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Immigration Law

News Excerpts From the Jan. 15, 2015, Bender’s Immigration Bulletin

Procedures for H-2Bs Still in Flux  |

The U.S. District Court for the Northern District of Florida enjoined the Department of Labor’s H-2B labor-certification rule of February 21, 2012, published at 77 Fed. Reg. 10,038. The injunction came in the case of Bayou Lawn & Landscape Services v. Perez, No. 3:12cv183/MCR/CJK. The injunction was issued by District Judge M. Casey Rodgers on December 18. Judge Rodgers held that Congress has not delegated authority to DOL to issue such regulations (unlike H-2A regulations, which are explicitly allowed). The court’s preliminary injunction against the rule was affirmed by the Eleventh Circuit in 2013. Bayou Lawn & Landscape Servs. v. Secretary of Labor, 713 F.3d 1080 (11th Cir. 2013) [enhanced opinion available to subscribers]. 

Meanwhile, Secretary of Labor Perez issued a notice in the Federal Register that he “is considering issuing … a declaratory order confirming that he has exclusive authority to make legal and policy determinations based on his statutory and regulatory authority to administer and enforce the H–2B temporary labor certification program.” Comments must be received by January 16, 2015. 

This arises from a BALCA decision in Island Holdings LLC, 2013–PWD–00002, (BALCA Dec. 3, 2013) (en banc). The BIB has covered this issue in Wendel V. Hall, BALCA Rules That DOL May Not Increase H-2B Prevailing Wage Rates Mid-Season, 19 Bender's Immigr. Bull. 24 (Jan. 1, 2014). A summary of Island Holdings is at 19 Bender's Immigration Bulletin 275 (Mar. 1, 2014). BALCA ruled that DOL could not require employers to change the wages they paid after they had a prevailing wage determination. The Secretary’s explanation is that there have been multiple lawsuits about labor certification, DOL had to revise its methodology, the form seeking a PWD requires the employer to accept that the wage may change, and BALCA lacks the authority to declare the law or policy position of DOL. The notice is at Appendix A. 

In addition, on December 23, DOL posted guidance at for employers with pending PWD requests or who have already received PWDs. 

More Information on Haitian Relief 

In a Federal Register notice, USCIS has provided more information on the Haitian Family Reunification Parole Program. USCIS will give Haitian beneficiaries of family-based immigrant petitions that were approved by December 18, 2014, a chance to receive parole — at USCIS’s discretion — to enter the United States within about two years before their priority dates would be current. The National Visa Center will contact the petitioners associated with potential beneficiaries starting around the beginning of February 2015. Anyone who expects to be eligible should start assembling the necessary information so that processing can proceed as smoothly as possible. Beneficiaries should not contact DOS or USCIS themselves before their petitioners have the instructions from the NVC. The full text is reprinted at Appendix B. 

U.S. Supreme Court Action To Come 

Two U.S. Supreme Court decisions are coming up on immigration issues. January 15, 2015, is the date of oral argument in Mellouli v. Holder  [ subscribers may access Supreme Court briefs for this case] and Madrigal-Barcenas v. Holder [ subscribers may access Supreme Court briefs for this case], which consider 

Whether, to trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that a noncitizen may be removed if he has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in [21 U.S.C. §802]) . . . ,” the government must prove the connection between a drug paraphernalia conviction and a [listed controlled] substance. 

On February 23, the Supreme Court will hear argument in Kerry v. Din, about consular nonreviewability [ subscribers may access Supreme Court briefs for this case]. 

Delayed Application of Driver’s License Standards 

DHS issued a final rule delaying the date on which federal agencies must refuse to accept state drivers’ licenses or other state-issued identification cards that do not comply with the REAL ID Act. The new date is October 1, 2020. The full text is reprinted at Appendix C.

Bender's Immigration Bulletin

[This is an excerpt from the Jan. 15, 2015, issue of Bender's Immigration Bulletin.]

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