Priority Dates for Employment-Based Petitions [61 FR 33304] [FR 30-96]

DOCUMENT NUMBER: FR 30-96

FEDERAL REGISTER CITE: 61 FR 33304

DATE PUBLISHED: June 27, 1996

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.

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 det ermines 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 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, re gardless 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.