S386 -HR 1044 -Durbin Lee Deal and Amendment Info

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

In Green Card by KumarUpdated : 19 Comments

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)
Amendment for S386 Bill - Additional Visas for Rest of World

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.  

Pending Employment Based Green Cards with USCIS Stats until 2018

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.
H1B Employer Requirements for Green Card in S386 Amendment

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. Employment Authorization - Dependents Green Card
  • 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

   

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Comments ( 19 )

  1. H1B-I140

    Do we have to maintain h1b status along with EAD as well in case bill is passed? If we are changing employer do we need to file i140 and EAD again with new employer?

  2. Aj

    what happens to the dependent kids who are older than 21 and will be eligible to file EAD? As per the new clause – whoever had the work authorization at the time of filing I-485 will be entitled but we all know kids are not entitled for work authorization currently. Does that mean kid older than 21 years have no way to get the work authorization?

    1. administrator
      Kumar

      Aj,
      Probably true…if they had no work authroization before applying, then they would not get it…that’s the idea…We are yet to see the exact wording introduced in Senate…to be confirmed…

  3. slime

    Why not consider EAD/prioritization only for US educated backlogged folks? The current form of bill may get lot of resistance because of widespread impact. Limiting to US educated , which will cover majority of Doctors may be a quicker path. People who have entered EB2 or Green card path from consultancy companies and should not be there, would easily be filtered out. The H1B amendment need not be included, as that will get resistance too.

  4. Bhuvaneshwari Dharmaraj

    Hi Kumar
    My priority date is Oct 2016
    Assuming that this bill is approved say in the next couple of months, when will I get my GC ?

    Thanks
    Bhuvana

  5. Fair immigration

    The amendments look fair to me. This will damper the bodyshopping that so many of these companies have being doing. I feel it gives the bill some real legs to pass. Trump will be happy all he needs to say is the 50/50 clause and his base will be happy. So while giving relief to so many stuck while meaningfully changing how companies hire, I mean come on if you can’t hire 50% locals in the country you operate in what are you really doing there, might as well move the operation some place else. Thanks for keeping up to date on all the details.

  6. OK

    I agree, this is what happened few years ago when the original bill said who ever has I-140 approved would get EAD, then the outsourcing companies pooled up money and killed it by adding a clause “you should “demonstrate compelling circumstances” to get the benefit.
    Something similar will happen again and the outsourcing companies might already be working on killing this. Smart move by IL Sen to kill this bill.
    Still puzzled why they are looking for a unanimous consent, let there be a voting and move to next stages.. If these amendments are introduced, certainly there will be one more senate who will oppose, and again work with them to and bring in more amendments.. endless cycle..

    1. Facts

      A very good reply my friend. Everyone knows the problem i.e per-country limits. Whoever brought put diversity is the employment based immigration, did not imagine the tech boom. It is simple, for diversity we have family based. Also removal of per-country limit issue was known to all a decade back and came in various forms of bills HR 1044/HR 386 and others, but nothing happened and all waste of time. If people wanted to solve it, it should have been solved much earlier. Removal of per-country limit for merit based ( employment) immigration is the only way to resolve this issue, and may come up as HR XYX in future and die again, as it did in the past.

  7. David Parks

    This won’t solve the problem. The Indian IT managers don’t hire non Indians which will bring a lot more Indians. Indian companies like Wipro, Infosys, TATA rarely hire non Indians and all their sub contractors are Indian companies. Indian IT workers in USA discriminate non Indian professionals. Once the backlog is over, it will be created again through H1B and L1 visas. Indians file 3/4 H1B applications through different companies, that’s why non Indians can’t come on H1B visas. Indians take most of the H1B visas. 90% of the Indians won’t find work in USA if they are interviewed by non Indians.

    1. Realist

      I hear you my friend. Such frauds have been almost eliminated now. Such applications don’t get approved any more. Now with the new registration process it won’t even get selected in the lottery. Also there might be no lottery as these fraud companies won’t be able to apply for h1 in the first place.

  8. Independent

    Americans are against visa hoarders outsourcing companies. So i think they would be happy with this bill. Only genuine h1 applicants will benefit from this.

  9. Independent

    “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)”

    Doesn’t this solve all the problem? Sure we wont get the GC anytime soon but the freedom to work for any employer comes with I-485 right?

  10. Cesc

    Absolutely no way this bill will pass with the H1b requirement and Durbin knows that. There would be massive lobbying against this by all the outsourcing companies. Adding that h1b requirement has effectively killed this bill.

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