Fact Check: Can Trump force H1B PERM Again? (for EB2, EB3)

Trump's executive order has asked DOL to work on framing new rules for PERM certification - EB2 and EB3. Recertification may be forced. Old PERMs may get useless.

Anil Gupta
  By Anil Gupta    Updated  25 Jun, 20

As per the report published by Forbes, it does seem a major second step may be coming up after the recent H1B travel ban.

Forbes headline says it all: “Trump May Attempt To Force Long-Time H-1B Visa Holders Out Of U.S.

Forbes is right in connecting the dots as Trump’s proclamation clearly mentions to revise the labor certification process for EB-2 and EB-3 employment-based green card applications:

Trump Executive Order - Recertify PERM labor
Trump Executive Order – Revise PERM certification process & rules

The order clearly mentions revising the labor process for past approvals too.

What this means is that every Indian and Chinese currently stuck in long backlogged queues might be forced to re-certify their PERM.

The new process (not known yet) may be tougher and may push out the people who are already waiting and may not be found eligible as per new rules.

As Forbes has mentioned:

  • There are more than 350,000 Indian professionals (as of November 2019) with approved I-140 petitions (and another 357,000 dependents) waiting in the employment-based immigrant backlog,
  • 38,000 Chinese and
  • 5,000 Filipino professionals

Several people have voiced their opinion that the order is specifically aimed at Indians as they are the largest community occupying the high paying jobs in Healthcare and technology.

They are asking Indians to wait till Nov 3 presidential election and hoping that a new president might revert the damage caused by these rules.

This is not true and realistic. The real solution is in passing a bill like S386 to remove country of birth based green card limits.

The S386 bill to remove country based limits is currently stuck with no insight into when it may or may not pass.

Court Challenges

There are quite a few legal challenges to force redoing PERM and it may not stand the federal court just like DACA.

  1. Continuous labor Certification not required: The legal language of the current law governing PERM does not require continuing labor tests. If Trump’s administration asks for recertifying PERM labor, then it may be struck down by the court.
  2. American Competitiveness Act (2000): This law allows prospective immigrants to keep renewing their H1B until their priority date gets current without recertifying the PERM again and again.

My Opinion

Attorneys believe that given the current law, the changes cannot be implemented without going through congress.

But, it is possible that DOL starts issuing more PERM audits and then starts to deny more PERM labor certifications.

This is the same as H1B visa law cannot be changed by executive orders but H1B entry can be banned.

Similar behavior has been seen with USCIS, which added extra rules making it tough to get H1B approvals without making any changes to H1B visa law.

There is nothing to worry in short term (1-2 years) but you should start planning to create a back up in long term (3-5 years) as things are getting tough in the USA every year.

Green Card Backlog Survey

If you look at this survey that we have been doing, it shows that 90%+ people who are suffering from the country of birth green card law are Indians.

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Can It be Challenged in Court?

Yes, any change in PERM certification rules which are against the current law and affect employers can be challenged in court.

When will the PERM re-certification changes be implemented?

There is no timeline or information available at this time.

The only text that we know is from Trump’s executive order to ban entry which asks DOL to tighten the rules of PERM certification for EB-2 and EB-3 employment-based Green cards.

There is no confirmation if DOL will choose to force employers to recertify PERM with new rules or not either at this time.

What Can I do to safeguard myself?

There is no safety measure available at this time. The chances are high that this process may take years if DOL goes through the regularity process.

But, if you want to create a backup, which you should as per my opinion, the best option is to file Canada PR or Australia PR.

USA regulations are unpredictable. If Trump is elected again, the chances are very high that he will continue with the same rules forward.

Will it effect approved i140s ?

There is no information available at this time. It may or may not affect approved i140 based on what rules are defined.

You have to any way file a new PERM and i140 if you change an employer. So, you will be part of the new rules if they are framed.

Would this impact pending PERM applications?

There is no change in rule as of now. The current pending PERM applications should be approved normally.


Anil Gupta
  By Anil Gupta           

Recent discussion on forum

  1. anonymous

    Risky situation… it will jeopardize all Indians and there kids future … American dream will be soon nightmare then…

  2. anonymous39

    Would this help to get GC fast or another huddle for backlog people

  3. anonymous55

    Nothing faster, everything is made to make it more slower. :pensive:

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