Like most countries, the United States is constantly refining and reworking immigration law. Typically, these laws are a reflection of the presidential administration that is in office. Bill S386 which was proposed, but not passed, is an example of an attempt to make a significant change to current immigration law.

What is S386?

Senate Bill S386, or the Fairness for High-Skilled Immigrants Act of 2019, was introduced as an attempt to address the Trump administration’s lowered per-country limit of inbound skilled immigrants into the United States.

This numerical limitation would have also had a ripple effect that would lower the number of admitted family members accompanying skilled workers into the United States. Has S386 Been Passed?

It’s important to note that, while this bill did not pass, there will likely continue to be legislation introduced in the upcoming years as a response to immigration legislation passed during the Trump administration. Each political party has very different perspectives on how to approach work-based immigration and these differences influence the type of legislative law that is introduced.

The Immigration and Nationality Act (INA) of 1952 is the cornerstone of immigration policy in the United States. Since it was enacted, presidential administrations have continued to amend or remove policies based on the current mood of the country.

Now is no different.

The INA limited the number of visas issued under a number of different subsets of qualified immigrants, ranging from highly skilled labor to family members who accompanied spouses and parents to the United States.

This act also capped immigration by country. It should be noted that, in 2019, a little over 70% of H1-B recipients were of Indian origin with an additional 12% of applicants being admitted from China.

The Difference Between HR1044 and S386

While there may be uncertainty on how the HR1044 bill differed from S386, there really weren’t significant differences between the two.

Most notable, however, was the removal of country caps in the HR1044 bill for employment based visas, which was previously 7% per country.

One thing to note is that Green Card issuance under both bills would not have been increased. Both the H1044 and S386 bills also contained language specifically addressing the impact on Green Card applicants and the delays their applications are experiencing currently.

Both bills were fairly similar, however, the American Immigration Lawyers Association noted that both had xenophobic language that was specific to inbound Chinese applicants. Because of this language, the AILA could not support it unless it was changed.

What is the ‘Do No Harm’ Provision?

The idea behind the ‘Do No Harm’ provision in the proposed S386 bill was to advertise work opportunities to those who are US citizens, prior to opening up the opportunity to professionals outside of the US. The goal of this is to mitigate the potential of a negative impact on the US-born workforce that could occur by hiring individuals from outside of the country.

Immigration Policy: Obama Vs. Trump Vs. Biden

President Obama

One of the most interesting things to look at is how significantly immigration policy can change after a new president is elected. President Obama had an aggressive policy of deporting illegal immigrants, but a much more welcoming policy for legal work and entrepreneurial-based inbound immigrant applicants.

President Trump

It’s important to point out that there were some significant policy changes enacted during the transition from President Obama to President Trump. Most notably, President Trump focused on lowering inbound immigration — legal and illegal — with what were known colloquially as his “America First” policies.

Trump also focused on a ‘Zero Tolerance’ immigration policy that had the primary goal of discouraging initial actions by inbound legal or illegal immigrants that would have the potential to “harm” the US workforce.

These policies emphasised a zero tolerance for illegal immigration, limited legal immigration, and focused on the potential redistribution of visas to countries with lower inbound immigrant numbers, such as Norway.

President Biden

Finally, President Biden’s administration is signaling somewhat similar policies to the Obama era that are potentially more progressive in scope. It’s still too early in the Biden Administration to know what pieces of legislation will be eventually passed into law.

The Future of Immigration for International Professionals in the US

It is still very early into the Biden administration at the time of publication. Like many governments all over the world, addressing the COVID pandemic is the most urgent point of focus.

But, as the response ramps up and, hopefully, COVID numbers decline, President Biden will begin focusing on economic growth and financial inequities that occurred as a result of the pandemic. More bills will likely be introduced by members of Congress on both sides of the aisle.

For those of you considering starting a business or looking to work in the United States moving forward, you may want to set up alerts that will keep you in the loop as new legislation is proposed.

If you’ve already submitted a visa request, make sure to understand the Perm Checker process that helps keep you informed on the status of your pending request. Depending on the type of status you’re seeking, USCIS (United States Customs and Immigration Services) may request that you have an in-person interview as well.

If your current case is pending, it’s important to stay up-to-date with potential changes to immigration law and the effect that those changes may have on your personal case.

Though S386 and HR1044 weren’t made into law, it’s likely that some aspects of the bills will eventually be made into law sometime in the future. With this in mind, it may also be a good idea to review what you’ve budgeted for your visa process, taking into consideration the possible delays or changes due to potential legislative moves.

As we move further into the Biden era, It will be interesting to see what the President and his team will decide to prioritize with regards to inbound highly skilled immigrants.