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Immigration Law

Excerpts From the April 15, 2012, Bender's Immigration Bulletin: USCIS Proposes Change for Certain Unlawful-Presence Waivers, More

USCIS Proposes Change for Certain Unlawful-Presence Waivers  

 USCIS posted a Notice of Proposed Rulemaking in the Federal Register on March 30 that would reduce the time U.S. citizens are separated from their immediate relatives who must obtain immigrant visas abroad to become lawful permanent residents. (See Appendix A for the Federal Register notice. See also USCIS Proposes Change in Process for Certain Waiver Applications and Apps. A and B, at 17 Bender's Immigr. Bull. 117, 137, and 141 (Feb. 1, 2012).) The rule would allow certain immediate relatives of U.S. citizens to apply for provisional waivers of the unlawful-presence ground of inadmissibility while still in the United States if they can demonstrate that separation would cause that U.S. citizen extreme hardship. The proposed rule will not alter how USCIS determines eligibility for a waiver of inadmissibility or how an individual establishes extreme hardship. 

 "The current process can subject U.S. citizens to months of separation from family members who are waiting for their cases to be processed overseas. The proposed change will have tremendous impact on families by significantly reducing the time of separation," said USCIS Director Alejandro Mayorkas. 

 USCIS also proposes creating a new form for immediate relatives of U.S. citizens who choose to apply for a provisional unlawful presence waiver. (The draft form is at See Appendix B for a copy of the draft form instructions.) 

Once in effect, this form would be used for individuals applying before departing the United States to complete the immigrant visa process at a U.S. embassy or consulate. The streamlined process would apply only to immediate relatives who are otherwise eligible for immigrant visas on approved immediate-relative petitions.

 USCIS will accept comments on the proposed rule until June 1, 2012. The proposed process change in not in effect and not available until a final rule and effective date are published in the Federal Register

Temporary Extension of Accommodation for H-2A Sheepherders

 USCIS announced on March 20 that it extended an accommodation for H-2A workers in the sheepherding industry to transition to the three-year limitation-of-stay requirements. USCIS will require H-2A sheepherders who have reached their maximum three-year period of stay to depart the United States by August 16, 2012, and remain outside the country for at least three months before petitioning for H-2A classification again. 

 The limitation of stay was announced under a final rule that became effective on January 17, 2009. USCIS granted an accommodation for H-2A sheepherders in December 2009 in deference to prior practice exempting them from the three-year limitation. 

 A petitioner who has had a Form I-129 denied solely on the basis that the H-2A sheepherder had exceeded the three-year limitation of stay may request that USCIS reopen the case by sending an e-mail to and including "H-2A Sheepherder Service Motion Request" in the subject line. 

USCIS will review denials for which it has received written requests on or before April 20, 2012. No fee is required. 

Revised I-9 Open for Comment 

On March 29, USCIS published a notice in the Federal Register inviting public comment on a revised Form I-9, Employment Eligibility Verification. Key revisions to the form include: expanded instructions and a revised layout; new, optional data fields to collect the employee's e-mail address and telephone number; and new data fields to collect foreign passport number and country of issuance. The public is invited to comment on the revisions until May 29, 2012, by visiting, which provides instructions on how to comment on the proposed revisions. Refer to "OMB Control Number 1615-0047." 

New I-797C Appears 

On April 2, USCIS issued Form I-797C, Notice of Action, with a new look and feel. The new I-797C is printed on plain bond paper. USCIS estimates that the change will save the agency about $1.1 million a year. Printed in eye-catching bold capital letters at the top of the new form is: "THIS DOES NOT GRANT ANY IMMIGRATION STATUS OR BENEFIT." USCIS believes that this sentence will reduce the public perception that Form I-797C is evidence of an immigration benefit or status. 

H-1B Season Opened April 2 

USCIS began accepting H-1B petitions subject to the Fiscal Year 2013 cap on Monday, April 2, 2012. Petitions will be considered accepted on the date that USCIS takes possession of a properly filed petition with the correct fee. USCIS will not rely on date the petition is postmarked. 

Grant Opportunity Available for Immigrant Integration 

USCIS announced a competitive grant opportunity designed to promote immigrant civic integration and prepare permanent residents for citizenship. This year's program will offer approximately $5 million for citizenship-preparation programs across the country. USCIS expects to announce an estimated thirty-one award recipients in September 2012. To apply for this funding opportunity, visit Applications are due by May 27, 2012. 

New Immigration Statistics 

The Office of Immigration Statistics released its estimate of the size of the unauthorized immigrant population living in the United States as of January 2011 by period of entry, region and country of origin, state of residence, age, and sex. The report reveals an estimated 11.5 million unauthorized immigrants living in the United States as of January 2011, compared to the revised January 2010 estimate of 11.6 million. Of all the unauthorized immigrants living in the United States in 2011, 55% entered between 1995 and 2004. Entrants since 2005 accounted for only 14% of the total, according to the report. It is available at publications/ois_ill_pe_2011.pdf

New Immigration Court in Newark, New Jersey 

EOIR announced the relocation of the Newark Immigration Court. Hearings were recommenced on March 27 at 970 Broad Street, Room 1200, Newark, NJ 07102. The hours of operation are 7:30 a.m. to 5 p.m. Monday through Thursday, and 7:30 a.m. to 4:00 p.m. on Friday. The telephone number is 973-645-3524. 

Expansion of E-Mail Notification Program for H-2A and H-2B Applicants 

The Chicago National Processing Center announced that it will expand its E-Mail Notification Program to all H-2A and H-2B stakeholders who elect to participate in the program. In addition, H-2A and H-2B employers who elect to participate in the program will no longer receive hard copy notifications of the following actions: Notice of Deficiency, Notice of Acceptance, Denials, Withdrawals, Extensions, and Redeterminations. Certification and partial certifications will continue to be issued via electronic transmission and by hard copy. The expansion is effective April 9, 2012. 

Expanded Interview Waiver Program in New Delhi 

The U.S. Embassy in New Delhi, India, announced expansion of the Interview Waiver Program. The program permits consular officers to waive interviews for qualified nonimmigrant applicants who are renewing their B1/B2 visas within forty-eight months of the expiration of their previously held visas within the same classification. COs retain the authority to interview any applicant who they determine requires a personal appearance. 

                New Embassy in Romania 

On March 22, U.S. Ambassador to Romania Mark Gitenstein dedicated the new embassy facility in Bucharest. American International Contractors (Special Projects), Inc. of Arlington, Virginia, constructed the $153 million LEED project. It is the first LEED registered government project in Romania. The address is: 4-6, Dr. Liviu Librescu Blvd., District 1, Bucharest 015118 Romania. The main telephone number is (+40) 21 200-3300. The hours of operation are 8:00 a.m. to 5:00 p.m., Monday through Friday. 

                Judulang Guidance 

The Immigrant Legal Resource Center has issued an updated chart on §212(c) waiver eligibility after Judulang v. Holder. The chart is available at and at Appendix C.

Bender's Immigration Bulletin


[This is an excerpt from the April 15, 2012, issue of Bender's Immigration Bulletin.]

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