Court of Appeals for the D.C. Circuit

Richard B. Pesikoff v. The Secretary of Labor

163 U.S. App. D.C. 197 · 501 F.2d 757

May 31, 1974 · Docket 72-2206

Queued for AI processing — next in lineest. ~137 min

Opinion

J. SKELLY WRIGHT, Circuit Judge:

Appellants seek review of a decision of the Secretary of Labor denying certification for appellant Quintero to enter the United States as an alien seeking to perform skilled or unskilled labor. Appellants filed in the District Court a complaint requesting, pursuant to 28 U. S.C. § 2201 (1970) and 5 U.S.C. § 704 (1970), a declaratory judgment that the Secretary’s decision was an unlawful exercise of his authority under Section 212(a) (14) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a) (14) (1970). The District Court dismissed the complaint for failure to state a cause of action, and this appeal followed. We find that the Secretary, in declining to grant certification, did not abuse the discretion vested in him by Section 212(a) (14) and affirm.

I

Appellant Pesikoff is a Houston child psychiatrist. His wife was a law student when this action was commenced. They are the parents of two preschool-age children. Because of the time demands on him and his wife, Dr. Pesi-koff felt it important that he obtain help in earing for his household. He states he attempted to find such assistance through newspaper advertisements, employment agencies, and inquiries with friends. He learned from the latter source that appellant Quintero, a citizen of Mexico with experience in caring for children, was available to work as a live-in maid. Dr. Pesikoff entered into a contract with Ms. Quintero under which she was to be paid $70 per week plus room and board for providing washing, ironing, cooking, and care for the two Pesikoff children. Though Ms. Quintero was to live in, Dr. Pesikoff represented to the Secretary that her work day was to have been only from 8:00 a. m. to 12:00 noon and from 2:00 p. m. to 6:00 p. m.

On or about July 20, 1971 appellants submitted a request to the Department of Labor that the Secretary, pursuant to Section 212(a)(14), certify Ms. Quin-tero for immigration into this country for the purpose of being employed by the Pesikoffs as a live-in maid. Section 212(a) (14) provides for exclusion from the United States of:

Aliens seeking to enter the United States, for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed. * * *

8 U.S.C. § 1182(a) (14). A Department of Labor Manpower Administration officer in Dallas, Texas, to whom the Secretary’s authority under this provision had been delegated, informed Dr. Pesi-koff on July 28, 1971 that the Secretary could not issue for Ms. Quintero the certification required by Section 212(a) (14) because available job market information did not show that United States workers were unavailable for the job Ms. Quintero was to perform. Before denying Dr. Pesikoff’s request the certifying officer had been advised by the Texas Employment Commission that there were approximately 180 maids registered in the Commission’s Houston office. The Employment Commission also advised that inquiries of employers and perusals of newspaper advertisements enabled it to estimate that in excess of 100 maids were available for work. The Commission indicated, however, that very few of the ' registered workers would accept jobs that required cooking and that none were willing to live in.

In affirming the certifying officer’s decision, the Labor Department’s Assistant Regional Manpower Administrator in Texas cited the Employment Commission’s report on the general availability of maids in Houston. The Administrator stated that the absence in Houston of maids willing to live in was irrelevant to the Pesikoff application because “based on the job described and hours of work, the live-in requirement is a personal preference and not a necessity in the performance of the job.” In March 1972 appellants filed in the District Court their complaint against the Secretary, dismissal of which we now review.

II

The Secretary contends that we must affirm the dismissal because both appellant Pesikoff and appellant Quintero lack standing to challenge denial of Section 212(a) (14) certification. Inasmuch as we hold that Dr. Pesikoff, as the prospective employer of the alien for whom certification was sought, does have standing and because Dr. Pesikoff and Ms. Quintero have jointly sought judicial review, it is not necessary for us to consider whether Ms. Quintero, as an alien outside the country, may also challenge denial of her certification.

The Supreme Court has held that Section 10(a) of the Administrative Procedure Act1 confers standing to obtain review of administrative actions upon those parties who allege “that the challenged action had caused them [an] ‘injury in fact,’ * * * to an interest ‘arguably within the zone of interests to be protected or regulated’ by the statutes that the agencies were claimed to have violated.” Sierra Club v. Morton, 405 U.S. 727, 733, 92 S.Ct. 1361, 1365, 31 L.Ed.2d 636 (1972). See Assn of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 686-690, 93 S.Ct. 2405, 37 L.Ed.2d 235 (1973). An application of the Supreme Court’s principles of standing to this case generates our conclusion that Dr. Pesikoff may seek judicial review of Ms. Quintero’s certification denial. First, if Dr. Pesikoff is correct in alleging that he cannot find an American worker who is able to perform the domestic tasks which Ms. Quintero has contracted to perform, he has clearly suffered an “injury in fact” by the certification denial, for the Secretary’s certification is a necessary precondition for Ms. Quintero to enter the United States to work for Dr. Pesikoff. Second, this injury is to an interest — that of American employers in obtaining qualified employees — arguably within the zone 9f interests to be protected or regulated by Section 212(a) (14). The section on its face suggests a congressional accommodation between this employer interest and the interest of American workers in being protected from importation of foreign labor which could affect their wages and working conditions or even eliminate their jobs. Though this accommodation takes the form of regulation of the employer’s pursuit of his interest and the regulation subordinates this pursuit to the protection of American workers, the employer’s need for qualified workers is clearly not ignored by the section.22

The Secretary bases his claim that prospective employers such as Dr. Pesikoff lack standing to invoke judicial review of his exercise of Section 212(a) (14) authority on three cases: Braude v. Wirtz, 9 Cir., 350 F.2d 702 (1965); Cobb v. Murrell, 5 Cir., 386 F.2d 947 (1967); Intercontinental Placement Service, Inc. v. Shultz, 3 Cir., 461 F.2d 222 (1972). None of these cases gives us pause. The Braude and Cobb courts did decline to grant standing to prospective employers to challenge certification denials, but these decisions were entered prior to the Supreme Court’s liberalizing clarification of standing in Data Processing and Barlow, supra. The Braude and Cobb courts employed the old strict “legal right” test in applying Section 10(a) of the Administrative Procedure Act; since Data Processing and Barlow this test has been superseded by the two-step “injury in fact”— “zone of interests” analysis utilized above.3 The Secretary’s third case, Intercontinental Placement Service (IPS), was decided after Data Processing and Barlow and indeed relied on the two-step analysis which they established. The IPS court relied on this analysis, however, to deny standing to an employment agency which locates positions for aliens with American employers. Though we do not necessarily concur in the IPS court’s holding, we note that our grant of standing to a prospective employer need not conflict with that court’s denial of standing to an employment agency for aliens.

We note finally that our grant of standing to Dr. Pesikoff is given direct support by Secretary of Labor v. Farino, 7 Cir., 490 F.2d 885 (1973), decided the day after oral argument in our case. The Farino court, applying the “injury in fact” — “zone of interest” analysis, held that prospective employers have standing to seek review of denials of Section 212(a) (14) certifications.4

Ill

Having resolved the threshold standing issue in favor of appellant Pesikoff, we turn to the merits of his challenge to the Secretary’s denial of Ms. Quintero’s certification. Dr. Pesikoff asserts that the Secretary’s denial constituted an abuse of his discretion under Section 212(a) (14) because it was based on insufficient evidence.5 More specifically, Dr. Pesikoff argues that the Secretary should have presented evidence sufficient to prove that there were particular workers available, willing, able, and qualified to perform all the tasks Ms. Quintero had contracted to perform and to live in with the Pesikoffs while doing so.

Our evaluation of Dr. Pesikoff’s position must commence with an analysis of the section and its legislative history. We first stress that the section is written so as to set up a presumption that aliens should not be permitted to enter the Unitéd States for the purpose of performing labor because of the likely harmful impact of their admission on American workers. This presumption, the statutory language makes clear, can be overcome only if the Secretary of Labor has determined that the two conditions set forth in parts (A) and (B) of the subsection are met.6 This structuring of the statute strongly indicates that the Secretary is not obligated to prove in the case of every alien seeking entry to perform labor that the conditions are not met. Given the presumption of the statute against admission, if the Secretary’s consultation of the general labor market data readily available to him suggests that there is a pool of potential workers available to perform the job which the alien seeks, the burden should be placed on the alien or his putative employer to prove that it is not possible for the employer to find a qualified American worker..

This interpretation of the statute is supported by its legislative history. Before enactment of the 1965 amendments to the Immigration and Nationality Act, Section 212(a) (14) was structured to permit entry to aliens seeking to perform labor in the United States unless the Secretary of Labor certified that there were sufficient American workers available to perform such labor or that the employment of the aliens would adversely affect the wages and working conditions of American workers.7 The Senate and House reports on the 1965 amendments to the Act make clear that Congress, by restructuring Section 212(a) (14) to exclude such aliens unless the Secretary certified that there were not sufficient American workers available, intended to reverse the prior presumption favoring admission to strengthen the protection of the American labor market and to reduce the burden on the Secretary in implementing this protection.8 Moreover, Senator Kennedy, who played a major role in shepherding the 1965 amendments through Congress, stated on the Senate floor:

Under [the old] procedure, the Secretary certifies that aliens falling under certain occupational or skill definitions should be excluded because they will threaten domestic employment. The new bill reverses this procedure. It places the burden of proving no adverse effect on the applying alien. The intending immigrant must receive a certificate from the Secretary of Labor that his presence will not affect U. S. employment, wages, or working conditions.

111 Cong.Rec. (Part 18) 24227 (1965) (emphasis added).

In light of our interpretation of Section 212(a) (14) and the legislative history supporting this interpretation,9 we conclude that the Secretary’s denial of Ms. Quintero’s certification did not constitute an abuse of discretion. First, we find proper the Secretary’s treatment of Dr. Pesikoff’s live-in requirement for his maid as a personal preference irrelevant to determination of whether there was in Houston a pool of potential workers willing to perform the Pesikoffs’ domestic tasks. If the Secretary were required to find an individual American worker who met all the personal specifications of the prospective employer of each alien seeking Section 212(a) (14) certification, the burden on him in performing his statutory duty to protect the American labor market would be much greater than Congress intended in passing the 1965 amendments to the Act. It is well within the Secretary’s discretion to ignore employer specifications which he deems, in accordance with his- labor market expertise, to be- irrelevant to the basic job which the employer desires performed.10 The Secretary may, therefore, survey the available labor market for a class of workers who, while possibly not meeting the prospective employer’s personalized job description, do provide the employer with the potential for getting his job accomplished. The Secretary’s treatment and classification of Dr. Pesikoff’s employee request as one for a general maid who could live in or out was an appropriate exercise of the above described discretion. Dr. Pesikoff’s statement to the Labor Department that Ms. Quintero would work only from 8:00 a. m. to 12:00 noon and 2:00 p. m. to 6:00 p. m. indicates that her need to live in is not significantly different from that of millions of American workers who readily and adequately perform their duties without living at their employment site.

We think the Secretary’s treatment of Dr. Pesikoff’s live-in preference was appropriate for an additional reason. As set forth above, Section 212(a) (14) provides that in order to grant an alien labor certification the Secretary must determine, not only that there are not American workers available, but also that employment of the alien will not adversely affect American wages and working conditions. The Secretary could well predict that the wages and working conditions of American maids would be adversely affected if Americans seeking domestic help could import, at the prevailing wage for live-out daily maids, aliens to work as live-in maids who are almost continuously on call. There is nothing in the record which moves us to question Dr. Pesi-koff’s representation that Ms. Quintero would have limited working hours. However, if the Secretary were to deem relevant to his survey of the available American work force a live-in preference of an employer who represents that his maid will work limited daytime hours, an American employer intending to work an alien at least intermittently around the clock could, by simple misrepresentation, defeat one of the primary purposes of Section 212(a)(14).11 Our analysis above of the section and its legislative history indicates that the Secretary has discretion to protect the American labor market against such employers with prophylactic procedures such as the employer personal preference disposition he made here.12

Given our conclusion that the Secretary’s treatment of Dr. Pesikoff’s live-in preference was proper and our analysis of Section 212(a) (14), we have no difficulty in finding the Secretary had adequate support for his denial of certification. The Secretary, prior to that denial, had been informed by the Texas Employment Commission that it estimated from independent sources that in excess of 100 workers were available for general maid work in Houston and that 180 workers were registered as maids at the Commission’s Houston office. To be sure, the Employment Commission in its report to the Secretary stated that a majority of the registered maids were already employed on a part-time basis13 and that very few were willing to cook.14 We think, however, that the general data provided the Secretary by the Commission offered sufficient evidence of a pool of potential workers to support certification denial, at least in the absence of any evidence offered by Dr. Pesikoff or Ms. Quintero proving it was impossible to find an appropriate worker in this pool.15 Dr. Pesikoff apparently did not attempt to offer any such evidence to the Secretary, and he suggests to us no evidence he could offer on remand. He does not even represent that he made any attempt to contact the maids registered at the office. We think it clear that Congress did not intend Section 212(a) (14) to create an employment placement office in the Department of Labor; there is no onus on the Secretary to provide personal preference employers like Dr. Pesi-koff with personal preference qualified American workers.

Affirmed.

.

. Section 10(a), 5 U.S.C. § 702 (1970), provides :

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.
.

. The legislative history offers support for this description of the statute. See note 8 and text at note 8 infra.

See note 8 and text at note 8 infra..

. A close reading of the Braude and Cobb decisions reveals that their conclusions on standing were heavily influenced by the notion that the Secretary’s determinations under § 212(a) (14) are not subject to any judicial review. The Secretary makes no claim here that his § 212(a) (14) authority is un-reviewable. In view of the Supreme Court’s interpretation of § 10 of the Administrative Procedure Act, 5 U.S.C. § 701 (1970), in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed. 2d 136 (1971), any such claim would in any case be without merit. See Secretary of Labor v. Farino, 7 Cir., 490 F.2d 885 (1973).

The Secretary makes no claim here that his § 212(a) (14) authority is un-reviewable.In view of the Supreme Court’s interpretation of § 10 of the Administrative Procedure Act, 5 U.S.C. § 701 (1970), in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 , 91 S.Ct. 814 , 28 L.Ed. 2d 136 (1971), any such claim would in any case be without merit.See Secretary of Labor v. Farino, 7 Cir., 490 F.2d 885 (1973)..

. See also First Girl, Inc. v. Regional Manpower Administrator of U.S. Dept, of Labor, N.D.I1L, 361 F.Supp. 1339 (1973) (sub silen-cio grant of standing to prospective employer).

1339 (1973) (sub silen-cio grant of standing to prospective employer)..

. In order to reverse the Secretary’s denial of certification, § 10(e) (2) (A) of the APA, 5 U.S.C. § 706(2) (A) (1970), requires us to find that the denial was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See Secretary of Labor v. Farino, supra note 3, 490 F.2d at 889-890. See also Citizens to Preserve Overton Park, Inc. v. Volpe, supra note 3, 401 U.S. at 416.

See Secretary of Labor v. Farino, supra note 3 , 490 F.2d at 889-890 .See also Citizens to Preserve Overton Park, Inc. v. Volpe, supra note 3 , 401 U.S. at 416 ..

. Those conditions are, again:

(A) there are not sufficient workers in the United States who are able, willing, qualified, and available * * *, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed.

8 U.S.C. § 1182(a) (14) (1970).

8 U.S.C. § 1182 (a) (14) (1970)..

. Act of June 27, 1952, ' ch. 477, § 212(a) (14), 66 Stat. 183.

477, § 212(a) (14), 66 Stat. 183 ..

. The Senate report stated :

Simultaneous with the abolition of national quotas, controls to protect the American labor market from an influx of both skilled and unskilled foreign labor are strengthened. * '* * [T]he provision of existing law * * * has the effect of excluding any intending immigrant within the scope of the certification who would likely displace a qualified American worker or whose employment in the United States would adversely affect the wages and working conditions of workers similarly employed in the United States. Under the instant bill, this procedure is substantially changed. The primary responsibility is placed upon the intending immigrant to obtain the Secretary of Labor’s clearance prior to the issuance of a visa establishing (1) that there are not sufficient workers in the United States at the alien’s destination who are able, willing, and qualified to perform the skilled or unskilled labor and (2) that the employment of the alien will not adversely affect wages and working conditions of U. S. citizens similarly employed. * * *

S.Rep.No.748, 89th Cong., 1st Sess., 15 (1965), U.S.Code Cong. & Admin.News, p. 3333. The House report stated:

The amended section 212(a) (14) represents a substantial departure from existing law. * * * [Procedure is reversed under the amendment. Responsibility is placed upon the intending immigrant to obtain the Secretary of Labor’s clearance prior to issuance of a visa. !¡S * *

H.R.Rep.No.745, 89th Cong., 1st Sess., 14 (1965).

* '* * [T]he provision of existing law * * * has the effect of excluding any intending immigrant within the scope of the certification who would likely displace a qualified American worker or whose employment in the United States would adversely affect the wages and working conditions of workers similarly employed in the United States.Under the instant bill, this procedure is substantially changed.The primary responsibility is placed upon the intending immigrant to obtain the Secretary of Labor’s clearance prior to the issuance of a visa establishing (1) that there are not sufficient workers in the United States at the alien’s destination who are able, willing, and qualified to perform the skilled or unskilled labor and (2) that the employment of the alien will not adversely affect wages and working conditions of U. S. citizens similarly employed.* * * S.Rep.No.748, 89th Cong., 1st Sess., 15 (1965), U.S.Code Cong.& Admin.News, p. 3333.The House report stated: The amended section 212(a) (14) represents a substantial departure from existing law.* * * [Procedure is reversed under the amendment.Responsibility is placed upon the intending immigrant to obtain the Secretary of Labor’s clearance prior to issuance of a visa.!¡S * * H.R.Rep.No.745, 89th Cong., 1st Sess., 14 (1965)..

. We are aware that some recent District Court cases make a contrary interpretation of the statute. See First Girl, Inc. v. Regional Manpower Administrator of U.S. Dept, of Labor, supra note 4; Digilab, Inc. v. Secretary of Labor, D.Mass., 357 F.Supp. 941 (1973) ; Bitang v. Regional Manpower Administrator of U.S. Dept, of Labor, N.D. 111., 351 F.Supp. 1342 (1972) ; Golabek v. Regional Manpower Administrator, U.S. Dept, of Labor, E.D.Pa., 329 F.Supp. 892 (1971).

See First Girl, Inc. v. Regional Manpower Administrator of U.S. Dept, of Labor, supra note 4; Digilab, Inc. v. Secretary of Labor, D.Mass., 357 F.Supp.941 (1973) ; Bitang v. Regional Manpower Administrator of U.S. Dept, of Labor, N.D. 111., 351 F.Supp.1342 (1972) ; Golabek v. Regional Manpower Administrator, U.S. Dept, of Labor, E.D.Pa., 329 F.Supp.892 (1971)..

. “The labor certification procedure was not designed to cater to the personal quirks of an employer * * Ozbirman v. Regional Manpower Administrator, U.S. Dept. *763of Labor, S.D.N.Y., 335 F.Supp. 467, 474 (1971).

467, 474 (1971)..

. The likelihood of such misrepresentation is especially significant where, as here, the domestic employer has small children whose demands for attention do not observe limitations on working hours.

.

. Dr. Pesikoff makes a subsidiary argument that the Secretary’s certification denial must be overturned because it was based on an internal Labor Department field memorandum which directs the Secretary’s delegates to deny certification to aliens seeking live-in maid work which could be performed by available American live-out maids or day-workers. Dr. Pesikoff’s complaint alleges that this directive constitutes an agency rule which is invalid because it was not published in the Federal Register. Dr. Pesikoff bases his position on two sections of the APA: 5 U.S.O. §§ 552 & 553 (1970). Neither section gives Mm any aid.

Section 553 requires federal agencies to provide notice of proposed rule-making in the Federal Register and an opportunity for interested persons to comment on the proposed rules. “Interpretive rules” are exempted from these requirements, 5 U.S.C. § 553(b)(3)(A), however, and the Secretary’s directive challenged here is such an interpretive rule. Interpretive rules, unlike the gua-.si-legislative rules which are subject to the prescriptions of § 553, are merely an agency’s interpretation of a statute it is charged with implementing and create no law or have no effect beyond that of the statute. American President Lines, Ltd. v. FMC, 114 U.S. App.D.C. 418, 420-421, 316 F.2d 419, 421-422 (1963) ; Gibson Wine Co. v. Snyder, 90 U.S.App.D.C. 135, 137-138, 194 F.2d 329, 331-332 (1952) ; 1 K. Davis, Administrative Law Treatise § 5.03 (1958). Here the Secretary did not attempt to argue that the internal memorandum has any more legal force than does § 212(a) (14) directly. He denied Ms. Quintero’s certification and argued to us that this denial was proper without ever making reference to the internal memorandum.

The notice requirements of § 552, the public information provision of the APA, are applicable to interpretive rules; federal agencies are to publish in the Federal Regis*764ter “statements of general policy or interpretations of general applicability.” 5 U.S. C. § 552(a)(1)(D). However, the Secretary’s failure to make such publication of his field memorandum gives no relief to Dr. Pesikoff. Section 552 states that “[e]xcept to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.” 5 U.S.C. § 552(a)(1)(E). Dr. Pesikoff was not adversely affected by not learning of the internal memorandum before this litigation, assuming such a late awareness. lie would have stood in no better stead if he had had notice of the internal memorandum before filing his request for Ms. Quintero’s certification. If he desires to avoid the memorandum’s directive, he can still request certification by representing that Ms. Quintero will work both day and night although, as stressed in text, such a representation would suggest an adverse impact on American working conditions. Indeed, in view of the Secretary’s lack of reference to the memorandum in his statement of denial and our finding that the statute directly supported his treatment of the live-in preference, we cannot say that the Pesikoffs were affected by the memorandum at all. Appellants’ position would not be advanced if we held the Secretary’s general statement of policy as to the matters contained in the challenged internal memorandum to be completely void and without effect. Compare Lewis-Mota v. Secretary of Labor, 2 Cir., 469 F.2d 478, 482 (1972).

Dr. Pesikoff’s complaint alleges that this directive constitutes an agency rule which is invalid because it was not published in the Federal Register.Dr. Pesikoff bases his position on two sections of the APA: 5 U.S.O. §§ 552 & 553 (1970).Neither section gives Mm any aid.Section 553 requires federal agencies to provide notice of proposed rule-making in the Federal Register and an opportunity for interested persons to comment on the proposed rules.“Interpretive rules” are exempted from these requirements, 5 U.S.C. § 553 (b)(3)(A), however, and the Secretary’s directive challenged here is such an interpretive rule.Interpretive rules, unlike the gua- .si-legislative rules which are subject to the prescriptions of § 553, are merely an agency’s interpretation of a statute it is charged with implementing and create no law or have no effect beyond that of the statute.American President Lines, Ltd. v. FMC, 114 U.S. App.D.C.418, 420-421, 316 F.2d 419, 421-422 (1963) ; Gibson Wine Co. v. Snyder, 90 U.S.App.D.C.135, 137-138 , 194 F.2d 329, 331-332 (1952) ; 1 K. Davis, Administrative Law Treatise § 5.03 (1958).Here the Secretary did not attempt to argue that the internal memorandum has any more legal force than does § 212(a) (14) directly.He denied Ms. Quintero’s certification and argued to us that this denial was proper without ever making reference to the internal memorandum.The notice requirements of § 552, the public information provision of the APA, are applicable to interpretive rules; federal agencies are to publish in the Federal Regis ter “statements of general policy or interpretations of general applicability.”5 U.S. C. § 552(a)(1)(D).However, the Secretary’s failure to make such publication of his field memorandum gives no relief to Dr. Pesikoff.Section 552 states that “[e]xcept to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.”5 U.S.C. § 552 (a)(1)(E).Dr. Pesikoff was not adversely affected by not learning of the internal memorandum before this litigation, assuming such a late awareness. lie would have stood in no better stead if he had had notice of the internal memorandum before filing his request for Ms. Quintero’s certification.If he desires to avoid the memorandum’s directive, he can still request certification by representing that Ms. Quintero will work both day and night although, as stressed in text, such a representation would suggest an adverse impact on American working conditions.Indeed, in view of the Secretary’s lack of reference to the memorandum in his statement of denial and our finding that the statute directly supported his treatment of the live-in preference, we cannot say that the Pesikoffs were affected by the memorandum at all.Appellants’ position would not be advanced if we held the Secretary’s general statement of policy as to the matters contained in the challenged internal memorandum to be completely void and without effect.Compare Lewis-Mota v. Secretary of Labor, 2 Cir., 469 F.2d 478, 482 (1972)..

. Although the Pesikoffs of course wanted a maid to work a full week, we take note of the fact that many part-time laborers seize an opportunity to transfer into a full-time position, at least when the pay is sufficient.

.

. The Secretary of course might well have reasoned within his expertise that the number of maids willing to cook would be significantly increased if they were offered wages above the level prevailing in Houston for general maids.

.

. “If the report of the State Employment Service stood unimpeached, we could not conclude that the Secretary’s refusal to certify the alien workers was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Secretary of Labor v. Farino, supra note 3, 490 F.2d at 891.-

’ ” Secretary of Labor v. Farino, supra note 3 , 490 F.2d at 891 . -