Priority Dates for Employment-Based Petitions

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.

-----------------------------------------------------------------------

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]

BILLING CODE 4410-10-M