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Immigration Law

News Excerpts From The Dec. 15, 2013, Bender’s Immigration Bulletin

Federal Judges Required to Provide Immigration Warnings During Plea Stage |

Under changes to the Federal Rules of Criminal Procedure that took effect December 1, federal judges are required to advise defendants of potential immigration consequences as part of the standard plea colloquy. The amendment to Rule 11(b) states that prior to accepting a plea of guilty or nolo contendere, the sentencing judge must advise a defendant that if he or she is not a U.S. citizen, a conviction could result in removal, the denial of citizenship, or the denial of future admission. The rule change was adopted by the Judicial Conference of the United States in 2012, and forwarded to the U.S. Supreme Court in January 2013.

The Judicial Conference adopted the change in light of the Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356 (2010) [enhanced opinion available to subscribers], which held that defense attorneys are required under the Sixth Amendment to advise defendants about the immigration consequences of a conviction. Although some members opposed expanding the plea colloquy required under Rule 11, the amendment was adopted out of recognition that removal is “qualitatively different from the other collateral consequences that may follow from a guilty plea.”

ICE Proposes SEVP Rules Changes

On November 21, 2013, ICE proposed a series of changes to regulations governing the Student and Exchange Visitor Program. Under the notice of proposed rulemaking, published at 78 Federal Register 69,778, schools could designate more than ten designated school officials to provide assistance to students in F-1 and M-1 nonimmigrant status. Dependents and spouses of F and M students would also be permitted to study, so long as they did so on a less than full-time basis. ICE proposed the rules changes following recommendations from the Department of Homeland Security Academic Advisory Council. The comment period for the proposed rule changes runs through January 21, 2014.

USCIS Issues CSPA Guidance Weeks Before Supreme Court Argument 

On November 21, 2013, USCIS issued a memorandum (PM-602-0094) providing guidance to agency employees on requests for automatic conversion of certain immigrant visa petitions under the Child Status Protection Act. The memorandum was issued weeks before the Supreme Court hears oral argument in Mayorkas v. De Osorio (No. 12-930) [ subscribers may access Supreme Court briefs for this case], a class action challenging the decision in Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009) [enhanced opinion].

According to the memorandum, derivative beneficiaries of approved F2A petitions may adjust status under the F2B category without the filing of a new petition or the payment of a new fee—so long as the applicant continues to have a qualifying relationship to the original petitioner and is otherwise eligible to adjust status.

The memorandum also states that Matter of Wang remains binding at all USCIS offices—even though the U.S. Court of Appeals for the Fifth Circuit struck down the decision in Khalid v. Holder, 655 F.3d 363 (5th Cir. 2011) [enhanced opinion] —because the De Osorio litigation involved a nationwide class and the Ninth Circuit stayed its mandate pending resolution by the Supreme Court.

The memorandum is entitled “Guidance to USCIS Offices on Handling Certain Family-Based Automatic Conversion and Priority Date Retention Requests Pending a Supreme Court Ruling on Mayorkas v. Cuellar de Osorio.” It is reprinted at Appendix A. Additional information about the Mayorkas case is available in two emerging issues analyses by David Froman, at 2012 Emerging Issues 6736 and 2011 Emerging Issues 5696.

E-Verify MOUs Coming

USCIS has announced that it will release two new Memoranda of Understanding for the E-Verify program on December 8, 2013. The memoranda will be covered in the next issue and on /legalnewsroom/immigration/default.aspx.

Bender's Immigration Bulletin

[This is an excerpt from the Dec. 15, 2013, issue of Bender's Immigration Bulletin.]

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