[Federal Register Volume 61, Number 125 (Thursday, June 27, 1996)]
[Rules and Regulations]
[Pages 33304-33305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16347]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 204

[INS No. 1647-95]
RIN 1115-AE24


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 eliminating the requirement 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 218 of the Immigration and Nationality Technical Corrections 
Act of 1994 (INTCA), which amended section 161(c)(1) of the Immigration 
Act of 1990 (IMMACT). This rule is necessary to implement a statutory 
change.

EFFECTIVE DATE: June 27, 1996. Written comments must be submitted on or 
before August 26, 1996.

ADDRESSES: Please submit written comments, in triplicate, to the 
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. 1647-95 on 
your correspondence. Comments are available for public inspection at 
the above address by calling (202) 514-3048 to arrange for an 
appointment.

FOR FURTHER INFORMATION CONTACT:
 Michael W. Straus, Senior Adjudications Officer, 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 implementing the new employment-based immigrant categories 
created by the Immigration Act of 1990 (IMMACT), Pub. L. 101-649. See 
56 FR 60897-913. The final rule 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. 
See 8 CFR 204.5(d). 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 the November 29, 1991, 
regulation, the President signed into law the Miscellaneous and 
Technical Immigration and Naturalization Amendments of 1991 (MTINA), 
Pub. L. 102-232, dated December 12, 1991. Section 302(e)(2) of the 
MTINA, which amended section 161(c)(1) of IMMACT 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 an employment-based petition 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.
    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. This interim rule provided 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. On October 11, 
1994, the Service issued a final rule which adopted the interim rule as 
final. See 59 FR 51358-60.
    On October 25, 1994, the President signed into law the Immigration 
and Nationality Technical Corrections Act of 1994 (INTCA), Pub. L. 103-
416. Section 218 of INTCA further amends section 161(c)(1) of IMMACT by 
removing the reference to priority dates for pre-October 1, 1991, labor 
certifications. This section effectively repealed section

[[Page 33305]]

302(e)(2) of MITINA and, therefore, the recent changes to 8 CFR 
204.5(d). The effect of this legislation is that the priority date for 
all employment-based petitions, regardless of when they are filed, 
shall be the date on which the state employment office accepted the 
labor certification application. In light of the above, 8 CFR 204.5(d) 
will be amended by removing the sentence which refers to labor 
certifications filed before October 1, 1991.
    The Service's implementation of this rule as an interim rule, with 
provision for post-promulgation public comment, is based on the ``good 
cause'' exceptions found at 5 U.S.C. 553 (b)(3)(B), (d)(3). The reason 
and necessity for immediate implementation of this interim rule is as 
follows: This rule implements section 218 of INTCA, which became 
effective upon enactment, by removing a sentence in the regulations 
which is inconsistent with that section. Immediate promulgation of this 
rule is necessary to ensure that beneficiaries of employment-based 
petitions may avail themselves of a pre-October 1, 1991 priority date. 
As this rule benefits a very limited number of beneficiaries, it should 
have no adverse impact on other beneficiaries of employment-based 
petitions.

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.

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.

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.


Sec. 204.5   [Amended]

    2. In Sec. 204.5, paragraph (d) is amended by removing the second 
sentence.

    Dated: June 13, 1996.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 96-16347 Filed 6-26-96; 8:45 am]
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