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.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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