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August 12, 2011

DUAL CITIZENSHIP

Posted by Norka M. Schell, Esq. 


* Dual citizenship exists because of the laws of the country granting nationality control nationality. International law imposes very few limitations on countries regarding whom they decide to make a citizen of their country. There are, of course, some limitations. The treaties or conventions to which the country is a party may impose similar restrictions. There is also internationally recognized "minimum contacts" types of jurisdictional requirement before one country will recognized the naturalization of a person by another country. However, given these limitations, all questions regarding the nationality of a person are determined in accordance with the laws of the country of claimed nationality. If a person has two or more nationalities because of this form of determination, the person is considered a dual national, i.e., a national of each of these States. 


Most countries subscribe to the principles of nationality by descent (jus sanguinis), i.e., by being the child of a national, nationality by birth within a certain territory (jus soli), or a combination of these two principles. Therefore, it is not uncommon for a person to derive citizenship in one country because he or she was born there (jus soli) while deriving citizenship of another country under the principle of jus sanguinis, as the child of a citizen of absent a specific statutory requirement. 


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* Research references: Steel on Immigration Law (2d ed.)

IMMIGRATION AND POLICY: PLACE IN REMOVAL PROCEEDINGS

IMMIGRATION AND POLICY: PLACE IN REMOVAL PROCEEDINGS: "PLACE IN REMOVAL PROCEEDING By: Norka M. Schell, Esq. A removal proceedings is an immigration court hearing to determine whether a no..."

PLACE IN REMOVAL PROCEEDINGS

PLACE IN REMOVAL PROCEEDING



By: Norka M. Schell, Esq.


A removal proceedings is an immigration court hearing to determine whether a non-citizen will be removed from the United States. Any person in the United States who is not a citizen of the United States may be removed to another country.


Hypothetical Situation


Maria is from Columbia. She entered in the United States on a student visa in September 2000. On March 2001, Maria dropped out of school and started working at a company by using a fake green card. Last month, USICE conducted a workplace raid at the job site and arrested her.


Is Maria in removal proceedings?


Maria is not a citizen of the United States. She is a citizen of Columbia. Therefore, she is an alien. Any alien in the United States can be placed in removal proceeding. Maria will be placed in formal proceedings when USICE files the Notice to Appear (NTA) in court.


The NTA must specify: (1) the nature of the proceedings again Maria; (2) the legal authority for the proceedings; (3) the acts or conduct that allegedly violate the law; (4) the formal charges and the statutory provisions allegedly violated; (5) Maria's right to representation, including time to secure counsel, and a list of available pro bono counsel; (6) the requirement that Maria provides in writing her address and telephone number, and the consequences of failing to do so, including the consequences of failing to appear at the hearing; and (7) the time and place of the hearing and the consequences of failing to appear, including the entry of a removal order in absentia.


The NTA needs only be in English, and needs only ten days notice of the hearing. In the NTA, Maria is called "RESPONDENT" (the person who must respond to the charges).


Proper Service

The NTA shall be served on the on Maria in person, or if personal service is not practicable, the NTA shall be served by regular mail to Maria or her counsel of record.

Assuming that USICE places Maria in proceedings and charged her with deportability, USICE will have the burden of establishing by "clear and convincing evidence" that Maria is deportable. This standard is lower than "beyond a reasonable doubt" standard used in a criminal proceedings, but higher than the "preponderance of evidence" standard used in civil proceedings. When USICE has the burden of proof, it is important that Maria's attorney holds them to it.


Maria's Rights

During proceedings, Maria has a right to counsel at her own expense, and she must be given adequate opportunity to obtain counsel.


While in proceedings Maria shall have a reasonable opportunity to examine the evidence against her, to present evidence on her own behalf, and to cross-examine government witnesses.


Maria must be notified that she may communicate with the consul or diplomatic officer of the country of her nationality.


If Maria does not understand English, she has the right to a translator as part of the right to present evidence and cross-examine witnesses.


While in proceedings Maria shall have a reasonable opportunity to examine the evidence against her, to present evidence on her own behalf, and to cross-examine government witnesses.


The immigration judge shall inform Maria of her apparent eligibility to apply for relief and will have the opportunity to make application during the hearing.


In all "applications for relief" from removal, the burden of proof is upon Maria.





















August 8, 2011

EMPLOYMENT-BASED SECOND PREFERENCE

Posted by: Norka M. Schell, Esq.


EMPLOYMENT-BASE SECOND PREFERENCE IMMIGRANT VISA CATEGORY

Questions and Answers

1. What is the EB-2 Immigrant Visa Category?
A. Congress created the employment-based second preference visa category    with the Immigration Act of 1990. This classification includes:

  • Members of the professions holding advanced degrees or their equivalent,   and

  • Individuals who because of their exceptional ability in the sciences, art, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professionals, or business are sought by an employer in the United States.


  • 2. Does anyone with an advanced degree qualify for an EB-2 Immigrant Visa?
    A. No, not every individual with an advanced degree will qualify. It must be demonstrated that the occupation is a profession. The term "profession" is defined by as "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. Occupations include but are not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries.

    3. Can an entrepreneur qualify as a member of a profession holding an advanced degree?
    A. Yes. An entrepreneur can qualify if the:
    • Entrepreneur will be working for a U.S. employer who files an petition on the entrepreneur's behalf,
    • Entrepreneur is a member of the profession holding an advanced degree or foreign equivalent degree,
    • Underlying position requires, at minimum, a professional holding an advanced degree or the equivalent,
    • Petitioning employer has received an individual labor certification for the Department of Labor; or
    • Entrepreneur meets all the specific job requirements listed on the individual labor certification.
    4. Can an entrepreneur qualify as an individual of exceptional ability in the sciences, arts, or business?
    A. Yes. An entrepreneur can qualify if the:
    • Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur's behalf,
    • Entrepreneur will be working in the sciences, arts, or business,
    • Entrepreneur has exceptional ability in the sciences, arts, or business,
    • Entrepreneur will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States
    • Petitioning employer has received an individual labor certification from the Department of Labor; or
    • Entrepreneur meets all the specific job requirements listed on the individual labor certification.
    5. Why is a labor certification required to qualify for an EB-2 Immigrant Visa Category?
    A. The labor certification process exists to protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing equally qualified U.S. workers.

    6. How can an entrepreneur establish that he or she has exceptional ability in the science, arts, or business?
    A. First, the entrepreneur would need to establish that they meet at least three of the criteria found at 8 CFR 204.5(k)(3)(iii). The criteria are:

    • (A) An official academic record showing that the beneficiary has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning  relating to the area of exceptional ability
    • (B) Evidence in the form of letter(s) from current or former employer(s) showing that the beneficiary has at least ten years of full-time experience in the occupation for which he or she is being sought
    • (C) A license to practice the profession or certification for a particular profession or occupation
    • (D) Evidence that the beneficiary has commanded a salary, or other remuneration of services, which demonstrates exceptional ability
    • (E) Evidence of membership in professional associations, or 
    • (F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.  
    It should be noted that, as set forth in sub paragraph (A) above, the regulation requires that the alien (in this case, the entrepreneur) have a degree "relating to" the area of exceptional ability. This means that the entrepreneur's degree need not be in the same field of claimed exceptional ability, but only that it be related to that field. For example, an entrepreneur seeking to start an Internet-related business and who claims exceptional ability in that field might qualify with a degree in computer science, network technology, or certain area of business.

    Second, the entrepreneur must demonstrate that he or she has meets at least three of the six regulatory criteria for exceptional ability, can he or she submit other evidence to demonstrate exceptional ability in the sciences, arts or business.

    7. How does an entrepreneur show that he or she will substantial benefit prospectively the national economy, cultural or educational interest, or welfare of the United States?
    A. The entrepreneur could demonstrate that at lease one aspect of the welfare of the United States will be "substantially" better off were the entrepreneurial enterprise to be located in the United States. It should noted that the term "welfare" as used by the statute is a broad concept and could refer to any number of areas.

    8. Is there a "national interest waiver" (NIW)? And if so, what is it. Can an entrepreneur qualify for a NIW?
    A. The National Interest Waiver (NIW) is a waiver of the job offer requirement for individuals who wish to immigrate to the United States in the second preference category who are members of the professions holding advanced degrees or individuals of exceptional ability in the arts, sciences or business. Entrepreneur, if they qualify can obtain a waiver of the job offer requirement if it is in the national interest.

    9. Is there a definition of National Interest?
    A. The term "National Interest" is not defined in the statute or the regulation, but a waiver request requires a showing "significantly above that for prospective national benefit. In a precedent decision concerning NIWs, Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT).
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