As we previously reported, on November 21, 2014, President Obama announced that he would be taking Executive Action to address immigration practices related to border security, highly skilled workers and entrepreneurs, and certain classes of undocumented workers who have been in the Unites States for at least five years, as well as meet other requirements.  Click here to read our summary of the Immigration Accountability Executive Action.  Most of the Actions involved instructing the various agencies associated with Immigration processing and enforcement to implement new regulations, policies or procedures, and to issue guidance.  The White House issued a report this month, "Modernizing and Streamlining Our Legal Immigration System for the 21st Century," which details the steps being taken to implement some of the President's initiatives.

In the employment-based context, the report indicates that DOS will be revising the monthly Visa Bulletin later this year to better estimate immigrant visa availability for prospective applicants, and to allow more individuals seeking permanent resident status to work, change jobs, and accept promotions. The White House also states that DHS intends to publish a regulation which clarifies and expands on the protections granted by AC21 for employment-based immigrants and non-immigrants, an announcement which is supported by DHS' notice that it has added employment-based visa modernization to the regulatory agenda. DHS indicated that the Agency is specifically working on amended regulations governing the adjustment of status process and employment-based immigration, specifically by allowing certain approved I-140 beneficiaries to obtain work authorization, clarifying the meaning of portable work authorization, and removing unnecessary restrictions on the ability to change jobs or progress in careers, as well as providing relief to workers facing lengthy adjustment delays.

The White House report also indicates that DOL intends to publish a new regulation to better align the PERM program with the objectives of the immigration system and the needs of workers and employers, including updating recruitment methods, addressing the correction of minor errors in applications, and disclosing application outcome to immigrant workers. DOL also continues to implement a plan to streamline PERM adjudications processes, including audit review, in order to reduce the pending audit caseload and allow for faster adjudication of audit case processing. During a DOL panel at the American Immigration Lawyers Association's Annual Conference in June, a DOL representative stated that DOL anticipates publishing its new proposed regulation in December 2015. The panel also noted that DOL's Fiscal Year 2016 budget proposal requests the authority to charge fees. If Congress grants this authority, DOL would begin working to implement fees for PERM labor certification applications.

We do not have any additional information about these proposed changes at this time, but will provide more information as it becomes available.

Finally, implementation of two of the Executive Action initiatives - expanding Deferred Action for Childhood Arrivals (DACA, a program implemented in 2012) and introducing Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) - continues to be delayed due to a temporary injunction issued by a Texas District Court pending a lawsuit challenging these programs.  One of the provisions of the expanded DACA program is to issue EADs valid for three years instead of two, and USCIS immediately implemented this change for DACA renewal applicants after President Obama's announcement in November.  USCIS is now conducting a campaign of letters, phone calls, and home visits to collect those three-year EADs granted after the injunction was issued, and replace them with two-year EADs (which are still allowed under the initial 2012 DACA initiative).

As of the date of this newsletter, DOL reports that it is processing PERM labor certification cases which were filed in December 2014.  This means that if a PERM case was filed today, it would take DOL approximately seven months to adjudicate.  

DOL also reports that it is adjudicating PERM cases selected for audit which were originally filed in March 2014.  This means that if a PERM case was filed today and subsequently selected for audit, it would take DOL approximately one year and four months to adjudicate.