Editors Note: This is an archive of obsolete articles and updates from the main S.386/HR.1044 article.
Update 12/10/2020: Ira J. Kurzban, a Miami based immigration lawyer, purports that H.R.1044 will be added to the omnibus spending bill.
Congress is about to slip in the OMNIBUS spending bill a horrible IMMIGRATION bill (HR 1044)that will end immig. through employment for decades except for Indian nationals. If they can pass bad laws like HR 1044 DEMAND inclusion of DACA/TPS NOW in Omnibus.
— Ira J. Kurzban (@IraKurzban) December 9, 2020
Breitbart News also wrote about the bill's possible inclusion in the omnibus:
Democratic Rep. Zoe Lofgren will put her Silicon Valley version of GOP Sen. Mike Lee’s S.386 green card giveaway bill into the year-end omnibus bill — if top GOP leaders stand aside, say sources and lobbyists.
Update 12/3/20: A unanimous consent (UC) agreement for S.386 was reached and the bill was passed as amended.
H.R.1044 sponsor Rep. Zoe Lofgren (D-CA) expressed her dissatisfaction with the Senate passed bill.
Yesterday the Senate passed an amended version of the Fairness for High-Skilled Immigrants Act.
While I recognize the sincerity of all Members struggling to find solutions, unfortunately the provisions sent to the House by the Senate most likely make matters worse, not better.
— Rep. Zoe Lofgren (@RepZoeLofgren) December 3, 2020
Jessica Vaughan, the Center's Director of Policy Studies, stated:
This would make a very significant change to the employment green card system, and moves us farther away from a merit-based process. It rewards the companies that replaced Americans with guest workers. Will the President sign it? https://t.co/b1VlB5VKkx
— Jessica Vaughan (@JessicaV_CIS) December 3, 2020
Advocacy group U.S. Tech Workers plots a roadmap and identifies possible roadblocks for S.386 and H.R.1044 in the thread below.
Here's what happens next:
- The bill Lee passed today is an amended version of what the House passed. So it has to go back to the House.
- McConnell & Pelosi have to setup a special conference committee with members from both House & Senate to come to an agreement.
— U.S. Tech Workers (@USTechWorkers) December 3, 2020
View the passage of the UC agreement on the Senate floor in the video below.
Update 3/26/20: The Congressional Research Service has published an analysis of S.386. Among the findings:
- "S. 386 would not alter the growth of future backlogs compared to current law."
- "Removing the 7% per-country ceiling would initially reduce wait times considerably for Indian and Chinese nationals in the years following enactment of S. 386, but it would do so at the expense of nationals from all other countries, as well as of the enterprises in which the latter are employed."
Update 8/31/20: Sen. Scott (R-FL) published an op-ed for the Miami Herald defending is unanimous consent objection to S.386.
Update 8/7/20: Breitbart is reporting, "Sen. Mike Lee’s latest version of S.386 creates a novel “Green Card Lite” legal status to help Fortune 500 companies import many more Indian graduates into U.S. white collar jobs."
Update 8/5/20: Another S.386 unanimous consent (UC) agreement was attempted by Sen. Durbin (D-IL), with his amendment to the bill. Sen. Lee (R-UT) objected and asked for UC consideration with his amendments. Sen. Durbin did not object. Sen. Scott (R-FL) asked Sen. Lee to modify his UC by adopting Sen. Scott's own amendment. Sen. Lee objected to this request. Sen. Scott then objected to Sen. Lee's original UC, blocking the bill.
Sen. Lee stated, "I intend, and plan, and fully commit in the coming days - I'm going to keep pushing this. This issue isn't going away. We're going to get this thing passed."
Update 7/21/20: Sen. Lee (R-UT) and Sen. Durbin (D-IL) participated in a contentious debate over previous S.386 amendment agreements. They were unable to come to a compromise on the amendments. Sen. Durbin then requested a UC vote on his "Protect Children of Immigrant Workers Act", which would have stopped children of H-1B workers from aging out of the greencard process. Sen. Lee objected on grounds that he had not seen the amendment and would need to review it.
Update 12/18/19: Sen. Durbin (D-IL) and Sen. Lee (R-UT) discussed S.386 on the Senate floor and postponed the unanimous consent vote.
Update: (12/12/19): Neil Munro reports a unanimous consent vote on S.386 is expected, however, Sen. Mike Rounds (R-SD) is currently planning to block it.
Update (10/31/19): Sen. Mike Lee (R-UT) spoke on the Senate floor and expressed his desire for a future unanimous consent vote on S.386 and denied that hearings on the bill were necessary. Sen. Durbin (D-IL) has, in a letter to Sen. Cornyn (R-TX), requested a hearing on the bill and is currently blocking the unanimous consent request. A Sen. Cornyn spokesman suggested that Sen. Durbin end blocking of the bill.
Update (10/17/19): Sen. John Kennedy (R-LA) blocks S.2603, drafted by Sen. Dick Durbin (D-IL), from unanimous consent.
"Kennedy’s October 16 objection blocked Durbin’s effort to pass his “RELIEF Act” via the Senate’s fast-track “Unanimous Consent” process.
"Durbin’s RELIEF Act would double the annual award of green cards given to the cheap foreign workers who are hired by American companies for jobs in the United States. It would double the annual inflow to 120,000 workers by exempting their immediate families from the annual cap. The bill would also lift the annual “country caps” and so allow companies to annually reward roughly 100,000 Indian visa-workers with valuable, government-provided green-cards, up from 10,000 Indian workers a year under the current rules."
Update (09/26/19): Sen. David Perdue (R-GA) dropped objection to unanimous consent of HR1044/S386. Sen. Dick Durbin (D-IL) is currently objecting to bill "as written" and unanimous consent vote has been delayed.
Update (09/19/2019): Sen. David Perdue (R-GA) objected to unanimous consent, blocking HR1044/S386 from the Senate Floor.
Senator Lee has agreed to new provisions to secure the support of Sen. Durbin. The resulting bill goes well beyond dealing with the per country cap issue. It also creates a new form of legal status called "early filing," allowing all those arriving on a long-term temporary visa who can get permission for an employer to sponsor them for permanent residency based on a job offer to stay, regardless of annual limits on employment green cards. Welcome, all white collar willing workers of the world!
Under the bill, those on a long-term temporary visa who can secure a job offer requiring a college degree will, after a wait of 270 days, be able to obtain a three-year renewable work permit and permission to travel in and out of the country. It will be a status comparable to permanent residency with a green card, but without having to wait in line or be restricted by annual immigration limits. It will potentially apply to hundreds of thousands of people each year, including foreign students, exchange visitors, NAFTA workers, investors, and more.
Supporters of fast-tracking the visa workers who are now on the waiting list say that eliminating the per country cap is "number neutral" and will not increase the number of green cards awarded nor increase the cap on guestworkers. This is true, but because it gives visa workers a no-strings work permit that is not linked to a Department of Labor-approved work arrangement and specific employer, these workers will no longer be considered part of the numerically limited H-1B program, and those visa numbers will be available to employers to bring in new visa workers from abroad. In addition, the "early filing" work permits will undoubtedly attract significantly more applicants from abroad to come in on other temporary statuses that formerly offered no easy path to a green card. So while there might not be more green cards issued, there definitely will be more foreign workers in de facto residency.
In addition, the bill will drastically restructure the green card and immigrant visa distribution system to allow a larger share of the limited visas for citizens of countries that already receive the most green cards. Citizen of India and China benefit the most, but the bill also loosens the per-country caps on family visas, which would benefit applicants from Mexico the most.
More specifically, citizens of India (and, to a much lesser extent, China) would be guaranteed 85 percent of all employment based green cards in the first year after passage, and 90 percent in the next two years. Lately, citizens of India have been getting 20 to 25 percent of all employment green cards, with a waiting list of more than 600,000 people (including family members), according to USCIS records.
The bill also reserves 5.75 percent of the two most popular employment green card categories (EB-2 and 3), which would be about 4,600 green cards, for family members of visa workers arriving from overseas and workers who are hired from abroad. This provision expires after nine years.
To appease the objections of Sen. Rand Paul and employers of foreign nurses, for the next seven years, 4,400 (3%) of available slots would be reserved for physical therapists and nurses coming from abroad and additional visas would be made available for their dependents.
Anyone who currently has a work permit will be able to keep it (for instance, spouses of current contract workers who were improperly given permits under the Obama administration, and taxpayer-subsidized ex-foreign students working under the Optional Practical Training Program).
Durbin and Lee have included a few provisions to placate those who oppose the expansion of guest worker programs. The most controversial (to the employers and foreign labor contractors) is the so-called 50-50 rule, which says employers of 50 or more total workers can have no more than 50 percent of their personnel as visa workers. Others include the creation of a Department of Labor-run website to list all jobs for which employers are seeking foreign workers; making it illegal to openly give hiring preference to H-1B visa workers; requiring proof of the wages being paid to foreign workers; prohibiting retaliation against workers who blow the whistle on possible visa program abuses; providing funds and expanded authority to investigate abuse, and stiffer penalties.
The Durbin-Lee bill does not include reforms to ensure that the new workers are highly skilled or highly paid; everyone with a qualifying job offer gets to stay with a work permit. It does not explicitly prevent employers from replacing US workers with visa workers. It does not tighten the skills or occupational or educational standards for visas. It does not increase the total number of green cards, but certainly will increase the number of "temporary" visa workers who expect to stay, and will encourage more employers to lower their labor costs by hiring foreign workers who gain access to the labor market by obtaining a temporary visa.
Original Article (09/18/2019):
According to advocacy groups representing the Big Tech employers and their guestworkers,the Senate will consider a bill on Thursday, September 19, that would dramatically change our system for awarding employment green cards in a way that rewards their business model — which has displaced U.S. workers on a grand scale. The bill is the Fairness for High Skilled Immigrants Act (S. 386), which is a companion bill that is very similar to H.R.1044, which passed in the House earlier this year.
This bill is anything but fair to U.S. workers, because it strengthens and perpetuates a system that is actively displacing them. It offers a major concession to employers who have bypassed U.S. workers for decades, without reforming the system to reduce guestworker admissions or prevent employers from replacing U.S. workers. This is one reason that DHS issued a statement opposing the bill when the House considered it earlier this year.
It eliminates a control known as the per-country cap, which meters issuance of green cards so that they are distributed to applicants from all countries before citizens of any one country can go above a certain number. Under this system, applicants from India now receive 20 percent of the employment green cards. Most of the applicants from India hold temporary visas (usually H-1B) as contract workers in technology occupations, and the number of green card applicants greatly exceeds the number of visas available, especially with the per-country cap. But according to USCIS, if the cap were eliminated, citizens of India would suddenly be able to claim nearly 100 percent of the employment green cards — for the next 10 years. So applicants from all other countries would effectively be blocked for the foreseeable future. This also means that U.S. employers who want to sponsor new foreign workers for green cards from any other part of the world would no longer be able to do so.
The Indian contract workers who are waiting for the chance to apply for a green card may apply for a visa extension and are not forced to leave the United States. And they still have their jobs — unlike the Americans they replaced.
Sources tell us that an actual vote is highly unlikely; instead, a unanimous consent request from a senator is more likely, which allows them to bypass the committee process, hearings, amendments, and, most importantly, a public debate. Reportedly, even at this late hour, most offices still do not have a final version of the legislation to review.
The Senate version of the bill was co-introduced by Sens. Mike Lee (R-Utah) and Kamala Harris (D-Calif.). Sen. Rand Paul (R-Ky.) had blocked it from unanimous consent because of concerns that it would reduce the admission of foreign nurses. Reportedly, Sen. Paul has recently agreed to let it come up if it includes a provision that would guarantee admission of 5,000 foreign nurses on temporary visas each year for the next 10 years. This will please U.S. hospitals, which generally prefer to import nurses from abroad rather than expand the number of slots for Americans to enter domestic nursing schools to fill the need. Since when is nursing a job Americans won't do?
The best solution to this issue is not to scrap the per country cap, or to increase the number of green cards, as some have argued, but to enact a merit-based system for awarding employment green cards that rewards the most qualified, talented, and likely to succeed, regardless of their country of origin.