Maceren v. District Director, Immigration and Naturalization Service, Los Angeles, Cal.

• Decision Date: 25 October 1974
• Docket Number: No. 72--2818,72--2818
• Citation: 509 F.2d 934
• Parties: Adelfo V. MACEREN, Appellee, v. DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, LOS ANGELES, CALIFORNIA, et al., Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 934

509 F.2d 934

Adelfo V. MACEREN, Appellee, v. DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE LOS ANGELES, CALIFORNIA, et al., Appellants.

No. 72--2818.

United States Court of Appeals Ninth Circuit.

Oct. 25, 1974.

Rehearing Denied Feb. 20, 1975.

James R. Dooley, Asst. U.S. Atty. (argued), Los Angeles, Cal., for appellants.

Sidney Broffman (argued), Los Angeles, Cal., for appellee.

Before MOORE, ^* BROWNING and WALLACE, Circuit Judges.

OPINION

MOORE, Circuit Judge:

The Immigration and Nationality Act provides that '(t)he number of aliens who may be issued immigrant visas or who may otherwise acquire the status of an alien lawfully admitted to the United States for permanent residence . . . shall not in any fiscal year exceed a total of 170,000.' 8 U.S.C. § 1151(a) (1970). In filling this quota, Congress has stipulated that visas must first be granted to those on whom Congress has bestowed a preferred status. This preferred treatment is given to, amongst others, ¹

qualified immigrants who are members of the professions, or who because of their exceptional ability in the sciences or the arts will substantially benefit prospectively the national economy, cultural interests, or welfare of the United States.

8 U.S.C. § 1153(a)(3).

Immigrants who fit this description are given what the Immigration and Naturalization Service refers to as a 'third preference,' i.e., third most preferential treatment is given to their applications for immigrant visas after the applications of the spouses and unmarried children of United States citizens and the spouses and children of aliens lawfully admitted to the United States for permanent residence. 8 U.S.C. § 1153(b). Every alien who desires immigrant status is presumed to be a 'nonpreference immigrant' until he establishes that he is entitled to preferential treatment. 8 U.S.C. § 1153(d). If an alien lays claim to a preference, he must file a petition with the Attorney General requesting this status. The Attorney General will then approve or deny the petition in which case the Department of State will then either grant or deny the immigration visa. 8 U.S.C. § 1154(a).

If an alien petitions the Attorney General for a 'third preference,' the Attorney General is required to consult with the Secretary of Labor before making a recommendation to the Department of State. 8 U.S.C. § 1154(b). This consultation is designed to keep the Attorney General abreast of developments in the demestic labor market. A third preference will not be granted to an alien, no matter how qualified a professional he might be, if his employment in this country would likely deprive a U.S. citizen of employment. ²

Adelfo V. Maceren is a native and citizen of the Philippine Islands, born February 23, 1933. He entered the United States as a visitor on March 30, 1968, and has remained in this country continuously since that date. He holds a Bachelor's Degree in Music and was a music teacher, on the secondary school level, in his native country. Maceren decided to become a permanent resident of the United States and, in order ultimately to obtain an immigrant visa, petitioned the Attorney General for classification in the third preference as a member of the professions. The petition was supported by an application and documents establishing his professional qualifications as a music teacher. The petition was filed with the Immigration and Naturalization Service on September 27, 1968.

The Service referred the case to the Labor Department which, on November 18, 1969, issued a certification to the Service declaring that Maceren's admission to the United States as an immigrant would not 'adversely affect the wages and working conditions of workers in the United States similarly employed.' Upon receipt of the labor certification, the Service approved Maceren's petition on November 28, 1969, and granted him the status of a member of the professions along with the third preference which such status entails.

Even though Maceren succeeded in obtaining his classification as a preferred immigrant, such classification did not immediately make him a lawful permanent resident of the United States. He had to wait until an immigrant visa number became available. Because of the backlog of Philippine nationals seeking admission to the United States as third-preference immigrants, no visa number could actually be assigned to Maceren until February 1971. On August 5, 1970, the Immigration and Naturalization Service informed Maceren that a visa number could be assigned him if he filed the proper application and appropriate supporting documents. Maceren followed all instructions and, on September 15, 1970, filed the application which the Service sent him.

The Service immediately acknowledged receipt of the application for permanent residence. Nothing more was done until Maceren received a notice to appear for an interview on February 8, 1971, and for a medical examination on February 17, 1971. Customarily, these are the final steps in granting permanent residence. At the interview, however, Maceren was informed that his petition for a preference had 'expired' and permanent residence could not be granted.

On May 25, 1971, Maceren filed a complaint in the District Court praying, inter alia, that the court order the State Department to allocate a visa number to him nunc pro tunc; that the District Director, Immigration and Naturalization Service, Los Angeles, California, grant his application for adjustment of status to that of a permanent resident; and that the Secretary of Labor and the District Director consider the visa petition and the underlying labor certification revalidated and extended to a date when Maceren's application for adjustment of status is granted.

On September 7, 1971, appellants filed a motion to dismiss and a motion for summary judgment. On May 25, 1972, the District Court filed a Memorandum and Order denying appellants' motions. On May 26, 1972, judgment was entered against appellants and the matter was remanded to them with instructions promptly to take all steps necessary to process Maceren's application for adjustment of status.

The dispute in this case revolves around certain regulations promulgated by the Secretary of Labor and by the Attorney General through which they have attempted to fulfill their responsibilities under the Immigration and Nationality Act.

Until March 30, 1971, the Attorney General applied a rule which required aliens seeking third preferences to renew their petitions annually or face denial on the ground that their petitions had lapsed. For aliens requiring individual certificates the one-year period of validity, even though it applied directly to the preference petition, ran not from the date on which the alien received approval of his petition but rather from the date on which he was issued an individual certificate by the Secretary of Labor. ³

Throughout this period the Secretary of Labor never limited the validity of an alien's labor certificate to any specific time period. In other words, a labor certificate never automatically 'expired' at any time after issue. ⁴ On February 4, 1971, the Secretary of Labor changed his approach and declared that '(l)abor certifications . . . shall be valid for 1 year after the date that the certification was actually made and revalidation shall be required after that period. . . .' 29 C.F.R. § 60.5(b) (1972). ⁵

Finally, on March 30, 1971, 8 C.F.R. § 204.4(b) was revised. The revision omitted any mention of a time limit on the approval of an alien's petition to be classified as a preference immigrant. However, it provided that approval of third preference status 'shall remain valid for as long as the supporting labor certification is valid and unexpired. . . .' 8 C.F.R. § 204.4(b). ⁶

The net effect of these changes, at least in the general case, has been no change at all. The approval, by the Attorney General, of an alien's petition for preferential classification is still valid for a period of one year from the date of certification by the Secretary of Labor just as it was under the old rule. This is not to say, however, that the regulation change has not given rise to many difficulties particularly with respect to those applications that were outstanding when the regulations were revised.

On November 17, 1970, one year after Maceren had been issued a labor certificate, Maceren's preference petition expired under the terms of the Attorney General's regulation. The Immigration and Naturalization Service, however, took no notice of this expiration. On January 26, 1971, the Service summoned Maceren to his interview and medical examination.

The expiration of the approval does not decide this case because the March 30, 1971, revision of § 204.4(b) stipulates that:

The approval of a petition to classify an alien under section 203(a)(3) (third perference status as a professional) . . . which had heretofore become invalid solely because the date until which the approval was valid had lapsed, is hereby reinstated provided the conditions of this paragraph are met.

There has never been any question that Maceren has complied with all legal requirements and would have received an immigrant visa but for the fact that approval of his preferential status expired. Thus, § 204.4(b)'s retroactivity clause would appear to reactivate the approval of Maceren's petition provided the conditions of that regulation are met.

The Service argues that for reactivation to be successful, Maceren's petition must be supported by a valid and unexpired labor certification. Moreover, although there was no time limit on the labor certificate first granted to appellee, labor certificates acquired a one-year term on February 4, 1971, when 29 C.F.R. § 60.5(b) was revised. Thus, according to the Service, Maceren's petition approval cannot be reactivated because it is not presently supported by a valid and unexpired labor certificate, the...