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: 

1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Fairness for High3 Skilled Immigrants Act of 2020’’. 

4 SEC. 2. NUMERICAL LIMITATION TO ANY SINGLE FOREIGN 

5 STATE. 

6 (a) IN GENERAL.—Section 202(a)(2) of the Immigra7 tion and Nationality Act (8 U.S.C. 1152(a)(2)) is amended 

8 to read as follows: 
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1 ‘‘(2) PER COUNTRY LEVELS FOR FAMILY-SPON2 SORED IMMIGRANTS.—Subject to paragraphs (3) and 

3 (4), the total number of immigrant visas made avail4 able to natives of any single foreign state or depend5 ent area under section 203(a) in any fiscal year may 

6 not exceed 15 percent (in the case of a single foreign 

7 state) or 2 percent (in the case of a dependent area) 

8 of the total number of such visas made available 

9 under such section in that fiscal year.’’. 

10 (b) CONFORMING AMENDMENTS.—Section 202 of such 

11 Act (8 U.S.C. 1152) is amended— 

12 (1) in subsection (a)— 

13 (A) in paragraph (3), by striking ‘‘both 

14 subsections (a) and (b) of section 203’’ and in15 serting ‘‘section 203(a)’’; and 

16 (B) by striking paragraph (5); and 

17 (2) by amending subsection (e) to read as fol18 lows: 

19 ‘‘(e) SPECIAL RULES FOR COUNTRIES AT CEILING.— 

20 If the total number of immigrant visas made available 

21 under section 203(a) to natives of any single foreign state 

22 or dependent area will exceed the numerical limitation 

23 specified in subsection (a)(2) in any fiscal year, immigrant 

24 visas shall be allotted to such natives under section 203(a) 

25 (to the extent practicable and otherwise consistent with this 
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1 section and section 203) in a manner so that, except as 

2 provided in subsection (a)(4), the proportion of the visas 

3 made available under each of paragraphs (1) through (4) 

4 of section 203(a) is equal to the ratio of the total visas made 

5 available under the respective paragraph to the total visas 

6 made available under section 203(a).’’. 

7 (c) COUNTRY-SPECIFIC OFFSET.—Section 2 of the Chi8 nese Student Protection Act of 1992 (8 U.S.C. 1255 note) 

9 is amended— 

10 (1) in subsection (a), by striking ‘‘(as defined in 

11 subsection (e))’’; 

12 (2) by striking subsection (d); and 

13 (3) by redesignating subsection (e) as subsection 

14 (d). 

15 (d) EFFECTIVE DATE.—The amendments made by this 

16 section shall take effect on the first day of the second fiscal 

17 year beginning after the date of enactment of this Act, and 

18 shall apply to that fiscal year and each subsequent fiscal 

19 year. 

20 (e) TRANSITION RULES FOR EMPLOYMENT-BASED IM21 MIGRANTS.— 

22 (1) IN GENERAL.—Subject to paragraphs (2) 

23 through (4), and notwithstanding title II of the Im24 migration and Nationality Act (8 U.S.C. 1151 et 

25 seq.), the following rules shall apply: 
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1 (A) During the first nine fiscal years after 

2 the effective date, certain visas will be reserved 

3 within the immigrant visas made available 

4 under each of paragraphs (2) and (3) of section 

5 203(b) of the Immigration and Nationality Act 

6 (8 U.S.C. 1153(b)). 

7 (B) With regard to immigrant visas made 

8 available under paragraphs (2) and (3) of sec9 tion 203(b) of the Immigration and Nationality 

10 Act (8 U.S.C. 1153(b)) for the first nine fiscal 

11 years after the effective date, visas will be re12 served for immigrants native to countries other 

13 than the two states with the largest aggregate 

14 number of natives who are beneficiaries of ap15 proved but backlogged petitions for immigrant 

16 status under section 203(b) of the Immigration 

17 and Nationality Act (8 U.S.C. 1153(b)), as fol18 lows: 

19 (i) For the first fiscal year after the ef20 fective date, 30 percent of the immigrant 

21 visas made available under paragraphs (2) 

22 and (3) of section 203(b) of the Immigra23 tion and Nationality Act (8 U.S.C. 1153(b)) 

24 shall be allotted to immigrants who are na25 tives of a foreign state or dependent area 
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1 that is not one of the two states with the 

2 largest aggregate numbers of natives wait3 ing for immigrant status. 

4 (ii) For the second fiscal year after the 

5 effective date, 25 percent of the immigrant 

6 visas made available under paragraphs (2) 

7 and (3) of section 203(b) of the Immigra8 tion and Nationality Act (8 U.S.C. 1153(b)) 

9 shall be allotted to immigrants who are na10 tives of a foreign state or dependent area 

11 that is not one of the two states with the 

12 largest aggregate numbers of natives wait13 ing for immigrant status. 

14 (iii) For the third fiscal year after the 

15 effective date, 20 percent of the immigrant 

16 visas made available under paragraphs (2) 

17 and (3) of section 203(b) of the Immigra18 tion and Nationality Act (8 U.S.C. 1153(b)) 

19 shall be allotted to immigrants who are na20 tives of a foreign state or dependent area 

21 that is not one of the two states with the 

22 largest aggregate numbers of natives wait23 ing for immigrant status. 

24 (iv) For the fourth fiscal year after the 

25 effective date, 15 percent of the immigrant 
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1 visas made available under paragraphs (2) 

2 and (3) of section 203(b) of the Immigra3 tion and Nationality Act (8 U.S.C. 1153(b)) 

4 shall be allotted to immigrants who are na5 tives of a foreign state or dependent area 

6 that is not one of the two states with the 

7 largest aggregate numbers of natives wait8 ing for immigrant status. 

9 (v) For the fifth and sixth fiscal years 

10 after the effective date, 10 percent of the im11 migrant visas made available under para12 graphs (2) and (3) of section 203(b) of the 

13 Immigration and Nationality Act (8 U.S.C. 

14 1153(b)) shall be allotted to immigrants 

15 who are natives of a foreign state or de16 pendent area that is not one of the two 

17 states with the largest aggregate numbers of 

18 natives waiting for immigrant status. 

19 (vi) For the seventh, eighth, and ninth 

20 fiscal years after the effective date, 5 percent 

21 of the immigrant visas made available 

22 under paragraphs (2) and (3) of section 

23 203(b) of the Immigration and Nationality 

24 Act (8 U.S.C. 1153(b)) shall be allotted to 

25 immigrants who are natives of a foreign 
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1 state or dependent area that is not one of 

2 the two states with the largest aggregate 

3 numbers of natives waiting for immigrant 

4 status. 

5 (C) 5.75 percent of the immigrant visas 

6 made available under paragraphs (2) and (3) of 

7 section 203(b) of the Immigration and Nation8 ality Act (8 U.S.C. 1153(b)) shall be reserved an9 nually for the first nine fiscal years after the ef10 fective date for immigrants who are native to 

11 countries other than the two states with the larg12 est aggregate number of natives who are bene13 ficiaries of approved but backlogged petitions for 

14 immigrant status under such section. Such visas 

15 will be made available by the following priority 

16 ordering: 

17 (i) Derivative dependents described in 

18 section 203(d) of the Immigration and Na19 tionality Act (8 U.S.C. 1153(d)) who seek to 

20 join a principal beneficiary of a petition for 

21 an immigrant visa under paragraphs (2) 

22 and (3) of section 203(b) of the Immigra23 tion and Nationality Act (8 U.S.C. 

24 1153(b)). 
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1 (ii) Immigrants who seek to enter the 

2 United States as new arrivals and who have 

3 not resided or worked in the United States 

4 at any point in the four-year period imme5 diately preceding the filing of their petition 

6 for an immigrant visa under section 203(b) 

7 of the Immigration and Nationality Act (8 

8 U.S.C. 1153(b)). 

9 (iii) Other immigrants who meet the 

10 criteria of this subparagraph. 

11 (D) The two states with the largest aggre12 gate numbers of natives who are beneficiaries of 

13 approved petitions referred to in subparagraphs 

14 (B) and (C) are the two states with the largest 

15 aggregate number of approved cases awaiting 

16 visa number availability for immigrant visas 

17 under section 203(b) of the Immigration and Na18 tionality Act (8 U.S.C. 1153(b)), as identified by 

19 adding the numbers associated with aliens 

20 awaiting employment-based immigrant status in 

21 the most recent and available Count Of Ap22 proved Employment-Based Immigrant Petitions 

23 With Priority Dates On Or After the State De24 partment’s Visa Bulletin from the Department of 

25 Homeland Security and such numbers in the 
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1 most recent Annual Report of Immigrant Visa 

2 Applicants in the Employment-Based Preferences 

3 Registered at the National Visa Center from the 

4 Department of State (or successor publications). 

5 (E) Notwithstanding subparagraphs (A) 

6 through (D), for each of the seven fiscal years 

7 after the effective date, not fewer than 4,400 of 

8 the immigrant visas made available under para9 graph (3) of section 203(b) of the Immigration 

10 and Nationality Act (8 U.S.C. 1153(b)) and not 

11 reserved by subparagraphs (B) and (C) shall be 

12 allotted to immigrants who are described in sec13 tion 656.5(a) of title 20, Code of Federal Regula14 tions (or a successor regulation) and are seeking 

15 admission to the United States to work in an oc16 cupation described in that section. 

17 (F) Family members described in section 

18 203(d) of the Immigration and Nationality Act 

19 (8 U.S.C. 1153(d)) who are accompanying or fol20 lowing to join a principal beneficiary seeking 

21 admission under subparagraph (E) shall be enti22 tled to an unreserved visa in the same status and 

23 in the same order of consideration as such prin24 cipal beneficiary, but shall not be counted 
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1 against the 4,400 immigrant visas allotted under 

2 that subparagraph. 

3 (2) PER-COUNTRY LEVELS.— 

4 (A) RESERVED VISAS.—The number of visas 

5 reserved under each of clauses (i) through (iv) of 

6 paragraph (1)(B) and each of clauses (i) through 

7 (iii) of paragraph (1)(C) made available to na8 tives of any single foreign state or dependent 

9 area in the appropriate fiscal year may not ex10 ceed 25 percent (in the case of a single foreign 

11 state) or 2 percent (in the case of a dependent 

12 area) of the total number of such visas. 

13 (B) UNRESERVED VISAS.—Not more than 

14 85 percent of the immigrant visas made avail15 able under each of paragraphs (2) and (3) of sec16 tion 203(b) of the Immigration and Nationality 

17 Act (8 U.S.C. 1153(b)) and not reserved under 

18 paragraph (1), for each of the first nine fiscal 

19 years after the effective date, may be allotted to 

20 immigrants who are natives of any single foreign 

21 state. 

22 (3) SPECIAL RULE TO PREVENT UNUSED

23 VISAS.—If, with respect to first nine fiscal years after 

24 the effective date, the application of paragraphs (1) 

25 and (2) would prevent the total number of immigrant 
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1 visas made available under paragraph (2) or (3) of 

2 section 203(b) of the Immigration and Nationality 

3 Act (8 U.S.C. 1153(b)) from being issued, such visas 

4 may be issued during the remainder of such fiscal 

5 year without regard to paragraphs (1) and (2). 

6 (4) RULES FOR CHARGEABILITY AND DEPEND7 ENTS.—Section 202(b) of the Immigration and Na8 tionality Act (8 U.S.C. 1152(b)) shall apply in deter9 mining the foreign state to which an alien is charge10 able, and section 203(d) of the Immigration and Na11 tionality Act (8 U.S.C. 1153(d)) shall apply in allo12 cating immigrant visas to dependents, for purposes of 

13 this subsection. 

14 (5) EFFECTIVE DATE DEFINED.—In this sub15 section, the term ‘‘effective date’’ means the first day 

16 of the second fiscal year beginning after the date of 

17 enactment of this Act. 

18 SEC. 3. POSTING AVAILABLE POSITIONS THROUGH THE DE19 PARTMENT OF LABOR. 

20 (a) DEPARTMENT OF LABOR WEBSITE.—Section 

21 212(n) of the Immigration and Nationality Act (8 U.S.C. 

22 1182(n)) is amended by adding at the end the following: 

23 ‘‘(6) For purposes of complying with paragraph 

24 (1)(C)— 
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1 ‘‘(A) Not later than 180 days after the date 

2 of the enactment of the Fairness for High-Skilled 

3 Immigrants Act of 2020, the Secretary of Labor 

4 shall establish a searchable internet website for 

5 posting positions in accordance with paragraph 

6 (1)(C) that is available to the public without 

7 charge, except that the Secretary may delay the 

8 launch of such website for a single period identi9 fied by the Secretary by notice in the Federal 

10 Register that shall not exceed 30 days. 

11 ‘‘(B) The Secretary may work with private 

12 companies or nonprofit organizations to develop 

13 and operate the internet website described in 

14 subparagraph (A). 

15 ‘‘(C) The Secretary shall promulgate rules, 

16 after notice and a period for comment, to carry 

17 out this paragraph.’’. 

18 (b) PUBLICATION REQUIREMENT.—The Secretary of 

19 Labor shall submit to Congress, and publish in the Federal 

20 Register and in other appropriate media, a notice of the 

21 date on which the internet website required under section 

22 212(n)(6) of the Immigration and Nationality Act, as estab23 lished by subsection (a), will be operational. 

24 (c) APPLICATION.—The amendment made by sub25 section (a) shall apply to any application filed on or after 
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1 the date that is 90 days after the date described in sub2 section (b). 

3 (d) INTERNET POSTING REQUIREMENT.—Section 

4 212(n)(1)(C) of the Immigration and Nationality Act (8 

5 U.S.C. 1182(n)(1)(C)) is amended— 

6 (1) by redesignating clause (ii) as subclause (II); 

7 (2) by striking ‘‘(i) has provided’’ and inserting 

8 the following: 

9 ‘‘(ii)(I) has provided’’; and 

10 (3) by inserting before clause (ii), as redesig11 nated by paragraph (2), the following: 

12 ‘‘(i) except in the case of an employer 

13 filing a petition on behalf of an H–1B non14 immigrant who has already been counted 

15 against the numerical limitations and is 

16 not eligible for a full 6-year period, as de17 scribed in section 214(g)(7), or on behalf of 

18 an H–1B nonimmigrant authorized to ac19 cept employment under section 214(n), has 

20 posted on the internet website described in 

21 paragraph (6), for at least 30 calendar 

22 days, a description of each position for 

23 which a nonimmigrant is sought, that in24 cludes— 
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1 ‘‘(I) the occupational classifica2 tion, and if different the employer’s job 

3 title for the position, in which the non4 immigrant(s) will be employed; 

5 ‘‘(II) the education, training, or 

6 experience qualifications for the posi7 tion; 

8 ‘‘(III) the salary or wage range 

9 and employee benefits offered; 

10 ‘‘(IV) the location(s) at which the 

11 nonimmigrant(s) will be employed; 

12 and 

13 ‘‘(V) the process for applying for a 

14 position; and’’. 

15 SEC. 4. H–1B EMPLOYER PETITION REQUIREMENTS. 

16 (a) WAGE DETERMINATION INFORMATION.—Section 

17 212(n)(1)(D) of the Immigration and Nationality Act (8 

18 U.S.C. 1182(n)(1)(D)) is amended by inserting ‘‘the pre19 vailing wage determination methodology used under sub20 paragraph (A)(i)(II),’’ after ‘‘shall contain’’. 

21 (b) NEW APPLICATION REQUIREMENTS.—Section 

22 212(n)(1) of the Immigration and Nationality Act (8 

23 U.S.C. 1182(n)(1)) is amended by inserting after subpara24 graph (G)(ii) the following: 
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1 ‘‘(H)(i) The employer, or a person or entity act2 ing on the employer’s behalf, has not advertised any 

3 available position specified in the application in an 

4 advertisement that states or indicates that— 

5 ‘‘(I) such position is only available to an 

6 individual who is or will be an H–1B non7 immigrant; or 

8 ‘‘(II) an individual who is or will be an H– 

9 1B nonimmigrant shall receive priority or a 

10 preference in the hiring process for such position. 

11 ‘‘(ii) The employer has not primarily recruited 

12 individuals who are or who will be H–1B non13 immigrants to fill such position. 

14 ‘‘(I) If the employer, in a previous period speci15 fied by the Secretary, employed one or more H–1B 

16 nonimmigrants, the employer shall submit to the Sec17 retary the Internal Revenue Service Form W–2 Wage 

18 and Tax Statements filed by the employer with re19 spect to the H–1B nonimmigrants for such period.’’. 

20 (c) ADDITIONAL REQUIREMENT FOR NEW H–1B PETI21 TIONS.— 

22 (1) IN GENERAL.—Section 212(n)(1) of the Im23 migration and Nationality Act (8 U.S.C. 1182(n)(1)), 

24 as amended by subsection (b), is further amended by 

25 inserting after subparagraph (I), the following: 
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1 ‘‘(J)(i) If the employer employs 50 or more em2 ployees in the United States, the sum of the number 

3 of such employees who are H–1B nonimmigrants plus 

4 the number of such employees who are nonimmigrants 

5 described in section 101(a)(15)(L) does not exceed 50 

6 percent of the total number of employees. 

7 ‘‘(ii) Any group treated as a single employer 

8 under subsection (b), (c), (m), or (o) of section 414 of 

9 the Internal Revenue Code of 1986 shall be treated as 

10 a single employer for purposes of clause (i).’’. 

11 (2) RULE OF CONSTRUCTION.—Nothing in sub12 paragraph (J) of section 212(n)(1) of the Immigra13 tion and Nationality Act (8 U.S.C. 1182(n)(1)), as 

14 added by paragraph (1), may be construed to prohibit 

15 renewal applications or change of employer applica16 tions for H–1B nonimmigrants employed by an em17 ployer on the date of enactment of this Act. 

18 (3) EFFECTIVE DATE.—The amendment made by 

19 this subsection shall take effect on the date that is 180 

20 days after the date of enactment of this Act. 

21 (d) LABOR CONDITION APPLICATION FEE.—Section 

22 212(n) of the Immigration and Nationality Act (8 U.S.C. 

23 1182(n)), as amended by section 3(a), is further amended 

24 by adding at the end the following: 
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1 ‘‘(7)(A) The Secretary of Labor shall promulgate a reg2 ulation that requires applicants under this subsection to 

3 pay an administrative fee to cover the average paperwork 

4 processing costs and other administrative costs. 

5 ‘‘(B)(i) Fees collected under this paragraph shall be 

6 deposited as offsetting receipts within the general fund of 

7 the Treasury in a separate account, which shall be known 

8 as the ‘H–1B Administration, Oversight, Investigation, and 

9 Enforcement Account’ and shall remain available until ex10 pended. 

11 ‘‘(ii) The Secretary of the Treasury shall refund 

12 amounts in such account to the Secretary of Labor for sala13 ries and related expenses associated with the administra14 tion, oversight, investigation, and enforcement of the H–1B 

15 nonimmigrant visa program.’’. 

16 (e) ELIMINATION OF B–1 IN LIEU OF H–1.—Section 

17 214(g) of the Immigration and Nationality Act (8 U.S.C. 

18 1184(g)) is amended by adding at the end the following: 

19 ‘‘(12)(A) Unless otherwise authorized by law, an alien 

20 normally classifiable under section 101(a)(15)(H)(i) who 

21 seeks admission to the United States to provide services in 

22 a specialty occupation described in paragraph (1) or (3) 

23 of subsection (i) may not be issued a visa or admitted under 

24 section 101(a)(15)(B) for such purpose. 
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1 ‘‘(B) Nothing in this paragraph may be construed to 

2 authorize the admission of an alien under section 

3 101(a)(15)(B) who is coming to the United States for the 

4 purpose of performing skilled or unskilled labor if such ad5 mission is not otherwise authorized by law.’’. 

6 SEC. 5. INVESTIGATION AND DISPOSITION OF COMPLAINTS 

7 AGAINST H–1B EMPLOYERS. 

8 (a) INVESTIGATION, WORKING CONDITIONS, AND PEN9 ALTIES.—Section 212(n)(2)(C) of the Immigration and Na10 tionality Act (8 U.S.C. 1182(n)(2)(C)) is amended by strik11 ing clause (iv) and inserting the following: 

12 ‘‘(iv)(I) An employer that has filed an application 

13 under this subsection violates this clause by taking, failing 

14 to take, or threatening to take or fail to take a personnel 

15 action, or intimidating, threatening, restraining, coercing, 

16 blacklisting, discharging, or discriminating in any other 

17 manner against an employee because the employee— 

18 ‘‘(aa) disclosed information that the employee 

19 reasonably believes evidences a violation of this sub20 section or any rule or regulation pertaining to this 

21 subsection; or 

22 ‘‘(bb) cooperated or sought to cooperate with the 

23 requirements under this subsection or any rule or reg24 ulation pertaining to this subsection. 
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1 ‘‘(II) An employer that violates this clause shall be lia2 ble to the employee harmed by such violation for lost wages 

3 and benefits. 

4 ‘‘(III) In this clause, the term ‘employee’ includes— 

5 ‘‘(aa) a current employee; 

6 ‘‘(bb) a former employee; and 

7 ‘‘(cc) an applicant for employment.’’. 

8 (b) INFORMATION SHARING.—Section 212(n)(2)(H) of 

9 the Immigration and Nationality Act (8 U.S.C. 

10 1182(n)(2)(H)) is amended to read as follows: 

11 ‘‘(H)(i) The Director of U.S. Citizenship and Immi12 gration Services shall provide the Secretary of Labor with 

13 any information contained in the materials submitted by 

14 employers of H–1B nonimmigrants as part of the petition 

15 adjudication process that indicates that the employer is not 

16 complying with visa program requirements for H–1B non17 immigrants. 

18 ‘‘(ii) The Secretary may initiate and conduct an in19 vestigation and hearing under this paragraph after receiv20 ing information of noncompliance under this subpara21 graph.’’. 

22 SEC. 6. LABOR CONDITION APPLICATIONS. 

23 (a) APPLICATION REVIEW REQUIREMENTS.—Section 

24 212(n)(1) of the Immigration and Nationality Act (8 
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1 U.S.C. 1182(n)(1)) is amended, in the undesignated matter 

2 following subparagraph (I), as added by section 4(b)— 

3 (1) in the fourth sentence, by inserting ‘‘, and 

4 through the internet website of the Department of 

5 Labor, without charge.’’ after ‘‘Washington, D.C.’’; 

6 (2) in the fifth sentence, by striking ‘‘only for 

7 completeness’’ and inserting ‘‘for completeness, clear 

8 indicators of fraud or misrepresentation of material 

9 fact,’’; 

10 (3) in the sixth sentence, by striking ‘‘or obvi11 ously inaccurate’’ and inserting ‘‘, presents clear in12 dicators of fraud or misrepresentation of material 

13 fact, or is obviously inaccurate’’; and 

14 (4) by adding at the end the following: ‘‘If the 

15 Secretary’s review of an application identifies clear 

16 indicators of fraud or misrepresentation of material 

17 fact, the Secretary may conduct an investigation and 

18 hearing in accordance with paragraph (2).’’. 

19 (b) ENSURING PREVAILING WAGES ARE FOR AREA OF

20 EMPLOYMENT AND ACTUAL WAGES ARE FOR SIMILARLY

21 EMPLOYED.—Section 212(n)(1)(A) of the Immigration and 

22 Nationality Act (8 U.S.C. 1182(n)(1)(A)) is amended— 

23 (1) in clause (i), in the undesignated matter fol24 lowing subclause (II), by striking ‘‘and’’ at the end; 
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1 (2) in clause (ii), by striking the period at the 

2 end and inserting ‘‘, and’’; and 

3 (3) by adding at the end the following: 

4 ‘‘(iii) will ensure that— 

5 ‘‘(I) the actual wages or range 

6 identified in clause (i) relate solely to 

7 employees having substantially the 

8 same duties and responsibilities as the 

9 H–1B nonimmigrant in the geo10 graphical area of intended employ11 ment, considering experience, qualifica12 tions, education, job responsibility and 

13 function, specialized knowledge, and 

14 other legitimate business factors, except 

15 in a geographical area there are no 

16 such employees, and 

17 ‘‘(II) the prevailing wages identi18 fied in clause (ii) reflect the best avail19 able information for the geographical 

20 area within normal commuting dis21 tance of the actual address of employ22 ment at which the H–1B non23 immigrant is or will be employed.’’. 
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1 (c) PROCEDURES FOR INVESTIGATION AND DISPOSI2 TION.—Section 212(n)(2)(A) of the Immigration and Na3 tionality Act (8 U.S.C. 1182(n)(2)(A)) is amended— 

4 (1) by striking ‘‘(2)(A) Subject’’ and inserting 

5 ‘‘(2)(A)(i) Subject’’; 

6 (2) by striking the fourth sentence; and 

7 (3) by adding at the end the following: 

8 ‘‘(ii)(I) Upon receipt of a complaint under 

9 clause (i), the Secretary may initiate an inves10 tigation to determine whether such a failure or 

11 misrepresentation has occurred. 

12 ‘‘(II) The Secretary may conduct— 

13 ‘‘(aa) surveys of the degree to which 

14 employers comply with the requirements 

15 under this subsection; and 

16 ‘‘(bb) subject to subclause (IV), annual 

17 compliance audits of any employer that em18 ploys H–1B nonimmigrants during the ap19 plicable calendar year. 

20 ‘‘(III) Subject to subclause (IV), the Sec21 retary shall— 

22 ‘‘(aa) conduct annual compliance au23 dits of each employer that employs more 

24 than 100 full-time equivalent employees who 

25 are employed in the United States if more 
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1 than 15 percent of such full-time employees 

2 are H–1B nonimmigrants; and 

3 ‘‘(bb) make available to the public an 

4 executive summary or report describing the 

5 general findings of the audits conducted 

6 under this subclause. 

7 ‘‘(IV) In the case of an employer subject to 

8 an annual compliance audit in which there was 

9 no finding of a willful failure to meet a condi10 tion under subparagraph (C)(ii), no further an11 nual compliance audit shall be conducted with 

12 respect to such employer for a period of not less 

13 than 4 years, absent evidence of misrepresenta14 tion or fraud.’’. 

15 (d) PENALTIES FOR VIOLATIONS.—Section 

16 212(n)(2)(C) of the Immigration and Nationality Act (8 

17 U.S.C. 1182(n)(2)(C)) is amended – 

18 (1) in clause (i)— 

19 (A) in the matter preceding subclause (I), 

20 by striking ‘‘a condition of paragraph (1)(B), 

21 (1)(E), or (1)(F)’’ and inserting ‘‘a condition of 

22 paragraph (1)(B), (1)(E), (1)(F), (1)(H), or 

23 1(I)’’; and 

24 (B) in subclause (I), by striking ‘‘$1,000’’ 

25 and inserting ‘‘$3,000’’; 
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1 (2) in clause (ii)(I), by striking ‘‘$5,000’’ and 

2 inserting ‘‘$15,000’’; 

3 (3) in clause (iii)(I), by striking ‘‘$35,000’’ and 

4 inserting ‘‘$100,000’’; and 

5 (4) in clause (vi)(III), by striking ‘‘$1,000’’ and 

6 inserting ‘‘$3,000’’. 

7 (e) INITIATION OF INVESTIGATIONS.—Section 

8 212(n)(2)(G) of the Immigration and Nationality Act (8 

9 U.S.C. 1182(n)(2)(G)) is amended— 

10 (1) in clause (i), by striking ‘‘In the case of an 

11 investigation’’ in the second sentence and all that fol12 lows through the period at the end of the clause; 

13 (2) in clause (ii), in the first sentence, by strik14 ing ‘‘and whose identity’’ and all that follows through 

15 ‘‘failure or failures.’’ and inserting ‘‘the Secretary of 

16 Labor may conduct an investigation into the employ17 er’s compliance with the requirements under this sub18 section.’’; 

19 (3) in clause (iii), by striking the second sen20 tence; 

21 (4) by striking clauses (iv) and (v); 

22 (5) by redesignating clauses (vi), (vii), and (viii) 

23 as clauses (iv), (v), and (vi), respectively; 

24 (6) in clause (iv), as so redesignated— 
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1 (A) by striking‘‘clause (viii)’’ and inserting 

2 ‘‘clause (vi)’’; and 

3 (B) by striking ‘‘meet a condition described 

4 in clause (ii)’’ and inserting ‘‘comply with the 

5 requirements under this subsection’’; 

6 (7) by amending clause (v), as so redesignated, 

7 to read as follows: 

8 ‘‘(v)(I) The Secretary of Labor shall provide 

9 notice to an employer of the intent to conduct an 

10 investigation under clause (i) or (ii). 

11 ‘‘(II) The notice shall be provided in such a 

12 manner, and shall contain sufficient detail, to 

13 permit the employer to respond to the allegations 

14 before an investigation is commenced. 

15 ‘‘(III) The Secretary is not required to com16 ply with this clause if the Secretary determines 

17 that such compliance would interfere with an ef18 fort by the Secretary to investigate or secure 

19 compliance by the employer with the require20 ments of this subsection. 

21 ‘‘(IV) A determination by the Secretary 

22 under this clause shall not be subject to judicial 

23 review.’’; 

24 (8) in clause (vi), as so redesignated, by striking 

25 ‘‘An investigation’’ in the first sentence and all that 
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1 follows through ‘‘the determination.’’ in the second 

2 sentence and inserting ‘‘If the Secretary of Labor, 

3 after an investigation under clause (i) or (ii), deter4 mines that a reasonable basis exists to make a finding 

5 that the employer has failed to comply with the re6 quirements under this subsection, the Secretary shall 

7 provide interested parties with notice of such deter8 mination and an opportunity for a hearing in ac9 cordance with section 556 of title 5, United States 

10 Code, not later than 60 days after the date of such de11 termination.’’; and 

12 (9) by adding at the end the following: 

13 ‘‘(vii) If the Secretary of Labor, after a 

14 hearing, finds that the employer has violated a 

15 requirement under this subsection, the Secretary 

16 may impose a penalty pursuant to subparagraph 

17 (C).’’. 

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

19 IMMIGRANTS. 

20 (a) ADJUSTMENT OF STATUS FOR EMPLOYMENT21 BASED IMMIGRANTS.— 

22 (1) IN GENERAL.—Section 245 of such Act (8 

23 U.S.C. 1255) is amended by adding at the end the fol24 lowing: 
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1 ‘‘(n) ADJUSTMENT OF STATUS FOR EMPLOYMENT2 BASED IMMIGRANTS.— 

3 ‘‘(1) IN GENERAL.—An alien who has status 

4 under section 214, other than an alien described in 

5 subsection (c) (as remedied by subsection (k), as 

6 amended by the Fairness for High-Skilled Immi7 grants Act of 2020) or subparagraph (B) or (C) of 

8 section 101(a)(15), and any eligible dependents of 

9 such alien, who has filed a petition or on whose behalf 

10 a petition has been filed for immigrant status pursu11 ant to subparagraph (E) or (F) of section 204(a)(1), 

12 may file an application with the Secretary of Home13 land Security for adjustment of status if such petition 

14 was approved not less than two years before the date 

15 on which the application for adjustment of status is 

16 filed, regardless of whether an immigrant visa is im17 mediately available on that date. For any dependent 

18 child who files an application under this subsection, 

19 that individual may continue to qualify as a depend20 ent child for purposes of the application regardless of 

21 the individual’s age or whether the principal bene22 ficiary is deceased at the time an immigrant visa be23 comes available. Except as otherwise provided in 

24 paragraphs (3), (4), and (5), an alien who files an 

25 application under this subsection shall be eligible for 
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1 work authorization and travel permission on the same 

2 terms as an alien who files an application under sub3 section (a). 

4 ‘‘(2) AVAILABILITY.—An adjustment of status 

5 application filed pursuant to paragraph (1) may not 

6 be approved until the date on which an immigrant 

7 visa becomes available. An admissible alien who has 

8 properly filed such an application shall have the same 

9 status as an alien who files under subsection (a). 

10 ‘‘(3) DUTIES, HOURS, AND COMPENSATION.—The 

11 terms and conditions of a qualifying employment po12 sition offered to an alien who has filed a petition or 

13 on whose behalf a petition has been filed, for immi14 grant status pursuant to subparagraph (E) or (F) of 

15 section 204(a)(1), including duties, hours, and com16 pensation, during the period following the filing of an 

17 application for adjustment under paragraph (1) and 

18 before a visa becomes immediately available, must be 

19 commensurate with the terms and conditions applica20 ble to the employer’s similarly situated United States 

21 workers in the area of employment. If the employer 

22 does not employ and has not recently employed more 

23 than two similarly situated U.S. workers in the area 

24 of employment, the employer nevertheless remains ob25 ligated to attest that the terms and conditions of the 
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1 alien’s employment are commensurate with the terms 

2 and conditions of employment for other similarly sit3 uated United States workers in the area of employ4 ment. ‘Similarly situated United States workers’ in5 cludes United States workers performing similar du6 ties, subject to similar supervision, and with similar 

7 educational backgrounds, industry expertise, employ8 ment experience, levels of responsibility, and skill sets 

9 as the alien in the same geographic area of employ10 ment as the alien. The duties, hours, and compensa11 tion of such aliens are ‘commensurate’ with those of12 fered to United States workers employed by the em13 ployer in the same area of employment when the em14 ployer can show that the duties, hours, and compensa15 tion are consistent with the range of such terms and 

16 conditions the employer has offered or would offer to 

17 similarly situated United States employees. 

18 ‘‘(4) ENFORCEMENT.—A principal applicant ap19 plying for adjustment pursuant to paragraph (1) 

20 shall file a Confirmation of Bona Fide Job Offer or 

21 Portability with any request for an employment au22 thorization document. Any employment authorization 

23 document issued to such a principal applicant shall 

24 expire after three years, and another Confirmation of 

25 Bona Fide Offer or Portability shall be filed with any 
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1 request for a renewal of employment authorization. 

2 No final decision on an application under paragraph 

3 (1) may be issued without a filing of a Confirmation 

4 of Bona Fide Job Offer or Portability by the prin5 cipal applicant received within 12 months of such de6 cision. A principal applicant shall provide sufficient 

7 information to verify compliance with paragraph (3), 

8 and an indication that the filing is to ensure compli9 ance for an adjustment applicant under this sub10 section, when the applicant files a Confirmation. A 

11 principal applicant shall also provide a signed letter 

12 from his or her current or prospective employer attest13 ing that the terms and conditions of the alien’s em14 ployment are commensurate with the terms and con15 ditions of employment for other similarly situated 

16 United States workers in the area of employment. If 

17 a required Confirmation is not timely received by 

18 United States Citizenship and Immigration Services, 

19 the underlying Application to Adjust Status filed 

20 under paragraph (1), including the applications for 

21 eligible dependents, shall be denied. In adjudicating 

22 the Application to Adjust Status, when an immigrant 

23 visa becomes available, United States Citizenship and 

24 Immigration Services shall request the filing of a 

25 Confirmation of Bona Fide Job Offer or Portability 
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1 if a Confirmation of Bona Fide Job Offer or Port2 ability has not been filed within the previous 12 

3 months and may consider the validity of any Con4 firmation filing that has not already been reviewed 

5 and found satisfactory. If the most recent Confirma6 tion filing or prior filings not previously found satis7 factory do not warrant a finding of compliance with 

8 section 204(j) or paragraph (3), United States Citi9 zenship and Immigration Services shall issue a Notice 

10 of Intent to Deny the underlying Application to Ad11 just Status providing an opportunity for further evi12 dence to be submitted on such deficiency after which 

13 any applicant that does not meet his or her burden 

14 of proof shall receive a denial of the underlying Ap15 plication to Adjust Status and the applications of eli16 gible dependents. 

17 ‘‘(5) LIMITATION ON WORK AUTHORIZATION.— 

18 An alien who was neither authorized to work nor eli19 gible to request work authorization at the time an ap20 plication was filed under paragraph (1) shall not be 

21 eligible to receive work authorization pursuant to 

22 paragraph (1) or section 274a.12(c)(9) of title 8, Code 

23 of Federal Regulations. 

24 ‘‘(6) CONFIRMATIONS OF BONA FIDE JOB OFFER

25 OR PORTABILITY FEE.— 
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1 ‘‘(A) IN GENERAL.— Notwithstanding any 

2 other provision of law, the Secretary of Home3 land Security shall charge and collect a fee in 

4 the amount of $2,000 for each Confirmation of 

5 Bona Fide Job Offer or Portability filed under 

6 this subsection. 

7 ‘‘(B) DEPOSITS.—The fees collected under 

8 subparagraph (A) shall be deposited and used as 

9 follows: 

10 ‘‘(i) Fifty percent of such fees shall be 

11 deposited into the Immigration Examina12 tions Fee Account established by section 

13 286(m) and available as provided in this 

14 subsection. 

15 ‘‘(ii) Fifty percent of such fees shall be 

16 deposited into the Treasury as miscella17 neous receipts.’’. 

18 (b) CONFORMING AMENDMENT.— Section 245(k) of the 

19 Immigration and Nationality Act (8 U.S.C. 1255(k)) is 

20 amended by adding ‘‘or (n)’’ after ‘‘pursuant to subsection 

21 (a)’’. 

22 (c) EFFECTIVE DATE.— 

23 (1) This section and the amendments made by 

24 this section— 
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1 (A) shall take effect one year after the date 

2 of enactment of this Act; and 

3 (B) except as provided in paragraph (2), 

4 shall cease to have effect as of the date that is 

5 nine years after that date of enactment. 

6 (2) This section shall continue in effect with re7 spect to any alien who has filed an application under 

8 this section any time prior to the date on which this 

9 section otherwise ceases to have effect. 

10 SEC. 8. LIMIT ON ADJUSTMENT OF STATUS FROM H–1B 

11 NONIMMIGRANT OR H–4 NONIMMIGRANT TO 

12 EB IMMIGRANT. 

13 (a) IN GENERAL.—Section 245 of the Immigration 

14 and Nationality Act (8 U.S.C. 1235), as amended by section 

15 7, is further amended by adding at the end the following: 

16 ‘‘(o) LIMIT ON ADJUSTMENT OF STATUS FROM H–1B 

17 NONIMMIGRANT OR H–4 NONIMMIGRANT TO EB IMMI18 GRANT.— 

19 ‘‘(1) IN GENERAL.—In applying this section to 

20 an alien who is (or has been during the most recent 

21 2-year period) a nonimmigrant described in section 

22 101(a)(15)(H)(i)(b), or to the spouse or any minor 

23 children of such alien who is (or has been during the 

24 most recent 2-year period) an H–4 nonimmigrant— 
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1 ‘‘(A) the number of such aliens (including 

2 the spouses and children of such aliens) granted 

3 an adjustment of status to that of an immigrant 

4 described in section 203(b) or otherwise issued 

5 an immigrant visa under this Act in a fiscal 

6 year— 

7 ‘‘(i) during the period beginning on the 

8 date of enactment of this subsection and 

9 ending on the date on which the ninth fiscal 

10 year after the effective date ends, may not 

11 exceed 70 percent of the total number of em12 ployment-based immigrants admitted in 

13 such fiscal year; and 

14 ‘‘(ii) after the date on which the ninth 

15 fiscal year after the effective date ends, may 

16 not exceed 50 percent of the total number of 

17 employment-based immigrants admitted in 

18 such fiscal year; and 

19 ‘‘(B) the limitations set forth in subpara20 graph (A) shall not apply to any such alien (or 

21 the spouse or children of such alien) if such 

22 alien— 

23 ‘‘(i) has graduated from medical school 

24 and will be performing services in the 
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1 United States as a member of the medical 

2 profession; or 

3 ‘‘(ii) has been granted a national in4 terest waiver by U.S. Citizenship and Im5 migration Services under section 

6 203(b)(2)(B). 

7 ‘‘(2) EFFECTIVE DATE DEFINED.—In this sub8 section, the term ‘effective date’ means the first day 

9 of the second fiscal year beginning after the date of 

10 enactment of this subsection.’’. 

11 (b) UNUSED EMPLOYMENT-BASED IMMIGRANT

12 VISAS.—Any immigrant visas reserved under section 

13 203(b) of the Immigration and Nationality Act (8 U.S.C. 

14 1153(b)) for employment-based immigrants that are not 

15 needed for an employment-based immigrant may be issued 

16 to aliens described in subparagraph in section 

17 101(a)(15)(H)(i)(b) of the Immigration and Nationality 

18 Act (8 U.S.C. 1101(a)(15)(H)(i)(b)). 

19 SEC. 9. PROHIBITION ON ADMISSION OR ADJUSTMENT OF 

20 STATUS OF ALIENS AFFILIATED WITH THE 

21 MILITARY FORCES OF THE PEOPLE’S REPUB22 LIC OF CHINA OR THE CHINESE COMMUNIST 

23 PARTY. 

24 The Secretary of Homeland Security shall not adjust 

25 status of any alien affiliated with the military forces of the 
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1 People’s Republic of China or the Chinese Communist 

2 Party, as determined by the Secretary of Homeland Secu3 rity, in consultation with the Secretary of State, the Sec4 retary of Defense, the Attorney General, the Secretary of 

5 the Treasury, and the Director of National Intelligence. 

Attest: 

Secretary. 

116TH CONGRESS 

2D SESSION H.R. 1044 

AMENDMENT