[Federal Register Volume 59, Number 195 (Tuesday, October 11, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25078]


[[Page Unknown]]

[Federal Register: October 11, 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: Final rule.

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SUMMARY: This final rule amends the Immigration and Naturalization 
Service regulations on priority dates for employment-based petitions 
based on labor certifications filed before October 1, 1991. 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 to file an employment-based petition, if the 
underlying labor certification was filed before October 1, 1991.

EFFECTIVE DATE: October 11, 1994.

FOR FURTHER INFORMATION CONTACT:
Michael W. Straus, Senior Immigration Examiner, Adjudications Division, 
Immigration and Naturalization Service, 425 I Street, NW., Room 3214, 
Washington, DC 20536, telephone (202) 514-3228.

SUPPLEMENTARY INFORMATION: On November 29, 1991, the Service published 
a final rule on employment-based petitions in the Federal Register at 
56 FR 60897-60913. The final rule, codified at 8 CFR 204.5(d), provided 
that the priority date for an employment-based petition accompanied by 
a labor certification shall be the date on which any office within the 
employment service system of the Department of Labor accepted the 
request for labor certification. A priority date determines when an 
alien who has had an immigrant visa petition approved on his or her 
behalf may submit his or her application for permanent resident status 
or an immigrant visa.
    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, addressed, among other things, the 
transition of labor certifications filed before October 1, 1991 into 
the new employment-based immigrant visa categories created by IMMACT. 
In this regard, section 302(e)(2) of MTINA provides that, in order to 
maintain the priority date of a labor certification application 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 
to maintain the pre-October 1, 1991 priority date. 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 the Department of Labor certified between August 
2, 1993 and October 1, 1993, a petition under section 203(b) of the Act 
must be filed within 60 days after the date of certification to 
preserve the earlier priority date. The Service does not believe that 
Congress intended to provide those employers less than 60 days from the 
date of certification to file a petition under section 203(b) of the 
Act.
    To implement section 302(e)(2) of MTINA, the Service issued an 
interim rule with request for comments on January 5, 1994 at 59 FR 501-
502, providing that 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, the sponsoring employer 
must file a petition under section 203(b) of the Act before October 1, 
1993, or within 60 days after the date of certification by the 
Department of Labor, whichever is later, in order to maintain the pre-
October 1, 1991 priority date. If the petitioning employer fails to 
maintain the pre-October 1, 1991 priority date, the priority date shall 
be the date a new employment-based petition is properly filed with the 
Service.
    The public was provided with a 30-day period, ending on February 4, 
1994, to comment on the interim regulation. The Service received three 
comments.

Discussion of Comments

Statutory Interpretation

    One commenter disagreed with the Service's interpretation of 
section 161(c) of IMMACT. Focusing on the requirement that a petitioner 
seeking to preserve a pre-October 1, 1991 priority date must file a 
``new petition'', the commenter argued that Congress intended the 
priority date rule in section 161(c)(1)(A) of IMMACT to apply only to 
employment-based petitions filed before October 1, 1991 and not to 
applications for labor certification filed before that date. The 
commenter further contended that an employment-based petition filed 
after the Department of Labor certifies a labor certification would not 
be a ``new'' petition since an employment-based petition is considered 
to be ``new'' only if the petitioner has not previously filed an 
employment-based petition on behalf of the alien. In other words, the 
commenter basically argues that the use of the words ``new petition'' 
in section 161(c)(1)(A) of IMMACT presupposes the filing of an old 
petition. The Service disagrees with the commenter's argument.
    In order to properly address the comment, it is necessary to 
examine carefully section 161(c)(1)(A) of IMMACT. The underlined 
portions of section 161(c)(1)(A), which specifically refer to labor 
certification applications, are the MTINA amendments, which were added 
after IMMACT became effective. The language of section 161(c)(1)(A) of 
IMMACT reads as follows:
    (1) In the case of a petition filed under section 204(a) of the 
Immigration and Nationality Act before October 1, 1991, for preference 
status under section 203(a)(3) or section 203(a)(6) of such Act (as in 
effect before such date) or an application for labor certification 
before such date under section 212(a)(14)--
    (A) in order to maintain the priority date with respect to such a 
petition or application, the petitioner must file (by not later than 
October 1, 1991, but not certified until after October 1, 1993, or 60 
days after the date of certification in the case of labor 
certifications filed in support of the petition under section 
212(a)(14) of such Act before October 1, 1991, but not certified until 
after October 1, 1993) a new petition for classification of the 
employment under paragraph (1), (2), or (3) of section 203(b) of such 
Act (as amended by this title), and
    Before Congress amended section 161(c)(1)(A) of IMMACT by enacting 
section 302(e)(2) of the MTINA, section 161(c)(1)(A) provided that in 
order to maintain a priority date of an employment-based petition filed 
before October 1, 1991, a new petition must be filed by October 1, 
1993. As used in section 161(c)(1)(A) of IMMACT, the term ``new 
petition'' clearly refers to an employment-based petition other than 
the one the petitioner had previously filed with the Service and not 
``new'' in the sense of a first-time petition. Congress' use of the 
word ``new'' in section 302(e)(2) of MTINA does not alter the fact that 
the MTINA was amended specifically in order to apply the same priority 
date standard applicable to employment-based petitions to labor 
certifications applications filed before October 1, 1991. It is a basic 
rule of statutory construction that effect must be given to every word, 
clause, and sentence of a statute, so that no part will be inoperative, 
superfluous, or would emasculate the entire amendment. See Sec. 46.06 
Singer, Sutherland Statutory Interpretation, 5th Ed. (1992); U.S. v. 
Menasche, 348 U.S. 528, 538-39 (1955). Adopting the commenter's 
interpretation of section 161(c)(1)(A) of IMMACT would render the MTINA 
amendments to that section superfluous simply because Congress retained 
the word ``new petition.'' The Service cannot ignore the MTINA 
amendment. For this reason, the Service will not accept the commenter's 
reading of section 161(c) of IMMACT.
    The commenter also criticized the Service for engaging in 
retroactive rulemaking, citing Bowen v. Georgetown University Hospital, 
488 U.S. 204 (1988). The Supreme Court held in Bowen that courts should 
be reluctant to find authority for retroactive rulemaking absent an 
express statutory grant. See id. at 209. As stated in the preceding 
paragraph, however, this rule is based on an express statutory 
amendment creating the October 1, 1993 deadline. The Bowen case is not 
applicable to this situation, since the Service is simply implementing 
a clear statutory directive.

Timing of the Interim Rule

    Two commenters criticized the Service for promulgating this 
regulation as an interim regulation after the October 1, 1993 deadline 
for submitting petitions elapsed. One commenter stated that the timing 
of the promulgation of the Service's regulation violated the spirit of 
the Administrative Procedures Act and was unfair to the public by not 
providing the public with adequate notice of the October 1, 1993 
deadline by issuing the interim rule in January of 1994.
    The timing of the interim regulation did not implicate the 
Administrative Procedures Act (APA) nor did it adversely impact the 
public. The MTINA amendments to section 161(c)(1)(A) of IMMACT clearly 
superseded the Service's regulation on establishing priority dates for 
employment-based petitions in the case of labor certifications filed 
before October 1, 1991. The interim rule merely made the regulations 
consistent with the statute. The purpose of the regulation was to 
inform the public that, under section 301(e)(2) of the MTINA, if a 
labor certification was filed before October 1, 1991, the petitioning 
employer should file an employment-based petition with the Service as 
soon as possible to maintain the priority date. It also notified the 
public of the statutory requirement that if a labor certification filed 
before October 1, 1991 is still pending with the Department of Labor, 
an employment-based petition must be filed within 60 days of the date 
of certification to preserve the priority date. Any impact on the 
public therefore resulted from the enactment of section 301(e)(2) of 
the MTINA and not by the promulgation of the interim rule.

Other Comments

    One commenter objected to the interim rule on the ground that it 
had an impact on pending litigation involving substitution of labor 
certification beneficiaries by the employer. See Kooritsky v. Reich, 
No. 92-5277 (D.C. Cir. March 18, 1994). In the Kooritsky decision, the 
U.S. Court of Appeals for the District of Columbia invalidated on APA 
grounds a Department of Labor regulation which eliminated substitution 
of labor certification beneficiaries. The commenter argued that the 
interim rule adversely affected an employer's ability to substitute 
labor certification beneficiaries, because, under the interim rule, the 
substituted alien will not have the original priority date if the 
employer failed to file an employment-based petition before the October 
1, 1993 deadline.
    The same commenter also stated that the interim rule circumvents 
the Department of Labor's existing rule at 20 CFR 656.30 that a labor 
certification is valid indefinitely. The interim rule neither affects 
an employer's ability to substitute labor certification beneficiaries 
nor the Department of Labor's regulation. By issuing this interim rule, 
the Service simply implemented section 302(e)(2) of the MTINA, which 
deals solely with preservation of priority dates. Moreover, even though 
the MTINA amendment may affect a pre-October 1, 1991 priority date, it 
has no effect on the validity of the underlying labor certification.
    One commenter suggested that the Service extend the October 1, 1993 
filing deadline to a date 60 days after the effective date of this 
final rule. Absent a clear indication from Congress, the Service does 
not have the authority to go beyond the plain language of the statute 
and extend the October 1, 1993 deadline.
    In sum, section 302(e)(2) of the MTINA requires that in order to 
preserve a pre-October 1, 1991 priority date, the employer must file an 
employment-based petition with the Service before October 1, 1993 or 
within 60 days after the Department of Labor approves the labor 
certification, whichever is later.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation and by approving it certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities. 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 filed petitions under section 
203(b) of the Act.

Executive Order 12866

    This rule is not considered by the Department of Justice, 
Immigration and Naturalization Service, to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review, and the Office of Management and Budget 
has waived its review process under section 6(a)(3)(A).

Executive Order 12612

    The regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 12612, it is determined that this rule does not have sufficient 
Federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12606

    The Commissioner of the Immigration and Naturalization Service 
certifies that she has assessed this rule in light of the criteria in 
Executive Order 12606 and has determined that it will have no effect on 
family well-being.

List of Subjects in 8 CFR Part 204

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

    Accordingly, the interim rule amending 8 CFR part 204 which was 
published at 59 FR 501-502 on January 5, 1994, is adopted as a final 
rule without change.

    Dated: August 16, 1994.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 94-25078 Filed 10-7-94; 8:45 am]
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