S.386 Bill Passed by the US Senate, Eliminating the Country Cap For Employment-Based Green Cards

The US Senate unanimously passed a bill (referred to as S.386) or the Fairness for High-Skilled Immigrants Act, raising the hopes of thousands of Indians stuck in a green card backlog for decades.

Senator Kevin Cramer presided over the Senate as this bipartisan bill was passed, said in a series of tweets that, due to arbitrary national caps, the legal status of thousands of hard-working immigrants who bridge the gap between America’s labour shortage and its immediate need for doctors, software developers, and other highly skilled workers is in constant jeopardy.

“The Fairness for High-Skilled Immigrants Act stipulates that without increasing the number of employment-based visas, it would create a more merit-based system that would level the playing field for highly skilled immigrants,” he also tweeted. The employment-based system include a cap of 140 000 green cards per year, which remains unchanged.

The end of the road, however, has not yet been reached. The previous bill passed by the House was significantly different. The two bills will have to be reconciled, and the final bill passed. Then comes the issue of President Trump’s signature-it is likely that this will be a stumbling block.

S.386, as adopted by the Senate, sets the transitional rules by reserving a percentage of EB-2 and EB-3 immigrant visas for non-Indian and Chinese which is the two countries among the largest backlog in these categories for the first nine years after the bill has been enacted. The categories EB-2 and EB-3 are employment-based green cards for qualified workers and their dependents.

This transition was designed to prevent Indians and Chinese from dominating the allocation of green cards once the country caps have been lifted. Reservations will be higher in the early years. For example, 30 per cent of the EB-2 and EB-3 visas would be reserved for countries not affected by the backlog or the ‘Rest of the World’ (ROW) applicants in the first year following the enactment. In years two and three, 25% and 20% respectively of EB-2 and EB-3 visas would be reserved for ROW applicants. Furthermore, no more than 85 per cent of available visas can be granted to immigrants from any single country.

In its press release, Immigration Voice, the non-profit-based U.S. whose objective is to ease the problems faced by highly skilled workers, said S. 386 creates a fair and equitable ‘first come, first serve’ system for receiving employment-based green cards, putting an end to the discriminatory quota system that has left more than one million Indian highly skilled workers in the US with decades of experience. In contrast, individuals from other countries face no time at all to receive a green card.

Aman Kapoor, co-founder and president of Immigration Voice, said: “Immigration Voice is thrilled that after 15 years of tireless effort, the Fairness for High Skilled Immigrants Act has finally received the unanimous support of every member of the U.S. Senate. People finally understand that whatever else is wrong with our immigration system; we all can agree that discrimination should never be the basis for deciding who is granted access to permanent residence in theUS.

“The Law on Fairness for High Skilled Immigrants is a win for the American people. It will grow our economy by allowing highly skilled immigrants to set up their own companies and ensure that these new companies hire American workers who are made more attractive by this bill,” he added.

Protection of American workers

Immigration Voice also points out that the Senate bill improved on the earlier House bill by adding more enforcement measures to protect American workers and encourage them to hire foreign.

In the first nine years after implementation, no more than 70% of green cards may be issued to H-1B visa holders and their dependents. From the years that followed, this was reduced to 50%. This criterion does not apply to those in the medical profession or to those who have been exempted from national interest.

Also, the bill allows 50:50 companies with over 50 employees and more within the US or with 50 per cent of staff on H-1B work visas to bring more H-1B employees to the US.

Cyrus D Mehta, a New York-based immigration advocate, tweeted, “While S386 removes country-of-birth discrimination, the 50-50 provision will have a serious impact on IT companies even though they can still file H-1B extensions and change employer requests.”

An immigration consultant with an India-based IT company is not much disturbed, “Business models have changed, local hiring is on the rise, and a lot of work is also being done offshore with the pandemic. Given that our existing employees have a unique chance of obtaining a green card, this restriction should not be a major obstacle.”

However, S.386 came in for its share of the criticism, particularly from associations representing American workers. Twitter handle @USTechWorkers, tweets, ‘S.386 is not about equal treatment. It takes an already flawed immigration program and exacerbates it further by creating an unequal system for everyone else. Worst of all, it rewards H-1B abusers. The other provisions are meaningless, and they do not protect Americans.”

What will be next,

Senators Mike Lee and Kamala Harris were the main sponsors of this bill in the Senate. However, there is no end to the passage of the bill by the Senate.

The version of the Senate is significantly different from the version of the House much earlier, the House had passed a bill to lift country caps on green cards. Now that the differences need to be reconciled, the reconciled version will then pass both houses again and finally; the President of the United States must sign the bill.

Greg Siskind, the founding partner of Siskind Susser, an immigration law firm, tweeted, “Happy that S. 386 has finally passed through the Senate and we are a step closer to ending discrimination against nationality in the system for granting visas. However, there are significant differences with the version of the House that need to be negotiated including a China provision that is going to be viewed as controversial unless clarified. “

The Senate bill states that the US Secretary of Homeland Security will not admit or adjust the status of an alien (foreign national) affiliated with the Chinese military or the Chinese Communist Party.

“I would suggest that people temper their expectations. Not at all clear what the House thinks about this and how much room there is to tweak if changes are required. We also have a president who is likely to veto anything that isn’t 100 per cent of his own,” he adds.

Jessica Vaughan, the Director of Policy Studies at the Center for Immigration Studies, seen as a protectionist group, tweets, “This would make a very significant change to the Green Card employment system and move us further away from a merit-based process. It rewards companies that have replaced Americans with guest workers. Will the President sign it? ”