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Immigration Law

Bender’s Immigration Bulletin – November 1, 2010

Reminder: New USCIS Fees in Effect November 23rd

As reported in 15 Bender's Immigr. Bull. 1385 (Oct. 15, 2010), the new USCIS fees go into effect on November 23. Please reference Appendices B (Final Rule), C (News Release), D (Q & A) and E (Fact Sheet) of that issue for additional information.

DOLETA Issues Proposed Rule: Wage Methodology for H-2B Program

In response to a U.S. District Court's decision, Comité de Apoyo a los Trabajadores Agricolas (CATA) v. Solis, 2010 U.S. Dist. LEXIS 90155 (E.D. Pa. Aug. 30, 2010), the Department of Labor has proposed a rule that addresses the calculation of the prevailing wage rate in the H-2B program, insuring that the calculation is in compliance with the Administrative Procedure Act. The plaintiffs in CATA had challenged the use of skill levels in establishing prevailing wages and the Department's reliance upon Occupational Employment Statistics Survey data in lieu of Davis Bacon Act and McNamara-O'Hara Service Contract Act rates. The court held that the Department violated the APA as it did not adequately explain its reasoning for using skill levels as part of the H-2B prevailing wage determinations, and failed to consider comments relating to the choice of appropriate data sets. In compliance with the court's order to appropriately establish a wage methodology adequately protecting U.S. and H-2B workers, the Department issued the proposed rule with an opportunity to comment on the new methodology to calculate prevailing wages under the H-2B program. The proposed rule, summarized at pages 1528-29, is reprinted at Appendix A. The comment period ends on November 4, 2010.

Attorney General Designates USCIS "Adopted Decisions" as Precedent

On October 20, 2010, the Attorney General published Matter of Al Wazzan, 25 I. & N. Dec. 359 (AAO 2010), and Matter of Chawathe, 25 I. & N. Dec. 369 (AAO 2010), designating them as precedent decisions. Matter of Al Wazzan was initially decided on January 12, 2005, and Matter of Chawathe on January 11, 2006. Both cases were designated "Adopted Decisions" by USCIS, with the intent to bring uniformity to the administration of immigration laws. Both cases were reopened and amended for the purpose of "editorial revisions consistent with designation of the decision as precedent." 25 I. & N. Dec. 359 n.1; 25 I. & N. Dec. 369 n. 1. Matter of Al Wazzan was summarized at 11 Bender's Immigr. Bull. 788 (Jul. 15, 2006), and reprinted at 12 Bender's Immigr. Bull. 91 (App. A) (Jan. 15, 2007). Matter of Chawathe was summarized and reprinted as Matter of X, at 11 Bender's Immigr. Bull. 186, 191 (Feb. 15, 2006).

For Robert C. Divine's (former USCIS Acting Deputy Director) comments on the process of getting these Administrative Appeals Office decisions designated as precedent, see the Baker Donelson website.

University System of Georgia: New Policies for Fall 2011

The Regents of the University System of Georgia voted to institute several new policies to ensure that all students are properly classified for tuition purposes and that undocumented students do not take seats from academically qualified Georgia residents. In June 2010, the Regents formed the Residency Verification Committee to address concerns that: 1) the University system was being swamped by thousands of undocumented students; 2) Georgia taxpayers were subsidizing the education of these students through in-state tuition; and 3) undocumented students were taking seats from academically qualified Georgians.

On October 13, 2010, the committee reported that only 501 students out of 310,000 enrolled in the system were undocumented, and all 501 were paying out-of-state tuition. A total of 27 undocumented students were found attending five institutions that had turned away academically qualified, legal residents.

Despite these findings, the Regents voted to add language to USG's applications that outlines the penalties for knowingly providing incorrect information on the forms and to require applicants to state whether they are seeking in-state tuition. In addition, USG institutions must now verify the lawful presence of any applicant admitted. Going forward, undocumented persons are not eligible for admission to any USG institution that for the two most recent academic years did not admit all academically qualified applicants.


Tougher Cracking Down on Foreign Labor Certification Violators Recommended

The Office of Inspector General conducted a performance audit to determine whether the Office of Foreign Labor Certification (OFLC) and the Wage and Hour Division (WHD) properly used suspension and debarment in administering the foreign labor certification programs. The OIG found that OFLC and WHD narrowly defined their suspension and debarment authority based only on INA provisions, rather than the broader government-wide authority (29 CFR Part 98). As a result, they did not consider debarring individuals or entities convicted of program violations resulting from OIG investigations. The OIG recommended that ETA and WHD take steps to assure that 1) debarments are considered for anyone convicted of foreign labor certification (FLC) violations, and 2) FLC debarments are reported to appropriate DOL personnel for inclusion in the government-wide exclusion system.

London: O and P Applicants May NOT need Interview

The U.S. Embassy in London posted a notice that certain O and P visa applicants are eligible to apply for a new visa without having to attend an interview with a U.S. consular officer. If the applicant previously provided a complete set of fingerprints and is applying to renew the same category of visa that is still valid or has expired within the last twelve months, the exemption may apply. The applicant can use the Visa Reissuance Wizard, available on the embassy's website, to see whether he or she is exempt. In all cases, a consular officer always reserves the right to request that an applicant appear for a personal interview.

[This is an excerpt from the November 1, 2010, issue of Bender's Immigration Bulletin.]