INS to Revise 10/1 Transition Rule
Priority Dates for Employment-Based Immigrant Petitions
16 NOV 1994
Michael Aytes
Assistant Commissioner
Office of Examinations Service Center Operations
On August 16, 1993, Mr. Puleo issued a policy memorandum implementing the provisions of Section 161(c) of the Immigration Act of 1990 (IMMACT). The second portion of the memorandum concerned the validity of labor certifications filed before October 1, 1991. The memorandum, implementing section 161(c)(1) of IMMACT, stated that in order to maintain the priority date of a labor certification which was filed with the state employment office before October 1, 1991, an employment-based immigrant petition on Form I-140 must be filed before October 1, 1993. Under this instruction, if the I-140 petition were filed after October 1, 1993, the priority date would be the date on which the I-140 petition is properly filed with the Service Center. If the pre-October 1, 1991, labor certification had not been approved before October 1, 1993, the petitioner had to file an I-140 petition within 60 days after the date of certification to preserve the pre-October 1, 1991, priority date.
An interim regulation, implementing section 161(c)(1) of IMMACT, was published in the Federal Register on January 5, 1994. See 59 FR 501-502. This interim regulation codified the August 16, 1993, memorandum by amending 8 CFR 204.5(d). On October 11, 1994, the interim rule was adopted as final. See 59 FR 51358- 51360.
On October 7, 1994, Congress enacted the Immigration and Nationality Technical Corrections Act of 1994 (1994 Technical Corrections Act). On October 25, President Clinton signed this bill. Section 218 of the 1994 Technical Corrections Act amends section 161(c)(1) of IMMACT by deleting any reference to labor certifications. This section effectively repeals the second portion of the August 16, 1993, memorandum and the recent changes to 8 CFR 204.5(d). The effect of this legislation is that the priority date on all employment-based petitions where there is a labor certification, including labor certifications filed before October 1, 1991, will be the date which the petitioner filed the labor certification with the state employment office. These amendments to section 161(c)(1) of IMMACT became effective when the President signed the 1994 Technical Corrections Act. Therefore, effective immediately, when an adjudicator approves an I-140 petition which is accompanied by a labor certification, the priority date, for all petitions, shall be the date which the state employment office accepted the labor certifications application.
Please instruct Service Centers to implement these amendments immediately for any pending I-140 petition, regardless of the date the petitioner filed the I-140 petition. The Executive Associate Commissioner, Program, will be sending a policy memorandum in the near future with these instructions and instructions on how to handle requests to change the priority date in the case of I-140 petitions which were approved after October 1, 1993, where the priority date is the date the I-140 was received by the Service Center. If there are any questions regarding this matter, please contact Michael Straus, HQADN, at 202/514-3228.
Lawrence J. Weinig