S. 386: A Brief Overview

S. 386 is a bill to amend the Immigration and Nationality Act to eliminate the per-country limitation for employment-based immigrants, to increase the per-country numerical limitation for family-sponsored immigrants, and for other purposes. S. 386, a companion bill to H.R. 1044, which passed the House by a vote of 365-65 on July 10, 2019, after being in limbo for months, finally looks like it is moving forward. Recently Senator Mike Lee and Senator Richard Durbin reached a bipartisan agreement whereby making this bill fair to both the high skilled immigrant and American workers. According to the Senator’s S.386 (Skilled Immigrants Act) would ensure that the employment-based green card system no longer discriminates against similarly situated immigrants based solely on their country origin. According to Senator Mike Lee, this agreement does not increase overall levels of immigration into the United States and is consistent with the bill’s commitment to equal treatment under the law.

S. 386 introduces following changes after multiple amendments:

1. Elimination of per country numerical limitation for all employment-based immigrants.
2. Increase of the per-country limitation for family-sponsored immigration from 7% to 15%.
3. Not more than 25% of the total reserved visa each fiscal year will be allocated to the nationals of one country or 2 percent in the case of a dependent area.
4. Not more than 85% of the total unreserved visa each fiscal year will be allocated to the nationals of one country.
5. The limits set above during the first nine fiscal years after the enactment of this bill may be overridden if enforcing them would prevent the maximum number of available green cards from being issued.
6. The agreement makes an additional H-1B reform designed to protect American workers competing for jobs with temporary visa-holders. Companies with more than 50 employees who rely on temporary visa workers for more than 50% of their workforce cannot sponsor more temporary workers for employment.
7. The agreement provides temporary relief to immigrants stuck in the green card backlog without increasing overall immigration levels or compromising the integrity of our employment-based green card system. Aliens already legally working in the United States on temporary visas who have a green card application (I-140) may file to adjust their status while they wait for a green card to become available. Most importantly, these immigrants will not receive a green card before they otherwise would under the current system. Instead, they will remain on the temporary status and be subject to deportation if their green card petition is not approved. While they wait, they will continue to be subject to wage and hour conditions on their employment. However, these immigrants will be able to change jobs, they will have the freedom to leave the country for temporary visits, and their spouse and children will have protection against being forced to leave the country if the temporary employee should die. Adjustment of status under this provision will not give work authorization to those who are ineligible to work under the current system. The applicant must file an I-485 Supplement J from with any employment authorization application and with renewal applications. EAD will be valid for 3 years. This provision will sunset in nine years from the date of enactment but will continue to apply with respect to any alien who has filed an application under this section any time prior to the date on which this section otherwise ceases to have an effect.
8. Introducing a do no harm provision for approved immigrant visa petitions, the three year 15/10/10 transition period, an additional 4,400 visas for the shortage occupations for 6 years. Do no harm provision provides that no one who is the beneficiary of an employment-based immigrant visa petition approved before the bill’s enactment shall receive a visa later than if the bill had never been enacted. During the first three years after the date of enactment of this Act, certain visas will be reserved within the immigrant visas made available. For the first three years after the date of enactment of this act, everyone in EB-2 and EB-3 from rest of world excluding the two states with the largest aggregate numbers of natives waiting for immigrant status, will be allocated as follows: first year 15% of the total will be allocated to aliens from Rest of the World, 10% of the total will be allocated to aliens from Rest of the World, 5% of the total will be allocated to aliens from Rest of the World.
9. The agreement adds a new transition provision to the bill to ensure that no class of immigrants is frozen-out of the employment-based green card system. A small percentage of available green cards (5.75%) are prioritized for consular applicants residing abroad in countries other than India and China. This provision will sunset in 9 years and is in addition to the current three-year transition set-aside in S. 386.
10. Language reducing both family and employment-based per country limits for Chinese nationals to offset green cards provided under the Chinese Student Protection Act, is now eliminated.
11. Not less than 4,400 immigrant visas will be allocated annually for nurses and physical therapists for Fiscal Years 2020 through 2026. Family members who are accompanying or following to join a principal beneficiary seeking admission shall be entitled to an unreserved visa in the same status, i.e., they won’t be counted against 4,400.
12. Public posting of the H-1B positions for 30 days through the Department of Labor. The Secretary of Labor within 180 days of this enactment is required to create this website for publicly posting the H-1B positions except for the individuals who have already counted against the H-1B Cap and not eligible for a full 6-year H-1B extension or on behalf of an H-1B nonimmigrant authorized to accept employment under Section 214 (n), i.e. portability.
13. Employers with multiple entities will be treated as a single employer if they meet the single employer provisions of Section 414 of the Internal Revenue Code.
14. Applicant’s to pay an administrative fee to cover the administrative costs of the LCA.
15. Elimination of B-1 in lieu of H-1B, any alien normally classifiable as an H-1B cannot seek a B Visa for that purposes.
16. Department of Labor will be required to publish the list of LCA applicants on its website. Fines for LCA violations would be tripled from current amounts.

According to the Senators, the bill will not be put to voting without majority backing. Therefore, S. 386, needs more backing by the Senators, which is where the role of people becomes essential. A person can reach out to their Congressional representatives and record their support with them concerning S. 386 in the following manner:

1. You can call the Congressional representatives of your area, and their contact details can easily be found by visiting the following website https://www.govtrack.us/congress/members or by calling at (202) 224-3121 and requesting to speak with the Congressional representative. You will be required to provide the office staff of the Congressional representative our name and zip code, and state that we are calling in support of the S.386 and state the reason behind the support.
2. You can also schedule an appointment with your Congressional representative.

This bill accomplishes a simple but extraordinary important objective: the elimination to country-of-origin discrimination on our employment-based immigration system.

Disclaimer

This article briefly discusses new changes introduced by S. 386 Bill. This article, under no circumstances, acts as legal advice; therefore, for any further case-specific question, please contact your attorney or Ahluwalia Law Offices, P.C. (Team ALO).