Kooritzky v. Reich, 92-5277
| Decision Date | 18 March 1994 |
| Docket Number | No. 92-5277,92-5277 |
| Citation | 17 F.3d 1509 |
| Parties | Samuel G. KOORITZKY, Appellant, v. Robert B. REICH, Secretary of Labor, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (91cv3011).
Hugh Wade, Boston, MA, of the bar of the United States Court of Appeals for the First Circuit of Massachusetts, pro hac vice, by special leave of court, argued the cause for appellant. On the briefs was Samuel G. Kooritzky, Springfield, VA.
Robert L. Shapiro, Assistant United States Attorney, Washington, DC, argued the cause for appellee. With him on the brief were Eric H. Holder, Jr., United States Attorney, John D. Bates and R. Craig Lawrence, Assistant United States Attorneys, Washington, DC.
Denyse Sabagh, Washington, DC, was on the brief of amicus curiae American Immigration Lawyers Association.
Before: GINSBURG and RANDOLPH, Circuit Judges, and HUBERT L. WILL, * Senior District Judge.
Opinion for the court filed by Circuit Judge RANDOLPH.
United States employers wishing to hire alien workers must navigate a maze of statutory provisions and regulations administered by the Immigration and Naturalization Service and the Department of Labor. Samuel G. Kooritzky, an immigration lawyer and a prospective employer of an alien, filed an action to enjoin enforcement of one such regulation on the ground, among others, that the Department of Labor promulgated it without notice. The district court granted summary judgment in favor of the government and Kooritzky brought this appeal.
An alien seeking to emigrate from a foreign country to the United States may not legally enter without an immigrant visa issued by the United States Consul in his country. With exceptions not pertinent to this case, immigrant visas are subject to quotas. The Immigration Act of 1990 established initial annual immigration limits of 465,000 visas for family-sponsored immigrants, 140,000 visas for employment-based immigrants, and 55,000 visas for "diversity" immigrants. Pub.L. No. 101-649, tit. I, Sec. 101(a), 104 Stat. 4978 (1990), codified at 8 U.S.C. Sec. 1151. Two employment-based categories require, as a condition to the alien's obtaining an immigrant visa, that the alien not only present a petition approved by the Attorney General but also a labor certification issued by the Secretary of Labor. 8 U.S.C. Secs. 1153(b)(2) & (3), 1182(a)(5)(A) & (C). 1
A labor certification reflects the Secretary's determination 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.
8 U.S.C. Sec. 1182(a)(5)(A)(i); see 20 C.F.R. Sec. 656.1(a)(1) & (2). For employers, obtaining a labor certification is the first step toward filling a job with an alien worker. The employer starts by completing an Application for Alien Employment Certification and filing it with the state employment service office. 2 On the application, the employer provides the name of the particular alien the employer intends to employ; a description of the alien's qualifications and the job; and documentation of the employer's attempts to recruit American workers in compliance with Labor Department regulations. See 20 C.F.R. Sec. 656.21. According to appellant, processing the application may take from two months to two years, as the state agency seeks to determine that no American worker is available for the position.
Within the preference categories, immigrant visas are issued on a first-come-first-served basis. An alien's place in line is determined by his or her "priority date," that is, the date when the employer filed the application with the state agency. See 8 C.F.R. Sec. 204.5(d); 22 C.F.R. Secs. 42.53(a) & 42.42. When the state agency completes its investigation, the Labor Department reviews its report and the application. If satisfied that the statutory criteria have been met, the Department approves the application and issues the employer an Alien Employment Certification, or as it is commonly known, a labor certification. The certification is "valid indefinitely." See 20 C.F.R. Sec. 656.30(a).
The employer's next step is to submit the labor certification and a Petition for Immigrant Worker (Form I-140) to the Immigration and Naturalization Service. See 8 C.F.R. Sec. 204.5. If the Service approves the petition, it forwards it with the labor certification and the employer's priority date to the U.S. Consulate in the country from which the alien is being recruited. See id. Sec. 204.5(n)(1). 3 Because of the heavy demand for the limited number of visas in the employment-based preference groups, the alien and his prospective employer often must wait several more years before the visa is issued. In the meantime the alien may become unable or unwilling to take the job. Rather than start all over again, employers naturally prefer to substitute another alien on the labor certification. Before Medellin v. Bustos, 854 F.2d 795 (5th Cir.1988), however, the Labor Department prohibited "the substitution of one alien on a labor certification for another alien if more than six months [had] elapsed since the original date of certification." Id. at 797. Matters changed as a result of the Fifth Circuit's decision. Medellin held that the six-month limit on substitutions exceeded the Department's authority, in part because substituting one alien for another after six months could have no effect on the subject within the Department's regulatory ambit--the labor market. Thus, as things stood after Medellin, an employer could freely replace the original alien with another and still retain the priority date issued when the employer filed with the state employment agency.
In 1991, in the wake of the 1990 Immigration Act's revisions of the immigration laws, the Department and the Service published separate notices of proposed rulemaking. The Service's proposed rule, 56 Fed.Reg. 30,703 (July 5, 1991), concerned new immigrant classifications and requirements established in the 1990 legislation. The Service also proposed amending regulations dealing with employment-based preferences so that the priority date would become the date on which the petition for classification of the alien is filed with the Service, rather than the date on which the employer files the application for labor certification with the state agency. See id. at 30,709.
The Labor Department's proposed rule, 56 Fed.Reg. 32,244 (July 15, 1991), in its preamble, indicated that the Department would implement changes wrought by the 1990 Act and would make other technical modifications of its regulations. Id. at 32,245. In response to comments on its Advance Notice of Proposed Rule Making, 56 Fed.Reg. 11,705 (Mar. 20, 1991), and, apparently, in response to the Service's proposed rulemaking notice, the Department announced that it would not alter its existing rule that labor certifications were valid indefinitely, and that it would work closely with the Service to ensure that the Service's proposed change in the priority date system would apply only to applications filed after October 1, 1991. 56 Fed.Reg. at 32,246.
On October 23, 1991, the Department promulgated what it called an "interim final rule" containing a significant new provision not mentioned in the notice of proposed rulemaking. See 56 Fed.Reg. 54,920 (1991). The new provision amended 20 C.F.R. Sec. 656.30(c)(2) to limit the validity of labor certifications to the alien named on the employer's application. 4 See 56 Fed.Reg. at 54,930. This change eliminated the employer's freedom to substitute a new alien when the alien named in the application became unable or unwilling to accept the job. An employer in that predicament would have to begin anew; and the alien named in the new application would go to the end of the line for immigrant visas.
The Department gave two explanations for ending substitution. It said first that it reached this decision after consulting the Service about its proposed change in the priority-date system; the Service indicated that if the Department would eliminate substitution, this would "facilitate[ ]" the Service's retaining its existing method of determining priority dates. 56 Fed.Reg. at 54,922. 5 The Department also wrote that it had abolished substitution because of the "innumerable operational problems" this had caused the Service, including problems associated with a "reputed secondary market involving the sale of labor certifications[;] the potential for abuse"; unfairness to other aliens not benefiting from substitution and to American workers who might have become available for the job at the time of the substitution; and administrative burdens. 56 Fed.Reg. at 54,922, 54,926.
In announcing the interim final rule and its effective date of November 22, 1991, the Department "reopened" the rulemaking comment period through November 30, 1991. 56 Fed.Reg. at 54,920. The Department received more than a hundred comments but it never responded to them and it has not promulgated a new rule.
One of Kooritzky's contentions, the only one we need consider because we agree with it, is that the Labor Department failed to comply with the notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. Sec. 553(b) & (c). Agencies must include in their notice of proposed rulemaking "either the terms or substance of the proposed rule or a description of the subjects and issues involved." 5 U.S.C. Sec. 553(b)(3). And they must give "interested persons an opportunity to participate in the rulemaking through submission of written data, views,...
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