Senate Action on Big Tech Green Card Bill S.386

By Jessica M. Vaughan on August 31, 2020

Editor's Note: Obsolete articles and updates from this page have been archived.

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."

View the full debate below or read the transcript.


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."

Editor's Note: This overview of Senate bill S.386 discusses amendments made public on December 18, 2019. For all previous iterations, please view the archive.

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.