[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 /
[[Page Unknown]]
[Federal Register: January 5, 1994]
VOL. 59, NO. 3
Wednesday, January 5, 1994
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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]
BILLING CODE 4410-10-M