New PERM Regulations Likely Long Way Off

President Barack Obama directed the U.S. Department of Labor (DOL) to update and modernize the PERM Labor Certification (PERM LC) program in 2014. On September 12, 2016, however, a DOL official stated that the PERM regulations are currently under review, but that it is “highly unlikely” that any proposed changes to the PERM LC program will be implemented before the end of the Obama Administration in January 2017.

Modernizing the PERM Labor Certification Program

As explained in the MurthyDotCom NewsBrief, President’s Executive Action Mandates Improvements to PERM, (25.Nov.2014), President Obama instructed the DOL to update the PERM LC process in November 2014. Since then, the DOL has been considering modifications and soliciting public input regarding potential changes, including options for identifying labor shortages and surpluses, modernizing recruitment requirements, improving case processing timeframes, and altering the submission and review process.

Lengthy Rule-Making Process

Changes to the PERM LC program can be made only by modifying the governing regulations. This is a regimented and lengthy process that includes drafting the proposed modifications and submitting them for public comment before the modified rule is finalized and implemented. In his September 12, 2016 comments, the DOL official noted that the draft PERM LC modifications are currently under review. He also stated that, while a notice of proposed rulemaking detailing the prospective changes for public comment may be released in the coming months, the new rules are not likely to be finalized by January 2017.

New Administration Could Change or Derail Pending Regulations

Assuming that the PERM LC regulations are not finalized in the near future, the new president sworn into office in January 2017 would almost certainly be able to alter or even completely cancel these proposed changes. So, at this point, it appears that any significant changes to the PERM process are going to have to wait.

It should be noted that, unlike pending rules, regulations that have already been implemented by an agency generally cannot be undone by a new president without going through the regimented and often lengthy regulatory process. Therefore, many of the significant immigration regulations implemented under President Obama in recent years – such as making it possible for qualifying H-4 spouses to apply for employment authorization, as detailed in the MurthyDotCom NewsBrief, Overview of the New H-4 EAD Rule (25.Feb.2015) – will likely remain unchanged for the foreseeable future.

Conclusion

As with many areas of immigration law, the PERM process clearly needs to be modernized and streamlined. But, unless Congress or the next president makes this a priority, any such changes could be a long way off.

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