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Immigration Law

Excerpts from the May 15, 2013 Bender's Immigration Bulletin

Interim Final Rule Issued on H-2B Prevailing Wages

                On April 24, 2013, the Department of Labor and the Department of Homeland Security jointly published an interim final rule establishing a new method of calculating prevailing wages under the H-2B program.

                The new rule was issued in response to a federal district court ruling in Comite de Apoyo a los Trabajadores Agricolas v. Solis, No. 09-240 (E.D. Pa. Mar. 21, 2013), which found that the 2008 version of the rule allowed some H-2B workers to be paid below-market wages, thereby violating a provision of the Immigration and Nationality Act preventing the program from adversely affecting the wages and working conditions of existing employees.

                Under the new rule, the government will no longer use a four-tiered, skill-based wage structure to determine the prevailing wage. Instead, it will use the mean wage for all members of the occupation in question-regardless of skill-as determined by the Bureau of Labor Statistics Occupational Employment Statistics Survey.

                Employers who currently employ H-2B workers will receive an updated wage determination from DOL and will be required to pay the new wage for any subsequent work performed by employees in H-2B status. The employer will have thirty days to appeal the new prevailing wage, although it may not raise issues concerning the proper occupational classification.

                The new rule became effective on April 24, the date of publication. Comments may be submitted until June 10, 2013. The full text is reprinted at Appendix A. DOL released a set of frequently asked questions regarding the rule. The text of the FAQ is reprinted Appendix B.

DOJ, DHS Announce Safeguards for Unrepresented Detainees with Serious Mental Disabilities

                On April 22, 2013, the Department of Justice and Department of Homeland Security jointly announced new protections for immigrant detainees who cannot represent themselves in removal proceedings because of mental incompetency.

                Going forward, authorities will screen detainees at facilities staffed by U.S. Immigration and Customs Enforcement Health Service Corps and work with staff at other facilities to identify detainees with serious mental disorders or conditions. Immigration judges will also be authorized to order independent psychiatric or psychological examinations to determine detainees' mental competency; hold bond hearings for mentally incompetent detainees who have been held longer than six months; and make qualified representatives available for those who cannot represent themselves in removal proceedings.

                Authorities stated that they expect the new safeguard to be fully operational by the end of 2013. Related documents from EOIR and ICE are reprinted at Appendix C and Appendix D.

On April 23, 2013, a federal court ordered the government to provide counsel for such detainees in Arizona, California, and Washington State. The case is called Franco-Gonzalez v. Holder, and more details are available at immigration-law/blogs/inside/archive/2013/04/23/ vulnerable-immigrants-in-deportation-proceedings-unable-to-represent-themselves-must-get-counsel-and-a-hearing.aspx. 

Human Rights Reports Released by State Department

DOS has released its annual list of Country Reports on Human Rights Practices for 2012. The list of reports is available online at

Supreme Court Decision in Moncrieffe

On April 23, the Supreme Court issued its decision in Moncrieffe v. Holder. The Court ruled 7-2 for the alien, determining that the government had not shown that his conviction for marijuana distribution was categorically for an aggravated felony. The Georgia statute did not provide a counterpart to the federal statute - 18 U.S.C. §821(b)(4) - that can reduce distribution to misdemeanor status if only a small amount of marijuana changes hands and no remuneration is involved. See the summary of the decision on page 568.

Bender's Immigration Bulletin

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

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