Many of the foreign working professionals in US on non-immigrant visas such as H1B visa or L1 visa usually apply for Green Card to become permanent resident in US. Per country numerical limits for issuance of green cards is one of the biggest factors that determines how soon they will be able to get their green cards. Recently, House passed a similar one called HR 1044 Bill that eliminates per country limits for employment based petitions. In this article, we will look at the complete details of S386 Bill, Amendment added by Senator Grassley, why it is on hold, its chances of passing, including current status and latest updates.
Latest Update from December 3rd, 2020
All the text of S386 was added to HR 1044 and it was voted in Senate. Senator Mike Lee just asked for Unanimous consent in Senate and it was passed without any objection. It has many provisions like 9 Year Transition Period, Limits for H1B, Changs to H1B Program, LCA requirements, Adjustment of Status, many other topics. It is a 36 page Bill. We have wrote a detail article with all these covered, read the COMPLETE Summary of the HR1044 Bill Passed in Senate.
Note : The below S386 version and details are before December 2nd, 2020. Check the latest passed S386 / HR 1044 bill at : COMPLETE Summary of the HR1044 Bill Passed in Senate.
What is S. 386 Bill ? 5 Key Points in the S 386 Bill in Senate ?
S. 386 Bill is also referred to as ‘‘Fairness for High-Skilled Immigrants Act of 2019’’, is a bill that was introduced in the US Senate by a group of 14 Senators like Mr. Lee, Ms. Harris. As the bill originated in Senate, it starts with an ‘S.’ The bill text is pretty much the same as the HR 1044 Bill ( Read HR 1044 Bill – Key Points, Chances, Summary), it is just that this one was introduced in the Senate. Below are the 5 key points that are part of the S. 386 to eliminate per country green card limits. You may skip the below 5 key points, if you know HR 1044 bill and go to Amendment directly.
1. Eliminate the Per Country Limits for Employment Based Green Card Petitions:
The per country limits for green cards are defined in Immigration and Nationality Act (INA) Section 202(a)(2), that states that out of the 140,000 employment based green card petitions allotted each year, 7% (9,800) is the maximum limit any country can get. The rationale behind the bill is that, as the Green Cards are given based on employment in this category and there should not be any discrimination or limit based on country of origin. Also, it is not fair to have same 7% country limits for small country like Iceland with 338K population vs India with 1.39 Billion population. As you can see below in screenshot from bill text, where they say that the text in INA has to be amended as below.
Also, below you can see the INA text, where it has “and employment-based immigrants”, which they ask to strike out
2. Increase per country limits for family sponsored Green Card petitions :
If you notice closely in above screenshots, the previous text in INA says 7% limit, now with the new text to be replaced in INA, it says to be modified to 15%. Essentially the bill would change the limit for family sponsored green cards per country limit from 7% to 15 %.
3. Transition Rules for Employment Green Card Petitions from FY 2020 to FY 2022 :
The transition rules are in place to make sure big countries, such as India or China do not take up everything in the first few years.
- For Fiscal Year 2020 ( Oct 2019 – Sept 2020) : 15% of employment based green cards should be allocated to immigrants from of two non-major foreign states ( like India, China). Basically, 15% reserved for rest of the countries and only 85% to be allocated to major countries like India, China.
- For Fiscal Year 2021 ( Oct 2020 – Sept 2021) : 10% of employment based green cards should be allocated to immigrants of two non-major foreign states ( like India, China). Basically, 10% reserved for rest of the countries and only 90% to be allocated to major countries like India, China.
- For Fiscal Year 2022 ( Oct 2021 – Sept 2022) : 10% of employment based green cards should be allocated to immigrants of two non-major foreign states ( like India, China). Basically, 10% reserved for rest of the countries and only 90% to be allocated to major countries like India, China.
- After Fiscal Year 2022 ( From October 2022), there will NOT be any reservations for non-major foreign states.
4. Per Country limits in the Transition Rules for Employment Based from FY 2020 to FY 2022:
- Reserved Visas: In the above mentioned reservation of 15% and 10% for non-major states during transition period, the number of visas for any foreign country (that is a non-major state) shall not exceeded 25% or 2% for dependent areas ( these are not independent countries, but dependent colonies, parts of certain countries like French Polynesia of France. Read on State.gov – Dependent areas ) of the total reserved visas. Meaning that any country that is part of the non-major countries list (not like India, China) cannot take up more than 25% of the total reserved visas/green cards.
- Unreserved Visas: During the transition period of FY 2020, 2021, 2022 as mentioned above, for the all the un-reserved visas ( basically 85% in FY 2020, 90% in FY 2021, FY 2022), not more than 85% of visas should be allocated to single country. Essentially, they are telling that of the un-reserved portion cannot be taken up by one country alone and the maximum they can take is 85% of the quota. E.g. India or China can only take up 85% maximum from the 85% pool in FY 2020
- Special Rule to prevent Unused Visas : During the transition period of FY 2020, 2021 and 2022, if any of the visas are left over or unused due the clauses as listed above like per country levels, and reservations, then such visas should be given to remaining ones in line without applying such restrictions.
5. Current Approved Beneficiaries in line – Transition Rule:
To prevent harm to anyone waiting for green card, a clause is added. It says that, if you are already waiting in line for Green Card with approved I-140, you would either have same or shorter wait time, after this bill is passed. The intent of this clause is not to harm or impact people already waiting in line for Green Card with priority date. The goal of the clause is to prevent someone applying today for I-140 and getting ahead of someone, who has been waiting in line before the passing of this new rule.
For Official Text, info, status Check S. 386 Bill Text on Congress.gov
What happened to S 386 Bill after it was introduced in Senate ? Total Sponsors.
After the bill was introduced in Senate in Feb 2019, the total co-sponsors for the Bill grew from 14 to 34 members until now. As per the Steps on How a Bill Becomes Law in US, similar to any bill in house, senate bill also has to go through the respective committees and then goes for the senate floor for debate, then voting. In case of S.386 as part of that committee process, there were few H1B related amendments introduced by Judiciary committee Senator Chuck Grassley. Let’s look at them.
On July 9th, 2019, Senator Chuck Grassley included many H1B program and Labor condition application(LCA) related provisions as amendment to the original bill. Below are those amendments. If you are not familiar with LCA, first read What is Labor Condition Application (LCA), Why file it?
- Post H1B Jobs on Department of Labor : within 180 days from the date the bill passes, Department of Labor(DOL) should setup a “Searchable Internet website” to post the H1B positions that are available to be viewed by public for free. The job has to be posted for at least 30 days on the website and has to have all the below information :
- Job Description, Title, Occupational classification, education, training and experience required.
- Salary and wage details, employment benefits
- Location of the employment
- Process to apply for the position.
- DOL may work with private companies, non-profit orgs to development and manage the H1B jobs website.
- See below screenshot of the actual amendment text
- H1B Employer Application Requirements for New Applications : As per the amendments, below are the various rules that need to be complied by the employer when they do recruiting for open positions.
- For new applications, the employer or anyone hiring on behalf of employer should not advertise the position saying that it is available only to H1B holders and there will be priority for H1B applicants.
- If the employer already has H1B workers, they need to submit the IRS W-2 forms related to H1B workers to the DOL Secretary.
- The LCA should also have the prevailing wage determining methodology information.
- New LCA Fee : Currently, there is no fee for filing LCAs. In the new proposed rules, for administrative expenses, DOL has to come up with a fee for LCA filing and tracked under an account called ‘H–1B Administration, Oversight, Investigation, and Enforcement Account’ and used for H1B program by DOL.
- Elimination of B1 visa in lieu ( instead) of H1B : It says that US State department should not issue B-1 visa for short term work contracts, instead of H1B visa. In general, even today B1 should not be used for short term projects. The goal of this point is to weed out companies trying to eliminate LCA process and H1B for any short term work. This is something that many companies use and abuse as well for short term projects, the trick is in the enforcement.
- H1B Employers Investigation and enforcement, LCA Reviews : There are many clauses like below added to enforce the LCA measures and tackle violations by employers.
- Additional protections for employees who report violations of employers related to wages or LCA provisions
- Information sharing between USCIS and DOL regarding the H1B petitions that can be used by DOL for enforcement and compliance.
- Additional authority for Dept of Labor (DOL) to review the LCA beyond just the completeness of the LCA form and to look for any fraud or false information by employers.
- Prevailing wage enforcements to make sure the employers are obligated to pay the actual wages that are there in a particular geographic area for similar experience, job role with similar duties.
- If there are complaints, DOL may initiate investigations in detail. Also, DOL may conduct surveys and annual audits for LCA compliance.
- DOL to conduct annual compliance audits for employers with more than 100 employees and have 15% of the workforce as H1B. Annual reports on audit and compliance for public review.
- The penalties amount paid by employers for violations are modified to be more for anyone who violates any of the rules of LCA.
- Expansion of DOL’s authority to conduct investigations based on anonymous complaints, where DOL would provide notice and details to respond before investigation. Also, if DOL finds the employer did not comply requirements, such info maybe shared with interested parties, and a hearing with them within 60 days. Also, penalties will be imposed, if found any violations.
You can read the official text of the amendments of S 386 on Congress.gov
S 386 Blocked by Senator Rand Paul – Reason : Carve out for Nurses
In July, the bill was brought on to the floor but was blocked by Senator Rand Paul for voting. The reason for blocking or hold is that Senator Paul wants to introduce carve out ( set aside some amount) for nurses. The argument for carve out for nurses is that, nurses in general are not eligible for H1B and cannot work while waiting for their green cards. If S. 386 passes in its form, it will have a big impact on wait times for nurses, who apply using EB-3 quota. Currently, majority of the nurses using EB-3 are from Philippines and there is no wait time. If S. 386 passes as it is, it will add up wait time for nurses by few years to a decade as major countries like India will take up most of the available quota. That’s the reason Senator Rand Paul wants to carve out for Nurses.
Update : The hold was removed by Sen. Rand Paul as his request was added to the new Amended HR 1044 Bill that is pretty much updated with text from S.386. Read Amended HR 1044 Bill with S. 386 Details
Latest News Updates, Status of S.386 Bill:
December 2nd, 2020 : Senator Mike Lee asked for Unanimous consent in Senate for HR1044 / S386 with some amendments and it was passed without any objection. What is not clear is, “what is the final version of the bill that was passed with amendments and what it includes and what it does not”. This is developing news, we will post the detail article, once we have Official Congressional Record. Stay Tuned.
We are tracking all the news separately by date in separate page as it is lengthy. Check out article at : Latest news updates on the S.386 and HR 1044
What are the chances of S. 386 Bill to pass in Senate?
Even though HR 1044 was passed in House with a big majority, S. 386 path to pass in Senate is rather very steep. In general, in Senate to go for voting, you need unanimous consent, but any senator or group of senators can put on a hold or block it at this point. If they do not remove hold and intend to continue debate, it is called filibuster (endless debate). To get out of it you need 60 votes called Cloture to get out of it. If you want more, read How a Bill becomes Law in US.
In S. 386 bill context, there were holds by few senators and they all were removed with some agreements. But, as of July 24th, 2020, the primary hold is by Senator Durbin. There were discussions between him and Senator Lee for a long time since Dec 2019, but they fell apart due to various reasons. There was heated argument in Senate on Jul 21st, Jul 22nd as both objected other’s UC request.
Now, if current sponsors of the Bill headed by Senator Mike Lee S. 386 goes to next step by accommodating many of these items, the risk is that other Senators may come up again and also put holds and add on some other amendments as riders ( amendments that may not be relevant to the bill) and further make it difficult to pass. We do not know at this point, if someone else would come and again stop the bill. So, as it stands today, unless the co-sponsors of the bill hit at least 60, the chances of the bill going forward are in risky position.
What do you think of the S. 386 Bill ? What are its chances in your view in Senate ?