Bender's Immigration Bulletin Excerpts: Nov. 15, 2011 - TRO Granted in H-2B Lawsuit

Bender's Immigration Bulletin Excerpts: Nov. 15, 2011 - TRO Granted in H-2B Lawsuit

TRO Granted in H-2B Lawsuit 

                A temporary restraining order was issued, preventing the implementation of the Department of Labor's Final Wage Rule titled "Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program" and the Final Expediting Rule, titled "Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program; Amendment of Effective Date." DOL published a final rule on January 19, 2011, revising the wage methodology for the H-2B program. See 16 Bender's Immigr. Bull. 301 (Feb. 15, 2011). The effective date of the new rule was January 12, 2012. On June 16, 2011, the U.S. District Court for the Eastern District of Pennsylvania invalidated that date and ordered DOL to announce a new effective date. On June 28, DOL published a notice proposing that the wage rule take effect sixty days from the date of publication of a final rule. That final rule was published on August 1, 2011, and the effective date was set as September 30, 2011. See 16 Bender's Immigr. Bull. 1370 (Aug. 15, 2011).

                On September 26, Judge M. Casey Rodgers in Bayou Lawn & Landscape Services v. Solis decided that "the public interest favors the issuance of a Temporary Restraining Order to maintain the status quo until a preliminary injunction hearing is conducted." Two days later, DOL postponed the effective date until November 30, 2011, due to the various legal challenges. See 16 Bender's Immigr. Bull 1648 (Oct. 15, 2011).

                For further information on the Final Wage Rule, see DOL Revises Wage Calculations for H-2B Program, 16 Bender's Immigr. Bull. 293 (Feb. 15, 2011). The TRO is available at http://bibdebb.blogspot.com/2011/09/breaking-news-tro-issued-in-h-2b.html.

Permanent Injunction Issued on H-2A Substitution Rule 

                On October 4, 2011, a permanent injunction was issued against the implementation of the "Substitution Rule," the Department of Labor's H-2A rule published on May 29, 2009. That rule suspended the H-2A final rule published on December 18, 2008, which became effective on January 17, 2009. The Substitution Rule reinstated the regulations in place on January 16, 2009.

                This complicated legal saga of the H-2A rule began when the Bush administration promulgated regulations changing the H-2A (seasonal agricultural worker) program. That was in December 2008. Those rules were challenged in court, but went into effect as scheduled on January 17, 2009. Then President Obama's team published a notice suspending the 2008 regulations. It is all laid out in the court case North Carolina Growers Association v. Solis, which can be read at 2011 U.S. Dist. LEXIS 114775 (M.D. N.C. Oct. 4, 2011).

                The current governing H-2A rules, published on February 12, 2010, are not at issue in this case. 

Certificate of Citizenship and EAD Redesigned 

                USCIS Director Alejandro Mayorkas announced on October 25 the launch of an enhanced Employment Authorization Document and a redesigned Certificate of Citizenship (Form N-560).  The documents incorporate state-of-the-art technology to deter counterfeiting, obstruct tampering, and facilitate fast and accurate authentication. Images of the new documents are available at www.uscis.gov.

                USCIS began issuing the new EAD on October 25 and the redesigned N-560 on October 30. More than one million people will receive the new documents over the course of the upcoming year.

                No changes were made to the application process for either of the documents. USCIS will replace EADs already in circulation as individuals apply for their renewal or replacement. All previously issued EADs remain valid until the expiration date printed on the card. Previously issued Certificates of Citizenship remain valid indefinitely. 

Release Ordered of Secure Communities Memorandum 

                Judge Shira Scheindlin ordered Immigration and Customs Enforcement to release an internal memorandum that contains the legal justification for turning Secure Communities into a mandatory immigration enforcement program. The memorandum was originally sought in a Freedom of Information Act request.

                The decision follows motions for summary judgment filed by all parties in NDLON v. ICE (see http://www.lexisnexis.com/community/immmigration-law/blogs, FOIA Victory; Secure Communities; NDLON et al. v. ICE et al. (Oct. 25, 2011)) about the memorandum. The government argued that the memorandum was exempt from disclosure under the attorney-client and deliberative-process privileges. The plaintiffs, the National Day Laborers Organizing Network, Center for Constitutional Rights, and Cardozo School of Law Kathryn O. Greenberg Immigration Justice Clinic, argued that the memorandum was improperly kept secret from the public.

                ICE originally touted the Secure Communities program as an optional program for States and local jurisdictions that allowed the fingerprints of individuals arrested locally to be shared with federal authorities. Opposition to the program by several governors, as well as many local jurisdictions, prompted ICE to dissolve the Memoranda of Agreement and impose the program unilaterally on all jurisdictions in October 2010.

                The court ruled that the memorandum had been drafted to justify an already existing policy to make Secure Communities mandatory, that the government failed to prove it had kept the memorandum confidential, and that ICE had adopted the memorandum's conclusions and analysis as its internal working law. The judge noted there was evidence that ICE had publicly discussed large parts of the memorandum while defending the policy and that public disclosure waived any notion of attorney-client privilege attached to the memo. 

BITS AND PIECES 

Estimates of Legal Permanent Resident Population at Start of 2010 Released

The Department of Homeland Security just released a report on the estimates of the legal permanent resident population living in the United States on January 1, 2010. Estimates are shown for the total LPR population and the LPR population eligible to apply to naturalize by country of birth, state of residence, and year LPR status was obtained. An estimated 12.6 million LPRs lived in the United States on January 1, 2010; 8.1 million were eligible to naturalize. The report can be viewed at http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_lpr_pe_2010.pdf.

Border Patrol Agents Object to Changes

"In yet another move aimed to handcuff the effectiveness of Border Patrol agents, orders have been sent out from Border Patrol headquarters in Washington, D.C. to Border Patrol sectors nationwide that checks of transportation hubs and systems located away from the southwest border of the United States will only be conducted if there is intelligence indicating a threat," said a statement released by National Border Patrol Council, the Border Patrol agents' union. The Washington Post reported on October 29 that the orders to stop the routine searching of buses, trains, and airports for undocumented aliens began in September. "Halting the practice has baffled the agents, especially in some stations along the northern border where the so-called 'transportation checks' have been the bulk of their everyday duties."

ICE Releases FY 2011 Removal Numbers

ICE Director John Morton announced the agency's fiscal year 2011 removal numbers. ICE removed a total of 396,906 individuals. Of these, nearly 55%, 216,698 people, were convicted of felonies or misdemeanors, an 89% increase since fiscal year 2008. The agency has prioritized removals of criminals, repeat violators of immigration law, and recent boarder crossers. ICE reports that 90% of all removals fell into a priority category.

USCIS Backtracks on Receipt Notices

Last month, USCIS changed where it sent receipt notices, Form I-797, and stakeholders let them know that they did not like the change. After holding a stakeholder meeting, USCIS reversed itself and will once again send the original notice to the address of the attorney or accredited representative listed on the Form G-28. A copy will be sent to the address provided by the applicant or petitioner on the applicable form. This latest change will take approximately six weeks while USCIS re-programs its system.

New Medical Examination Form

USCIS introduced a new version of the form used to report results of medical examinations for those seeking certain immigration benefits, Form I-693, Report of a Medical Examination and Vaccination Record. Civil surgeons completing medical examinations should use the new form, dated "10/11/11." However, USCIS will accept the previous version, dated "7/20/10," until December 31. Starting January 1, 2012, USCIS will reject any medical examination results reported on an outdated form. The applicant will have to return to the civil surgeon and resubmit the new form.

Attorney Discipline Announced

The Executive Office for Immigration Review recently took disciplinary action against four attorneys for violations of the rules of professional conduct for immigration practitioners. Ronald Grady Finch was suspended on October 6 for one year for violating the conditions of his probation, and Samson Mparaganda was suspended on September 28 based on his administrative suspension in Massachusetts. Final Orders of Discipline were issued to Axel Heydasch on October 6, suspending him for three years, effective August 29, 2011, based on his suspension in Florida; and to Joseph Angel Silva, Jr., also on October 6, suspending him from practice for five years, effective September 1, 2011, based on his resignation from the practice of law in Texas while disciplinary proceedings were pending.

EIAs Available on EB-5, Aggravated Felonies 

EB-5 expert Stephen Yale-Loehr, co-author of Immigration Law and Procedure, explains why nine years after Congress passed a law intended to help certain "stranded" EB-5 immigrant investors, the long-delayed USCIS proposed rule would hurt, not help, many of the affected EB-5 investors. Go to http://www.lexisnexis.com/community/immigration-law/emerging issues (Oct. 18, 2011) to read his discussion. This EIA is on lexis.com as 2011 Emerging Issues 5989. Also available is a recent EIA by Professor Jennifer Chacón on the Kawashima v. Holder case, which was recently argued in the Supreme Court. The issue in that case involves whether filing (or aiding and abetting it) a false corporate tax return is an aggravated felony. That is 2011 Emerging Issues 5987.

Bender's Immigration Bulletin Excerpts: Nov. 15, 2011 - TRO Granted in H-2B Lawsuit 

                A temporary restraining order was issued, preventing the implementation of the Department of Labor's Final Wage Rule titled "Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program" and the Final Expediting Rule, titled "Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program; Amendment of Effective Date." DOL published a final rule on January 19, 2011, revising the wage methodology for the H-2B program. See 16 Bender's Immigr. Bull. 301 (Feb. 15, 2011). The effective date of the new rule was January 12, 2012. On June 16, 2011, the U.S. District Court for the Eastern District of Pennsylvania invalidated that date and ordered DOL to announce a new effective date. On June 28, DOL published a notice proposing that the wage rule take effect sixty days from the date of publication of a final rule. That final rule was published on August 1, 2011, and the effective date was set as September 30, 2011. See 16 Bender's Immigr. Bull. 1370 (Aug. 15, 2011).

                On September 26, Judge M. Casey Rodgers in Bayou Lawn & Landscape Services v. Solis decided that "the public interest favors the issuance of a Temporary Restraining Order to maintain the status quo until a preliminary injunction hearing is conducted." Two days later, DOL postponed the effective date until November 30, 2011, due to the various legal challenges. See 16 Bender's Immigr. Bull 1648 (Oct. 15, 2011).

                For further information on the Final Wage Rule, see DOL Revises Wage Calculations for H-2B Program, 16 Bender's Immigr. Bull. 293 (Feb. 15, 2011). The TRO is available at http://bibdebb.blogspot.com/2011/09/breaking-news-tro-issued-in-h-2b.html.

Permanent Injunction Issued on H-2A Substitution Rule 

                On October 4, 2011, a permanent injunction was issued against the implementation of the "Substitution Rule," the Department of Labor's H-2A rule published on May 29, 2009. That rule suspended the H-2A final rule published on December 18, 2008, which became effective on January 17, 2009. The Substitution Rule reinstated the regulations in place on January 16, 2009.

                This complicated legal saga of the H-2A rule began when the Bush administration promulgated regulations changing the H-2A (seasonal agricultural worker) program. That was in December 2008. Those rules were challenged in court, but went into effect as scheduled on January 17, 2009. Then President Obama's team published a notice suspending the 2008 regulations. It is all laid out in the court case North Carolina Growers Association v. Solis, which can be read at 2011 U.S. Dist. LEXIS 114775 (M.D. N.C. Oct. 4, 2011).

                The current governing H-2A rules, published on February 12, 2010, are not at issue in this case. 

Certificate of Citizenship and EAD Redesigned 

                USCIS Director Alejandro Mayorkas announced on October 25 the launch of an enhanced Employment Authorization Document and a redesigned Certificate of Citizenship (Form N-560).  The documents incorporate state-of-the-art technology to deter counterfeiting, obstruct tampering, and facilitate fast and accurate authentication. Images of the new documents are available at www.uscis.gov.

                USCIS began issuing the new EAD on October 25 and the redesigned N-560 on October 30. More than one million people will receive the new documents over the course of the upcoming year.

                No changes were made to the application process for either of the documents. USCIS will replace EADs already in circulation as individuals apply for their renewal or replacement. All previously issued EADs remain valid until the expiration date printed on the card. Previously issued Certificates of Citizenship remain valid indefinitely. 

Release Ordered of Secure Communities Memorandum 

                Judge Shira Scheindlin ordered Immigration and Customs Enforcement to release an internal memorandum that contains the legal justification for turning Secure Communities into a mandatory immigration enforcement program. The memorandum was originally sought in a Freedom of Information Act request.

                The decision follows motions for summary judgment filed by all parties in NDLON v. ICE (see http://www.lexisnexis.com/community/immmigration-law/blogs, FOIA Victory; Secure Communities; NDLON et al. v. ICE et al. (Oct. 25, 2011)) about the memorandum. The government argued that the memorandum was exempt from disclosure under the attorney-client and deliberative-process privileges. The plaintiffs, the National Day Laborers Organizing Network, Center for Constitutional Rights, and Cardozo School of Law Kathryn O. Greenberg Immigration Justice Clinic, argued that the memorandum was improperly kept secret from the public.

                ICE originally touted the Secure Communities program as an optional program for States and local jurisdictions that allowed the fingerprints of individuals arrested locally to be shared with federal authorities. Opposition to the program by several governors, as well as many local jurisdictions, prompted ICE to dissolve the Memoranda of Agreement and impose the program unilaterally on all jurisdictions in October 2010.

                The court ruled that the memorandum had been drafted to justify an already existing policy to make Secure Communities mandatory, that the government failed to prove it had kept the memorandum confidential, and that ICE had adopted the memorandum's conclusions and analysis as its internal working law. The judge noted there was evidence that ICE had publicly discussed large parts of the memorandum while defending the policy and that public disclosure waived any notion of attorney-client privilege attached to the memo. 

BITS AND PIECES 

Estimates of Legal Permanent Resident Population at Start of 2010 Released

The Department of Homeland Security just released a report on the estimates of the legal permanent resident population living in the United States on January 1, 2010. Estimates are shown for the total LPR population and the LPR population eligible to apply to naturalize by country of birth, state of residence, and year LPR status was obtained. An estimated 12.6 million LPRs lived in the United States on January 1, 2010; 8.1 million were eligible to naturalize. The report can be viewed at http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_lpr_pe_2010.pdf.

Border Patrol Agents Object to Changes

"In yet another move aimed to handcuff the effectiveness of Border Patrol agents, orders have been sent out from Border Patrol headquarters in Washington, D.C. to Border Patrol sectors nationwide that checks of transportation hubs and systems located away from the southwest border of the United States will only be conducted if there is intelligence indicating a threat," said a statement released by National Border Patrol Council, the Border Patrol agents' union. The Washington Post reported on October 29 that the orders to stop the routine searching of buses, trains, and airports for undocumented aliens began in September. "Halting the practice has baffled the agents, especially in some stations along the northern border where the so-called 'transportation checks' have been the bulk of their everyday duties."

ICE Releases FY 2011 Removal Numbers

ICE Director John Morton announced the agency's fiscal year 2011 removal numbers. ICE removed a total of 396,906 individuals. Of these, nearly 55%, 216,698 people, were convicted of felonies or misdemeanors, an 89% increase since fiscal year 2008. The agency has prioritized removals of criminals, repeat violators of immigration law, and recent boarder crossers. ICE reports that 90% of all removals fell into a priority category.

USCIS Backtracks on Receipt Notices

Last month, USCIS changed where it sent receipt notices, Form I-797, and stakeholders let them know that they did not like the change. After holding a stakeholder meeting, USCIS reversed itself and will once again send the original notice to the address of the attorney or accredited representative listed on the Form G-28. A copy will be sent to the address provided by the applicant or petitioner on the applicable form. This latest change will take approximately six weeks while USCIS re-programs its system.

New Medical Examination Form

USCIS introduced a new version of the form used to report results of medical examinations for those seeking certain immigration benefits, Form I-693, Report of a Medical Examination and Vaccination Record. Civil surgeons completing medical examinations should use the new form, dated "10/11/11." However, USCIS will accept the previous version, dated "7/20/10," until December 31. Starting January 1, 2012, USCIS will reject any medical examination results reported on an outdated form. The applicant will have to return to the civil surgeon and resubmit the new form.

Attorney Discipline Announced

The Executive Office for Immigration Review recently took disciplinary action against four attorneys for violations of the rules of professional conduct for immigration practitioners. Ronald Grady Finch was suspended on October 6 for one year for violating the conditions of his probation, and Samson Mparaganda was suspended on September 28 based on his administrative suspension in Massachusetts. Final Orders of Discipline were issued to Axel Heydasch on October 6, suspending him for three years, effective August 29, 2011, based on his suspension in Florida; and to Joseph Angel Silva, Jr., also on October 6, suspending him from practice for five years, effective September 1, 2011, based on his resignation from the practice of law in Texas while disciplinary proceedings were pending.

EIAs Available on EB-5, Aggravated Felonies 

EB-5 expert Stephen Yale-Loehr, co-author of Immigration Law and Procedure, explains why nine years after Congress passed a law intended to help certain "stranded" EB-5 immigrant investors, the long-delayed USCIS proposed rule would hurt, not help, many of the affected EB-5 investors. Go to http://www.lexisnexis.com/community/immigration-law/emerging issues (Oct. 18, 2011) to read his discussion. This EIA is on lexis.com as 2011 Emerging Issues 5989. Also available is a recent EIA by Professor Jennifer Chacón on the Kawashima v. Holder case, which was recently argued in the Supreme Court. The issue in that case involves whether filing (or aiding and abetting it) a false corporate tax return is an aggravated felony. That is 2011 Emerging Issues 5987.

[This is an excerpt from the Nov. 15, 2011, issue of Bender's Immigration Bulletin.] 

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Bender's Immigration Bulletin