S386 / H1044 Amended Bill after Lee, Durbin Deal – H1B, 5.75%, AOS

As many of you know S386 / HR 1044 Bill have been stuck in Senate due to hold by Sen. Durbin. There seems to be a compromise between Sen. Lee and Sen. Durbin as we see a draft of the amended bill circulating around.  The below summary is based on the draft copy of the S.386 / HR 1044 amended bill that is circulating around in social media. The official amended bill is not introduced in Senate yet. So, there could be changes as well based on feedback from everyone…

Brief History of HR 1044, S386 Bills until Now

Back in early July 2019, HR 1044 Bill to Remove Per Country Limits was passed in House and was introduced in Senate and assigned to Senate Judiciary Committee.  Also, around the same time in Senate, we had a similar Bill S. 386, which was more or less like HR 1044 Bill, that was amended as per Senator Grassley’s request adding clauses of H1B, LCA related topics.  Later, Senator Rand Paul blocked it and eventually made a deal with Sen. Lee by adding amendments to S386/HR 1044 with nurses carve out (set aside some amount). After that, again it was blocked by Sen. Durbin couple of times in Senate…There has been a lot of debate on this bill since then by many groups and eventually there seems to be a deal made between Sen. Durbin & Sen. Lee. The below amended draft is based on that.  Let’s look at the draft of amended bill.

Summary of Draft S386 / HR 1044 bill with Sen. Durbin Amendments    

The draft bill is 31 pages. While many call the bill as S. 386, the actual text says HR 1044. The reason is that, the amendments are added on top of the HR 1044 bill that was already passed in House. So, do not be confused, both are technically leading to the same for final vote.  Below are the amendments/ changes added based on agreement with Sen. Durbin. We are only covering the amendments or changes to the previous text of S386 / HR 1044. You can read previous articles  HR 1044 Original Bill Summary and  Amended HR1044 / S386 – Nurses, H1B to get an idea of the overall bill text before that.

Transition Rules Text Changes :  

The previous text of the bill had transition rules for the employment based green cards reserved for applicants from countries other than two major states ( like India, China ) with years specified like FY 2020, 21, etc. The text changed slightly by removing years to include it as first or second fiscal year, instead of FY 2020 and it looks like below.

• First fiscal year: 15% reserved for rest of the world (ROW), excluding India, China
• Second fiscal year: 10% reserved for rest of the world (ROW), excluding India, China
• Third fiscal year: 10% reserved for rest of the world (ROW), excluding India, China

Reservation of 5.75% for Rest of the World : 

In addition to the above reservation for rest of the world ( except India, China) there is an additional 5.75% of green cards that will be reserved for first nine fiscal years ( e.g from FY 2020 to 2029) for rest of the world. But, the catch is the order of allocation of the 5.75% will be given in the below priority order. See below screenshot as well.

1. Derivative Dependents: Spouse and Children fall under derivative dependents and they are first priority to use the 5.75% quota.  They may be outside of the country as well.
2.  Consular Applicants :  Anyone( ROW) applying for green card from outside of US and not lived in US in the immediate past 4 years. These consular processing applications gets the second priority to use the remaining 5.75% of reserved green cards.
3. Other Rest of the world applicants : If there are any more open slots left after the above two categories, they would use the rest of the 5.75% quota slots. This could include anyone living in US or outside of US, who are not from the two major states (India, China)

Identifying Two Major states:

The bill tells that they will use the Visa Bulletin and recent annual report from the Dept of State National Visa Center to add up the approved but backlog petitions from the countries to determine the two large states. Based on the stats, it is very clear that would be India and China. See below from the most recent Green Card Stats Report submitted to Congress.  

Changes to Visa Numbers, end date for Nurses (Schedule A Workers):

For Nurses carve out, previously, it said not fewer than 5000 immigrant visas for Schedule A workers (nurses, therapists, etc.). Now, in the amended draft, this is changed to not fewer than 4,400 immigrant visas. Also, the end date for this provision is now until 2026, instead of until 2028.  Assuming that Sen. Lee discussed on this with Sen. Paul and have come up with this change, if not this will create another issue and potential for block.

Additional H1B Program Clause– 50% Clause, Group Companies:

This is probably the biggest one for many MNCs. Below are the two requirements for new H1B applications for the H1B Employer. It is listed as “H1B Employer Application Requirements” in the bill.

• If the employer has 50 or more employees, then then they cannot have over 50% of the employees on H1B or L1.
• Any subsidiaries or group related companies, that are part of a one group, are treated as a single employer for the above provision, as long as they are filing tax under one entity with IRS as per Section 414. See below screenshot.

Both of these clauses are going to have huge impacts for the entire outsourcing companies small and big. The above rule applies to New H1B applicants, Extensions, and Transfers that requires a new LCA or attestations. See below confirmation from Cyrus Mehta.

Attorney Cyrus Mehta tells that this will destroy the IT Consulting industry. So, this is going to impact a lot of them, if the bill passes. Majority of the IT Bodyshop companies and large MNCs do not satisfy the above two…it is not fully clear, how this will be enforced for existing situation in such companies. We need to wait and see.  

Adjustment of Status Related Changes :

Below are the changes that will be added to the Adjustment of status section in current Section 245.

• Apply for Adjustment of Status ( I-485 Application ) : You can apply for adjustment of status using I-485, both applicant and eligible dependents, if you have your Immigrant Petition (I-140 application ) approved or pending for more than 270 days. So, you do not have to wait for the Priority date to be current to apply for the Adjustment of Status (I-485).
• Dependent Child Adjustment of Status : If you file for adjustment of status as described above, then your dependent child will continue to qualify for the application of green card, irrespective of the age of the child. This is the one that many call as aging out of children waiting for green card.
• Deceased Principal Applicant : Similar to above, if you file for adjustment of status, then you will continue to be eligible for green card as dependent, even if the principal applicant has died. This provision is to address the situation, where the primary applicant is deceased and spouse, children have to leave the country.
• Work Authorization, Travel Permission : The applicant who files the adjustment of status ( I-485) as per above, will be eligible for work authorization and travel permission as well.
• Approval of Adjustment of Status Application : The approval of adjustment of status (I-485) application filed will not be approved until the priority date becomes current ( immigrant visas are available)
• Duties, Hours and Compensation :  The terms and conditions, working hours, compensation, duties, etc. for the applicants who have file adjustment of status application (I-485) has to be similar to US workers working in same area. Even, if the employer does not have anyone employed on similar terms, the employer is obligated and needs to attest that they are providing similar terms and conditions, duties, etc.
• Bona Fide Job Offer ( I-485 Supplement J) with EAD Application:  It is required by the principal applicant to file a confirmation of Bona Fide Job Offer or Portability, which is nothing but I-485 Supplement J form, with any Employment Authorization (EAD) Application. The EAD will be valid for 3 years. The applicant needs to file I-485 Supplement J for new and renewal applications of EAD. Also, the applicant needs to provide supporting documentation to show that the terms and conditions of the job role are same as US workers and also include a signed verification letter stating the same from current or prospective employer. If such documentation is not provided, USCIS can deny the I-485 for the applicant and dependents.  
• Priority Date becomes Current – I485 Supplement J: To adjudicate I-485 application, when Priority date becomes current, USCIS may ask you to file I-485 supplement J, if they do not have your latest I-485 J supplement within previous 12 months.
• Limitation on Work Authorization for Dependents : This is a tricky one…It tells that if the applicant was not eligible for work authorization or did not had work authorization at the time of filing of Adjustment of Status (I-485) application, then they will not be eligible for work authorization during the pending state of application. Example, if H4 EAD rule is revoked, then H4 applicants would technically not have work authorization…so, they may not be eligible for work authorization as they wait for the priority date to be current. See below.  The only exception to get that is to demonstrate compelling circumstances to USCIS to get the EAD. Will need to wait for more details on this. See below screenshot.
• Effective Date and Validity: All the above provisions will be effective from the date of the enactment of this Bill. Enactment is nothing but the date when president signs the bill or it automatically becomes a law without his signature ( in some cases).  The validity of this Bill will be for 9 years from the date of enactment/ signed by president.

What are the next steps ? Is the Bill Draft Final ?

The above amendments are based on the draft that is being distributed in social media(see below), but the bill text is not final until it is introduced in the senate as an amendment. We need to wait for that part. Once the official amendment is introduced, then it will be official. So, for now, take it with a pinch of salt.  

When does this Amended Bill become law ?

Once it is formally introduced as amendment, then the process continues either hearings or Unanimous consent. Once it is passed in Senate, then it has to be again voted in House as there are amendments now. The final version passed in both chambers will need to be signed by president. You can check How Bill becomes Law in US – Steps .

What are the chances of passing the Bill with these amendments ?

There are many good amendments in the bill, but there will never be a perfect solution that satisfies all parties…some parties may not get the best deal during compromise…that’s life…Some of the new changes in the bill like 50% ratio for H1B & L1 visa holders is really big change and can have a huge impact for many MNCs…so, I am not sure, if the MNCs will let it pass in its current form…Until the bill amendments are introduced in Senate and text is formalized, we would not know, what will happen…..

What do you think of the amendments?  Do you think the bill will pass in its current form?

Draft of the S.386 and HR 1044 Bill Circulated in Social Media