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Bloggings On PERM Labor Certification

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

October 04, 2009

7th Circuit: PERM Approval Valid Only 180 Days

The United States Court of Appeals for the Seventh Circuit issued a decision on August 18, 2009, Durable Manufacturing Co., v. United States Department of Labor, No. 08-4122, regarding the requirement that labor certification approvals be filed with DHS within 180 days.

Prior to the enactment of the PERM Rule, labor certification applications were valid "indefinitely." After the PERM Rule came into effect, DOL issued an amendment stating that all labor certifications approved by DOL, whether before or after the PERM Rule, would only be valid to file with DHS within 180 days.

The Plaintiffs in this suit filed on behalf of applications that were approved either prior to or after the Amended PERM.  The Plaintiffs argued that the rule limiting the validity to 180 days was beyond the scope of the Agency's statutory authority.

In its analysis, the Court began by examining the text and purpose of the statue to determine whether the Amendment falls within the scope of authority. Unexpectedly, It noted that that pre-PERM Rule did not apply the statute correctly because it did not take into consideration that the Secretary of Labor had to make a determination of sufficient workers at the time of application for a visa. The Court decided that the new Amendment correctly interprets the statute by limiting the validity to 180 days. The holding states, "In sum, we conclude that the promulgation of 656.30(b) was within the DOL's statutory authority because it comports with the textual mandate of Sec. 1182(a)(5)(A)(i)(I) for DOL to ascertain the sufficiency of workers at the time an application for a visa is made, and it furthers one of the congressional purposes behind the labor certification requirement."

The Court then considered the plaintiffs' alternate argument, i.e., that the regulation cannot be applied retroactively to applications which had already been approved prior to the enactment of the Amendment. Proceeding with the two-fold analysis enunciated in a precedent case,  Landgraf v. USI Film Products, 511 U.S. 244 (1994), where the court stated that the inquiry is whether Congress 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, and, if not, whether the regulation has retroactive effect.

The Court found that it was "unaware of any express statutory provision inciating congressional approval of retroactive rulemaking by DOL in regard to labor certifications. Since the statute did not authorize retroactive rulemaking, the Amendment would be impermissible, but only if it had retroactive effect.

Then the Court went on to find that the Amendment did not evidence retroactive effect. It reasoned that a "law is not retroacive merely because it is applied to conduct before the law was passed or upsets expectations based in prior law....Rather, a law has retroactive effect if it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." The Court held that the Amendmentdid not operate retroactively by limiting validity to 180 days.

Parenthetically and in response to the Plaintiffs' argument that the original rule created an indefinite validity period, the Court analyzed the meaning of the word "indefinitely" and determined that "indefinitely" does not mean forever but only for a period of time which has no exact limits, indeterminate  in extent or amount; not clearly fixed."

In view of the above, the judgment of the lower court was affirmed.