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February 15, 2013


By Norka M. Schell, Esq

When a person is present in the United States in one non-immigrant (temporary) status, and latter on he or she decides to engage in a different primary activity only permitted under a different non-immigrant status, the law requires that this person changes his or her non-immigrant status FIRST before engaging in the activity. For instance, a person who comes into United States as a tourist and decides to attend school, or a foreign student who decides to take up other than school-approved employment. In such situations, the non-immigrant has two options:

(1) he or she may file an application with the United States Citizenship and Naturalization Services to request a change of status to a non immigrant classification appropriate to the proposed activity, or

(2) he or she leaves the United States and apply for the appropriate visa at the U.S. consulate abroad, and then re-enter the U.S. in the correct non immigrant classification.

Keep in mind that the application for change of status must be filed with the United States Citizenship and Naturalization Services before the person's authorized stay expires.

If you need assistance with change of non immigrant status, please contact one of our offices at 
(212)564-1589 or (551)265-4395 to speak with a lawyer. 

February 11, 2013

IMMIGRATION AND POLICY: Comprehensive Immigration Reform Proposal Introduc...

IMMIGRATION AND POLICY: Comprehensive Immigration Reform Proposal Introduc...: Posted by Norka M. Schell, NY Immigration Attorney www.lawschell.com Comprehensive Immigration Reform is a problem that has been punted f...

Comprehensive Immigration Reform Proposal Introduced by Bipartisan Senate Group

Posted by Norka M. Schell, NY Immigration Attorney

Comprehensive Immigration Reform is a problem that has been punted from year to year, from Congress to Congress, from Administration to Administration. The status quo, which has resulted in the presence of more than 12 million undocumented immigrants in the United States, is simply unacceptable. We need Congress to create the legal foundation for bringing the millions of illegal immigrants in this country out of shadows. Making sure these people become full taxpayers and pay their fair share will both benefit our economy and make it easier to enforce the laws aginst unscrupulous or exploitive employers. A fair pathway to earned legal status will mandate that illegal immigrants meet a number of requirements--including undocumented immigrants to register under the program, submit biometric data, pass criminal background and national security checks, and pay fees and penalties before becoming eligible for a provisional legal status. President Barack Obama and several U.S. senators are fully committed to Comprehensive Immigration Reform. The following are the frameworks for Comprehesive Immigration Reform introduced by a bipartisan group of senators and President Barack Obama.


A comprehensive plan would continue improvements in border security by providing Border Patrol with the latest technology, infrastructure, and personnel needed to prevent, detect, and apprehend every unauthorized entrant. Also with an eye on increased border security, the framework calls for an increase in the number of unmanned aerial vehicles and surveillance equipment used along the border, improvement in radio interoperability, and increase in the number of agents at and between ports of entry. This, the outline indicates, will substantially lower the number of successful undocumented border crossings while continuing to facilitate commerce. The summary also suggests that a reform plan must improve Border Patrol training with respect to strengthening prohibitions against racial profiling and inappropriate use of force. Border communities will be given a mechanism to ensure that they have a meaningful opportunity to share input on the workings on the border.

Comprehensive immigration reform would also include an entry/exit tracking program for airports and seaports in order to ensure that temporary visa holders are leaving as they should.

The framework additionally suggests that input from communities along the southwest U.S. border will be critical to determining the security of the border. It calls for the creation of a commission comprised of governors, attorneys general, and community leaders living along the southwest border to monitor the progress of securing the border and to make a recommendation regarding when border security measures ultimately proposed in a comprehensive reform bill have been achieved.

While the border security measures are being worked on, the framework suggests that the bill would require those "who came or remained in the United States without our permission to register with the government." Included in this process would be passing a background check and paying a fine and back taxes. This would earn undocumented immigrants probationary legal status, which will permit them to live and work lawfully in the United States. Persons who have a serious criminal background or others who pose a threat to national security will be ineligible for legal status and subject to deportation, and undocumented immigrants who have committed serious crimes would face immediate deportation. Permanent resident status would not be issued to these persons with probationary status until the security measures outlined in the bill were accomplished. Once the security measures have been implemented and deemed successful, then those with probationary status would be added tot he end of the queue for permanent resident status. In addition, they would be required to pass an additional background check, pay taxes, learn English and civics, and demonstrate a history of work in the United States and current employment, among other requirements, in order to earn the opportunity to apply for lawful permanent resident status. Exceptions to the end-of-the-line requirement would be made for people who were brought to the United States as minors as well as for certain agricultural workers who commit to the long-term stability of the agricultural industries would earn a path to citizenship through a different process under a new agricultural worker program.


Under the pillar, the focus is to retaining U.S.-educated PhD and master's degree recipients with degrees in science, technology, engineering, and math by putting those degree recipients on a fast-track for permanent resident status. Also, an effort would be made to eliminate the backlogs in both family and employment-based visas as a way to encourage lawful immigration.


This pillar gives attention to finding a means to ensure that persons not authorized to work in the United States are not hired, thus discouraging unlawful entry for employment purposes. This synopsis indicates that a vast majority of undocumented persons entering the United States do so for purposes of obtaining employment. The agreement calls for an effective employment verification system which prevents identity theft, ends the hiring of unauthorized workers, and provides employers with a fast and reliable method to confirm whether new hires are legally authorized to work in the United States. The system would also be crafted with procedural safeguards to protect U.S. workers, prevent identity theft, and provide due process protections.


This fourth pillar looks at trying the availability of low-skilled foreign labor to actual need for workers. Employers would be required to demonstrate that U.S. workers are unavailable to fill openings and would provide a separate plan for the agriculture and dairy industries. The system would also have to be able to respond quickly to changing needs so that businesses are not harmed.



Key elements under the border security aspect of the President's immigration reform proposal include strengthening and improving the infrastructure at ports of entry, utilizing public/private partnerships to facilitate processing of foreign visitors, and continuing the use of technology along the borders. The plan also calls for partnership with local border communities by establishing Department of Homeland Security (DHS) liaisons along the southern and northern borders "to improve communication and collaboration with border communities, boost funding to tribal government partners to reduce illegal activity on tribal lands, and strengthen training on civil rights and civil liberties for DHS immigration officers."

With respect to criminal aspects for border security, the plan calls for establishing new criminal penalties to combat transnational criminal organizations that traffic in drugs, weapons, and money and the smuggle people across the borders. The plan also expands the scope of existing law to allow for the forfeiture of the tools and proceeds of such organization. Penalties would also be established for persons trafficking in passports, immigration documents, and schemes to defraud, including those who prey on vulnerable immigrants through notario fraud. The plan additionally calls for strengthening penalties to combat human smuggling rings.

The proposal includes provisions to better target convicted criminal noncitizens in federal or state correctional facilities in order to remove them from the United States at the end of their sentences without letting them reenter communities, though the process would include a means to protect individuals with a credible fear of returning to their home countries. Also along removal lines, the proposal creates a streamlined administrative removal process for noncitizens who overstay their visas and have been determined to be threats to national security and public safety.

Improvements to the immigration courts by way of any increase in immigration judges and staff as well as an investment in training for such court employees are called for in the President's proposal as is a mandate for DHS to consider and expand alternatives to detention and reduce overall detention costs.


The President's earned citizenship plan would require undocumented immigrants to register under the program, submit biometric data, pass criminal background and national security checks, and pay fees and penalties before becoming eligible for a provisional legal status. Those who were brought to the United States as children without a lawful means of entry will be eligible for earned citizenship, and those who attend college or service honorably in the United States Armed Forces for at least two years would be given an expedited opportunity to earn citizenship. Other individuals seeking earned citizenship must wait until the existing legal immigration backlogs are cleared before getting in line to apply for lawful permanent resident status. In order to apply for permanent resident status, potential applicants would need to pay their taxes, pass additional criminal background and national security checks, register for Selective Service (where applicable), pay additional fees and penalties, and learn English and U.S. civics. Persons whose provisional lawful status has been revoked or denied, or whose application for adjustment of status has been denied, will have the opportunity to seek administrative and judicial review of those decisions.


The first bullet under this aspect of the President's reform plan calls for a mandatory employment verification program. The program would be phased in over a five-year period, there would be exemptions for certain small businesses, and failure to utilize the program would carry significantly-increased penalties for employers. Employees would also be subject to penalties for committing fraud and identity theft. In order to combat fraud and identity theft, a fraud-resistant, tamper-resistant, tamper-resistant social security card would be established, and any document that a worker uses to establish identity and/or employability would have to be fraud-resistant and tamper-resistant. There are also worker protections in the proposal and a "labor law enforcement fund" to help ensure the industries that employ significant numbers of immigrant workers employ with labor laws."

IMMIGRATION AND POLICY: HHS Updates Poverty Income Guidelines

IMMIGRATION AND POLICY: HHS Updates Poverty Income Guidelines: Posted by Norka M. Schell, New York Immigration Attorney www.lawschell.com The Department of Health and Human Services (HHS) has issu...

HHS Updates Poverty Income Guidelines

Posted by Norka M. Schell, New York Immigration Attorney

The Department of Health and Human Services (HHS) has issued its annual update of the federal poverty guidelines. The poverty guidelines, mandated by the Omnibus Budget Reconciliation Act of 1981 (OBRA), are used by a number of federal programs to determine eligibility for benefits or services. The annual update reflects the previous year's change in the Consumer Price Index and is broken down into three categories:
(1) poverty guidelines for the 48 contiguous states and the District of Columbia,
(2) poverty guidelines for Alaska, and
(3) poverty guidelines for Hawaii.
The 2013 guidelines set the poverty level for the 48 contiguous states and the District of Columbia at $11,490 for one person (an increase of $320 over last year's $11,170) with $4,020 for each additional person in the household (an increase of $60 over last year's total).
In the immigration context, the guidelines are relevant for “public charge” issues, among others, and may also be useful in obtaining waivers of some application fees for certain indigent aliens, such as applicants for temporary protected status.They are particularly important, however, in complying with the affidavit of support requirements imposed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
IIRIRA created INA § 213A [8 USCA section 1183a], which provides that sponsors of all family-based and some employment-based immigrants must provide a legally enforceable affidavit (Form I-864) illustrating that they are capable of maintaining an annual income equal to at least 125% of the HHS poverty guidelines.The sponsor must meet the 125% requirement at the time when the immigrant visa or adjustment of status application is made.This calculation takes into account the total “family unit” for which the sponsor will be responsible, defined by INA § 213A(f)(6)(A)(iii) [8 USCA section 1183a(f)(6)(A)(iii)]as “members of the sponsor's household (including family and non-family dependents) plus the total number of other dependents and aliens sponsored by that sponsor.”
Thus, according to the new 2013 poverty guidelines, an individual in one of the 48 contiguous states or the District of Columbia would need an income of $14,362.50 for one person and $5,025 for each additional household member so that an individual who has four family members and wishes to sponsor an immigrant parent would be required to show an annual income of $39,487.50--a figure equal to 125% of the $31,590 poverty income level for a family of six. Consular officers and U.S. Citizenship and Immigration Services (USCIS) adjudicators, however, may still take into account an alien's ability to provide for himself or herself and any special circumstances, such as the need for medical treatment or other financial obligations, in determining whether the alien is likely to become a public charge.
The 2013 guidelines, while otherwise effective on the date of publication, do not become effective as to affidavits of support until March 1, 2013, pursuant to a USCIS regulation that provides that USCIS and the Department of State will not apply the new guidelines until “the first day of the second month after the date the guidelines are published in the Federal Register.