Senate Bill 386 Update. December 19, 2019

On December 18, 2019 both Senator Durbin and Senator Lee announced on the Senate floor that they had reached a bipartisan agreement to move S.386/HR1044 forward. While not officially presented yet, the unofficial draft of the proposed legislation as outlined by both Senator Durbin and Senator Lee in their speeches yesterday provides what we see as four very important issues as they relate to employment visas. 1. H1B 50/50 Rule; 2. Adjustment of Status (I-485 applications); 3. Dependent Age Out; and 4. Effective date of the law.

  1. The proposed legislation contains what Senator Durbin referred to as the 50/50 Rule. The 50/50 Rule would severely impact primarily IT workers from India who are working for outsourcing companies. The 50/50 Rule applies to any company that has more than 50 employees, of which more than 50% are on an H1B. The rule will have a significant impact on these companies to both bring new IT workers to the U.S. on H1B visas and to extend the H1B visas of their current employees.
  2. With respect to the effect that the bill will have on I-140 employment based applicants there is both bad news and good news. The bad news is that if the bill is signed into law it will take a considerably longer time for the actual green card to be issued. The good news is an immigrant employee will be able to file an I-485 adjustment of status on the earlier of two dates: 1. Upon approval of the I-140 petition; or 2) after the expiration of 270 days from the time of filing of the petition. Senator Durbin emphasized that he wanted to make sure that qualified immigrant workers would be able to get their Employment Authorization and Advance Parole so they would have the freedom to change jobs and travel while they wait for a green card to become available.
  3. The proposed bill also proposes that because of the delay that will be caused by the implemenation of this bill, dependents of the petitioner will not age out. Currently children of an approved petitioner can age out if a green card is not available before the dependent turns 21. The proposed changes will eliminate age out.
  4. Finally, the bill will no longer be retroactive. The Bill originally had an effective date of September 30, 2019. The effective date will be the date of enactment, the day the President signs it into law or if not signed within 10 days and Congress is in session.

While we believe Senator Durbin has done a tremendous job in helping to alleviate some of the concerns of people hoping to obtain a green card, we feel that the H1B changes will bring a significant amount of pressure to bear on other Senators by the lobby of the IT consultant industry. It is highly probable that the bill will be blocked yet again, before it makes it to the Senate floor for possible unanimous consent. While it is prudent to move forward in a timely manner on your employment based green card applications so as to get your green card as soon as possible, we do not feel that S386 as it stands now will be as devastating for new applicants from countries other than India and China as it was first thought it would.

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