The Labor Department acted within its authority under federal
immigration law when it amended its regulations in 2007 to limit the
period during which labor certifications are valid, the U.S. Court of
Appeals for the Seventh Circuit ruled Aug. 18 (Durable Mfg. Co. v.
DOL,
7th Cir.,
No. 08-4122,
8/18/09).
Employers that file a visa petition with the Department of Homeland
Security on behalf of a foreign worker must apply for a labor
certification from DOL to demonstrate that insufficient U.S. workers
are available to perform the work and that employing the foreign
workers would not adversely affect the wages and working conditions of
U.S. workers. DOL regulations previously provided that approved labor
certifications are “valid indefinitely.” However, an
amended regulation issued in 2007 provides that an approved labor
certification expires if it is not filed in support of a visa petition
within 180 days.
Fourteen businesses and 15 foreign workers sued DOL and DHS to
challenge the amended regulation, arguing that it effectively
invalidated their previously approved labor certifications. Affirming
a lower court's grant of summary judgment to the government agencies,
the appeals court found that the amended regulation falls within the
scope of DOL's statutory authority to regulate the labor certification
process and that the amended regulation does not retroactively deprive
the plaintiffs of any legal right.
Judge Daniel A. Manion wrote the appeals court opinion, which
Judges Ilana Diamond Rovner and John D. Tinder
joined.
Both Visa Petition, Labor Certification Required.
The Immigration and Nationality Act authorizes a variety of
employment-based visas for skilled or unskilled foreign workers. An
employer seeking to hire such a worker must file a visa petition on
behalf of the worker with DHS using a Form I-140 and apply for a labor
certification from DOL. The statute (8 U.S.C. § 1182(a)(5)(A)(i))
provides that the foreign worker is inadmissible unless DOL determines
that:
“(I)
there are not sufficient workers who are able, willing, qualified
… and available at the time of application for a visa and
admission to the United States and at the place where the alien is to
perform such skilled or unskilled labor, and (II) the employment of
such alien will not adversely affect the wages and working conditions
of workers in the United States similarly
employed.”
DOL regulations on the labor certification process previously
provided that approved certifications were “valid
indefinitely” (20 C.F.R. § 656.30(a)). However, the agency
in May 2007 issued an amended regulation (Section 656.30(b)) that took
effect July 16, 2007, providing that “an approved permanent
labor certification granted on or after [the effective date] expires
if not filed in support of a Form I-140 petition with [DHS] within 180
calendar days of the date [DOL] granted the certification.” An
approved labor certification issued before the effective date expires
if not filed in support of a Form I-140 petition within 180 days of
the effective date.
In issuing the amended regulation, DOL stated that it intended to
curb the illegal sale of labor certifications and to “more
closely adhere[]” to the statute's requirement that the agency
assess the supply of qualified, available U.S. workers at the time of
the visa application.
The 14 Illinois businesses that brought the suit applied between
March 2001 and May 2007 for labor certifications on behalf of 15
foreign workers. DOL issued 13 labor certifications before the July
16, 2007, effective date of the amended regulation and two
certifications after that date. Businesses filed visa petitions on
behalf of 10 of the 15 workers. DHS rejected eight visa petitions
because the labor certifications had
expired.
Affirming summary judgment for the
government, the appeals court found that the amended regulation falls
within the scope of DOL's statutory authority to regulate the labor
certification process and does not retroactively deprive the
plaintiffs of any legal right.
The businesses and foreign workers sued DOL and DHS, seeking a
declaratory judgment that the amended regulation either is beyond
DOL's authority or illegally applies retroactively and seeking an
order compelling DHS to process their visa petitions. The U.S.
District Court for the Northern District of Illinois granted summary
judgment to the government agencies (217 DLR A-5,
11/10/08).
Supply Should Be Assessed at Time of Visa Petition.
INA Section 1182(a)(5)(A)(i) directs DOL to “make two
substantive determinations before issuing a labor
certification”--that there are insufficient qualified, available
U.S. workers and that employing the foreign worker would not adversely
affect wages and working conditions for U.S. workers, Manion said. He
emphasized that the statutory provision requires the determination
regarding the supply of workers to be made “at the time of
application for a visa and admission to the United States.”
The earlier version of the DOL regulation, which made
“approved labor certifications indefinitely valid without any
linkage to the filing of a visa petition,” did not apply the
statutory requirement that the supply of workers be insufficient at a
specific point in time, Manion said. He found that the amended
regulation, by imposing a time limit on the validity of the labor
certification, “ensures that the sufficient workers
determination reflects the state of the labor market at the time the
anticipated employee's application for a visa and admission is
made.”
The businesses and foreign workers “do not contend that DOL
lacks statutory authority to issue regulations pertaining to labor
certifications in general,” Manion said. He found it unnecessary
to decide whether the regulations “are legislative rules
promulgated pursuant to an implied congressional delegation of power
or merely interpretive rules issued through DOL's inherent
authority.”
“Assuming that DOL possessed statutory authority to
promulgate regulations pertaining to labor certifications, then the
amended § 656.30(b) is within the scope of DOL's authority
because it complies with the explicit language” of INA Section
1182(a)(5)(A)(i), Manion said. He also found that the amended
regulation “is consistent with one of the overarching purposes
behind labor certifications: protection of the domestic labor force
from job competition.”
The 180-day limit in the amended regulation “ensures that the
snapshots of the labor market taken when labor certifications are
approved are not stale appraisals of the labor market when the visa
petitions are filed,” Manion said. He found that “[t]his
protects Americans who are currently able, willing, qualified, and
available to fill certain skilled and unskilled positions from having
to compete with aliens who were issued labor certifications (and are
now applying for visas) at a time when the domestic work force was
insufficient to fill such positions.”
Manion acknowledged that filing an approved labor certification in
support of a visa petition within 180 days of issuance of the
certification “does not ensure” that by the time DHS
approves the visa petition “the current labor market is roughly
the same” as it was the DOL issued the certification. “But
that is an issue for Congress and DHS to address,” Manion said.
“The point remains that the new § 656.30(b) advances, to
some degree, the congressional purpose of protecting American
workers.”
No Retroactive Effect Found.
The businesses and foreign workers argued that even if DOL acted
within its statutory authority, the amended regulation has an
impermissibly retroactive effect on them. Manion said the proper
analytical framework involves two questions--“whether Congress
has expressly conferred power on the agency to promulgate rules with
retroactive effect and, if so, whether the agency clearly intended for
the rule to have retroactive effect.”
“We are unaware of any express statutory provision indicating
congressional approval of retroactive rulemaking by DOL in regard to
labor certifications,” Manion said. He also found that the
amended regulation has no retroactive effect on the businesses and
foreign workers.
“A law is not retroactive merely because it is applied to
conduct before the law was passed or upsets expectations based in
prior law,” Manion said. He found that a law has retroactive
effect only if it impairs rights that parties had when they acted,
increases liability for past conduct, or imposes new duties regarding
transactions that already are completed.
The amended regulation clearly had no retroactive effect regarding
the two labor certifications that DOL approved after the effective
date, Manion said. “The filing of an application for a labor
certification is simply a preliminary step for obtaining a labor
certification,” not a final determination, so “no new
legal consequences would affect the application” as a result of
the amended regulation, he said.
Certifications Not Valid Permanently, Court Says.
As for the labor certifications that DOL approved before the
effective date of the amended regulation, Manion rejected the argument
that the certifications were valid permanently and gave the businesses
a vested right to file a visa petition at any time supported by the
certification. “Any right that might have been created with
respect to the time period of validity of the labor certifications
would have come from the earlier version of § 656.30(a)
promulgated by DOL,” Manion said. He found that the use of the
word “indefinitely” shows that “labor certifications
approved under the old regulation were not valid permanently, but only
so long as no definite period of validity was fixed by DOL.”
“[A]ny right that the [businesses] may have obtained to file
their approved labor certifications in support of visa petitions at
any time they chose was co-extensive with the duration of the
'indefinite' regulation,” Manion said. He found that when DOL
amended the regulation “to establish a 180-day time limit for
previously approved labor certifications, the [businesses'] right to
the certifications' indefinite validity ended.” The businesses
“did not possess any vested right that the amended regulation
could impair” and any expectations they “had regarding the
continued validity of their labor certifications were not settled due
to the unfixed character of the old regulation.”
Richard J. Puchalski and Laura J. Goodloe of the Law Offices of
Richard J. Puchalski in Chicago represented the businesses and alien
workers. Assistant U.S. Attorney Craig A. Oswald in Chicago
represented DOL and DHS.
By Susan J. McGolrick
Text of the decision appears in Section E and also may be accessed
at
http://op.bna.com/dlrcases.nsf/r?Open=smgk-7v2ml9.
Copyright 2009, The Bureau of National Affairs, Inc.