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Immigration Law

Excerpts From the Jan. 15, 2013, Bender's Immigration Bulletin

USCIS Issues Final Rule on Unlawful-Presence Waivers

On January 2, Secretary of Homeland Security Napolitano announced the posting of an eagerly anticipated rule for a process that may allow would-be immigrants with accrued unlawful presence to spend less time apart from their relatives in the United States. The rule was then published in the January 3 Federal Register. According to USCIS, with the new process, immediate relatives of U.S. citizens still must leave the United States to consular process. But "they can apply for a provisional waiver" before they leave. They also "must notify the Department of State's National Visa Center that they are or will be seeking a provisional waiver from USCIS. The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives."

USCIS had issued a proposed rule in April 2012. It then received more than 4,000 comments. USCIS assured the public that it "considered all of them in preparing the final rule." The forty-three-page rule is available at immigration-law/, LexisNexis's Immigration Law Community page.

 New Jersey Court Rules for Student Seeking Tuition Assistance

                On August 8, 2012, an appellate court in New Jersey reversed the denial of tuition assistance to a U.S.-citizen student based on her undocumented mother's inability to demonstrate legal residence in the state.

                The decision in A.Z. v. Higher Education Student Assistance Authority, 427 N.J. Super. 389 (App. Div. 2012), involved a high school graduate who was born in the United States and had lived in New Jersey for more than a decade. Her request for college tuition assistance was denied under a 2005 regulation presuming that dependent students are legal residents of the state in which their parents are domiciled.

                In voiding the regulation, the court found that it ignored the purpose of state law, which is concerned with the legal status of prospective students rather than their parents. The court held that students with undocumented parents must be afforded an opportunity to demonstrate their own residency in the state, such as by submitting proof of graduation from a New Jersey high school.

                By finding the regulation to have misconstrued state law, the court did not reach whether the regulation violated the Equal Protection Clause of the U.S. Constitution.

DHS Trying Again on "Transformation" Contract reports that USCIS is changing its approach to the "Transformation" project, which was meant to computerize immigration agency paperwork. As Aliya Sternstein writes, the original plan would have taken five years and cost about $500,000. When USCIS decided to pull the plug, the program was threatening to take twenty years and cost more than $3 billion. USCIS has one online form (the I-539) for the almost $800 million it has spent. The new approach will use multiple contractors, not just one (IBM), in what is called "agile development" - dividing the project into smaller pieces with earlier deadlines and more consultation with the employees who will use the resulting system. The full article is available at

Border Fence Contract Delayed also reports that CBP has been surprised by the number of proposals submitted for the replacement for the Secure Border Initiative network. According to the article, available at, CBP had expected to select a contractor by January 1, but now figures to do it by the start of the next fiscal year - October 1. The network is projected to take eight and a half years to complete.

DOS Annual Report on Waiting Times Released

 The Department of State has released its annual report listing current waiting times for family- and employment-based immigrant visas filed on behalf of prospective beneficiaries who are overseas. The report, which does not include pending applications for adjustment of status, was based on data provided by the National Visa Center in New Hampshire through November 1, 2012. The report found nearly 4.3 million persons waiting for family-based immigrant visas, and more than 4.4 million waiting for employment-based visas. The full report is reprinted at Appendix A.

Bender's Immigration Bulletin

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

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