On December 2nd, 2020, Bill S.386 – Fairness for High-Skilled Immigrants Act of 2019 passed in the U.S. Senate. Bill S.386 is not effective as law yet, but is in the reconciliation stage which means that until it is agreed to by both chambers of Congress, it will not be able to go to the U.S. President, to be signed into law. Bill S.386 is an amended version of H.R. 1044 – Fairness for High-Skilled Immigrants Act of 2020, which was previously passed in the U.S. House of Representatives. Utah Senator Mike Lee – R is championing S.386 and Illinois Senator Dick Durbin – D had been blocking it. The two sides came to a compromise with amendments made in the bill which resulted in its passing.

What is Senate Bill S.386?

S.386 increases the per-country cap on family-based immigrant visas from 7% of the total number of such to 15%. It also removes an offset that reduced the number of visas for individuals from China. The bill also establishes transition rules for employment-based visas from FY2020-FY2022, by reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability), EB-3 (skilled and other workers), and EB-5 (investors) visas for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% shall be allotted to immigrants from any single country.

The bill however also comes with restrictions as part of a compromise between Utah Senator Mike Lee and Illinois Senator Dick Durbin. For years 1 to 9 after the bill is enacted, H-1B visa holders are allotted only 70% of the maximum number of green cards. After 10 years, H-1B visa holders may only be allotted 50% of the maximum. Exempted are medical professionals and those with national interest waivers. Lastly, the bill bars companies with more than 50 employees who rely on H-1B and L-1 visas from sponsoring more H-1B employees into the United States as H-1B lottery applicants. H-1B extensions, transfers, and amendments have been exempted from this.

What next? Reconciliation in Congress

With S.386 passed, the differences between S.386 and H.R. 1044 due to the amendments made must now be reconciled. At this stage, the U.S. Senate and U.S. House of Representatives will need to develop a new reconciled bill which will need to be passed by the House and Senate separately. If both chambers pass this reconciled bill, the bill would go to the President of the United States to be signed into law or to be vetoed. This process however takes an extended period of time, from months to potentially years.

How can S.386 be signed into law earlier?

There is one opportunity where Senate Bill S.386 may be passed even earlier. If the U.S. House of Representatives agrees to the amendments made in S.386, then it may not need the U.S. Senate’s approval again. Illinois Senator Dick Durbin is leading the amendments made in S.386 and must now introduce and see if the U.S. Senate and U.S. House of Representatives can come to an agreement on the final version of the bill. If the two chambers can come to a compromise in their differences, the bill would be allowed to move onto President Donald Trump who has not indicated whether or not he would sign or veto the bill.

If this bill is signed and becomes law, it would provide new opportunities for immigrants nationwide, and notably foreign nationals born in India who face significant and long backlogs waiting many years to apply for their adjustments of status. As we wait for updates, International Legal and Business Services Group, LLP will continue to monitor the situation. This law would bring many changes to the immigration landscape. For more information, please contact our team of knowledgeable attorneys and experts.

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