What is Senate Amended HR 1044 Bill? S386 + Section A + H1B, LCA?

Let’s quickly look at the background of both HR 1044 and S.386 Bills and their history before we jump into the amendment for your context.

History of HR 1044 Bill History, S 386 Bills :

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.  Though the S. 386 Bill was brought onto the Senate floor in July, it was blocked by Senator Rand Paul. The reason for blocking or hold was that Senator Paul wanted to introduce carve out (set aside some amount) for nurses ( Section A workers). All of the above happened in early to mid-July 2019.

Background of New Amendment to Remove Hold:

Since July, until early September, there seem to have some negotiations done with Senator Paul on the hold reason and ultimately compromised to include his requests in the Bill as well. The ideas was to get his consent and have the hold removed. On September 17^th, 2019, the new clause related to Nurses carve out ( Section A workers) was added to the official Bill text as Amendment 939. The important thing to note is that, all these amendments are done to HR 1044 Bill and NOT S.386 Bill.  Now, the current HR 1044 Bill amendments include removing of old text of HR 1044, adding of original S.386 Bill Text + Sen. Paul’s Nurses Provision + Sen. Grassley’s H1B and LCA Provisions.

Let’s look at the HR 1044 Amendment 939 summary with some actual screenshots on the details and key points in amendment. In short, the below amendments are added to original HR 1044 bill text and is agreed by Sen. Paul and Sen. Grassley…

Details of Amendments to HR 1044 : S 386 + Nurses Carve out + H1B, LCA Provisions

There are three primary changes in the proposed amendment. Let’s look at each of them separately for ease of understanding.

S. 386 Bill Text Added to HR 1044

The first change you see in amendment was to replace the entire Bill text in HR 1044 with S. 386 text. Though the meaning is same, just the wording is slightly different. If you look at the below screenshot, it clearly indicates to strike out all the text after the enacting clause and replace it with following. If you look closely at Original S. 386 Bill PDF, you will see that the exact text is repeated in the Amendment 939 – PDF.  

Nurses Carve Out (Schedule A Workers) Provision – 5,000 Immigrant Visas

The second change you see in the amendment is the addition of the clause related to the Schedule A workers. The text says that every year at least 5,000 immigrant visas should be made available for Schedule A workers as they are described in Section 656.5(a) until 2028. If you look at that Section 656.5(a), they are primarily anyone with Foreign nursing certifications, professional nurse, or physical therapist. See below screenshot on who all fall under Section 656.5(a).

The nurses carve out clause says that, from FY 2020 to 2028, every year at least 5,000 immigrant visas should be given for Section A workers until 2028.  Also, for FY 2020, 2021, and 2022, the visas that are allocate as per the original HR 1044 clause should be given as normal and those should not be counted in this 5,000 that is set aside every year. See below actual screenshot and text.

H1B Program and LCA  Provisions from S.386 Bill Amendments

Senator Chuck Grassley Chuck Grassley included many H1B program and Labor condition application(LCA) related provisions as amendment to the original S. 386 Bill.  Nothing has changed in this part. All of the same details in that amendment are added here as well to HR 1044. Below are the provisions for your recap.  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 :  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
• H1B Employer Application Requirements for New Applications :  Various rules that need to be complied by the employer when they do recruiting for open positions.
  • Not advertise the position saying that it is available only to H1B holders
  • Need to submit the IRS W-2 forms related to H1B workers to the DOL Secretary.
  • The LCA should have prevailing wage determining methodology info.
• 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.
• Elimination of B1  visa in lieu ( instead) of H1B :  US State department should not issue B1 visa for short term work contracts, instead of H1B visa. This is something that many companies use and abuse as well for short term projects, the trick is in the enforcement.  
• Additional Clauses for H1B Employers Investigation and enforcement, LCA Reviews
  • Protections for employees to report violations related to wages or LCA provisions
  • Information sharing between USCIS and DOL on the H1B petitions for compliance.
  • Authority for Dept of Labor (DOL) for any fraud or false information by employers.
  • Prevailing wage enforcements for proper wage payments by employers in an area.
  • DOL may conduct surveys and annual audits for LCA compliance.
  • Annual reports on audit and compliance for public review.
  • more penalties amount paid by employers for violations for LCA violations.
  • Expansion of DOL’s authority to conduct investigations based on anonymous complaints, etc.

You can check all these details of H1B and LCA provisions in details in S. 386 Bill Summary with more description on the above

That’s about it folks. You can check the Congressional record for Official Text of the SA 939 Amendment  that has all the above changes. 

News, Status of Amended HR 1044 Bill :

• November 6th, 2019 : Sen. Durbin again presented his case on Senate floor and requested for Unanimous Consent for his Bill S. 2603 RELIEF Act and was blocked by Sen from North Carolina Thom Hills suggesting to work with Sen. Lee as it has more co-sponsors and solves the immediate problem. Sen. Durbin indicates that he wants hearing and Sen. Lee does not want hearing…It is in grid lock. Sen. Durbin seems firm on his opinion of hearing of the bill as he indicates, it is the standard process….You can watch the Video of Sen. Durbin Speech, UC Request
• October 31st, 2019 : Sen. Lee spoke about S.386 / HR 1044 Bill and explained the importance to pass and he insisted that there is no need for hearings or changes to the bill. He said, he is going to work with Sen. Durbin on this. He did not ask for Unanimous consent… Check out the Video of Sen Lee’s Speech in Senate Today
• Oct 30th, 2019 : Today Sen. Durbin asked Unanimous consent for his Relief Act Bill and was objected on behalf of Sen. Lee by other senator. Also, it is reported by Immigration Voice that Sen Lee would bring in S. 386 / HR 1044 again for UC tomorrow.
• Oct 24th, 2019 : In Senate Judiciary Committee, S 386 / HR 1044 immigration bill was brought up briefly indicating that there are concerns from Sen Durbin on the immigration bill and there could be hearing on the same in future. No actual hearing took place, it was just a mention that the Judiciary committee could take it up in future to sort our the differences. Watch Senate Video Recording at 24th Minute

• Oct 17th, 2019 : Today the S.386 / HR 1044 Bill was again presented on Senate Floor and asked for Unanimous Consent and objected/blocked by Sen. Durbin. It is a deadlock, Sen. Durbin wants to lobby for his bill to increase Green Cards, Sen. Lee wants to pass the current one as the other one will not go through and is a poison pill for S. 386 / HR 1044..Sen. Durbin wants a hearing in Judiciary committee on this bill…Sen. Lee says, he does not have any objections for the hearings, but he does not know if the committee would take up..he affirmatively said that the bill is ready to pass and he will do everything to pass this and come back again as needed…Check out two videos from Senate :
  • First video recording of the UC – Objections .
  • Second Video Recording – Judiciary Committee Hearing info
  • At this time, the bill is again stuck
• Oct 16th, 2019 : Unanimous Consent planned for tomorrow, Oct. 17th, 2019 for S.386 / HR 1044. It is confirmed by Immigration Voice on their Facebook page.
• Oct 15th, 2019 : Attorney Charles Kuck tweets that there could be a Unanimous consent Motion on Floor for S.386 / HR 1044 on Oct 17th, 2019. We do not have any other news sources or groups confirming it yet. We are not sure, if any agreement has been reached with Sen. Durbin to remove the hold… need to wait and see.

• Oct 1st, 2019 : Nothing new from the progress of the bill HR 1044/S.386 standpoint, but there was an update shared by Immigration voice on the situation with Senator Durbin, some history and his stance. You can read it on Facebook Post . The post indicates that the future of the bill is uncertain as Sen. Durbin would object/ block it unless, there is increase in Green Card numbers…
• Sep 26th, 2019 : Couple of key updates today on S386/HR1044.
  • The HR 1044 was not brought onto the floor as expected previously. It was updated by Immigration Voice that the voting would not happen. Check their Tweet .
  • Everyone wondered the reason, later the videos related to Senator Dick Durbin indicate the discussion on the HR 1044 bill and where Dick Durbin mentioned that he spoke to Senator Lee on this topic and he would want to do a fix that will benefit everyone and not hurt others. His goal is to raise the overall number of green cards under the EB category, rather than the current bill that favours Indians and hurts rest of the world. Senator Lee knew that he would get objection from Sen. Durbin, hence he did not bring it on the floor…That’s the reason for not having vote today. See below videos captured by users circulated on WhatsApp from the meeting with public. Listen to last 40 seconds, where he talks about what was offered to Sen. Lee.

• Sep 25th, 2019 : Senator Lee updated on his live Facebook Stream that he got agreement from Sen. Perdue on the language and he will bring the HR 1044 ( which is S.386 +H1B Amendments, LCA + Nurses Provision) again tomorrow Sep 26th for Unanimous consent. But, he expressed his concern that Sen. Dick Durbin might object. We need to wait and see. Check out Facebook Live Video from min 29 to 33.
• September 19th : HR 1044 bill was brought on to the Senate Floor for Unanimous Consent by Senator Lee on September 19th, 2019. It was objected by Republican Senator David Perdue from Georgia. The reason for objection :
  • Bill Language Needs to be clarified ( does not tell the details)
  • Concern on the impact it would have on specific industries in his state.
  • He did say that he will work on this and wants to pass the Bill by changing the modifications.
  • Sen. Lee said he would work through the weekend and come back next week for the Unanimous Consent again.

The amended HR 1044 Bill needs to follow all the steps as described in How a Bill becomes Law in US , which is still a long process ahead. The amended Bill has to be first passed in Senate, then the same again has to go to House and get passed and then President…

What are your thoughts on the Amended HR 1044 Bill ?