News Excerpts From the Dec. 1, 2013, Bender’s Immigration Bulletin

Municipalities Seek Review of Immigration Ordinances at Supreme Court |

In late October, the cities of Hazleton, Pennsylvania, and Farmers Branch, Texas, filed petitions at the Supreme Court asking the Justices to review federal appellate court decisions striking down local laws targeting undocumented residents.

The petition in No. 13-531, City of Hazleton, Pa. v. Lozano [lexis.com subscribers may access Supreme Court briefs for this case], challenges a ruling by the Third Circuit finding that ordinances seeking to prevent unauthorized aliens from working or renting housing within city limits were preempted by federal law. The circuit court had initially enjoined the measures enjoined in September 2010, a ruling that was affirmed following the intervening Supreme Court decisions in Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 179 L. Ed. 2d 1031 (2011) [enhanced opinion available to lexis.com subscribers], and Arizona v. United States, 132 S. Ct. 2492, 183 L. Ed. 2d 351 (2012) [enhanced op;inion].

The petition in No. 13-516, City of Farmers Branch, Texas v. Villas at Parkside Partners [lexis.com subscribers may access Supreme Court briefs for this case], challenges an en banc Fifth Circuit ruling that likewise found a local ordinance preventing “unlawfully present” aliens from renting apartments or single family residences to be preempted under federal law. The Fifth Circuit opinion is summarized below in Case Digests: Federal Decisions: Court of Appeals.

The petitioners in both cases are represented by Kris Kobach, the Kansas Secretary of State credited with authoring the laws under review. Responses to both petitions are due in late November, making it possible that the cases could be heard this term.

Agriculture Department Resumes Issuing IGA Waivers

The Department of Agriculture has resumed issuing Interested Government Agency (IGA) waivers for noncitizens in J status seeking to avoid the two-year home-residency requirement.

According to criteria released by the Department, interested applicants must submit, among other things, a personal narrative explaining the reason for seeking a waiver; an explanation of why the waiver would be in the public interest; and between five and ten letters of recommendation, one of which must be from an employee of a USDA office or agency. The criteria for IGA endorsement are reprinted at Appendix A.

Applicants may appeal the denial of a request for an IGA waiver only if substantial charges have occurred since the submission of the original decision. The Department advises applicants to postpone the submission of waiver applications to the State Department or U.S. Citizenship and Immigration Services until after it reaches a decision on the IGA petition.

Delay of Farm Labor Survey Postpones Release of H-2A Wage Rates

On October 17, 2013, the Department of Agriculture announced the postponement of the release of the Adverse Effect Wages Rates in the H-2A program due to a delay in the issuance of the Farm Labor Survey. According to the Department, the delay in the issuance of Farm Labor Survey was attributable to the government shutdown. The survey is scheduled to be released on December 5, 2013.

Parole in Place Memo 

On November 15, 2013, USCIS issued Policy Memorandum PM-602-0091, entitled “Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act § 212(a)(6)(A)(i).” The memorandum, reprinted at Appendix B, amends Chapter 21.1 of the Adjudicator’s Field Manual to ensure consistent adjudication of parole requests made on behalf of aliens who are present without admission or parole and who are spouses, children, and parents of those serving on active duty in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve or who previously served in the U.S. Armed Forces or Selected Reserve of the Ready Reserve. It also amends AFM Chapter 40.6 concerning the effects of parole on an alien’s inadmissibility under INA § 212(a)(6)(A)(i). This amendment to AFM chapter 40.6 applies to any paroled alien, not only to the family members of Armed Forces personnel.

The salient points are:

  • Parole in place is now officially available to spouses, children, and parents of U.S. military members and veterans.
  • Military members include active duty and members of the Selected Reserve (which includes the National Guard) and veterans (people who have been discharged).
  • USCIS can adjust the status of persons granted Parole-in-Place (PIP).
  • A provisional waiver is not necessary; travel is not required.

 Bender's Immigration Bulletin

[This is an excerpt from the Dec. 1, 2013, issue of Bender's Immigration Bulletin.]

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