[Federal Register Volume 59, Number 3 (Wednesday, January 5, 1994)]
[Notices]
[Pages 501-502]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-175]


  Federal Register / Vol. 59, No. 3 / Wednesday, January 5, 1994 /
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[[Page Unknown]]

[Federal Register: January 5, 1994]


                                                     VOL. 59, NO. 3

                                         Wednesday, January 5, 1994
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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 204

[INS No. 1647-93]
RIN 1115-AD61

 

Priority Dates for Employment-Based Petitions

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule amends the Immigration and Naturalization 
Service (Service) regulations by providing that an application for 
labor certification filed with a state employment office before October 
1, 1991, must be filed with the Service in connection with a petition 
filed under section 203(b) of the Immigration and Nationality Act (Act) 
before October 1, 1993, in order to maintain a pre-October 1, 1991 
priority date. This rule implements section 302(e)(2) of the 
Miscellaneous and Technical Immigration and Naturalization Amendments 
of 1991 (MTINA), which amended section 161(c)(1) of the Immigration Act 
of 1990 (IMMACT). This rule is necessary to ensure full public 
awareness of the October 1, 1993 deadline.

DATES: This interim rule is effective January 5, 1994. Written comments 
must be submitted on or before February 4, 1994.

ADDRESSES: Please submit written comments, in triplicate, to the 
Records Systems Division, Director, Policy Directives and Instructions 
Branch, Immigration and Naturalization Service, 425 I Street NW., room 
5307, Washington, DC 20536. To ensure proper handling please reference 
INS No. 1647-93 on your correspondence.

FOR FURTHER INFORMATION CONTACT: Michael W. Straus, Senior Immigration 
Examiner, Adjudications Division, Immigration and Naturalization 
Service, 425 I Street NW., room 7122, Washington, DC 20536, telephone 
(202) 514-5014.

SUPPLEMENTARY INFORMATION: On November 29, 1991, the Service published 
a final rule in the Federal Register at 56 FR 60897-60913, revising 8 
CFR 204.5(d), which provides that the priority date for an employment-
based petition that is accompanied by a labor certification shall be 
the date the request for labor certification was accepted for 
processing by any office within the employment service system of the 
Department of Labor. A priority date cannot be established unless the 
Service approves a petition under section 203(b) of the Act based on a 
labor certification approved by the Department of Labor. Subsequent to 
the promulgation of this regulation, the President signed into law the 
Miscellaneous and Technical Immigration and Naturalization Amendments 
of 1991, (MTINA) Public Law 102-232, dated December 12, 1991. Section 
302(e)(2) of the MTINA, which amended section 161(c)(1) of the 
Immigration Act of 1990 (IMMACT), Public Law 102-649, dated November 
29, 1990, was enacted in order to address the transition of labor 
certifications filed before October 1, 1991 into the new employment-
based immigrant visa categories created by IMMACT. Section 302(e)(2) of 
MTINA provides that, in order to maintain the priority date of a labor 
certification filed in connection with an employment-based petition 
which was submitted to a state employment office before October 1, 
1991, the employer must file a petition under section 203(b) of the Act 
before October 1, 1993. Section 302(e)(2) of MTINA further provides 
that if the Department of Labor approves a pre-October 1, 1991 labor 
certification application subsequent to October 1, 1993, the employer 
must file a petition under section 203(b) of the Act within 60 days of 
the date of certification. Although not specifically provided for in 
section 302(e)(2) of MTINA, the Service has interpreted that section to 
require that, in the case of labor certifications which have been 
certified by the Department of Labor between August 2, 1993 and October 
1, 1993, a petition under section 203(b) must be filed within 60 days 
after the date of certification to preserve the earlier priority date. 
This reading of section 302(e)(2) of MTINA furthers congressional 
intent by allowing at least 60 days from the date of certification to 
file the petition under section 203(b) of the Act.
    In light of the above, 8 CFR 204.5(d) will be amended to reflect 
these MTINA amendments. The regulation will be further amended to 
provide that if the petitioner fails to maintain the priority date by 
filing a timely petition, the new priority date shall be the date a new 
petition is properly filed with the Service.
    The Service's implementation of this rule as an interim rule, with 
provision for post-promulgation public comment, is based on the ``good 
cause'' exception found at 5 U.S.C. 553(b)(B) and (d)(3). The reasons 
and necessity for immediate implementation of this interim rule are as 
follows: Immediate promulgation of this interim rule is necessary to 
insure full public awareness of the October 1, 1993 deadline mandated 
by MTINA. Specifically, petitioning employers who submitted labor 
certification applications with a state employment office before 
October 1, 1991 and who have not submitted a petition with the Service 
under section 203(b) of the Act, must be made clearly aware that the 
provisions of 8 CFR 204.5(d), regarding assignment of priority dates, 
have been superseded by the MTINA amendments. Moreover, immediate 
promulgation of these regulations will inform the petitioning employer 
that, in cases where the request for labor certification was filed with 
a state employment office before October 1, 1991, it should file a 
petition under section 203(b) of the Act with the Service as soon as 
possible after the Department of Labor has issued the labor 
certification in order to obtain an earlier priority date.
    In accordance with 5 U.S.C. 605(b), the Commissioner of the 
Immigration and Naturalization Service certifies that this rule does 
not have a significant adverse economic impact on a substantial number 
of small entities. It is anticipated that this rule affects only a very 
limited number of petitioners and aliens who filed requests for labor 
certifications prior to October 1, 1991, but have not yet filed 
petitions under section 203(b) of the Act. This rule is not significant 
within the meaning of section 3(f) of E.O. 12866, nor does this rule 
have Federalism implications warranting the preparation of a Federalism 
Assessment in accordance with E.O. 12612.

List of Subjects in 8 CFR Part 204

    Administrative practice and procedure, Aliens, Employment, 
Immigration, Petitions.

    Accordingly, part 204 of chapter I of title 8 of the Code of 
Federal Regulations is amended as follows:

PART 204--IMMIGRANT PETITIONS

    1. The authority citation for part 204 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a, 
1255; 8 CFR part 2.

    2. In Sec. 204.5, paragraph (d) is amended by adding a new sentence 
immediately following the first sentence of the paragraph to read as 
follows:


Sec. 204.5  Petitions for employment-based immigrants.

* * * * *
    (d) Priority date. * * *  In the case of labor certifications 
accepted for processing by any office within the employment service 
system of the Department of Labor before October 1, 1991, if a petition 
filed under section 203(b) of the Act is not filed before October 1, 
1993, or within 60 days after the date of certification by the 
Department of Labor, whichever is later, the priority date shall be the 
date the petition is properly filed with the Service. * * *
* * * * *
    Dated: December 30, 1993.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 94-175 Filed 1-4-94; 8:45 am]
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