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Immigration Law

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

USCIS Releases Draft Guidance on Extreme Hardship |

On October 7, 2015, U.S. Citizenship and Immigration Services (USCIS) issued draft guidance for public comment on the factors the agency considers in determining whether the denial of an application would result in extreme hardship to a qualifying relative.

The guidance, reprinted at Appendix A, lists a number of factors that would strongly support a finding of extreme hardship, including a qualifying relative who was previously granted asylum or refugee status, who suffers from a disability, who is on active duty in the military, or who would be required to relocate to a country that is the subject of a State Department travel warning.

The guidance also states that extreme hardship may be demonstrated in the aggregate by the adversity that would befall multiple qualifying relatives, even if the level of hardship was not extreme for any individual qualifying relative.

The comment period began October 7 and lasts until November 23, 2015.

USCIS Makes Further Change to Visa Bulletin

On October 14, 2015, USCIS announced that it would determine on a month-by-month basis whether to honor dates listed in the Visa Bulletin allowing prospective lawful permanent residents to file applications for adjustment of status.

In September, the State Department began to include priority dates for which it would accept adjustment applications in addition to priority dates for which it would approve such applications.

The October 14 announcement stated that USCIS would announce within one week after publication of the monthly Visa Bulletin whether it would honor the priority dates for the filing of adjustment applications. It will be necessary to visit the USCIS website,, to determine whether the USCIS chart may be used. Please see November Visa Numbers at the end of this issue to review the DOS charts and the USCIS charts.

Labor Department Issues Final Rule for H-2A Herders and Livestock Producers

On October 13, 2013, the Labor Department announced the adoption of a proposed rule regarding H-2A workers in jobs involving herding and the production of livestock.

The Labor Department issued the rule in response to the decision in Mendoza v. Perez, 754 F. 3d 1002 (D.C. Cir. 2014) [enhanced opinion available to subscribers | Lexis Advance], which required the Department to provide notice-and-comment before setting employment standards for such H-2A workers.

According to the Department, the rule establishes a new wage methodology and imposes higher housing standards for H-2A workers, and allows employers to file applications directly with the Chicago National Processing Center (NPC).

The 114-page final rule is available at 80 Fed. Reg. 62958 (Oct. 16, 2015). The Labor Department’s Major Points and FAQs is reprinted at Appendix B.

Washington Attorney General Finds DACA Recipients Eligible for In-State Tuition

On July 31, 2015, the Washington Attorney General state issued an opinion stating that beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program qualify for in-state tuition rates at public universities and colleges in the state.

The state Attorney General’s office had previously found that DACA recipients did not qualify for in-state tuition rates because they could not establish domicile in the state. The office reversed its position after USCIS clarified that deferred action recipients can establish domicile.

The memorandum is reprinted at Appendix C.

DHS to Offer Parole to Relatives of Filipino Veterans

On October 2, 2015, the Department of Homeland Security (DHS) announced the creation of a program allowing certain family members of Filipinos and Filipino-Americans who served in World War II to be paroled into the United States.

The program, designed to allow eligible relatives to provide support for aging veterans who are U.S. citizens or lawful permanent residents, is detailed in the July 2015 White House Report, Modernizing and Streamlining Our Legal Immigration System for the 21st Century, available at /sites/default/files/docs/final_visa_modernization_report1.pdf

The DHS is not yet accepting applications for the program.

DV 2017 Announced

The State Department has released the instructions and answers to Frequently Asked Questions for the Diversity Visa Lottery for fiscal 2017. The instructions and FAQ are reprinted at Appendix D.

Bender's Immigration Bulletin

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

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