FAQ’s and Other Forms of Administrative Guidance

FAQ’s and Other Forms of Administrative Guidance

by Joel Stewart

Editor of The PERM Book

A Practice Pointer on FAQ’s, “Do DOL FAQ’s Serve as Guidance or Law,” was recently posted on the website of the largest association of immigration lawyers in the United States. According to the Pointer, FAQ’s serve as guidance, not as law, and cannot be used to create new requirements which do not already exist in the form of a regulation.

The Practice Pointer goes on to discuss legal decisions by BALCA, Federal Courts, and the PERM form 9089 itself, since forms first approved by the Office of Management and Budget and then published in the Federal Register have the full force of law. These legal sources suggest that FAQ’s are not laws but only policy.

While FAQ’s may only seem to serve as guidance, the analysis of this guidance requires a broad interpretation of the legal effect of FAQ’s. In the context of the total scheme of current administrative law principles, this analysis involves far more than the FAQ’s themselves.

In PERM workshops, conferences, blogging and other forms of media, including in the PERM Book III, I have presented a discussion entitled, “What is the Law.” My concern is that administrative law in the United States has become a confusing maze of regulations, administrative law judge decisions, FAQ’s, guidance in memos, on-line comments, and other forms of ‘policy’ generated by federal agencies such as the US Department of Labor. “What is the Law” categorizes these elements on a continuum based on their similarity to laws at one end of the spectrum and mere statements of policy at the other end.

It was my conclusion – and I am especially thankful to my acclaimed colleague, Attorney Michael Piston, who labored intensively on this subject for several years, that FAQ’s may sometimes be more than a narrowly drafted form of guidance – and may actually be something more akin to substantive legal requirements – if they are a reasonable and do not conflict with the regulations.

Mr. Piston’s article, “What Is the Law?” has been incorporated into the PERM Book III,

“As in virtually every other form of administrative law, the rules pertaining to the labor certification process do not spring from a single source, but a whole slew of them:

  1. The Immigration and Nationality Act (INA),
  2. Department of Labor (DOL) Regulations
  3. Instructions to Form Eta 9089
  4. Decisions Published by the Federal Court of Appeals
  5. En Banc and Panel Decisions of the Board of Alien Labor Certification Appeals
  6. Decisions of the DOL Administrative Review Board (ARB)
  7. A Plethora of “administrative guidance”
  8. Agency comments published in the Federal Register,
  9. DOL Answers to Frequently Answered Questions (FAQs),
  10. Minutes from Stakeholder Meetings
  11. Agency Memoranda
  12. Letters from DOL to Attorneys or Members of the Public
  13. DOL Speeches and Answers to Questions at AILA or Other Conferences

It is the unenviable task of the diligent labor certification practitioner not only to acquaint himself with all these various sources, but also to determine how much weight to assign to each, and which to prefer in the event of apparent conflict among their varied provisions.”

Due to the complex structure of modern federal administrative law, government agencies sometimes consider points of view that promote administrative efficiency at the expense of Due Process and other reasonable concerns of Stakeholders. My recommendation is to fall in step with the reality that seemingly vexatious FAQ’s must be understood in the context of the broad range of elements described above and seek solutions that flow from the totality of these laws and interpretations.