PERM Final Regulation Rulemaking Process in ZigZag
* There is a wide spread rumor in the immigration lawyers community that the OMB review will not be completed until the November election is over. This rumor is premised on the theory that the White House is strongly opposing this regulation for the reason that it may be taken as an amnesty by the public and can affect the election. However, this rumor can materialize only if the President turns down the regulation because of the law that governs the OMB review. Because of the OMB review rule, the PERM regulation will have to be either rejected by the President or approved within 180 days from the date of submission of the regulation by the DOL, which was February 23, 2004. Let's review the OMB review rules.
* The law that governs the OMB review is Executive Order 12866 of October 4, 1993. The Section 6 (b)(2) provides that OIRA (subunit of OMB) "shall" waive or notify the agency in writing of the results of its review within the following time periods: (A) For any notices of inquiry, advance notices of proposed rulmaking, or other preliminary regulatory actions prior to a Notice of Proposed Rulemaking, within 10 working days after the date of submission of the draft action to OIRA. (B) For all other regulatory actions, within 90 calendar days after the date of submission of the information..., unless OIRA has previsouly reviewed this information and, since that review, there hs been no matierial change in the facts and circumstancds upon which the regulatory action is based, in which case, OIRA shall complete its review within 45 days; and (C) The review process may be extended (1) once by no more than 30 calendar days upon the written approval of the Director and (2) at the request of teh agency head.
* The PERM regulation falls under Section 6(b)(2)(B) and (C). As we reported earlier, the DOL Foreign Labor Certification Chief disclosed that there was material changes to the Proposed PERM regulation as the DOL's final regulation incorporated substantial changes to the published Proposed PERM Regulation. Accordingly, under the Section 6(b)(B), the OMB was given 90 days to complete the review, which expired on May 21, 2004. However, the DOL Chief also disclosed that on May 21, 2004, it requested the OMB to extend the review because of the concerns of fraud raised by its sister/brother federal agencies and apparently part of the regulation were revised. Under the Section 6(b)(2)(C), the OMB was given only 30-day extension, which expired on June 20, 2004.
* Why this regulation is still under the OMB review and under what authority? The Section 7 of the Executive Order 12866 states that in the event that there is a conflict among agencies which cannot be resolved by the Director of OIRA(OMB), it moves to the Vice President to resolve the conflict and the President and Vice President make a decision. Under the provision, though, such resolution must be made within 60 days from the referral by the Director. Assumedly, this 60-day also expired on August 20, 2004. The fact that the case is still at the OMB reflects that the OMB could not resolve the conflict and turned over to the Vice President for resolution. Otherwise, the OMB should have completed by June 20, 2004 one way or another. The OMB cannot arbitrarily change the review period. Now the expiration date of the resolution of the issues by the Vice President and the President is gone, and the President must announce his decision. Under the Executive Order, he does not have authority to extend the OMB review any further, Either he should reject the rulemaking or approve it as far as this reporter see the Executive Order 12866. We hope to see such announcement within next week.
Interested persons may read the full text of
Executive Order 12866.
Thank you,
orissa.