Immigration Law

News Excerpts From The Jan. 1, 2014, Bender's Immigration Bulletin

EOIR Issues New Guidance Following Settlement of Asylum Clock Suit |

On December 2, 2013, the Office of the Chief Immigration Judge issued two memoranda concerning implementation of the employment authorization “clock” for asylum applicants in removal proceedings. The issuance of the memoranda came less than three months after the finalizing of a settlement in a nationwide class action that challenged numerous aspects of the management of the clock, B.H. v. U.S. Citizenship and Immigration Services, No. 11-2108 (W.D. Wash.).

Under Operating Policies and Procedures Memorandum 13-02 (“The Asylum Clock”), Immigration Judges are required to state on the record the reasons for any stoppage of the clock. Furthermore, the clock will restart at each new hearing even if it had previously been stopped. If a future hearing is postponed for DHS- or court-related reasons, the clock will be restarted on the original hearing date. (This memorandum is reprinted at Appendix A.)

Under Operating Policies and Procedures Memorandum 13-03 (“Guidelines for Implementation of the ABT Settlement Agreement”), defensive asylum applications may be “lodged” at court filing windows in advance of a master calendar hearing, and USCIS will use the lodging date for purposes of determining eligibility for an EAD. (Proof of service is not required to “lodge” an application.) An application may also be lodged by mail, but must be accompanied by a self-addressed stamped envelope. (This memorandum is reprinted at Appendix B.)

BALCA Strikes Down Supplemental Prevailing Wage Determinations

On December 3, 2013, the Board of Alien Labor Certification Appeals issued an en banc decision holding that employers need not increase wages for H-2B workers under supplemental prevailing wage determinations issued after the approval of a temporary labor certification.

The employer, Island Holdings LLC, challenged the validity of supplemental PWDs increasing the approved rate for housekeepers at a resort on Martha’s Vineyard from $10.50 to $13 per hour. The Labor Department said that the increase was justified under interim regulations jointly issued with the Department of Homeland Security in April 2013 revising the methodology for calculating prevailing wages under the H-2B program.

In rejecting the supplemental PWDs, BALCA stated that the DOL was required to provide notice and an opportunity for comment before imposing additional obligations on a regulated party. BALCA also rejected DOL’s argument that it possessed “inherent authority” to issue supplemental PWDs.

"The Department’s H-2B regulations do not require an employer to increase the wage it offers and pays its H-2B workers after the Department has approved and certified its Application for Temporary Employment Certification,” the decision stated. “It was an abuse of discretion for the Certifying Officer to affirm the supplemental PWDs, which impose a legal obligation that is not otherwise required by law.”

The decision is Matter of Island Holdings, 2013-PWD-00002. For more information, see page 25.

USCIS Hits Annual Cap for U Visas

On December 11, 2013, USCIS announced that it had reached the 10,000 annual cap for petitions for U-1 nonimmigrant status for fiscal 2014. The agency stated that it would continue to review pending petitions and would notify eligible applicants by letter of their placement on a waiting list.

The government may grant U nonimmigrant status to victims of specified crimes who assist authorities in any subsequent investigation or prosecution. According to the agency, nearly 90,000 crime victims and family members have been granted U status since the program’s implementation in 2008.

Bender's Immigration Bulletin

[This is an excerpt from the Jan. 1, 2014, issue of Bender's Immigration Bulletin.]

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