Elim Church of God v. Harris

The Department of Labor’s regulation creating an expiration date for labor certifications does not impermissibly apply a new rule retroactively, and publication of the proposed and final rule in the Federal Register is sufficient notice for all, including current certificate holders.

Elim Church of God (“the Church”) appealed the district court’s order granting summary judgment in favor of the Department of Labor (“the Department”) and the United States Citizenship and Immigration Service. The Church challenged the government’s denial of a renewal application for a labor certification, originally granted in 2002, for an alien youth pastor. The Church claimed that due to the ”indefinite” validity of the certification it received, it was entitled to personal service notification of the new rule imposing an expiration date for the certificate so as to avoid erroneous retroactive application of the new rule. The Ninth Circuit held that the Department’s enforcement of the new regulation, which expired the Church’s certification 180 days after the regulation became final, did not amount to an impermissible retroactive rule. The panel found that actual notice was not required because “publication of the proposed and final rules in the Federal Register afforded adequate notice of the revision.” The panel further held that the text of the original regulation did not prevent the government from creating or imposing the expiration date. By January 30, 2009, a year and a half after the regulation’s effective date of May 17, 2007, the Church had missed the deadline. Also, that there was no impermissible retroactive applicability because the Department sought only to impose an expiration date, not to revoke the Church’s labor certification. Therefore, the Church’s labor certification legitimately expired when it failed to take timely action after the effective date of the new regulation. AFFIRMED.