23 Dec 2020 18:15 IST

A big H-1B holiday gift fails in Congress

The S386 bill, now stuck, would have dramatically benefited Green Card reforms and Indian H-1B employees

December 2 was a landmark day for millions of Indian H-1B employees, current and future. The Senate unanimously voted to approve S386, a bill that had been working its way through the upper chamber for nearly two years.

Hundreds of thousands of H-1B workers had lobbied hard for the bill after they had successfully helped the companion version of the bill, HR1044, pass in the House of Representatives. The margins of passage were so overwhelming, by unanimous consent in the Senate and a 365-65 margin in the House, that it would have easily survived a presidential veto. Only a two-thirds majority in both houses is needed to override a veto.

Most analysts thought that the major impediment ahead was President Trump's signature for it to become law. Trump is bitter that he lost the election and continues to legally fight its outcome even though Joe Biden was certified President-Elect on December 14. Judges have continued to rule against his tighter H-1B restrictions in three separate cases. An H-1B law that grants relief to non-American workers would have been the last thing on Trump's mind, given his America-first strategy, especially if he plans to run again in 2024. Many thought that Trump might refuse to sign the bill or, for political effect, veto it.

But the bill never made it to Trump. The effort failed when Congress refused to include H-1B relief in the giant Omnibus bill, which, on December 21 provided nearly $1.4 trillion in Covid-19 relief. Ultimately, simple, backroom politics killed the hopes of the entire Indian community. And they have to try again because all unfinished legislation in the current Congress expires at noon on January 3, 2021, when a new Congress is seated.

What is an Omnibus bill?

For decades, there has been so much political division that identical bills rarely pass the House and Senate on the first try. The two chambers have to reconcile their differences in "Conference" and pass legislation — a process that takes time. Either way, an identical bill that has got the nod of both chambers needs the president's signature to become law.

With so many bills left lying, Congress takes the Omnibus route to pack many of them into one massive bill called the Omnibus, whose goal, such as providing Covid-19 relief, has the near-unanimous support of both parties. Some of the bills that get a ticket on the Omnibus have nothing to do with the mega bill's objective. For example, the latest Omnibus has a provision to forgive nearly $1.3 billion in federal loans to historically Black colleges and universities -- relief that has nothing to do with Covid.

Why didn't the H-1B bill get a ride on the Omnibus?

The H-1B relief bills passed by the House and Senate were different in many ways. The Senate version was far more generous than the House version, and it included unrelated language against Chinese nationals. There just wasn't enough time to go to "Conference" and come out with a unified bill. So legislative leaders excluded the bill altogether, in a huge blow to its proponents.

What benefits did S386 have?

S386 granted three major benefits and had the potential to completely change the landscape for skilled worker visas in the United States, significantly lifting the dreams of hundreds of thousands of Indians who want to work and live in America.

Indians are the primary beneficiary of H-1Bs, awarded more than 60,000 visas each year. This number vastly exceeds the number of Green Cards issued each year to any country, whether it is India or Ireland, currently 9,800. This is why India's most recent priority date — the last date when an H-1B visa holder was approved for a Green Card — is stuck in early 2010. There are simply not enough Green Cards to give out, and in the meantime, the backlog continues to grow and grow. Some analysts predict that it may take a new Indian just joining the H-1B line more than 75 years to get a Green Card.

S386 addressed this problem by phasing out the per-country visa limits over 11 years. If Ireland uses only 800 of its allotted quota a certain year, the 9,000 Irish "excess" balance would have become available for applicants from India and China, the two big backlog countries, to claim. The phase-out rules are complicated, but Indians could have seen a ten-fold increase in the number of Green Cards available each year, starting in 2022.

Proposed an "Early Filing" category of visas

Early Filing was a gift created almost entirely to benefit Indians. S386 permitted applicants who have completed two years after their immigrant petition was approved to receive three-year renewable EADs -- even if their priority date is not current. This would instantly have relieved hundreds of thousands of H-1Bs from applying for one-year H-1B extensions, always anxious that their extension applications may be denied and forcing them to leave the country. While the EAD does not give them the travel benefits of a Green Card holder, it would have given such workers peace of mind and employment flexibility that they currently do not have. There was no numerical limit to Early Filing EADs, so the benefit created a de-facto pseudo-Green Card with no limits.

Ageing out of children would have become history

H-1B parents are worried about their children's status when they turn 21. Current law forces such children to drop out of their parents' Green Card queue and drives them to switch to an F-1 student or another legal visa to remain in America. Under S386, children would no longer have been aged out of their parents' Green Card applications, for life.

Path ahead

President-elect Biden is more likely to sign these relief measures into law. But both bills have to earn a vote in the new Congress again.

Biden has publicly demanded additional benefits for other immigrant groups, such as granting citizenship pathways to illegal immigrants, all rolled into one comprehensive bill, including H-1B relief. Such a move could stall again as parties bicker over a larger bill. Besides, in the new House, Republicans are more emboldened to resist, given their increased numbers — although the Democrats retain a slim majority of 222-212 with one seat still undecided.

For the millions of Indians disappointed in this week's legislative outcome, an important principle of America's Constitution became evident. Passing a new law that grants new benefits is nearly impossible. But once something becomes law, it is also nearly impossible to undo it. So the Indian community must forget its losses and try again.