In 1971, aliens who sought entry into the U.S. to work and live as permanent residents filed a class action lawsuit under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. in the U.S. District Court for the Southern District of New York, challenging certain procedures of the Department of Labor in connection with the entry of aliens for the purpose of working in the U.S.

To gain entry, the aliens needed a visa and a certification by the Department of Labor that (a) there were insufficient domestic workers for the job in question and that (b) the alien's admission would not adversely impact other similarly situated American workers. As part of the certification process, the Labor Department published schedules ("A," "B" and "C") that listed various occupations. Schedule C listed American jobs for which labor was scarce. Aliens seeking entry to work in a job listed on Schedule C were not required to have a specific job offer, nor were they required to submit a statement of his qualifications in order to receive a Department of Labor certification. In 1969, the Labor Department issued a new Schedule C which included a "Precertification List" of jobs for which aliens would be given priority visa approval. On February 9, 1970, the Department suspended the use of the Schedule C "Precertification List," without first publishing notice in the Federal Register. Plaintiffs alleged that the Labor Department's actions in that regard violated the Administrative Procedure Act, 5 U.S.C. § 551 et seq.

The District Court (Judge Milton Pollack) dismissed the plaintiffs' complaint for failure to state a claim. Lewis-Mota v. Secretary of Labor, 337 F.Supp. 1289 (S.D.N.Y. 1972). Plaintiffs appealed.

The Court of Appeals, (Circuit Judge Oakes) reversed and remanded, holding that as the directive sought to change existing rights of aliens, it should have been subject to the public comment procedure of the Administrative Procedure Act, which included prior publication in the Federal Register. Since the directive was not published in Federal Register, it was deemed invalid until 30 days after it was actually published on February 4, 1971, but valid thereafter. Lewis-Mota v. Secretary of Labor, 469 F.2d 478 (2nd Cir. 1972).

On remand the District Court entered a judgment which defined the Lewis-Mota class as consisting of "all those aliens who establish, to the satisfaction of the appropriate consular officer, by the production of their original labor precertification endorsed by a consular officer or a true copy thereof, that they were precertified or certified under Schedule C Lists published on or before January 23, 1969, and further, that their priority position would have been reached by March 4, 1971." If class members applied for a visa within two years from the date of the judgment, they were deemed to have satisfied the Department of Labor's certification requirement.

We have no further information on the case.

Dan Dalton - 11/17/2007


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