[Federal Register Volume 59, Number 195 (Tuesday, October 11, 1994)]
[Unknown Section]
[Page 0]
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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