News Excerpts from the March 1, 2014, Bender’s Immigration Bulletin

Federal Judge Certifies Class Action in Mandatory Detention Lawsuit

On February 10, 2014, U.S. District Judge Michael Ponsor certified a class consisting of noncitizens in Massachusetts who are challenging their mandatory detention under Section 236(c) of the INA.

The class representative, Mark Reid, is a lawful permanent resident and veteran of the U.S. Army Reserve who was placed in removal proceedings on account of drug-related convictions. Judge Ponsor ruled in January that he was entitled to a bond hearing because he had been detained for more than six months. The judge’s more recent ruling allows all similarly situated detainees in Massachusetts to challenge their detention as well.

In Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013), the Ninth Circuit held that the individuals subject to mandatory detention cannot be detained without an individualized bond hearing for more than a “reasonable” period.

The case is Reid v. Donelan, No. 13-30125, 2014 U.S. Dist. LEXIS 16223 (D. Mass. Feb.10, 2014).

OFLC Releases List of Priorities for Audits and Supervised Recruitment

On January 31, 2014, the Department of Labor’s Office of Foreign Labor Certification (OFLC) disclosed an audit plan issued last year describing factors that will trigger audits and supervised recruitment of labor certifications.

According to the audit plan, which was issued on March 19, 2013, the office identified five factors warranting audits of labor certifications: (1) non-agricultural positions not requiring a bachelor’s degree; (2) trade-related occupations; (3) certain public schools; (4) positions requiring a degree but not experience; and (5) employers who indicated layoffs on ETA-9089.

The plan also states that labor certifications should be subject to both audit and supervised recruitment if they were resubmitted after a denial or withdrawal within the past year, or if they were submitted by mail rather than electronically.

It should be noted that while the list of priorities describes general categories of factors that are flags for giving close scrutiny, it does not describe the universe of factors that can lead to audit or supervised recruitment. As such it is not an exhaustive list, but rather a statement of the factors to which OFLC will assign priority. The audit plan should be helpful to practitioners when evaluating whether a labor certification is likely to be selected for audit or supervised recruitment.

The audit plan is reprinted at Appendix A.

State Department Updates Policy on Use of Assisted Reproductive Technology

On January 14, 2014, the State Department announced an important policy charge regarding the conferral of citizenship for children born abroad through assisted reproductive technology (ART).

Under the new policy, which will be applied retroactively, mothers need not have a genetic link to a child in order to confer U.S. citizenship. Instead, “gestational” mothers who give birth to a child conceived using another woman’s egg can also confer citizenship so long as they are the child’s legal parent. A U.S.-citizen father must still be a genetic parent in order to confer citizenship, however.

The January 2014 State Department cable announcing the new policy is reprinted at Appendix B. It is available on the DOS website at http://travel.state.gov/content/travel/english/legal-considerations/us-citizenship-laws-policies/assisted-reproductive-technology.html.

Prior State Department treatment of ART is discussed in Gary Endelman, Answer Man: Assisted Reproductive Technology and U.S. Immigration Law, 18 Bender’s Immigr. Bull. 7 (Jan. 1, 2013). This article was updated by Gary Endelman and Cyrus Mehta at http://blog.cyrusmehta.com/2014/02/ transmission-of-american-citizenship.html.

Roofing Company to Pay $230,000 for Wage Violations in H-2B Program

The Department of Labor obtained a consent judgment from a federal court in Colorado requiring Superior Roofing, Inc., to pay $230,000 in penalties and unpaid back wages to workers employed through the H-2B program. An investigation by the Denver office of the Department’s Wage and Hour Division found that the company failed to compensate employees for all hours worked, did not include nondiscretionary bonuses in the overtime rate, and illegally deducted the costs of tools and other pre-employment costs from workers’ wages.

Revised Forms I-290B and N-400 Released

U.S. Citizenship and Immigration Services has issued a revised Form I-290B, Notice of Appeal of Motion. Previous versions of the form will be accepted until April 5, 2014.

USCIS also issued a revised Form N-400 and instructions on February 4, 2014. Revisions were made to provide USCIS with “additional tools to make important eligibility determinations, present customers with clearer instructions, and incorporate technology that improves efficiency and accuracy.” Previous versions of the form may be used during the ninety-day transition period. However, on Monday, May 5, 2014, prior versions will no longer be accepted. The revised form bears a revision date of (09/13/13) N. It should be noted that despite substantial changes in the form, there has been no substantive change in naturalization requirements. M-476, Guide to Naturalization, dated March 2012, remains unchanged.

EOIR: Country Conditions Information Available on Virtual Law Library

The Executive Office for Immigration Review announced on January 31, 2014, that the Country Conditions Resource Information is now available on its website via the Virtual Law Library. This new section organized by country and condition provides links to international and NGO documentation that, while publicly available, has not lent itself to efficient research. It should be noted that this resource remains a work in progress: Not all countries covered, nor are all conditions in the countries that are covered.

Bender's Immigration Bulletin

[This is an excerpt from the March 1, 2014, issue of Bender's Immigration Bulletin.]

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