GOVERNMENT RULES, NOTICES AND ANNOUNCEMENTS
- USCIS Publishes Interim Final I-9 Rule; New I-9 Form
The interim final rule amends 8 CFR §274a.2 to change the term "eligibility" to "authorization" and narrows the list of acceptable documents for purposes of establishing employment authorization. (86 IR 1; January 5, 2009).
- EOIR Issues Final Rule Regarding Professional Conduct for Practitioners
The Executive Office for Immigration Review’s (EOIR) issued its final rule on professional conduct for practitioners which adds substantive grounds of misconduct modeled on the ABA Model Rules of Professional Conduct (2006). According to the rule, practitioners (attorneys and non-attorneys) that fail to provide adequate professional representation for their clients or engage in criminal, unethical and unprofessional conduct or in frivolous behavior before the EOIR will be sanctioned. (86 IR 21; January 5, 2009).
- State Department Withdraws Proposed Exchange Visitor (J-1)Regulations
On December 10, 2008, the Department of State (DOS) published a proposed rule amending the general provisions of the exchange visitor program regulations at 22 CFR Part 62. . . The proposed rule was withdrawn in its entirety effective December 16, 2008. (86 IR 33; January 5, 2009)
- DOL and DHS Issue Final Rules on H-2As and H-2Bs-
On December 18, 2008 DOL and DHS issued new rules on H-2As and H-2B (73 Federal Register 76, 891 and 77,110). The rules will change processes, recruitment, penalties, attestations, work authorization periods and procedures. (14 BIB 90; January 15, 2009)
- Voluntary Departure: Effect of a Motion to Reopen or Reconsider or a Petition for Review
The Department of Justice (DOJ) has issued a new rule that provides a grant of voluntary departure is automatically withdrawn upon the filing of a motion to reopen or to reconsider with the immigration judge or a petition for review in a federal court of appeals.(14 BIB 119; January 15, 2009)
- Interim Final Rule Allowing Adjustment of Status for “T” and “U” Nonimmigrants
The Department of Homeland Security (DHS) is amending its regulations to permit foreign nationals in lawful T or U nonimmigrant status to apply for adjustment of status to lawful permanent resident. This rule also provides for adjustment of status or approval of an immigrant petition for certain family members of U applicants who were never admitted to the United States in U nonimmigrant status. This interim rule is effective January 12, 2009. (14 BIB 32; January 1, 2009)
- DHS Issues Fact Sheet Regarding Extension of US-VISIT Requirements to Nearly All Aliens
US-VISIT is a verification process which compares biometric identifiers drawn from intelligence and law-enforcement watch lists and databases. All of those foreign nationals subject to US-VISIT may be required to provide fingerprints, photos and other information either at arrival or at departure from the United States. From January 18, 2009, DHS extended this program to all foreign nationals, including lawful permanent residents, with the exclusion of Canadians seeking admission under B1/B2 visas and those specifically listed. (86 IR 275; January 26, 2009)
SIGNIFICANT CASE DECISIONS
- No Compensation for Lost Wages for Foreign National with Fraudulent SSN
A foreign national who was injured at work sued his employer for multiple violations of NY labor law and sought lost wages. The court held that because he had submitted a fraudulent social security card to obtain employment that he was barred from receiving lost wages. (14 BIB 29; January 1, 2009; Ambrosi v. 1085 Park Avenue, LLC, 2008 U.S. Dist. LEXIS 73930 (S.D.N.Y. Sept. 25, 2008).)
- ARB Holds Employer Liable for Failing to Pay Prevailing Wage to H-1B Employee
The Administrative Review Board (ARB) held that the Help Foundation, a non-profit organization, is liable to a former H-1B employee for back wages in the total amount of $39,666.47 plus pre- and post-judgment interest for terminating him less than a year after engagement since the Foundation misrepresented the employee a full time worker when he was in fact part-time and failed to give timely notice to the Service of his termination. (86 IR 286-7; Administrator v. Help Foundation of Omaha, Inc., ARB Case No. 07-008, ALJ Case No. 2005-LCA-037, 2008 WL 5454136 (ARB Dec. 31, 2008).)
Sources: IR-Interpreter Releases; IB-Bender’s Immigration Bulletin; American Immigration Lawyers Association Monthly Journal; AILA - American Immigration Lawyer’s Association
