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Retroactively Modifying Where Immigration Regs. Have Gone Before

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By William Peacock, Esq. on July 11, 2013 12:57 PM

How does one make labor certifications and proper notice of retroactive changes to those regulations somewhat interesting? Cite Star Trek, of course.

"Time is the fire in which we burn."

Of course, any good Trekkie can tell you that the quote comes from Tolian Soran, the villan from the movie Star Trek Generations. (Or said Trekkie might've Googled it.)

The case itself involved a labor certification from the Department of Labor that was, at the time of issuance, valid indefinitely. This certification was necessary for Romeo Fulga to obtain an employment-based immigration visa to work for the Elim Church of God as a youth pastor.

Alas, though the certificate was issued in 2002, the paperwork for Fulga's I-140 petition wasn't filed until 2009. In the interim, two attorneys apparently prepared the paperwork but never filed it.

Also in the interim, the Department of Labor issued new regulations, after standard notice-and-comment, and published notifications of those regulations in the Federal Register. The new regulations set an expiration date on labor certifications, including those already issued, of 180 days, either from issuance, or, for pre-existing certifications, from the time the rule was published.

Why the warp speed change? There was apparently a burgeoning black market for these expiration-free certifications. This angered the church more than Soran was angered by Kirk and Picard's removal of him from the Nexus.

Their argument is that changes to the rule, without direct notice to the holders of labor certifications, constitutes an impermissible retroactive rule.

The court runs through a number of vague standards to determine if the rule actually is retrospective. This is a bit more complicated than you'd think. Though the rule does apply to certifications previously granted, it is only considered retrospective if it "attaches legal consequences to events completed before its enactment." This is made murkier by the Supreme Court's prescribed considerations of "fair notice, reasonable reliance and settled expectations."

Again, vague language and standards, but the gist seems to be this: if you want a retroactive application of a regulation, it must not deprive someone of a legal right and must give notice.

This case is made slightly easier because the church conceded that the DoL could add expiration dates after the fact. Their contention is that they did not receive fair notice.

However, "publication of a document in the Federal Register is 'sufficient to give notice of the contents of the document to a person subject to or affected by it'" in most cases. Furthermore, the statute doesn't explicitly require notice, and though a different regulation requires actual direct notice for revocation of a certification, this is not revocation -- it is expiration.

The court also points out that if they were to enforce that latter regulation, they'd be ironically enforcing one regulation from the Federal Register while holding that another regulation published in the Register didn't amount to sufficient notice.

Here, the church can simply request a new labor certification, and they had 180 days of constructive notice published in the Federal Register. It's an unfortunate, yet not impermissible, scenario.

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