By: Chris Musillo

The Fairness for High Skilled Immigrants Act has been a hot legislative item all year. On several occasions, the bill has looked to be set into law, until a last minute Senate hold out has blocked the law’s progress. One of the final holdouts, Sen. Durbin (D-IL), has just agreed to a compromise with Sen. Mike Lee (R-UT). Sen. Lee is bill’s lead sponsor.

The bill, including Sen. Durbin’s amendments, would make these changes to Employment-Based Immigration:

Changes to the Green Card Quota and Process
  • Eliminate the per-country visa caps on employment-based workers over a three-year phase in period. This will speed up processing Indian EB2 and EB3 retrogressed immigrants.
  • Allow all nonimmigrants in the US to file an I-485 Adjustment of Status 270 days (9 months) after the filing of their I-140, Petition for Alien Worker. This will allow more job flexibility and protect Indian and Chinese H-1B and L-1 workers and their immediate families. These Adjustment applicants must maintain qualifying employment and the entire family will retain their priority dates even if they would otherwise age-out. This provides a great relief to long-retrogressed families.
  • There is a 4,400 visa carve-out for Schedule A workers. As with current law, their immediate family members also take visas at the same time. This provision will end in 2026.
  • There is also a second carve-out for non-Indian and Chinese nationals who have not worked in the US. Our sense is that this will largely be used by non-H-1B occupations, such as Registered Nurses. This provision ends in nine years.

Changes to the H-1B visa
  • Employers with more than 50% H-1B / L-1 workers would be barred from the H-1B program.
  • H-1B Cap petitions must be posted on an on-line government job board prior to the filing of the H-1B cap petition.
  • Elimination of the B-1 in Lieu of H-1B business visa rule.
  • Additional wage protection for H-1B workers.
  • Additional protections for H-1B whistleblowers.

Next Steps
Sen. Lee is expected to try to pass the bill in the Senate this week, perhaps as soon as today. The bill will need to go back to the House of Representatives, where it is expected to pass, perhaps before the end of the year. After that the President will need to sign the Bill into law, which is expected.