11/20/2015: USCIS Submits on 11/19/2015 Proposed Rule for Employment-Based Immigration Modernization, aka Approved I-140 EAD/Portability Yesterday, the USCIS officially submitted a proposed rule under the name of "Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting Highly-Skilled H-1B Alien Workers" to the OMB for its approval. The text is yet to be made available. We will post the full text as soon as it is made available. Please stay tuned. Good News: This proposed rule is presented as "Economically Significant" rule, meaning that OMB, if they agree, can clear it in a matter of days or within 30 days rather than 60 days or 90 days. The time table for this proposed rule is set at "December 2015!" Obviously, the proposed rule will set "comment" period as required under the APA rule-making law in order to initiate the interim final or final rule making process. Rule-Making Justification Summary Statement: "This rule provides needed stability and flexibility to certain employment-based immigrants while they wait to become lawful permanent residents. These amendments would support U. S. employers by better enabling them to hire and retain highly skilled and other foreign workers. DHS proposes to accomplish this, in part, by implementing certain provisions of ACWIA and AC21, as amended by the 21st Century DOJ Appropriations Act. The 21st Century DOJ Appropriations Authorization Act, which will impact certain foreign nationals seeking permanent residency in the United States, as well as H-1B workers. Further, by clarifying interpretive questions related to these provisions, this rulemaking would ensure that DHS practice is consistent with statute." Obama Administration is apparently taking a rule-making route rather than a policy memorandum for a strategy to deal with a potential challenge against this reform in a federal court. For the rule-making challenge, a legal challenge must be venued in D.C. courts just as we saw in the H-4 EAD lawsuit. The district courts in DC and the federal appeals court in DC are considered Obama Administration friendly. During 113th Congress and 114th Congress, Obama worked hard to appoint judges for these courts in DC districts to set a firm foot to support his rule-making power under his political agenda. Any court challenges should deal with a summary judgment on merits of the lawsuit and either temporary restraining order or preliminary injunction to stop the rule. For background of potential lawsuit and prospect for such lawsuit, readers may go back and refresh their memory on H-4 EAD rule challenge in DC court. This is different from legal challenge against exercise of exective discretion without rule-making as illustrated in expanded DACA/DAPA lawsuit for which a lawsuit could have been brought in a court in Texas rather than in DC. Just a heads-up!