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  20 Feb, 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:

Open link in new window.

We will update this page as we hear more information.


   19 Useful Questions & Answers from comments

  1. ayu
    ayu 8 Jan, 20 at 1:41 pm

    Hi Anil,
    Any thoughts on what the position of a indian born aus citizen would look like ? In the event of this bill being passed. would we be treated as indian or non indian ?

  2. Anil Narra
    Anil Narra 8 Jan, 20 at 1:41 pm

    Hi Anil, Thank you for you time and efforts,
    Based on IV post today on the FB looks like Sen. Durbin is not on board with this bill.

  3. Paul
    Paul 6 Jan, 20 at 1:22 pm

    Thanks so much for this analysis – really, very appreciated. I’d appreciate if you had any thoughts on this – if you get an I485 and change jobs (say, 2 years after bill passes) while waiting for your date to become current, then will the new employer need to file a new I140? If so, how is it easier to change jobs under the new system? Also, what happens if you lose your job in I485 status but it takes several months or a year to find a new one?

    • Anil Gupta
      Anil Gupta 8 Jan, 20 at 1:41 pm

      Each i140 is job specific to an employer for the purpose of filing i485 but it is allowed to be used for H1B extensions with any employer.

      Your other questions would need a new article to answer in detail. I will write one soon.

  4. JMP
    JMP 6 Jan, 20 at 1:22 pm

    Hi Anil, Your guidance on these topics is really much appreciated.
    I might get into an interesting situation, if this becomes law.
    COB is for both cases. I have EB based PD Aug 2017 & wife is dependent. My wife has family based file whose PD is Aug 2009 & i am dependent.
    Am i able to apply I 485 for both cases?
    I 485 with EB case shall be available to apply. However, GC may not available for another 3-4 yrs until backlog clears. However, family based GC might be ready sooner as limit is being raised 7 to 15%. Appreciate your guidance.

  5. SPM
    SPM 23 Dec, 19 at 2:24 pm

    Hi Anil,

    If a person has i140 and join a new employer and the bill passes in the meantime, Can he apply for EAD? Thanks

    • Anil Gupta
      Anil Gupta 23 Dec, 19 at 2:24 pm

      You would need to file i485 and you can file it with new employer if they have filed their own i140. Or you can go back to work for your old employer to use their i140 and file i485.

  6. P Shah
    P Shah 23 Dec, 19 at 2:23 pm

    What happens to priority dates for family based F4 categories soon this becomes law?
    I mean what year PD becomes current.

    • Anil Gupta
      Anil Gupta 23 Dec, 19 at 2:24 pm

      There needs to analysis done for the effects on family immigration dates. I have not done it yet.

  7. Shyam
    Shyam 23 Dec, 19 at 2:24 pm

    Can u please elaborate on why moving from H1B to i485 EAD is risky?

  8. George
    George 23 Dec, 19 at 2:24 pm

    Your analysis is a bit misleading especially these parts

    (a) “The other ROW people who are physically inside US will still be in the same queue as India & China.” — The amendment does not preclude ROW people currently in the US from qualifying for the 5.75% of GCs. They do qualify, but they are to be prioritized last.

    (b) “If you have filed an i140 already, you will get a green card earlier than others who file it after you. This hold true for ROW too.” — The word filed here should be replaced with approved. In the bill it says: “No alien who is the beneficiary of a petition for an immigrant visa under section 203(b) of the Immigration and Nationality Act (8 U.S.C. 1153(b)) that was approved prior to the date of the enactment of this Act shall receive a visa later than the alien otherwise would have received such visa had this Act not been enacted. ” So that means if you are ROW and you filed I-140 and I-140 has not been approved before the day the president signs this bill, then you’ll go through the transition period.

  9. 大肥肉
    大肥肉 23 Dec, 19 at 2:24 pm

    Separating Chinese from ROW and robbing the benefits from us? We are never “Indians and Chinese”. We are not together, thanks.
    The first three year transition period won’t clear the Chinese backlog which means from now on, there will be ZERO new EB2/EB3
    green cards get approved in the next decade. We will do everything we can to stop this.

  10. Mallika Tiwari
    Mallika Tiwari 23 Dec, 19 at 2:24 pm

    Hi Anil,
    Thanks for such a detailed analysis,I really appreciate the effort.

    I just had one question about #6 H4 EAD may not Get I-485 EAD.I am heavily stressed out about this situation,If it does not happen how are the spouses eligible to work after H4EAD expires.

    Also,if EAD will be given only for 3 years is there any extension involved after that until we get green card.

    As you mentioned somewhere,we can apply for I-485 now before the PD becomes active according to this bill.We have approved I-140 and H4EAD now, when exactly we can apply for I-485 and should the spouse get EAD if we apply as soon as possible before H4EAD is taken away.

    Please shine some light on this.Thanks in advance.

  11. Ahmet Seker
    Ahmet Seker 23 Dec, 19 at 2:24 pm

    Why did you write this?
    “Once it is approved and signed by President, it will be applicable starting Oct 1, 2020 at the earliest.”
    In the amendment it says this shall take effect on the date of enactment. Are these two different things?

    If Trump signs this say in March 2020. What will be the applicable law between March and October?

  12. Amit
    Amit 23 Dec, 19 at 2:24 pm

    Thank you Anil. We high skilled immigrant on backlog are grateful to you for providing accurate information always.
    With the latest compromise,what is your assessment of bill passing senate. Do you see its prospect has improved?

    • Anil Gupta
      Anil Gupta 23 Dec, 19 at 2:24 pm

      Well, there is progress and it does have something for people who were opposing it earlier.

      It would be interesting to see if anyone else has any objections or not.

  13. Kumar
    Kumar 23 Dec, 19 at 2:24 pm

    How the 50% H1B would workout for existing employers? Will it be for new H1B or H1B extension?
    Lets say if the company has more than 50% of H1B , then I can’t do H1B transfer to them . is that correct?

  14. aussie kang
    aussie kang 23 Dec, 19 at 2:24 pm

    Hey thanks for the great analysis and updates thus far Anil. If this were to pass (seems highly doubtful other senators would approve UC though), what do you think the priority date movements for India and China would look like for EB-2?