S386: Will It Become Law?

On December 2, 2020, the US Senate unanimously passed the Fairness for High-Skilled Immigrants Act (S.386), which sought to amend the Immigration and Nationality Act by eliminating the per-country numerical limitation for employment-based immigrants and increasing the per-country numerical limitation for family-sponsored immigrants. The bill was referred back to the House of Representatives for approval, where it underwent amendments and was passed as H.R. 1044 in July 2019. The bill then awaited reconciliation between the two versions and final approval by the President.

The bill's impact on the visa quota system for family-based and employment-sponsored immigration

The S.386 bill, also known as the Fairness for High-Skilled Immigrants Act of 2019, was introduced in the Senate on February 7, 2019, by Senator Mike Lee (R-UT). The bill aimed to amend the Immigration and Nationality Act to eliminate the per-country cap on employment-based immigrant visas and increase the cap on family-based immigrant visas.

The bill proposed to increase the per-country cap on family-based immigrant visas from 7% to 15% of the total number of such visas available in a given year. This change would allow for a greater number of family-based immigrant visas to be granted to individuals from any single country, providing more opportunities for family reunification for immigrants from the same country.

For employment-based immigrant visas, the 7% per-country cap would be eliminated entirely. This change would particularly benefit nationals from India and China, who currently face a massive backlog due to the country cap. By removing this cap, the bill seeks to clear the decades-long green card backlog for immigrants from these countries.

In addition, the bill establishes transition rules for employment-based visas from FY2020-FY2022. It reserves a percentage of EB-2 (advanced degree or exceptional ability) and EB-3 (skilled and other workers) visas for individuals not from the two countries with the highest number of recipients. This provision ensures that immigrants from a diverse range of countries have access to these visas. Of the unreserved visas, no more than 85% can be allotted to immigrants from any single country, further promoting diversity in the visa allocation.

The bill's elimination of per-country numerical limitations for employment-based immigrants

The Fairness for High-Skilled Immigrants Act (S. 386) was introduced in the Senate on February 7, 2019, by Senator Mike Lee (R-UT). The bill aims to amend the Immigration and Nationality Act to eliminate the per-country numerical limitation for employment-based immigrants.

The bill seeks to treat all employment-based immigrant visa applicants on a first-come, first-served basis, regardless of their birthplace. Under current US law, immigrants from a single country cannot receive more than 7% of the total number of immigrant visas or green cards issued in a year. This has resulted in a massive backlog for nationals of India and China, who make up a significant proportion of skilled employer-sponsored applicants. The bill would eliminate this 7% cap for employment-based immigrant visas, clearing the backlog for Indian and Chinese nationals.

The bill establishes transition rules for employment-based visas from fiscal years 2020 to 2022, reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability) and EB-3 (skilled and other workers) visas for individuals not from the two countries with the highest number of recipients of such visas. Of the unreserved visas, no more than 85% will be allotted to immigrants from any single country.

The bill also includes provisions for nurses and physical therapists, carving out 4,400 EB-3 green cards (11% of the category) for these professions, defined as "shortage occupations", for seven years. Additionally, it caps H-1B visa holders and H-4 visa holders at no more than 70% of all employment-based green cards during the first nine years after implementation and 50% for subsequent years.

The Fairness for High-Skilled Immigrants Act (S. 386) passed the Senate on December 2, 2020, with unanimous consent, and was sent back to the House of Representatives for approval. However, the bill did not become law during the 116th Congressional session, and it will need to be reintroduced in the new Congress for further consideration.

The bill's increase of per-country numerical limitations for family-sponsored immigrants

S.386, or the Fairness for High-Skilled Immigrants Act of 2019, was introduced to the House and Senate on February 7, 2019. The bill sought to amend the Immigration and Nationality Act to increase the per-country cap on family-based immigrant visas from 7% to 15% of the total number of such visas available that year.

The bill was passed by the Senate on December 2, 2020, but there were differences between this version of the bill and the one passed by the House of Representatives in July 2019. As the differences were not reconciled before the end of the 116th Session of Congress, the legislation failed.

The bill was reintroduced in the EAGLE Act on June 1, 2021. This bill, H.R. 3648, was modelled after the version of the Fairness for High-Skilled Immigrants Act of 2019 that passed the Senate in December 2020. The EAGLE Act also sought to increase family-based per-country limits from 7% to 15%.

Another bill, H.R. 6542, or the Immigration Visa Efficiency and Security Act of 2023, was introduced to Congress on December 1, 2023. This bill also seeks to increase the per-country numerical limitation for family-sponsored immigrants.

The bill's amendments to sections 8 and 9

The S.386 bill, also known as the Fairness for High-Skilled Immigrants Act, has been amended several times since its introduction in 2019. The bill's amendments to sections 8 and 9 are outlined below:

Section 8: Limit on Adjustment of Status from H-1B Nonimmigrant or H-4 Nonimmigrant to EB Immigrant

This section amends the INA (Immigration and Nationality Act) to add a new section (o). It limits the number of H-1B nonimmigrants, as well as their H-4 spouses and minor children, to using no more than 70% of the available employment-based immigrant visas in a fiscal year. After nine years, this limit will drop to 50%. There is an exception for graduates of medical schools performing services as medical professionals or those granted a national interest waiver-based EB-2. The effective date of this section is October 1st of the second fiscal year after the bill is enacted.

Section 9: Prohibition on Admission or Adjustment of Status of Aliens Affiliated with the Chinese Military or Communist Party

This section states that the Department of Homeland Security (DHS) shall not admit or adjust the status of any alien affiliated with the Chinese military or the Chinese Communist Party. The determination of affiliation is made through consultation with the DOS, DOD, the AG, and the Director of National Intelligence. The term "affiliated with" is not explicitly defined in the bill, but it appears to refer to present tense affiliation.

These amendments to sections 8 and 9 of the S.386 bill aim to address concerns about the allocation of visas and green cards for high-skilled immigrants, particularly those from India and China, while also considering national security interests.

The bill's impact on foreign nationals from Europe, Australia, South America, and Japan

S.386, or the Fairness for High-Skilled Immigrants Act of 2019, is a bill that seeks to amend the US Immigration and Nationality Act. It was introduced in the Senate in February 2019 by Senator Mike Lee and co-sponsored by Senator Kamala Harris. The bill has two main provisions:

Impact on foreign nationals from Europe, Australia, South America, and Japan

The bill's primary impact on foreign nationals from Europe, Australia, South America, and Japan is negative, according to critics. By eliminating the per-country cap on employment-based immigrant visas, the bill would reduce the current backlog of Chinese and Indian visa applications. However, this would be at the expense of immigrants from other countries, including those from Europe, Australia, South America, and Japan, who would face dramatically longer wait times for their visa applications to be processed.

The bill's focus on reducing the backlog for Indian and Chinese nationals means that citizens of other countries would be disproportionately affected by the new first-come, first-served application system. This could result in wait times of up to five years or more for some applicants from these regions.

Supporters of Latin American immigrants have spoken out against the bill, arguing that it has the potential to abolish diversity in immigration and negatively impact foreign nationals from these regions.

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