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Explainer: What is S.386 Bill and what does it mean for job based green card holders in the US?

The bill seeks to equalize the employment based green card backlog by removing the categorical per-country caps

As the Donald Trump administration is turning more stubborn over the issue of immigration, foreign working professionals who are finding themselves more in a spot. Many of the working professionals in the US on non-immigrant visas like H1B or L1 usually apply for the Green Card to become the country’s permanent resident. The numerical limits per country for issuance of the green cards is one big factor that determines how soon they will be able to get their green cards. Both chambers of the Congress came up with similar bills in recent times that look to eliminate per country limits for employment based petitions. While the House passed H.R. 1044, the Senate one is S.386.

S.386 was trending on Twitter on Friday, July 31, with pro-immigrant voices speaking in favor of unblocking the bill and #UnblockS386 trending on the social media platform.

What exactly is the S.386 Bill and how the political debate has affected it?

The S.386 Bill, which is formally known as “Fairness for High-Skilled Immigrants Act of 2019”, is a bill which was introduced in the US Senate by a group of 14 members, including the GOP senator from Utah, Mike Lee. The bill was introduced in the Congress in February 2019 and in July, it was introduced in the Senate. It aims to equalize the employment-based (EB) green-card backlog by eliminating the categorical per-country caps. The bill has been amended several times as Lee tried to pass it through a unanimous consent vote in the Senate.

The bill seeks to remove per-country caps for EB green-card categories, which would help applicants from India and China who keep on waiting for decades. Lee recently said that someone from India entering the backlog today would have to wait for 195 years to get an EB-3 green card and urged his fellow senators to come up with a legislative solution to address the problem. 

The bill would also set up a transition period of three years. In the first year after enactment, 15 percent of EB-2 and EB-3 visas would be reserved for nations that are not hit by the backlog (the so-called “Rest of World” applicants). In the second and third years, 10 percent of EB-2 and EB-3 visas would be reserved for them. After the fourth year, the US Citizenship and Immigration Services would distribute all visas on a ‘first come, first serve’ basis.

The bill also looks for setting up a “do no harm” provision. According to the National Immigration Forum, the provision “would ensure that all applicants who have already petitioned for a green card will be able to obtain status as soon or sooner than they would have had the bill not gone into effect. An Emory University immigration law professor estimated that this provision would protect as many as 150,000 ROW applicants”.

The bill has faced challenges time and again

In September 2019, Lee added an amendment after facing objections from some of his fellow GOP senators like Chuck Grassley, Paul Rand and David Perdue. The amendment would add additional employer restrictions to the H-1B visa program, like restricting employers from hiring H-1B employees without first advertising openings to workers who are already located in the US. 
 
It would also provide a solution for foreign nurses. The elimination of the pre-country caps could see several nurses, who often lack access to the H-1B program, to be thrown into a multi-year backlog. This amendment would give relief to 5,000 Schedule A Shortage Occupations (primarily registered nurses) from the annual EB green card cap till nine years after enactment.

In December last year, the bill faced an objection from Illinois Democratic Senator and Minority Whip Dick Durbin. After the latter came up with his own solution for the green-card backlog problem, he negotiated with Lee a second round of changes to the bill. They would provide a new status for non-immigrant visa holders who are in the US but stuck in the green-card backlog. The new status would be available to Eb-1, EB-2 and EB-3 applicants on most non-immigrant visas who have their I-140 green-card petitions cleared or whose I-140 petitions are pending for more than nine months. The changes would also bring new transition rules for ROW applicants who are trying from outside the US and would not be able to access the news status besides initiating additional reforms to the H-1B visa process. 

And then March this year, a potential objection from Arkansas Senator Tom Cotton and concerns raised by the USCIS that the amended bill would be difficult to implement, Lee made yet another set of reforms. These changes included elimination of the “do no harm” clause from the original bill, increasing the transition period from three to nine years and requiring a two-year waiting period before early adjustment of status filings. The bill would also delay the enactment of the December 2019 amendment in connection to the “50-50” H-1B restriction for two years.

The bill has not received Trump administration's backing

Last October, White House senior policy adviser Stephen Miller told Fox News’s Lou Dobbs (who called the bill “a damn thing”) that the S.386 is unlikely to clear the Senate, adding that the Trump administration is clear on the stand that American workers can not be either displaced or replaced. He said Trump has taken “unprecedented action” in the field of immigration to ensure that the American people’s interest is protected, “including most recently with the public charge regulation to keep newcomers from taking advantage of our welfare system.”

In December, Senators Lee and Durbin said they had reached an agreement on the S.386 Bill but added that it would not be put to vote in the Senate as they felt it would not pass. Last month, Lee objected to a couple of unanimous consent requests in Senate that were made by Durbin to protect the immigrants workers and their children who have found themselves stuck in the green-card backlog. 

Meanwhile, non-resident Indians protested at the Capitol Hill recently against Durbin demanding the key legislation to be passed. They also accused him of blocking the bill and called him racist.