FAQ’s And Other Forms Of Administrative Guidance
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:
- The Immigration andNationality Act (INA),
- Department of Labor (DOL)Regulations
- Instructions to Form Eta9089
- Decisions Published bythe Federal Court of Appeals
- En Banc and PanelDecisions of the Board of Alien Labor Certification
Appeals
- Decisions of the DOLAdministrative Review Board (ARB)
- A Plethora of“administrative guidance”
- Agency comments publishedin the Federal Register,
- DOL Answers to FrequentlyAnswered Questions (FAQs),
- Minutes from StakeholderMeetings
- AgencyMemoranda
- Letters from DOL toAttorneys or Members of the Public
- DOL Speeches and Answersto 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.