U.S. Immigration Alerts

FGI UPDATES: This Week’s Summary of U.S. Immigration News

Proposed PERM Rule Clears Federal Review

Potentially Signaling Changes to Labor Certification Requirements

The Office of Management and Budget (OMB) has completed its review of a proposed Department of Labor (DOL) regulation that would revise several aspects of the U.S. PERM labor certification program, which has not been updated since 2005. The proposed rule is expected to introduce changes to recruitment requirements, strengthen protections for U.S. workers in certain layoff situations, and reinforce employer compliance with nondiscrimination requirements. Although the proposal has cleared federal review, its specific provisions have not yet been made public. The next step is publication in the Federal Register, followed by a public comment period, before the DOL can consider feedback and issue a final regulation.

Key Points

• Federal Review Completed: The Office of Management and Budget has completed its review of the DOL’s proposed regulation to revise the PERM labor certification program. The proposal is now expected to proceed to publication in the Federal Register, where its specific provisions will become publicly available.
• Potential Changes to Recruitment Requirements: The DOL has indicated that the proposed rule would revise the minimum standards employers must meet when recruiting qualified U.S. workers through the PERM labor market test. The changes could affect how employers demonstrate that qualified U.S. workers are not available for the position before sponsoring a foreign national.
• Stronger Protections for U.S. Workers: The proposed regulation is expected to strengthen PERM requirements related to layoffs involving U.S. workers. These changes may introduce additional considerations for employers when conducting layoffs and sponsoring foreign workers for permanent employment.
• Enhanced Nondiscrimination Requirements: The DOL has indicated that the proposed rule would reinforce employer compliance with nondiscrimination requirements during recruitment and hiring. The specific measures and their potential impact on employer practices will become clearer once the proposed regulation is published.
• Connection to Broader Enforcement Efforts: The PERM program has been a focus of recent DOL investigations and enforcement initiatives. The proposed rule is also part of the agency’s regulatory agenda, which was released in July.

What Employers Need to Know

• No Immediate Changes to Existing Requirements: The proposed regulation has not yet been published, and its provisions are not currently in effect. Employers should continue to comply with existing PERM requirements while monitoring developments.
• Potential Impact on Recruitment Practices: Employers may need to adjust their recruitment procedures if the proposed rule introduces new or revised standards for the PERM labor market test. Reviewing recruitment practices and documentation may help employers prepare for changes.
• Review of Layoff Policies and Procedures: Employers should monitor the anticipated revisions to PERM rules concerning layoffs of U.S. workers. Depending on the final requirements, employers may need to reassess how layoffs affect their ability to sponsor foreign nationals for permanent residence.
• Importance of Nondiscrimination Compliance: Employers should continue to ensure that recruitment and hiring practices comply with applicable nondiscrimination requirements. The proposed changes may place greater emphasis on compliance procedures and documentation.
• Opportunity to Provide Feedback: Once the proposal is published, employers will have an opportunity to submit comments during the public comment period. Employer input may help the DOL understand the practical and operational effects of the proposed changes on businesses.

Looking Ahead

• Publication in the Federal Register: The proposed regulation is expected to be published in the Federal Register, initiating a public comment period of either 30 or 60 days. The publication will provide employers and other interested parties with their first opportunity to review the specific proposed changes.
• Public Comment and Industry Feedback: Employers and other stakeholders will be able to submit feedback on the proposal during the designated comment period. This process may provide the DOL with information about the potential effects of the proposed requirements on recruitment, hiring, workforce planning, and immigration sponsorship.
• Final Regulation and Implementation Timeline: The proposed rule will not take effect until the DOL has reviewed public comments and issued a final regulation. The final rule will establish the specific implementation date and any revised compliance requirements.
• Potential Changes to PERM Sponsorship Strategies: If the proposed changes are adopted, employers may need to revise their PERM recruitment, layoff review, and compliance procedures. The scope of these adjustments will depend on the final regulation and its implementation requirements.
• Continued Regulatory and Enforcement Attention: The proposed rule, together with the DOL’s recent enforcement initiatives, suggests continued attention to the integrity of the PERM labor certification process. Employers should remain alert to regulatory developments and assess how future changes may affect their employment-based immigration programs.

The proposed PERM regulation represents a potential update to a labor certification program that has remained largely unchanged since 2005. While the proposal has cleared federal review, employers will need to wait for its publication to understand the specific changes and their implications. The upcoming public comment period will provide an opportunity for businesses to share their perspectives, and the final regulation will determine whether and how employers must modify their PERM recruitment and compliance practices.

Federal Judge Upholds USCIS’s EB-1A Final Merits Review,

Leaving Legal Questions Unresolved

A federal judge in Nebraska has upheld U.S. Citizenship and Immigration Services’ (USCIS) two-step review process for EB-1A extraordinary ability green card petitions. In Agarwal v. Miller, the court rejected a challenge to the agency’s final merits determination, which evaluates whether an applicant has demonstrated sustained national or international acclaim and recognition at the top of their field, beyond meeting the initial evidentiary requirements. The September 2026 ruling conflicts with an earlier decision by another federal judge in Nebraska, leaving the legality of the framework subject to ongoing legal debate. For now, EB-1A applicants should continue preparing comprehensive evidence that establishes both eligibility under the regulatory criteria and sustained recognition in their field.

Key Points

• Court Upholds USCIS Review Framework: In Agarwal v. Miller, a federal judge in Nebraska upheld USCIS’s use of a two-step process for evaluating EB-1A petitions. The court concluded that the final merits determination is consistent with the statutory and regulatory requirements for demonstrating extraordinary ability.
• Two-Step Evaluation Process: USCIS first reviews whether an applicant satisfies the required evidentiary criteria, generally by meeting at least three of the ten regulatory criteria or demonstrating a major, internationally recognized award. The agency then evaluates the totality of the evidence to determine whether the applicant has sustained national or international acclaim and risen to the top of their field.
• Challenge to the Final Merits Determination: The applicant argued that USCIS had introduced an additional requirement beyond those established in the governing regulations. The court rejected this argument, finding that the final merits review reflects the underlying statutory and regulatory standard rather than an unlawful additional hurdle.
• Conflicting Federal Court Decisions: The ruling conflicts with an earlier Nebraska federal court decision, Mukherji v. Miller, which rejected USCIS’s use of the final merits framework in the case before it. The conflicting decisions leave the legality of the review process unresolved at the broader judicial level.
• No Nationwide Change to USCIS Policy: The decision does not establish a new nationwide rule or require USCIS to change its existing review process. The agency continues to apply the final merits determination when adjudicating EB-1A petitions.

What Employers Need to Know

• Meeting the Criteria Does Not Guarantee Approval: Applicants who satisfy at least three evidentiary criteria may still be denied if USCIS determines that the overall evidence does not demonstrate extraordinary ability. Employers and applicants should ensure that petitions explain not only how the evidence meets individual criteria but also how it establishes sustained recognition and distinction in the field.
• Comprehensive Evidence Remains Important: EB-1A petitions should include credible documentation of achievements, professional recognition, original contributions, publications, awards, and other relevant accomplishments. The evidence should demonstrate the significance of the applicant’s work and support the conclusion that they have risen to the top of their field.
• Prepare for Potential Final Merits Challenges: Employers sponsoring individuals for EB-1A classification should be aware that USCIS may evaluate the overall strength of the evidence even after finding that the applicant meets the initial criteria. A well-organized petition that clearly connects the evidence to the extraordinary ability standard can help address this review.
• Monitor Legal Developments: The conflicting Nebraska decisions indicate that the legal framework may continue to be challenged in federal court. Employers and applicants should monitor further judicial developments that could affect how USCIS reviews extraordinary ability petitions.
• Evaluate Denials Carefully: A denial following a favorable finding on the initial evidentiary criteria may raise questions about the agency’s assessment of the overall record. Applicants should review the specific reasoning in the denial and consider whether further administrative or judicial review may be appropriate.

Looking Ahead

• Continued Legal Challenges: The disagreement between the Nebraska federal court decisions may lead to further litigation concerning the legality of USCIS’s final merits determination. Future cases could provide additional guidance on the agency’s authority to apply the two-step framework.
• Potential for Further Judicial Clarification: A future appellate decision could help resolve the conflicting interpretations and establish more authoritative guidance on the legality of the final merits review. Until then, the current framework remains in place, and individual court decisions may have limited reach.
• Continued Importance of Overall Evidence: The ruling reinforces the importance of demonstrating sustained national or international acclaim and recognition at the top of the field. Applicants should continue to develop evidence that establishes the significance of their achievements beyond simply meeting the minimum regulatory criteria.
• Possible Effects on Petition Preparation: The continued use of the final merits determination may influence how applicants and employers organize and present supporting documentation. Petition strategies should address both the individual evidentiary criteria and the overall extraordinary ability standard.
• Uncertainty for Future Applicants: The conflicting court decisions may create uncertainty for applicants considering litigation after an EB-1A denial. The outcome of future cases may depend on the specific facts, legal arguments, and court reviewing the matter.

The Agarwal v. Miller decision supports USCIS’s continued use of the final merits determination in EB-1A adjudications, but it does not resolve the broader legal debate surrounding the framework. For now, applicants and employers should continue to prepare petitions that demonstrate both eligibility under the regulatory criteria and the overall level of extraordinary ability required for approval. Further judicial developments may eventually provide greater clarity on the agency’s authority and the standards governing EB-1A petitions.   

The content of this article is intended only to provide a general guide to the subject matter. It should not be construed as legal advice. Please contact FGI at info@employmentimmigration.com or (+1) 248.643.4900 for guidance if you have specific questions.