Senate Action on Big Tech Green Card Bill S.386

By Jessica M. Vaughan on March 26, 2020

Editor's Note: Obsolete articles and updates from this page have been archived.

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 3/13/20: U.S. Tech Workers advocacy group update shows little movement on S.386. No current indication when it might come up for another unanimous consent vote.

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 (12/17/19): There are reports on S.386 meetings, amendments, and compromise between Sen. Lee (R-UT) and Sen. Durbin (D-IL). 

Immigration lawyer Charles Kuck has published what is purported to be the new language of the bill

Activist group Immigration Voice is accusing Sen. Durbin of adding a "poison pill" to the bill, but are not specific to what that is. Meanwhile, an IT industry group has come out against S.386 due to a provision that:

will bar 50:50 companies (those with 50 employees and more in the US or with 50 per cent of staff on H-1B work visas) from bringing in more employees on H-1B into the US. 

Jessica Vaughan believes the employment authorization amendments do not improve the bill:

These amendments to #S386 would make matters worse. Answer is not to give out more work permits in lieu of green cards. Better idea to move to true merit system, limit number of temp visas and make them truly temporary in most cases.

Neil Munro reported on the new employment authorization amendments, stating it:

creates a new legal status where imported workers could get a renewable work permit once their employers help to file an I-140 request for green cards. This change would effectively give Indians and other visa workers all of the workplace benefits of U.S. citizenship while they wait years for their green cards.

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.