Explainer: Amendments to the Fairness for High-Skilled Immigrants Act, S.386

On July 9, 2019, Senator Mike Lee (R-Utah) introduced the Fairness for High Skilled Immigrants Act, S.386, which seeks to equalize the employment-based (EB) green card backlog by eliminating categorical per-country caps. The bill has was amended several times as Sen. Lee continued to attempt to pass it via a unanimous consent (UC) vote in the Senate. This page will serve as a regularly updated explainer on the changes made to the Fairness for High Skilled Immigrants Act and an overview on where things stand. On December 2, 2020, the bill passed the Senate via Unanimous Consent after being amended for the fifth time.

July 9, 2019: Senator Lee introduced S.386 in the Senate as an identical companion to H.R. 1044, which passed in the House convincingly the following day. The bill would:

• Remove per-country caps for EB green card categories. This would equalize the green card backlog, which is faced almost exclusively by Indian and Chinese applicants, some of whom must wait decades after their petitions are accepted. The bill would also raise per country caps for family based petitions from 7% to 15%.
• Establish a transition period of three years. The first year after enactment, 15% of EB-2 and EB-3 visas would be reserved for countries not affected by the backlog, or so-called “Rest of World” (ROW) applicants. In years two and three, 10% of EB-2 and EB-3 visas would be reserved for ROW applicants. After year four, USCIS would distribute all visas on a first come, first served basis.
• Institute a “do no harm” provision, which would ensure that all applicants who have already petitioned for a green card will be able to obtain status as soon or sooner than they would have had the bill not gone into effect. An Emory University immigration law professor estimated that this provision would protect as many as 150,000 ROW applicants.

More information on H.R. 1044 can be found here.

September 25, 2019: After objections from Senators Grassley (R-Iowa), Paul (R-Kentucky) and Perdue (R-Georgia), Senator Lee added an amendment to address their concerns. This amendment would:

• Add additional employer restrictions to the H-1Bvisa program. These include restricting employers from hiring H-1B employees without first advertising openings to workers already in the U.S., providing additional authority for the Department of Labor to review and investigate H-1B wage malpractice, and new fees for Labor Condition Applications (LCAs) that employers must pay to sponsor H-1B employees.
• Provide a solution for foreign nurses. The elimination of per-country caps could mean thousands of nurses, who often have no access to the H-1B program, would be suddenly thrown into a multi-year backlog. This amendment would exempt 5,000 Schedule A Shortage Occupations (primarily registered nurses) from the annual EB green card cap until nine years after enactment.

December 17, 2019: After an objection from Senator Durbin (D-Illinois) – and after he introduced his own green card backlog solution – Senators Lee and Durbin negotiated a second round of changes to the bill. These changes would:

• Provide a new status for nonimmigrant visa holders who are in the U.S. and waiting in the green card backlog. The new status would allow expanded travel rights and the ability to change employers. The new status would be available to EB-1, EB-2 and EB-3 applicants on most nonimmigrant visas who have had their I-140 green card petitions approved (the majority of the backlog), or if the I-140 petitions have been pending for more than 270 days. Petitioners would be required to have a job offer requiring a college degree and a signed letter from the employer that other employees have similar terms of employment. The dependent children of the new status recipients would be allowed to retain dependency status for the duration of the green card application process.
• Implement new transition rules for ROW applicants that are applying from outside the U.S., who would not be able to access the new status. For eight years after enactment, 5.75% of green cards would be reserved for ROW applicants outside of the U.S. About 18% of green card recipients apply from abroad. This change would not affect the three-year transition period in the initial bill.
• Initiate additional reforms to the H-1B process. The amendment would prevent “50-50” companies – those with over 50 employees and more than 50% of whom are on H-1B visas – from hiring any additional H-1B workers. The amendment also includes an anti-retaliation clause for H-1B whistleblowers and some additional wage reporting requirements for employers.

March 3, 2020: After a potential objection from Senator Cotton (R-Arkansas), and concerns from USCIS that the bill as amended would be difficult to implement, Senator Lee made a third round of changes to the bill. These changes would:

• Eliminate the “do no harm” clause from the original bill, which would have protected an estimated 150,000 applicants who have already submitted petitions for EB green cards from any new wait times that come as a result of the bill. This provision will particularly affect ROW applicants who are not currently affected by the current green card backlog, but would face lengthy wait times of five years or more as soon as the bill is enacted.
• Lengthen the transition period from three to nine years. EB-2 and EB-3 green cards reserved for ROW applicants would increase from 15% to 30% in the first year, 10% to 25% in year two, 10% to 20% in year three, 0% to 15% in year four, 0% to 10% in years five and six, and 0% to 5% in years seven, eight and nine. This would offset some of the impact of eliminating the “do no harm” clause, as it would reduce waiting times for approximately 72,000 additional ROW applicants.[i]
• Require a two-year waiting period before early adjustment of status filings. The December 17, 2019 amendment initially allowed the new status to almost anyone on a nonimmigrant visa with a high skilled job offer and either an approved I-140 green card petition or a petition that has been pending for at least 270 days. The new language no longer offers status to those with pending I-140s, and would only allow early adjustment of status to those who have had approved I-140 petitions standing for two years. Most of those affected by the backlog already have approved I-140s. However, as of June 30, 2018, there were still 45,889 pending I-140 petitions. According to USCIS, petitions typically remain pending for betwen 150 to 435 days.
• Delay H-1B restrictions. The bill would delay enactment of the December 17, 2019 amendment related to the “50-50” H-1B restriction for two years.

August 5, 2020: After further objections from Senator Durbin to the March 3 changes, Senators Lee and Durbin negotiated a second compromise. After Senator Lee introduced the compromise, it was blocked by an objection from Senator Rick Scott (R-Florida). The most recent Durbin-Lee compromise would:

• Delay removal of per country caps until the first day of the second fiscal year after the provisions are enacted. This provision would protect more of the ROW applicants who are no longer protected due to the absence of the “do no harm” clause. The lengthened transition period from the March amendment remains in place.
• Amend H-1B restrictions. The bill would reduce Lee’s two-year delay for sanctions on “50-50” companies to 180 days. The bill would also limit the restrictions on 50-50 companies to only impact new H-1B applicants, not those seeking to renew H-1B status or transfer to another employer.

December 2, 2020: After negotiations between Senator Lee and Senator Scott, a compromise was reached and the bill was passed in the Senate via unanimous consent vote. The final amendments to the Senate version of the bill would:

• Implement restrictions on immigrants affiliated with the Chinese military. The bill would deny adjustment of status for immigrants who are determined by the Secretary of Homeland Security to be affiliated with the military forces of the People’s Republic of China or the Chinese Communist Party. It is not clear how many individuals this provision would affect, as a conscription system is employed in China even though mandatory military service is not.
• Establish additional transition guidelines ensuring access to employment-based green cards for those applying from outside the U.S. In the first nine years after implementation, no more than 70% of employment-based green cards could go to current H-1B visa holders and their dependents. After nine years, no more than 50% of employment-based green cards could go to current H-1B visa holders and their dependents. Medical personnel and others who have been granted a national interest waiver would be exempted from this restriction.

[i] This number is calculated by:

(1) Determining the EB-2 and EB-3 green card cap. Each category accounts for 28.6% of the 140,000 overall EB green card total, so (.286 + .286) * 140,000 = 80,080.

(2) Summing the ROW reserve percentages over the ten-year transition period and multiplying by the annual EB2/EB3 green card cap. (.3 + .25 + .2 + .15 + .1 + .1 + .05 + .05 + .05) * (80,080) = 100,100.

(3) And subtracting this number from the ROW visas reserved from the original three-year transition period. 100,100 – (.15 +.1 +.1) * (80,080) = 72,072.