the 
Immigration and Nationality Act (8 U.S.C. 1182(n)(1)(D)) is amended by 
inserting ``the prevailing wage determination methodology used under 
subparagraph (A)(i)(II),'' after ``shall contain''.
    (b) New Application Requirements.--Section 212(n)(1) of the 
Immigration and Nationality Act (8 U.S.C. 1182(n)(1)) is amended by 
inserting after subparagraph (G)(ii) the following:
            ``(H)(i) The employer, or a person or entity acting on the 
        employer's behalf, has not advertised any available position 
        specified in the application in an advertisement that states or 
        indicates that--
                    ``(I) such position is only available to an 
                individual who is or will be an H-1B nonimmigrant; or
                    ``(II) an individual who is or will be an H-1B 
                nonimmigrant shall receive priority or a preference in 
                the hiring process for such position.
            ``(ii) The employer has not primarily recruited individuals 
        who are or who will be H-1B nonimmigrants to fill such 
        position.
            ``(I) If the employer, in a previous period specified by 
        the Secretary, employed one or more H-1B nonimmigrants, the 
        employer shall submit to the Secretary the Internal Revenue 
        Service Form W-2 Wage and Tax Statements filed by the employer 
        with respect to the H-1B nonimmigrants for such period.''.
    (c) Additional Requirement for New H-1B Petitions.--
            (1) In general.--Section 212(n)(1) of the Immigration and 
        Nationality Act (8 U.S.C. 1182(n)(1)), as amended by subsection 
        (b), is further amended by inserting after subparagraph (I), 
        the following:
            ``(J)(i) If the employer employs 50 or more employees in 
        the United States, the sum of the number of such employees who 
        are H-1B nonimmigrants plus the number of such employees who 
        are nonimmigrants described in section 101(a)(15)(L) does not 
        exceed 50 percent of the total number of employees.
            ``(ii) Any group treated as a single employer under 
        subsection (b), (c), (m), or (o) of section 414 of the Internal 
        Revenue Code of 1986 shall be treated as a single employer for 
        purposes of clause (i).''.
            (2) Rule of construction.--Nothing in subparagraph (J) of 
        section 212(n)(1) of the Immigration and Nationality Act (8 
        U.S.C. 1182(n)(1)), as added by paragraph (1), may be construed 
        to prohibit renewal applications or change of employer 
        applications for H-1B nonimmigrants employed by an employer on 
        the date of enactment of this Act.
            (3) Effective date.--The amendment made by this subsection 
        shall take effect on the date that is 180 days after the date 
        of enactment of this Act.
    (d) Labor Condition Application Fee.--Section 212(n) of the 
Immigration and Nationality Act (8 U.S.C. 1182(n)), as amended by 
section 3(a), is further amended by adding at the end the following:
    ``(7)(A) The Secretary of Labor shall promulgate a regulation that 
requires applicants under this subsection to pay an administrative fee 
to cover the average paperwork processing costs and other 
administrative costs.
    ``(B)(i) Fees collected under this paragraph shall be deposited as 
offsetting receipts within the general fund of the Treasury in a 
separate account, which shall be known as the `H-1B Administration, 
Oversight, Investigation, and Enforcement Account' and shall remain 
available until expended.
    ``(ii) The Secretary of the Treasury shall refund amounts in such 
account to the Secretary of Labor for salaries and related expenses 
associated with the administration, oversight, investigation, and 
enforcement of the H-1B nonimmigrant visa program.''.
    (e) Elimination of B-1 in Lieu of H-1.--Section 214(g) of the 
Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended by adding 
at the end the following:
    ``(12)(A) Unless otherwise authorized by law, an alien normally 
classifiable under section 101(a)(15)(H)(i) who seeks admission to the 
United States to provide services in a specialty occupation described 
in paragraph (1) or (3) of subsection (i) may not be issued a visa or 
admitted under section 101(a)(15)(B) for such purpose.
    ``(B) Nothing in this paragraph may be construed to authorize the 
admission of an alien under section 101(a)(15)(B) who is coming to the 
United States for the purpose of performing skilled or unskilled labor 
if such admission is not otherwise authorized by law.''.

SEC. 5. INVESTIGATION AND DISPOSITION OF COMPLAINTS AGAINST H-1B 
              EMPLOYERS.

    (a) Investigation, Working Conditions, and Penalties.--Section 
212(n)(2)(C) of the Immigration and Nationality Act (8 U.S.C. 
1182(n)(2)(C)) is amended by striking clause (iv) and inserting the 
following:
    ``(iv)(I) An employer that has filed an application under this 
subsection violates this clause by taking, failing to take, or 
threatening to take or fail to take a personnel action, or 
intimidating, threatening, restraining, coercing, blacklisting, 
discharging, or discriminating in any other manner against an employee 
because the employee--
            ``(aa) disclosed information that the employee reasonably 
        believes evidences a violation of this subsection or any rule 
        or regulation pertaining to this subsection; or
            ``(bb) cooperated or sought to cooperate with the 
        requirements under this subsection or any rule or regulation 
        pertaining to this subsection.
    ``(II) An employer that violates this clause shall be liable to the 
employee harmed by such violation for lost wages and benefits.
    ``(III) In this clause, the term `employee' includes--
            ``(aa) a current employee;
            ``(bb) a former employee; and
            ``(cc) an applicant for employment.''.
    (b) Information Sharing.--Section 212(n)(2)(H) of the Immigration 
and Nationality Act (8 U.S.C. 1182(n)(2)(H)) is amended to read as 
follows:
    ``(H)(i) The Director of U.S. Citizenship and Immigration Services 
shall provide the Secretary of Labor with any information contained in 
the materials submitted by employers of H-1B nonimmigrants as part of 
the petition adjudication process that indicates that the employer is 
not complying with visa program requirements for H-1B nonimmigrants.
    ``(ii) The Secretary may initiate and conduct an investigation and 
hearing under this paragraph after receiving information of 
noncompliance under this subparagraph.''.

SEC. 6. LABOR CONDITION APPLICATIONS.

    (a) Application Review Requirements.--Section 212(n)(1) of the 
Immigration and Nationality Act (8 U.S.C. 1182(n)(1)) is amended, in 
the undesignated matter following subparagraph (I), as added by section 
4(b)--
            (1) in the fourth sentence, by inserting ``, and through 
        the internet website of the Department of Labor, without 
        charge.'' after ``Washington, D.C.'';
            (2) in the fifth sentence, by striking ``only for 
        completeness'' and inserting ``for completeness, clear 
        indicators of fraud or misrepresentation of material fact,'';
            (3) in the sixth sentence, by striking ``or obviously 
        inaccurate'' and inserting ``, presents clear indicators of 
        fraud or misrepresentation of material fact, or is obviously 
        inaccurate''; and
            (4) by adding at the end the following: ``If the 
        Secretary's review of an application identifies clear 
        indicators of fraud or misrepresentation of material fact, the 
        Secretary may conduct an investigation and hearing in 
        accordance with paragraph (2).''.
    (b) Ensuring Prevailing Wages Are for Area of Employment and Actual 
Wages Are for Similarly Employed.--Section 212(n)(1)(A) of the 
Immigration and Nationality Act (8 U.S.C. 1182(n)(1)(A)) is amended--
            (1) in clause (i), in the undesignated matter following 
        subclause (II), by striking ``and'' at the end;
            (2) in clause (ii), by striking the period at the end and 
        inserting ``, and''; and
            (3) by adding at the end the following:
                            ``(iii) will ensure that--
                                    ``(I) the actual wages or range 
                                identified in clause (i) relate solely 
                                to employees having substantially the 
                                same duties and responsibilities as the 
                                H-1B nonimmigrant in the geographical 
                                area of intended employment, 
                                considering experience, qualifications, 
                                education, job responsibility and 
                                function, specialized knowledge, and 
                                other legitimate business factors, 
                                except in a geographical area there are 
                                no such employees, and
                                    ``(II) the prevailing wages 
                                identified in clause (ii) reflect the 
                                best available information for the 
                                geographical area within normal 
                                commuting distance of the actual 
                                address of employment at which the H-1B 
                                nonimmigrant is or will be employed.''.
    (c) Procedures for Investigation and Disposition.--Section 
212(n)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 
1182(n)(2)(A)) is amended--
            (1) by striking ``(2)(A) Subject'' and inserting 
        ``(2)(A)(i) Subject'';
            (2) by striking the fourth sentence; and
            (3) by adding at the end the following:
                    ``(ii)(I) Upon receipt of a complaint under clause 
                (i), the Secretary may initiate an investigation to 
                determine whether such a failure or misrepresentation 
                has occurred.
                    ``(II) The Secretary may conduct--
                            ``(aa) surveys of the degree to which 
                        employers comply with the requirements under 
                        this subsection; and
                            ``(bb) subject to subclause (IV), annual 
                        compliance audits of any employer that employs 
                        H-1B nonimmigrants during the applicable 
                        calendar year.
                    ``(III) Subject to subclause (IV), the Secretary 
                shall--
                            ``(aa) conduct annual compliance audits of 
                        each employer that employs more than 100 full-
                        time equivalent employees who are employed in 
                        the United States if more than 15 percent of 
                        such full-time employees are H-1B 
                        nonimmigrants; and
                            ``(bb) make available to the public an 
                        executive summary or report describing the 
                        general findings of the audits conducted under 
                        this subclause.
                    ``(IV) In the case of an employer subject to an 
                annual compliance audit in which there was no finding 
                of a willful failure to meet a condition under 
                subparagraph (C)(ii), no further annual compliance 
                audit shall be conducted with respect to such employer 
                for a period of not less than 4 years, absent evidence 
                of misrepresentation or fraud.''.
    (d) Penalties for Violations.--Section 212(n)(2)(C) of the 
Immigration and Nationality Act (8 U.S.C. 1182(n)(2)(C)) is amended -
            (1) in clause (i)--
                    (A) in the matter preceding subclause (I), by 
                striking ``a condition of paragraph (1)(B), (1)(E), or 
                (1)(F)'' and inserting ``a condition of paragraph 
                (1)(B), (1)(E), (1)(F), (1)(H), or 1(I)''; and
                    (B) in subclause (I), by striking ``$1,000'' and 
                inserting ``$3,000'';
            (2) in clause (ii)(I), by striking ``$5,000'' and inserting 
        ``$15,000'';
            (3) in clause (iii)(I), by striking ``$35,000'' and 
        inserting ``$100,000''; and
            (4) in clause (vi)(III), by striking ``$1,000'' and 
        inserting ``$3,000''.
    (e) Initiation of Investigations.--Section 212(n)(2)(G) of the 
Immigration and Nationality Act (8 U.S.C. 1182(n)(2)(G)) is amended--
            (1) in clause (i), by striking ``In the case of an 
        investigation'' in the second sentence and all that follows 
        through the period at the end of the clause;
            (2) in clause (ii), in the first sentence, by striking 
        ``and whose identity'' and all that follows through ``failure 
        or failures.'' and inserting ``the Secretary of Labor may 
        conduct an investigation into the employer's compliance with 
        the requirements under this subsection.'';
            (3) in clause (iii), by striking the second sentence;
            (4) by striking clauses (iv) and (v);
            (5) by redesignating clauses (vi), (vii), and (viii) as 
        clauses (iv), (v), and (vi), respectively;
            (6) in clause (iv), as so redesignated--
                    (A) by striking``clause (viii)'' and inserting 
                ``clause (vi)''; and
                    (B) by striking ``meet a condition described in 
                clause (ii)'' and inserting ``comply with the 
                requirements under this subsection'';
            (7) by amending clause (v), as so redesignated, to read as 
        follows:
                    ``(v)(I) The Secretary of Labor shall provide 
                notice to an employer of the intent to conduct an 
                investigation under clause (i) or (ii).
                    ``(II) The notice shall be provided in such a 
                manner, and shall contain sufficient detail, to permit 
                the employer to respond to the allegations before an 
                investigation is commenced.
                    ``(III) The Secretary is not required to comply 
                with this clause if the Secretary determines that such 
                compliance would interfere with an effort by the 
                Secretary to investigate or secure compliance by the 
                employer with the requirements of this subsection.
                    ``(IV) A determination by the Secretary under this 
                clause shall not be subject to judicial review.'';
            (8) in clause (vi), as so redesignated, by striking ``An 
        investigation'' in the first sentence and all that follows 
        through ``the determination.'' in the second sentence and 
        inserting ``If the Secretary of Labor, after an investigation 
        under clause (i) or (ii), determines that a reasonable basis 
        exists to make a finding that the employer has failed to comply 
        with the requirements under this subsection, the Secretary 
        shall provide interested parties with notice of such 
        determination and an opportunity for a hearing in accordance 
        with section 556 of title 5, United States Code, not later than 
        60 days after the date of such determination.''; and
            (9) by adding at the end the following:
                    ``(vii) If the Secretary of Labor, after a hearing, 
                finds that the employer has violated a requirement 
                under this subsection, the Secretary may impose a 
                penalty pursuant to subparagraph (C).''.

SEC. 7. ADJUSTMENT OF STATUS FOR EMPLOYMENT-BASED IMMIGRANTS.

    (a) Adjustment of Status for Employment-based Immigrants.--
            (1) In general.--Section 245 of such Act (8 U.S.C. 1255) is 
        amended by adding at the end the following:
    ``(n) Adjustment of Status for Employment-based Immigrants.--
            ``(1) In general.--An alien who has status under section 
        214, other than an alien described in subsection (c) (as 
        remedied by subsection (k), as amended by the Fairness for 
        High-Skilled Immigrants Act of 2020) or subparagraph (B) or (C) 
        of section 101(a)(15), and any eligible dependents of such 
        alien, who has filed a petition or on whose behalf a petition 
        has been filed for immigrant status pursuant to subparagraph 
        (E) or (F) of section 204(a)(1), may file an application with 
        the Secretary of Homeland Security for adjustment of status if 
        such petition was approved not less than two years before the 
        date on which the application for adjustment of status is 
        filed, regardless of whether an immigrant visa is immediately 
        available on that date. For any dependent child who files an 
        application under this subsection, that individual may continue 
        to qualify as a dependent child for purposes of the application 
        regardless of the individual's age or whether the principal 
        beneficiary is deceased at the time an immigrant visa becomes 
        available. Except as otherwise provided in paragraphs (3), (4), 
        and (5), an alien who files an application under this 
        subsection shall be eligible for work authorization and travel 
        permission on the same terms as an alien who files an 
        application under subsection (a).
            ``(2) Availability.--An adjustment of status application 
        filed pursuant to paragraph (1) may not be approved until the 
        date on which an immigrant visa becomes available. An 
        admissible alien who has properly filed such an application 
        shall have the same status as an alien who files under 
        subsection (a).
            ``(3) Duties, hours, and compensation.--The terms and 
        conditions of a qualifying employment position offered to an 
        alien who has filed a petition or on whose behalf a petition 
        has been filed, for immigrant status pursuant to subparagraph 
        (E) or (F) of section 204(a)(1), including duties, hours, and 
        compensation, during the period following the filing of an 
        application for adjustment under paragraph (1) and before a 
        visa becomes immediately available, must be commensurate with 
        the terms and conditions applicable to the employer's similarly 
        situated United States workers in the area of employment. If 
        the employer does not employ and has not recently employed more 
        than two similarly situated U.S. workers in the area of 
        employment, the employer nevertheless remains obligated to 
        attest that the terms and conditions of the alien's employment 
        are commensurate with the terms and conditions of employment 
        for other similarly situated United States workers in the area 
        of employment. `Similarly situated United States workers' 
        includes United States workers performing similar duties, 
        subject to similar supervision, and with similar educational 
        backgrounds, industry expertise, employment experience, levels 
        of responsibility, and skill sets as the alien in the same 
        geographic area of employment as the alien. The duties, hours, 
        and compensation of such aliens are `commensurate' with those 
        offered to United States workers employed by the employer in 
        the same area of employment when the employer can show that the 
        duties, hours, and compensation are consistent with the range 
        of such terms and conditions the employer has offered or would 
        offer to similarly situated United States employees.
            ``(4) Enforcement.--A principal applicant applying for 
        adjustment pursuant to paragraph (1) shall file a Confirmation 
        of Bona Fide Job Offer or Portability with any request for an 
        employment authorization document. Any employment authorization 
        document issued to such a principal applicant shall expire 
        after three years, and another Confirmation of Bona Fide Offer 
        or Portability shall be filed with any request for a renewal of 
        employment authorization. No final decision on an application 
        under paragraph (1) may be issued without a filing of a 
        Confirmation of Bona Fide Job Offer or Portability by the 
        principal applicant received within 12 months of such decision. 
        A principal applicant shall provide sufficient information to 
        verify compliance with paragraph (3), and an indication that 
        the filing is to ensure compliance for an adjustment applicant 
        under this subsection, when the applicant files a Confirmation. 
        A principal applicant shall also provide a signed letter from 
        his or her current or prospective employer attesting that the 
        terms and conditions of the alien's employment are commensurate 
        with the terms and conditions of employment for other similarly 
        situated United States workers in the area of employment. If a 
        required Confirmation is not timely received by United States 
        Citizenship and Immigration Services, the underlying 
        Application to Adjust Status filed under paragraph (1), 
        including the applications for eligible dependents, shall be 
        denied. In adjudicating the Application to Adjust Status, when 
        an immigrant visa becomes available, United States Citizenship 
        and Immigration Services shall request the filing of a 
        Confirmation of Bona Fide Job Offer or Portability if a 
        Confirmation of Bona Fide Job Offer or Portability has not been 
        filed within the previous 12 months and may consider the 
        validity of any Confirmation filing that has not already been 
        reviewed and found satisfactory. If the most recent 
        Confirmation filing or prior filings not previously found 
        satisfactory do not warrant a finding of compliance with 
        section 204(j) or paragraph (3), United States Citizenship and 
        Immigration Services shall issue a Notice of Intent to Deny the 
        underlying Application to Adjust Status providing an 
        opportunity for further evidence to be submitted on such 
        deficiency after which any applicant that does not meet his or 
        her burden of proof shall receive a denial of the underlying 
        Application to Adjust Status and the applications of eligible 
        dependents.
            ``(5) Limitation on work authorization.--An alien who was 
        neither authorized to work nor eligible to request work 
        authorization at the time an application was filed under 
        paragraph (1) shall not be eligible to receive work 
        authorization pursuant to paragraph (1) or section 
        274a.12(c)(9) of title 8, Code of Federal Regulations.
            ``(6) Confirmations of bona fide job offer or portability 
        fee.--
                    ``(A) In general.-- Notwithstanding any other 
                provision of law, the Secretary of Homeland Security 
                shall charge and collect a fee in the amount of $2,000 
                for each Confirmation of Bona Fide Job Offer or 
                Portability filed under this subsection.
                    ``(B) Deposits.--The fees collected under 
                subparagraph (A) shall be deposited and used as 
                follows:
                            ``(i) Fifty percent of such fees shall be 
                        deposited into the Immigration Examinations Fee 
                        Account established by section 286(m) and 
                        available as provided in this subsection.
                            ``(ii) Fifty percent of such fees shall be 
                        deposited into the Treasury as miscellaneous 
                        receipts.''.
    (b) Conforming Amendment.-- Section 245(k) of the Immigration and 
Nationality Act (8 U.S.C. 1255(k)) is amended by adding ``or (n)'' 
after ``pursuant to subsection (a)''.
    (c) Effective Date.--
            (1) This section and the amendments made by this section--
                    (A) shall take effect one year after the date of 
                enactment of this Act; and
                    (B) except as provided in paragraph (2), shall 
                cease to have effect as of the date that is nine years 
                after that date of enactment.
            (2) This section shall continue in effect with respect to 
        any alien who has filed an application under this section any 
        time prior to the date on which this section otherwise ceases 
        to have effect.

SEC. 8. LIMIT ON ADJUSTMENT OF STATUS FROM H-1B NONIMMIGRANT OR H-4 
              NONIMMIGRANT TO EB IMMIGRANT.

    (a) In General.--Section 245 of the Immigration and Nationality Act 
(8 U.S.C. 1235), as amended by section 7, is further amended by adding 
at the end the following:
    ``(o) Limit on Adjustment of Status From H-1B Nonimmigrant or H-4 
Nonimmigrant to EB Immigrant.--
            ``(1) In general.--In applying this section to an alien who 
        is (or has been during the most recent 2-year period) a 
        nonimmigrant described in section 101(a)(15)(H)(i)(b), or to 
        the spouse or any minor children of such alien who is (or has 
        been during the most recent 2-year period) an H-4 
        nonimmigrant--
                    ``(A) the number of such aliens (including the 
                spouses and children of such aliens) granted an 
                adjustment of status to that of an immigrant described 
                in section 203(b) or otherwise issued an immigrant visa 
                under this Act in a fiscal year--
                            ``(i) during the period beginning on the 
                        date of enactment of this subsection and ending 
                        on the date on which the ninth fiscal year 
                        after the effective date ends, may not exceed 
                        70 percent of the total number of employment-
                        based immigrants admitted in such fiscal year; 
                        and
                            ``(ii) after the date on which the ninth 
                        fiscal year after the effective date ends, may 
                        not exceed 50 percent of the total number of 
                        employment-based immigrants admitted in such 
                        fiscal year; and
                    ``(B) the limitations set forth in subparagraph (A) 
                shall not apply to any such alien (or the spouse or 
                children of such alien) if such alien--
                            ``(i) has graduated from medical school and 
                        will be performing services in the United 
                        States as a member of the medical profession; 
                        or
                            ``(ii) has been granted a national interest 
                        waiver by U.S. Citizenship and Immigration 
                        Services under section 203(b)(2)(B).
            ``(2) Effective date defined.--In this subsection, the term 
        `effective date' means the first day of the second fiscal year 
        beginning after the date of enactment of this subsection.''.
    (b) Unused Employment-based Immigrant Visas.--Any immigrant visas 
reserved under section 203(b) of the Immigration and Nationality Act (8 
U.S.C. 1153(b)) for employment-based immigrants that are not needed for 
an employment-based immigrant may be issued to aliens described in 
subparagraph in section 101(a)(15)(H)(i)(b) of the Immigration and 
Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)).

SEC. 9. PROHIBITION ON ADMISSION OR ADJUSTMENT OF STATUS OF ALIENS 
              AFFILIATED WITH THE MILITARY FORCES OF THE PEOPLE'S 
              REPUBLIC OF CHINA OR THE CHINESE COMMUNIST PARTY.

    The Secretary of Homeland Security shall not adjust status of any 
alien affiliated with the military forces of the People's Republic of 
China or the Chinese Communist Party, as determined by the Secretary of 
Homeland Security, in consultation with the Secretary of State, the 
Secretary of Defense, the Attorney General, the Secretary of the 
Treasury, and the Director of National Intelligence.

            Attest:

                                                             Secretary.
116th CONGRESS

  2d Session

                               H.R. 1044

_______________________________________________________________________

                               AMENDMENT
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