Immigration Law

Bender’s Immigration Bulletin – October 1, 2010

OIL Releases Reference Guide on Immigration Consequences of Criminal Convictions


The Department of Justice Civil Division’s Office of Immigration Litigation, Appellate Section, has released a monograph that constitutes a “comprehensive overview of the provisions of the Immigration and Nationality Act that are relevant to criminal aliens.” OIL describes this reference guide as a “brief, cogent, and clear introduction that identifies and summarizes the relevant statutes.” It is intended to assist defense counsel, as well as federal and state prosecutors and judges.


The Supreme Court’s 2010 decision in Padilla v. Kentucky held that the Sixth Amendment requires defense counsel to advise a noncitizen client of the risk of deportation arising from a guilty plea. The Court concluded that defense counsel’s failure to advise, or misadvice to, a client regarding the immigration consequences of the plea, might constitute ineffective assistance of counsel under Strickland v. Washington, which may be a basis for withdrawing a guilty plea and vacating a conviction.  According to OIL, the guide is neither an attempt to interpret the scope and applicability of Padilla, nor an in-depth analysis of issues. OIL acknowledges that “administrative and judicial precedents on immigration matters are far from uniform, and determining what precedent to apply might be difficult because the removal proceeding may not be completed in the same jurisdiction as the criminal proceeding.”


Download the 90+ page monograph, “Immigration Consequences of Criminal Convictions: Padilla v. Kentucky.



Update on Puerto Rico Birth Certificates: I-9s and Supporting Evidence for Applications


As previously reported (15 Bender’s Immigr. Bull. 1071 (Aug. 1, 2010) and 15 Bender’s Immigr. Bull. 467 (Apr. 1, 2010)), all Puerto Rico birth certificates issued prior to July 1, 2010, have been invalidated and the Vital Statistics Record Office has begun issuing new, more secure, certified copies of birth certificates to all Puerto Ricans, including those living in the United States.


On September 9, 2010, USCIS issued an update, “Effects of Invalid Puerto Rico Birth Certificates on the Form I-9 Process”, reminding employers that, beginning October 1, only certified copies of Puerto Rico birth certificates issued on or after July 1 are acceptable for employment eligibility verification (Form I-9). Employers are not to re-verify the employment eligibility of existing employees who presented a Puerto Rico birth certificate and whose employment eligibility was verified before October 1, 2010. This guidance also applies to federal contractors. This new law prohibits Puerto Rico employers from keeping original certified copies of birth certificates issued in Puerto Rico, but allows employers to keep photocopies of these documents. Employers are reminded that if they choose to make photocopies of documents their employees present when completing Form I-9, they must do so for all employees.


On September 20, USCIS released an interim policy memorandum (dated August 26, 2010), addressing Puerto Rico birth certificates as supporting evidence for applications and petitions. Although this memo was released for comment until October 4, 2010, the memorandum as written is in effect until further notice. The memorandum addresses Puerto Rico birth certificates issued before and after July 1, 2010, where the petition or application is postmarked on or before September 30, 2010. It also addresses post-September 30 mailings. In addition, it provides guidance relative to presentment at Application Support Centers, which essentially follows the I-9 rules. USCIS noted that while it does not anticipate that Puerto Rico will have difficulty in keeping up with the demand for new birth certificates, if issuance becomes untimely, additional guidance may be forthcoming. Download this interim memorandum, “Validity of Puerto Rico Birth Certificates as Evidence (AFM Update AD10-43)”, PM-602-0007 (Aug. 26, 2010).



Special Relief for F-1 Haitian Students


United States Immigration and Customs Enforcement announced special relief for certain F-1 Haitian students who have suffered severe economic hardship as a result of the January 12, 2010, earthquake in Haiti. The relief applies only to students who were lawfully present in the United States in F-1 status on January 12, and enrolled in an institution certified by ICE’s Student and Exchange Visitor Program (SEVP). The suspension of certain regulatory requirements allows eligible Haitian F-1 students to obtain employment authorization, work an increased number of hours during the school term, and, if necessary, reduce their course load while continuing to maintain their F-1 student status. F-1 students granted employment authorization by means of this notice will be deemed to be engaged in a full course of study if they meet the minimum course load requirements specified in the Federal Register notice. Download the Fact Sheet, Haitian F-1 Students Experiencing Severe Economic Hardship from the January 12, 2010 Earthquake in Haiti Eligible for Employment Authorization.



Brief Hiatus for Adjustment of Status


In a facsimile dated September 15, 2010, and marked "Urgent," the Immigrant Visa Control office at the Department of State informed USCIS that no visa numbers for adjustment of status would be available from September 16, 2010, until the beginning of FY 2011 on October 1, 2010 for all family preference categories and most employment categories.  The facsimile is reprinted at Appendix D.



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