Further Impending Changes to the Employment-Based Permanent Residence System


We blogged recently about a new Regulatory Agenda item indicating that the federal Department of Labor will soon publish a proposed rule that would modernize the employment-based permanent residence process at the I-140 approval stage.  Work authorization and increased job portability are the expected focus of those proposed regulations, which are expected in October 2015.

On June 2, 2015, the federal DOL put a new item on its Regulatory Agenda, this time focused on the PERM labor certification process.  DOL acknowledges that comments from stakeholders have made clear that the current regulations governing the first step in most employment-based permanent residence cases – the “test of the labor market” – are outdated and out of step with modern recruitment practices.  Currently, employers must place ads in Sunday newspapers, and for professional occupations, also in at least three other mediums.  The steps required for labor certification are inflexible even for those employers in industries with famous labor shortages.

What are the specific changes expected from “modernization”?

The Regulatory Agenda item does not reveal what exactly will be included in the proposed rule.

However, it is widely speculated that such modernization reform will include:

  1. A schedule of shortage occupations for which an abbreviated version of recruitment will be allowed, as well as a schedule of surplus occupations for which recruitment steps may be more extensive than normal,
  2. Different recruitment procedures, i.e., moving away from using print newspaper advertising and focusing more on online recruitment,
  3. Shorten processing timeframes and allow expedited processing for certain cases,
  4. Limit denials based solely on minor and nonmaterial errors, and
  5. A clarification of what employers must do to ensure jobs are open to U.S. workers.

When will these changes take effect?

This is not a proposed rule yet, and so we cannot expect changes to take effect in the immediate future, but the government is signaling changes are on the horizon, and they are working on it.  The Regulatory Agenda document published this week proposes to amend the immigration regulations surrounding employment-based permanent residence in approximately December 2015.