USCIS Issues Guidance on “Reason to Believe” Standard for Provisional Waivers |
On January 24, 2014, USCIS issued field guidance for applications for provisional unlawful presence waivers (Form I-601A) filed by individuals with criminal histories. Under federal regulations, noncitizens are ineligible for provisional waivers if USCIS has “reason to believe” that they are subject to a ground of inadmissibility other than unlawful presence. According to the guidance, USCIS will not deny a provisional waiver application if the applicant’s offense is not a crime involving moral turpitude or if the applicant would qualify for the “petty offense” or “youthful offender” exception. The guidance does not address application of the “reason to believe” standard to other grounds of inadmissibility. The guidance is reprinted as Appendix A.
Ninth Circuit Opens Door to Review of Expedited Removal Orders
A decision issued by the U.S. Court of Appeals for the Ninth Circuit last month held that noncitizens can bring judicial challenges to the issuance of expedited removal orders in certain circumstances. The ruling, in Smith v. CBP, 2014 U.S. App. LEXIS 438 (9th Cir. Jan. 9, 2014), involved a Canadian who was issued an expedited removal order after U.S. Customs and Border Protection officers determined that he intended to work in the United States [enhanced opinion available to lexis.com subscribers].
Although federal law purports to strip courts of jurisdiction to consider expedited removal orders, the court held that it could consider the threshold question of whether Smith was eligible for expedited removal in the first place. For example, expedited removal orders may not be entered against Cuban citizens who arrive by plane or foreign nationals not subject to documentary requirements, such as Canadian visitors. While the court found that he was not a bona fide visitor, it did not preclude challenges to expedited removal orders brought by individuals who could validly claim an exemption. Further analysis of the decision by Robert Pauw, who argued the case for Smith, is available at page 199 (Ninth Circuit Finds Limited Review for Expedited Removal Orders).
Congress Creates Safe Harbor for H-2A Employers
A provision in the Consolidated Appropriations Act, 2014, authorizes the Department of Labor to exempt employers of H-2A workers from debarment proceedings based on fraud committed by subcontractors or other agents. Under Section 112 of Division H (Department of Labor Appropriations Act, 2014), DOL need not initiate debarment proceedings against H-2A employers who demonstrate by a preponderance of the evidence that any fraud or misrepresentation committed by an agent was outside the scope of the authority conferred by the employer. The bill also authorizes the Department to initiate debarment proceedings against the agent that committed the fraud or misrepresentation. The statute is Public Law Number 113-76, 128 Stat. 5 (Jan. 17, 2014). For more on H-2A visa matters, see Alex Penwill’s article at page 201 of this issue.
DOL Foreign Labor Certification Annual Report (2012) Released
DOL released its Foreign Labor Certification Annual Report for Fiscal 2012, which is available at http://www.foreignlaborcert.doleta.gov/.
New Process for Designating Civil Surgeons
USCIS will launch a new process beginning March 11, 2014, for civil-surgeon designations. Physicians will need to submit the new Application for Civil Surgeon Designation (Form I-910) to a USCIS lockbox for adjudication at the National Benefits Center. For more information, see PA-2014-001, reprinted as Appendix B.
[This is an excerpt from the Feb. 15, 2014, issue of Bender's Immigration Bulletin.]
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