Article “S386/HR1044 – Passed By Senate – Goes to Conference with Part That Must be Fixed”

As published in the Immigration Daily on December 7, 2020

S386, the Senate counterpart to HR1044, which would among other items, change the immigration laws to lift the country restrictions on employment based visas and give most of them to India-born but also allow early filing of I-485 applications to adjust status with three year work and travel authorizations, was passed by Senate voice vote on December 2, 2020, but must go back to the House of Representatives because of amendments made prior to Senate passage.

Details on the bill and the changes through December 2019 were covered by our articles in the Immigration Daily, “Amended HR1044 in S386 Happening Now Amid a Flood of Concerns,” 9/23/19, and “Intersection of the Relief Act and Fairness for High Skilled Immigrants Act of 2019,” 1/2/20. Our opposition to the India domination of employment-based immigrant visas in future years at the expense of the rest of the world including China and new restrictions on H-1B and L-1 visas was tempered by the December 2019 amendment allowing early adjustment of status even when an immigrant visa number was not available. We said then that the changes made the favorability quotient of the legislation a closer question. The amended version of S386 expands the time in which adjustment of status can be filed from 270 days after approval of the immigrant visa petition to two years and places restrictions on duties, hours, and compensation along with requiring a confirmation of bona fide job offer or portability with any request for an employment authorization document.

Without going into detail on the other changes, a major concern is Section 9 which is a “Prohibition on Admission or Adjustment of Status of Aliens Affiliated with the Military Forces of the People’s Republic of China or the Chinese Communist Party.” This may literally have the potential of affecting hundreds of millions of Chinese nationals and seriously hamstring the incoming Administration’s attempts to conduct relations with the People’s Republic of China. Who does it affect? Who knows? The paragraph underneath the heading appears to target applications for adjustment of status, but the heading of the section “Admission or Adjustment of Status” could be used to bar Chinese nationals applying for immigrant visas or even student visas. Now is the time to eliminate this controversial section which, if the legislation is passed and signed into law, may have to be litigated in court, modified by another law, or clarified by DHS regulations or memoranda. In China, many students have joined the Communist Youth League, which is a common occurrence – much more common than joining the Boy Scouts or Girl Scouts in America. Are they all to be inadmissible and not adjustable in the future? How to interpret the word “Affiliated”? Is the affiliation to be considered the present only or to include the past?

Before the pandemic, students from China comprised over one third of the foreign students studying in the United States. That is because a degree from the US has been seen in the past to be more valuable than degrees from other countries when the students return to China. Any question of inadmissibility could further prevent or discourage Chinese students from entering this country, thus depriving colleges and universities of much-needed revenue and cultural diversity along with the chance of favorably influencing China’s future leaders to American ideals.

Elimination of the section would be most appropriate as membership in the Communist Party is already covered under INA §212(a)(3)(D) that “Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible.” Chinese nationals that are or were affiliated with the military forces and would be of concern to the US are likely Communist Party members and would be covered by the INA section anyway. (It should also be noted that many who served in the People’s Liberation Army were not indoctrinated or party members and joined for other purposes like one of our clients who was an artist only and not a party member).

If not elimination, the caption of the section should be changed to be consistent with the underlying text – from “Prohibition on Admission or Adjustment of Status of Aliens Affiliated with the Military Forces of the People’s Republic of China or the Chinese Communist Party,” to “Prohibition on Adjustment of Status of Aliens Affiliated with the Military Forces of the People’s Republic of China or the Chinese Communist Party.”

At the very least, a more favorable change should be made to Section 9 in the conference between Senate and House negotiators. Although time is tight and the 116th Congress about to expire, this section should not be ignored in the rush to pass the bill. Same or similar legislation in the 117th Congress should find favor with the Biden administration, especially as one of the bill’s lead sponsors is the incoming Vice President, Kamala Harris, whose mother was Indian.