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Immigration Law

News Excerpts from the April 15, 2013 Bender's Immigration Bulletin

DHS Issues New Rules for Transformation to Electronic Form I-94 

On March 27, the Department of Homeland Security issued an interim final rule intended to facilitate the transition of Form I-94 from paper to electronic format at air and sea ports of entry. Form I-94, the ubiquitous document used to indicate the status and duration of a noncitizen's admission or parole into the United States, has been used by DHS and its predecessor agencies for more than fifty years. Going forward, U.S. Customs and Border Protection will obtain the necessary information in advance of noncitizens' arrivals in the country, and travelers will be able to access and print an electronic version of their Form I-94s from

To facilitate the change, the Department will amend regulatory language that was written when paper forms were the only way U.S. officials could collect arrival and departure information. DHS estimates that the transition to an electronic version of Form I-94 for air and sea travelers will save approximately 9.6 million pieces of paper.

The interim rule will take effect on April 26, 2013, unless CBP receives public comment demonstrating that automation of Form I-94 should be further delayed. The full text is reprinted at Appendix A

District Court Invalidates H-2B Wage Rule

On March 21, 2013, a federal judge in Philadelphia enjoined the Department of Labor from continuing to use the prevailing wage rule issued in 2008 for workers hired through the H-2B program.

The decision comes more than two years after a different judge on the same court found the 2008 rule to have been improperly promulgated without notice and comment. DOL promulgated a new wage rule in 2011, but Congress has repeatedly delayed its implementation. The week following the decision, DOL issued a notice in the Federal Register stating that the 2011 rule would not become effective until October 1 as a result of legislative language prohibiting it from being implemented in fiscal 2013. (See Appendix B.)

In the March 21 opinion, Judge Legrome D. Davis of the Eastern District of Pennsylvania held that the 2008 rule is substantively invalid because it exceeds DOL's statutory authority under the Immigration and Nationality Act. In particular, Judge Davis found that the 2008 rule-which permits H-2B workers to receive below-market wages-violates a provision of the INA requiring that their employment not "adversely affect" the wages and working conditions of existing workers.  

The decision is Comite de Apoyo a Los Trabajadores Agricolas v. Solis, No. 09-240, 2013 U.S. Dist. LEXIS 39175 (E.D. Pa. March 21, 2013) [enhanced version available to subscribers].

FAM Updated on False Claims to Citizenship

The Department of State has updated provisions of Volume 9 of the Foreign Affairs Manual, section 40.63, regarding noncitizens who make false claims to citizenship, including a note stating that minors do not become inadmissible under INA §212(a)(6)(C)(ii) by virtue of such claims unless they possessed the maturity and judgment to understand the nature and consequences of their actions. The full text is reprinted at Appendix C.

Deferred Enforced Departure Extended 18 Months for Liberians

On March 15, 2013, President Obama granted an eighteen-month extension of Deferred Enforced Departure for Liberian nationals. Temporary Protected Status was initially granted to Liberians in the 1990s due to the widespread violence in their native country, but ended in late 2007 after the resolution of hostilities. President Bush initially deferred the enforced departure of Liberians granted TPS, which President Obama subsequently extended to March 31, 2013. The most recent extension applies to Liberians who have resided in the United States since October 1, 2012, and who were present under a grant of DED on September 30, 2011.

ITIN Applications and Rejections Increase After New Rules

Figures published in the April 2013 issue of the Journal of Accountancy indicate both a decrease in applications and an increase in rejections for Individual Taxpayer Identification Numbers following rule changes that imposed more stringent documentation requirements. According to the Journal, the number of ITIN applicants fell 22% in the three-month period following June 2012 rule changes requiring applicants to submit either original or certified documentation. Meanwhile, the rejection rate during the same period rose from 36% to 66% of all applicants. The source of the figures was the National Taxpayer Advocate's 2012 Annual Report to Congress, which is available at

Bender's Immigration Bulletin

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

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