Bender’s Immigration Bulletin – December 1, 2010

Bender’s Immigration Bulletin – December 1, 2010

USCIS Revises I-129

USCIS revised Form I-129 and published the new version of the form on November 23, the same day that the final fee rule became effective. Previous editions of the form will continue to be accepted until December 21, 2010. The revised form is available at U.S. Citizenship and Immigration Services Forms. In addition, Forms I-129S and I-212 have been revised. The new versions will be required for use by January 7, 2011.


USCIS Corrects 1-131 Fee Error, Issues New G-1055 Fee Schedule

The U.S. Citizenship and Immigration Services Fee Schedule, published in the Federal Register on September 24, 2010, inadvertently listed a fee of $165 for filing an Application for Travel Document, Form I-131, for a refugee travel document for a person aged sixteen or older. The fee is actually $135. The correction was made in the November 16, 2010, Federal Register. The USCIS Office of Public Engagement distributed a revised fee schedule (Form G-1055) to stakeholders via email on November 19, 2010.


California In-State Tuition Upheld for Undocumented Students

On November 15, 2010, the California Supreme Court decided Martinez v Regents of the University of California, 2010 Cal. LEXIS 11345, [enhanced version available to subscribersunenhanced version available from lexisONE Free Case Law], and upheld the provisions of the California state statute according undocumented students and others in-state resident tuition status. In overturning the appellate decision that found the provision violative of state and federal law, the Supreme Court held,

Because the exemption is given to all who have attended high school in California for at least three years (and meet the other in-state requirements), and not all who have done so qualify as California residents for purposes of in-state tuition, and further because not all unlawful aliens who would qualify as residents but for their unlawful status are eligible for the exemption, we conclude the exemption is not based on residence in California.  Rather, it is based on other criteria.  Accordingly, section 68130.5 [available to subscribers] does not violate section 1623 [available to subscribers].

We also conclude plaintiffs’ remaining challenges to section 68130.5 lack merit.  Specifically, section 68130.5 does not violate another federal statute (8 U.S.C. § 1621 (section 1621) [available to subscribers]), is not impliedly preempted by federal law, and does not violate the privileges and immunities clause of the Fourteenth Amendment to the United States Constitution.  We reverse the judgment of the Court of Appeal, which had found section 68130.5 invalid on each of these grounds. [Slip Opinion at 2-3.]

The decision was a blow to conservative lawyers nationally, who had brought similar suits in Texas and Nebraska state courts on similar theories. Michael A. Olivas, a University of Houston law professor who helped draft several of these statutes and who has assisted states in their defense, said, “This case, as long as it has taken, should discourage nativists from continuing to clog the courts with these nuisance suits. It has always been clear that Congress allowed the states to enact their own laws concerning who gets resident tuition and who does not, as has the Department of Homeland Security.” He added, “Now, Congress should enact the DREAM Act and comprehensive immigration reform, to resolve these issues once and for all.” In September, the U.S. Senate did not reach the sixty votes it needed to enact the DREAM Act, although Senator Harry Reid has promised to bring it back in the lameduck session.

The California statute was designed to allow those who attended California high schools for three years and graduated to establish in-state residency. However, it was more widely used by permanent residents and citizens, who comprised more than 80% of the recipients of this status. As one example, of the seventy-two students enrolled at UC-Santa Barbara who were granted this status, only three were undocumented.

In an article that appears in the December 1 issue of the Bulletin (volume 15, page 1661), Professor Olivas explores the history, policy, and politics of the DREAM Act, and the issue of preemption. Also refer to University System of Georgia: New Policies for Fall 2011, 15 Bender’s Immigr. Bull. 1521 (Nov. 1, 2010).


DOJ Reaches Settlement with Hoover

The Justice Department announced on November 10 that it has reached a settlement agreement with Hoover Inc. to resolve allegations that Hoover engaged in a pattern or practice of employment discrimination by imposing unnecessary and discriminatory hurdles in the I-9 process upon lawful permanent residents. Hoover is a leading manufacturer of vacuum and carpet cleaners.

According to the DOJ’s findings, Hoover required every permanent resident who presented a permanent resident card for I-9 purposes to produce a new green card when his or hers expired. Hoover’s U.S.-citizen workers were not required to present new documents. Like U.S. citizens, lawful permanent residents are always authorized to work, regardless of the expiration of their documentation. The Immigration and Nationality Act prohibits employers from treating permanent residents differently than U.S. citizens in the I-9 process.

Under the terms of the settlement, Hoover has agreed to pay $10,200 in civil penalties. Hoover will train its human resources personnel about employers’ nondiscrimination responsibilities in the I-9 process, and it will provide periodic reports to the Department of Justice for one year.


E-Verify Capabilities Now Include Passport Photo Matching

USCIS announced the expansion of the E-Verify program’s capabilities to include U.S. passport photo matching, enabling E-Verify to automatically check the validity and authenticity of all U.S. passports and passport cards presented for employment-verification checks.

Beginning November 10, E-Verify employers are able to verify the identity of new employees who present a U.S. passport or passport card by comparing that data with State Department records. Approximately 10% of all E-Verify queries currently provide a U.S. passport to establish identity and employment authorization in order to prove employment eligibility.

Since September 2007, the E-Verify program has provided photo matching when an employee presented an employment authorization document (EAD) or a permanent resident card as proof of identity and work authorization.


White House Establishes Export Enforcement Center

On November 9, President Obama issued an Executive Order establishing an interagency Federal Export Enforcement Coordination Center. The Center will serve as the primary forum within the federal government for executive departments and agencies to coordinate and enhance their export-control enforcement efforts; serve as a conduit between federal law enforcement agencies and the U.S. intelligence community for information relating to export control; and coordinate outreach. The order is available at Executive Order -- Export Coordination Enforcement Center.


USCIS Citizenship Welcome Packets

USCIS now gives all new citizens a standard U.S. Citizenship Welcome Packet. The packet provides information to help new citizens prepare to fully exercise the rights and responsibilities of U.S. citizenship.  Along with practical information on applying for a U.S. passport, updating Social Security records, and petitioning for family members, the packet includes: a congratulatory letter from President Obama; a pocket-size edition of the Declaration of Independence and Constitution of the United States; passport application; naturalization certificate holder; and A Voter’s Guide to Federal Elections.


Military Naturalization Numbers

USCIS reports that in fiscal year 2010 it granted citizenship to over 11,100 members of the U.S. armed forces at ceremonies here and abroad. This is the highest number of service members naturalized in any year since 1955. Since September 2001, USCIS has naturalized 65,000 service men and women. USCIS implemented outreach tailored to reach members of the military and their families. Military liaison officers at USCIS field offices conduct educational seminars on military installations. The Naturalization at Basic Training Initiative, under which USCIS conducts all naturalization processing, includes the capture of biometrics, the naturalization interview, and the administration of the Oath of Allegiance, on the military base so that in many cases the recruit is able to be a U.S. citizen when he or she graduates from basic training.

[This is an excerpt from the December 1, 2010, issue of Bender’s Immigration Bulletin.]