Regulatory Agenda: Employment-Based Immigration Items Added


Two employment-based immigration items have been added to the regulatory agenda. By adding specific items to the Regulatory Agenda, the various executive agencies, including the Department of Homeland Security and the Department of Labor, signal that considerations for rulemaking, such as cost-benefit analysis, are being undertaken. These formalities are required for any executive agency to create new directives that become permanent policy of the agency. The two items added to the agenda follow.

Employment-Based Immigration Modernization

Under RIN: 1615-AC05, the Department of Homeland Security (DHS)  “is proposing to modernize the immigrant visa system by amending its regulations governing the adjustment of status process and employment-based immigration. Through this rule, DHS proposes to allow certain approved Immigrant Petition for Alien Worker (Form I-140) beneficiaries to obtain work authorization, clarify the meaning of portable work authorization, and remove unnecessary restrictions on the ability to change jobs or progress in careers, as well as provide relief to workers facing lengthy adjustment delays.”

While this rule will likely relate to the recently announced work authorization for certain H-4 spouses, it does not limit authorization to this class of nonimmigrants. This could mean that DHS is considering the extension of work authorization to the H-4 children of H-1B beneficiaries of an approved I-140. The proposed rule change would also clarify the portability provisions, presumably of H-1B holders who have an approved I-140. It could also deal with portability of EAD beneficiaries, but due to the few restrictions placed on these nonimmigrant workers, the likely rule clarification will be on the former. Finally and probably most relevant to the thousands of approved I-140 beneficiaries, the proposed rule will remove restrictions on career mobility and advancement. For all of these reasons, this is definitely an agenda item to follow.

Modernizing the Permanent Labor Certification Program (PERM)

Under RIN: 1205-AB75, the Department of Labor (DoL) proposes to modernize the outdated PERM program. The DoL “has not comprehensively examined and modified the permanent labor certification requirements and process since 2004. Over the last ten years, much has changed in our country’s economy, affecting employers’ demand for workers and the availability of a qualified domestic labor force. Advances in technology and information dissemination have dramatically altered common industry recruitment practices, and the Department has received ongoing feedback that the existing regulatory requirements governing the PERM process frequently do not align with worker or industry needs and practices. Therefore, the Department is engaging in rulemaking that will consider options to modernize the PERM program to be more responsive to changes in the national workforce, to further align the program design with the objectives of the U.S. immigration system and needs of workers and employers, and to enhance the integrity of the labor certification process.”

Modernizing the PERM system is an amorphous prospect, which is why the proposed rule change is vague. To modernized PERM, the DoL will require significant analytical debate and scholarly input from those who practice in this sector. Some major downfalls of the system as it exists now are the time it takes for the DoL to certify a PERM application, especially if it goes to audit, and the antiquated forms of advertisement that are required of employers. In terms of the 6+ months it takes to receive PERM certification, employers simply do not operate under such timeframes when hiring employees. In order to retain top talent, an employer must be nimble and react to the applicants in front of them. With regard to advertising, newspapers are a thing of the past. But to satisfy PERM requirements, companies waste valuable recruitment resource dollars on ad space without any inkling of hope that the ad will yield even one candidate. Yet when companies use dynamic recruitment strategies like social media, the DoL gives no credit in the PERM process. The simple reason is that the world in 2015 is different than the world in 2004. Ideally the DoL will realize that the world will be different in 2016 and 2017 too, so the new system should be prepared to adapt with time instead of getting lost in it.

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