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Immigration Law

News Excerpts From the Jan. 1, 2015, Bender’s Immigration Bulletin

Labor Department Ends Use of Employer-Provided Wage Surveys for H-2B Program |

Following a major decision from the U.S. Court of Appeals for the Third Circuit, the Department of Labor announced that it will no longer issue prevailing wage determinations for the H-2B program resulting from wage surveys provided by employers themselves.

The decision, Comité de Apoyo a los Trabajadores Agricolas et al v. Solis, 2014 U.S. App. LEXIS 23001 (3d Cir. Dec. 5, 2014) [enhanced opinion available to subscribers], held that regulations codified at 20 C.F.R. §655.10(f) were issued in violation of the Administrative Procedure Act because the Department failed to provide any valid explanation for allowing the use of employer-provided wage surveys, and because the policy was arbitrary and capricious.

The Department stated that employers with pending H-2B applications based on prevailing wage determinations made through such surveys will be notified of the new prevailing wages when they receive certification letters.

                                                                                                                          Federal Judges Now Required To Advise Defendants of Right to Consular Notification

Under changes to Federal Rule of Criminal Procedure 5(d), which took effect in December, federal judges must now advise a criminal defendant accused of a felony of his or her right to have a consular officer from his or her country notified of the arrest, and that such notification may be required by treaty regardless of the defendant’s desire. The Rule and Committee Notes read:

Fed. R. Crim. P. 5(d) Procedure in a Felony Case.

(1) Advice. If the defendant is charged with a felony, the judge must inform the defendant of the following: ...

(F) that a defendant who is not a United States citizen may request that an attorney for the government or a federal law enforcement official notify a consular officer from the defendant’s country of nationality that the defendant has been arrested — but that even without the defendant’s request, a treaty or other international agreement may require consular notification.

Committee Notes on Rules-2014 Amendment

Rule 5(d)(1)(F). Article 36 of the Vienna Convention on Consular Relations provides that detained foreign nationals shall be advised that they may have the consulate of their home country notified of their arrest and detention, and bilateral agreements with numerous countries require consular notification whether or not the detained foreign national requests it. Article 36 requires consular notification advice to be given "without delay," and arresting officers are primarily responsible for providing this advice.

Providing this advice at the initial appearance is designed, not to relieve law enforcement officers of that responsibility, but to provide additional assurance that U.S. treaty obligations are fulfilled, and to create a judicial record of that action. The Committee concluded that the most effective and efficient method of conveying this information is to provide it to every defendant, without attempting to determine the defendant's citizenship.

At the time of this amendment, many questions remain unresolved by the courts concerning Article 36, including whether it creates individual rights that may be invoked in a judicial proceeding and what, if any, remedy may exist for a violation of Article 36. Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006) [enhanced opinion]. This amendment does not address those questions. More particularly, it does not create any such rights or remedies.

Changes Made After Publication and Comment

In response to public comments the amendment was rephrased to state that the information regarding consular notification should be provided to all defendants who are arraigned. Although it is anticipated that ordinarily only defendants who are held in custody will ask the government to notify a consular official of their arrest, it is appropriate to provide this information to all defendants at their initial appearance. The new phrasing also makes it clear that the advice should be provided to every defendant, without any attempt to determine the defendant's citizenship. A conforming change was made to the Committee Note.

For Sixth Straight Fiscal Year, USCIS Hits Cap on U Visas

USCIS announced on December 11, 2014, that it has approved 10,000 petitions for U visas for Fiscal Year 2015. This is the sixth year in a row in which it has hit that statutory cap. U visas are for victims of certain crimes who cooperate with law enforcement. USCIS will continue to review cases. It will keep a waiting list and advise applicants of possible other relief to use while awaiting the October 1, 2015, resumption of the issuance of U visas.

Bender's Immigration Bulletin

[This is an excerpt from the Jan. 1, 2015, issue of Bender's Immigration Bulletin.]

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