S386 Durbin Amendment Deal Points, i485 EAD Allowed

S386 Amendment with Dick Durbin. ROW 5.75% green card reservations, no increase in GC numbers. Get 3 year i485 EAD after i140. No ageing out for H4 dependent.

Written by Anil Gupta
  By Anil Gupta    Updated  2 Mar, 20

S386 Durbin Deal

A deal between Durbin and Mike Lee has been finalized and S386 voting is expected sometime in early 2020.

Here are the main points from the S386 Fairness for High Skilled Immigrants Act amendment.

#1 ROW Gains 5.75% of Reserved GCs

5.75% of available Green cards are prioritized for EB2 and EB3 people residing abroad in countries other than India and China. This provision will be applicable for first 9 years and is in addition to the current three-year transition set-aside in S. 386.

  • Year 2021 – 15% for non India, China.
  • Year 2022 – 10% for non India, China.
  • Year 2023 – 10% for non India, China.
  • Year 2021 to 2029 – 5.75% GCs reserved for non India, China
  • Year 2020 to 2026 – 4400 Green card reserved for Nurses & Physical Therapists

This means that people who are physically outside USA will be able to file GC application from 2021 to 2029 (with 5.75% reservation) in this order of preference:

  • Spouse or Child dependent.
  • Who have not resided or worked in US in last 4 years at the time of filing the GC application.

The other ROW people who are physically inside US will still be in the same queue as India & China.

#2 H1B Reform to Protect American Workers

US companies with more than 50 employees who rely on H1B visa workers for more than 50% of their work force cannot sponsor more H1B workers for employment in US.

This will be applicable for H1B extension and transfer including the new H1B lottery application as mentioned by attorney Cyrus Mehta:

This clause is going to be really painful for the IT consulting companies. The large IT consulting companies may still find a way to mitigate but the small size companies will have to shut their shops.

Economic times has already reported that NASSCOM is not happy as it may shut down Indian IT business. This may put your own current H1B employer in direct opposition of S386 bill!

#3 File i485 Irrespective of PD date Current or not

You will be allowed to file i485 including kids and spouses if:

  • Your i140 has been approved OR
  • Your i140 has been pending for more than 270 calendar days

This may allow EB1, EB2 and EB3 applicants to get the i485 EAD until they get the green card. Once i485 is filed, H4 kid will be protected from ageing out at age 21.

#4 i485 EAD card for 3 years

The EAD card will be issued for 3 years and will allow you to change jobs, easily leave and return to US using AP (advance parole). EAD extension will be allowed.

Documents required for EAD:

  • Confirmation of Bona Fide Job Offer – An employment offer letter usually known as Supplement J form.
  • Signed letter from employer that other US employees have same employment terms and conditions in that geographical area.

Both i485 and EAD will be denied by USCIS if these two documents will not be provided.

Note that moving to i485 EAD by leaving H1B while your green card is still pending is considered a high risk proposition due the way US immigration works. People who have already got i485 EAD still stay on H1B all the way till they get their Green card to make sure that their stay in US is considered legal if i485 is denied in future.

#5 Do No Harm Clause

If you have got an approved i140 already, you will get a green card earlier than others who get it approved after you. This will automatically make premium processing of i140 extremely important. Expect almost everyone to pay premium fees to get into green card lane faster. This hold true for ROW too.

Example: If a non-Indian and non-Chinese files his i140 before this bill passes, he will be given Green card first before Indians and Chinese.

Once the bill passes and is implemented, every new i140 filing will be considered as per new rules.

#6 H4 EAD may not Get i485 EAD

I am not particularly clear about this clause but it seems that H1B dependents (H4) will not be given the EAD with this new i485 filing system if the H4 EAD work authorization is removed by DHS.

H4 EAD work permit
H4 EAD work permit

Are they connected? I will update as I get more information here. If you understand this clause better, please share it in comments below with us.

#7 Dependent Status Protection for H4

The H4 dependent spouse and kids will be allowed to stay in US even if something happens to primary H1B visa holder.

This will be a big relief for H4 kids who are on the verge of ageing out.

This clause has probably been added after stories of self deporting featured when the primary H1B member died.

#8 No increase in number of Green cards

The total number of available Green cards remain same as this is extremely difficult to pass the congress. Durbin was asking to increase number of green cards and Mike Lee always contested that it’s not possible in near term.

#9 No change in counting Dependents of employment based green card application

USCIS counts each dependent of employment based green card application as a separate green card applicant. There is no change here.

As per USCIS reports, each immigrant has an average family size of 3 which means that they count 3 green cards for each employment based green card i140 filed by H1B or other such worker.

#10 Green Card will Be issued Only When PD date is Current

Note that green card will be issued only when the PD date is current for your case irrespective of when you filed i485 application.

#11 Family Based Green Card Country Quota

Family based country based limits are raised from current 7% to 15%.

When will S386 Be Active After Durbin’s Deal?

The bill needs to pass Senate first. Once it is approved and signed by President, it will be applicable starting Oct 1, 2020 at the earliest.

Can I Use my i140 from Old Employer to File i485?

Your old employer who filed your i140 needs to file i485 for you. If your new employer after H1B transfer wants to file i485, they need to file their own i140 for you.

Can i140 and i485 be filed Concurrently after S386 Amendment?

We do not think that i140 and i485 can be filed concurrently if your PD date is not current.
As per the new S386 amendment, your i140 should be approved or have been pending for at-least 270 days to file i485.

Will S386 pass Senate after Durbin’s Amendment?

It depends on how other senators who supported the bill will react to the amendments added by Durbin. Overall, it looks like a fair compromise to use as it addresses issues raised by ROW (rest of world).

For any bill to pass, there have to be compromises made by each side. Something has to be lost to gain something. We still feel that Indian and Chinese will gain a considerable amount of benefit with new version of bill.

ROW will also gain the 5.75% reservation. They will be in line with backlogged countries and GCs will be distributed on first come first serve basis bringing all humans at same level irrespective of their country of birth.

Why is ROW not Happy with The S386 Amendment?

ROW is used to get US green card within 6 to 12 months just because they were born in a country that has no backlog at all in current US immigration system.

Off course, it hurts when you take away something that you are used to getting easily as compared to other countries like India and China who are forced to wait for at-least 10 years.

They are opposing S386 and calling it racist without realizing that no human has control over their country of birth. You can get education and improve your skills but cannot change your country of birth.

Anyways, there are opponents and proponents of S386 on each side and the best way to move forward is to have something for everyone in the bill.

Racist, Aggressive Remarks Against Lee & Durbin

S386 is a bill that can change the way US immigration works. It has both opponents and proponents.

Each side has used aggressive language to target the two senators based on what ‘they’ think is right.

It is not only Immigration Voice who has used strong words to condemn Dick Durbin’s hold on S386. Opponents from rest or world led by Iranian groups have also used equally abusing language against Mike Lee.

Both sides need to understand that there has to be a mid-way path to make this happen. Leaving aside anyone staring will not be useful and the bill may just die slow death if there are no clauses for ROW or Indians and Chinese.

ROW needs to understand that merit based green card system is the future of US immigration. You cannot stop it from happening as that’s what all other countries have adopted to keep the economic progress intact.

S386 Durbin Amendment Full Text

Open link in new window.

One pager Mike Lee S386 Deal document being circulated online:

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We will update this page as we hear more information.

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Written by Anil Gupta
  By Anil Gupta           

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