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No More Country Cap For Employment-Based Green Cards – S386 Bill Explained

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Immigrants who have applied for employment-based green cards can finally see a glimmer of hope. The US Senate, under the presidency of Senator Kevin Cramer, has removed the country cap for H-1B visas by passing the Fairness for High-Skilled Immigrants Act or S386 bill.

The bill clears the existing backlog of highly skilled green card applicants who have come to the US with job offers. The ones who were on the list the longest will be given priority when green cards are being issued.

Read further to learn more about the bill, how it could affect US Immigration Law, and why it is being lauded by green card prospects.

S386 Bill

The Cato Report About Immigrants’ Visa Status

In April 2020, The US Citizenship and Immigration Services (USCIS) had published data stating that the country cap for employment-based green cards had more than 1.2 million applications, with the majority (7.4 lakhs) coming from India.

The Cato Report, authored by David J. Bier, analyzed USCIS’s data and concluded that the waiting period for the petitions of some of the hopeful Indian immigrants could be up to 84 years!

This means, most of the applicants on the list will probably die during the waiting period and never get a green card in their lifetime.

Immigrants were already having a tough time over the past four years as President Donald Trump had campaigned on restricting the influx of immigrants to the US and had passed amendments and laws related to entry and deportation.

Additionally, the data published by USCIS had sent shockwaves amongst the applicants. They’ve been hoping for months for a law to be enacted favoring them.

It is to be noted that the majority of the immigrants applying for employment-based visas are from India and China. Only a small percentage of foreigners from either of these countries can immigrate to the US and get a permanent residency every year.

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S386 Bill In Detail

The bipartisan bill aims to amend the Immigration and Nationality Act to get rid of the existing cap of 7% for employment-based immigrants and to increase the cap for family-sponsored visas from 7% to 15%.

In simple words, when the bill is passed, highly skilled foreigners who are looking to get a permanent residency in the US will have better chances at getting their green cards much earlier than how it used to be before.

The second part of the bill is for the family members of foreigners in the US. With the country cap increasing from 7 to 15%, their chances of getting a green card have significantly improved.

According to Senator Crammer, the S386 bill was mainly passed so that highly skilled immigrants’ legal statuses aren’t at risk, especially those who come under the long and short term skills shortage categories.

He also applauded the work put in by foreigners in developing the US economy. However, there is no change in the cap of green cards issued every year.

It still stands at 140,000. There is also no change in how dependents of green card applicants are counted. It is still one green card application per each dependent.

Pointers Favoring Applications From Rest Of The World (ROW)

Since most of the applications for green cards are from India and China, there was a need to protect applicants who are applying from other countries (Rest of the World or ROW). The bill has included the following pointers favoring them:

  • 30% of the EB-2 and EB-3 skilled category visas will be reserved for applicants from ROW in the first year after S386 is imposed.
  • 25% of the EB-2 and EB-3 visas will be reserved for ROW applicants in the second year
  • 20% of the EB-2 and EB-3 visas will be reserved for ROW applicants in the third year
  • Only up to 85% of unreserved visas will be given to foreigners from a single country.

S386 Bill – Reforms To Protect American Employees

If the bill becomes a law, Americans are at the risk of losing their jobs to foreigners. The following reforms are initiated in S386 to protect the existing employment market:

  • Organizations with a workforce of 50 employees and more or those with 50% employees on H-1B visas will not be able to sponsor any more visas.
  • After the bill is enacted, only up to 70% of green cards will be allotted to H-1B visa applicants and their families in the first 9 years.
  • For the next couple of years, it will be reduced from 70% to 50%.

However, this rule does not apply to nurses, physicians, and other medical professionals, as there is a high demand for personnel in the medical field.

How S386 Could Become A Law

Much before being passed in the Senate, the House had also passed a bill to remove the existing cap for green cards. Pointers from these two bills will be consolidated into one and then passed in both the houses again before going to the President. Whether the bill is capable of being a law or not will be the decision of the President.

Critics of the bill are of the opinion that by removing the cap, American employees could be affected in the long run. On the other hand, there are many foreign companies, committees, agencies, and organizations that see this new amendment as a ray of hope for those wanting to live their American dream.

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