LAW OFFICES OF NORKA M. SCHELL, LLC: Employment Discrimination

IMMIGRATION AND POLICY: Employment Discrimination: "Racial and ethnic distinctions of any sort are inherently suspect and thus call for the the most exacting judicial examination. There ar...

LAW OFFICES OF NORKA M. SCHELL: DOL Issues Instructions for Business Affected by H...

IMMIGRATION AND POLICY: DOL Issues Instructions for Business Affected by H...: On November 9, 2012, the Department of Labor (DOL) issued the following notice for businesses affected by Hurricane Sandy: Question: Wi...

DOL Issues Instructions for Business Affected by Hurricane Sandy

On November 9, 2012, the Department of Labor (DOL) issued the following notice for businesses affected by Hurricane Sandy:

Question: Will the Office of Foreign Labor Certification (OFLC) allow for extensions or other reasonable case-accommodations in light of the damage done by Hurricane Sandy?

Answer: Yes. We recognize that Hurricane Sandy generated significant damage to businesses up and down the East Coast, closing businesses and offices particularly in New York and New Jersey but impacting other areas as well. The OFLC has established internal procedures that recognize, as a result of the storm, employers and/or their representative(s) may not be able to timely respond to a request for information or documentation, such as an audit, etc. Accordingly, we will individually review requests for extensions of time to respond [to issues] that arise from storm-related conditions, including delays caused as a result of the storm, as well as those delays that may have occurred as a result of storm preparations in the week before the storm.

If you are an employer or an authorized representative and Hurricane Sandy has affected your ability to timely respond to a formal OFLC program inquiry, please use the appropriate e-mail address below to submit your request for an extension of time to respond. The correspondence received from the OFLC notes contact information including mailing addresses and facsimile numbers that may also be used. Also, please follow the OFLC web site at http:// www.foreignlaborcert.doleta.gov/ for additional information.

Email any questions, requests for extensions in replying to audits, etc. from the OFLC Chicago National Processing Center (NPC) related to the H-2A temporary agriculture program, H-2B temporary nonagricultural program, or H-1B specialty occupations program to TLC.chicago@dol.gov (Subject: Hurricane Sandy) or telephone the Chicago NPC at (312) 886-8000.

Email any questions, requests for extensions, etc. related to the issuance of a prevailing wage determination from the OFLC's National Prevailing Wage Center (NPWC) to FLC.PWD@dol.gov (Subject: Hurricane Sandy) or telephone the NPWC at (202) 693-8200.

Email any questions, requests for extensions, etc. related to responding to audits, supervised recruitment instructions, including draft advertisements, etc. related to the permanent labor certification program (PERM) to PermSandy @dol.gov (Subject: Hurricane Sandy) or telephone the Atlanta NPC at (404) 893-0101.

The DOL also reminds individuals affected by Hurricane Sandy and in need of temporary immigration relief measures to visit the U.S. Citizenship and Immigration Services website at http://1.usa.gov/VHXRE0.

IMMIGRATION AND POLICY: Matter of Jaime Enrique VALENZUELA-FELI

IMMIGRATION AND POLICY: Matter of Jaime Enrique VALENZUELA-FELI: Posted by Attorney Norka M. Schell  www.lawschell.com Decided November 16, 2012 U.S. Department of Justice Executive Office for Immig...

Matter of Jaime Enrique VALENZUELA-FELI

Posted by Attorney Norka M. Schell 
www.lawschell.com

Decided November 16, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

When the Department of Homeland Security (DHS) paroles a returning lawful permanent resident for prosecution, it need not have all the evidence to sustain its burden of proving that the alien is an applicant for admission but may ordinarily rely on the results of a subsequent prosecution to meet that burden in later removal proceedings. 

Jaime Enrique is a native and citizen of Mexico and a lawful permanent resident (LPR) of the United States. In June 2009, Jaime Enrique was indicted by a grand jury on charges including bulk cash smuggling in violation of 31 U.S.C.§ 5332 (2006). In August 2009, Jaime Enrique travel outside the United States. Upon returning from his trip, he was paroled into the United States for prosecution. In July 2010, Jaime Enrique was convicted of that offense in the United States District Court for the Central District of California and was sentenced to 27 months' imprisonment. 


On May 23, 2011, the DHS served Jaime Enrique with a notice to appear (NTA), charging him as inadmissible under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2006), as an alien who has been convicted  of a crime involving moral turpitude. On July 11, the DHS lodged an additional charge that Jaime Enrique is inadmissible under section 212(a)(2)(A)(i)(II) of the INA as an alien convicted of a controlled substance violation, based on his July 8, 1991, conviction for possession for sale of cocaine in California. 

The Immigration Judge (IJ) found that "the proper time for the government to make its determination as to whether Jaime Enrique was an arriving alien was at the time he sought entry into the United States." In this regard the IJ noted that Jaime Enrique had not then been convicted and that the DHS had, at most, probable cause from an outstanding arrest warrant that he had committed a crime involving moral turpitude based on cash smuggling. Since DHS was likewise unaware of Jaime Enrique's 1991 drug conviction at that time, the IJ concluded that it did not establish by clear and convincing evidence that  LPR Jaime Enrique was seeking admission. IJ therefore ordered that the proceeding be terminated. 

IMMIGRATION AND POLICY: Matter of Jorge Isaac SANCHEZ-LOPEZ

IMMIGRATION AND POLICY: Matter of Jorge Isaac SANCHEZ-LOPEZ: Posted by Attorney Norka M. Schell www.lawschell.com Statutory Provision: Any alien who at any time after admission is convicted of a cri...

Matter of Jorge Isaac SANCHEZ-LOPEZ

Posted by Attorney Norka M. Schell
www.lawschell.com

Statutory Provision: Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable pursuant to section 237(a)(2)(E)(i) of the Immigration and Nationality Act (INA).

Pursuant to the California Penal Code (CPC), the "offense of stalking" is a crime of stalking under the INA section 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i) (2006).

Jorge Isaac Sanchez-Lopez is a native and citizen of Peru who was admitted to the United States on May 6, 1993, as a lawful permanent resident. On April 19, 2011, he was convicted of stalking in violation of section 646.9(b) of the CPC, for which he was sentenced to a period of 2 years in prison. The Immigration Judge concluded that Jorge Isaac Sanchez-Lopez is removable on the basis of that conviction. He also denied his application for cancellation of removal under section 240A(a) of the Act as a matter of discretion. The Jorge Isaac Sanchez-Lopez has appealed both of these determinations.

In a decision dated March 21, 2012, an Immigration Judge found
Jorge Isaac Sanchez-Lopez removable as an alien convicted of a crime of stalking under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006), and denied his application for cancellation of removal under section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (2006). Jorge Isaac Sanchez-Lopez has appeal from the decision. The appeal will be dismissed.

Zhing v. Holder

Zheng, born in1984 in the People’s Republic of China, arrived in the U.S. illegally in 2001. After receiving a Notice to Appear, she filed applications for political asylum, withholding of removal, and protection under the Convention Against Torture, claiming persecution because of her practice of Falun Gong. An IJ rejected Zheng’s applications because her testimony was “rather inconsistent and almost completely unsubstantiated.” The Board affirmed and the Seventh Circuit denied an appeal. Zheng remained in the U.S. and, in 2010, married Jiang, with whom she has two children. In 2011, Zheng sought to reopen proceedings with the Board, based on the birth of her two children and increased enforcement of China’s family planning policy. The Department of Homeland Security opposed Zheng’s motion, arguing that it was not filed within 90 days of entry of a final administrative order of removal (8 U.S.C. 1229a(c)(7)(C)(i)) and was based on changed personal circumstances rather than a change in country conditions. The Board denied the motion. The Seventh Circuit denied review. 

United States v. Oseguera-Madrigal

Defendant appealed his conviction and sentence on a conditional guilty plea for being an alien found in the United States following deportation. The court affirmed the conviction and sentence, holding that the BIA did not err in finding defendant removable based on his conviction for use of drug paraphernalia, which was a conviction "relating to a controlled substance" under 8 U.S.C. 1182(a)(2)(A)(i)(II). The court held that the IJ did not violate due process by failing to inform defendant of the possibility of relief through a waiver of inadmissibility under section 1182(h). The court rejected defendant's contention that the district court abused its discretion and imposed a substantively unreasonable sentence.

IMMIGRATION AND POLICY: STEM Bill Is On The U.S. House of Representative's...

IMMIGRATION AND POLICY: STEM Bill Is On The U.S. House of Representative's...: The bill is a modified version of H.R. 6429, which eliminates the visa lottery by reallocating the 55,000 green cards available under the p...

STEM Bill Is On The U.S. House of Representative's Calender For This Week

The bill is a modified version of H.R. 6429, which eliminates the visa lottery by reallocating the 55,000 green cards available under the program to two new employment-based visa categories, the EB-6 and EB-7. 

The proposed EB-6 category is designed to benefit foreign students holding a PhD in a STEM field (Science, Technology, Engineering, and Mathematics) from a U.S. university. The proposed EB-7 category is designed to benefit foreign students holding both a Master's and baccalaureate degree in a STEM field from a U.S. university. Those with Master's degrees would be granted a green card only after all qualifying PhD petitions have been granted. 

Under this bill, employers who petition to hire these graduates must receive labor certification to help protect American workers. While the bill originally required EB-6 and EB-7 recipients to work for their petitioning employer for an aggregate of five-years, the modified version contains no such requirement. (See H.R. 6429 at §2) Moreover, unlike the original version of the bill, the modified version of H.R. 6429 allows unused green cards under the new EB-6 and EB-7 categories to be rolled over through 2016. As introduced, the bill only provided for the rollover of unused green cards under the proposal through 2014. 

Also among the changes in the modified version is the elimination of a provision prohibiting universities from providing any commission, bonus, or other incentive to a recruiter based on securing enrollments or financial aid of nonimmigrant students. At the same time, the legislation creates a new nonimmigrant student visa category specifically for foreign students seeking to study in a STEM field who may potentially seek an EB-6 or EB-7 green card in the future. Combined, these provisions could hurt American students who intend to study in STEM fields, as they could increase competition for admission, especially since universities benefit significantly from admitting foreign students who pay full tuition. 

The modified Bill includes the V nonimmigrant visa program to allow the spouses and unmarried children of lawful permanent residents to enter the country while they wait for a green card.  The V-visa program granted spouses and unmarried children of green card holders who petitioned to come to the U.S. by December 2000 a V-visa if their application had been pending for more than three years. Because the V-visa applied only to those who petitioned for a green card by 2000, the program essentially sunset after 2003. The new version of H.R. 6429, however, would amend the V-visa program to allow all spouses and children of a green card holder who petition for lawful permanent residence pursuant to such status to wait in the U.S. to receive their green card after spending just one-year on the green card waiting list. While this new provision would prohibit V-visa holders from working in the U.S., it will expedite the immigration process significantly.

U.S. House of Representative will vote on the modified STEAM Bill no sooner than Wednesday.