PROVISIONAL WAIVERS INTRODUCED BY USCIS

Posted by the Immigration Attorney Norka M. Schell
Law Offices of Norka M. Schell, LLC
www.lawschell.com

U.S. Citizenship and Immigration Services sent this bulletin at 03/04/2013 10:21 AM EST

Beginning March 4, certain immigrant visa applicants who are the spouses, children and parents of U.S. citizens (immediate relatives), and have been unlawfully present in the United States, can start applying for provisional unlawful presence waivers through a new process.

The new provisional unlawful presence waiver process is for certain individuals who seek a waiver of inadmissibility only for unlawful presence. They can now apply for a provisional unlawful presence waiver while in the United States and before departing for their immigrant visa interview at a U.S. Embassy or Consulate abroad. Under the current process, which continues to remain in effect, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States have to travel abroad and be found inadmissible at their immigrant visa interview before they can apply for an inadmissibility waiver.

The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members go through the process of becoming lawful permanent residents of the United States. For eligibility details and information on the process, please visit: http://www.uscis.gov/provisionalwaiver
                             

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Justice Department Reaches Settlement With Avant Healthcare Professionals LLC To Resolve Immigration -Related Unfair Employment Practices

Posted by Norka M. Schell, NY Immigration Attorney
Law Offices of Norka M. Schell, LLC
www.lawschell.com

DEPARTMENT OF JUSTICE

The Justice Department reached a settlement agreement with Avant Healthcare Professionals, LLC, a healthcare staffing company based in Casselberry, Fla., resolving allegations that the company posted discriminatory job advertisements on the internet.

According to the department investigation, hundreds of Avant Healthcare Professionals' internet-based job postings contained discriminatory language, permissibly preferring foreign-trained individuals seeking permanent residence or H-1B visa sponsorship over U.S. workers. The Immigration and Nationality Act (INA) prohibits employers from discriminating on the basis of citizenship or immigration status unless required by law, regulation or government contract. None of those limited exceptions applied to Avant's recruitment efforts.

Under the terms of the settlement agreement, Avant has agreed to pay $27,750 in civil penalties, to change its internal policies and written procedures to incorporate the INA's anti-discrimination protections, and to be subject to reporting and compliance monitoring requirements for a period of three years.

"Federal law protects authorized U.S. workers from illegal and discriminatory preferences," said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. "Employers have a statutory obligation to monitor their online job postings to ensure that they do not violated the anti-discrimination provision of the INA.

The Office of Special Counsel for Immigration Related Unfair Employment Practice (OSC) is responsible for enforcing the anti-discrimination provision of the INA. For more information about protection against employment discrimination under the immigration laws, call the OSC's worker hot line at 1-800-255-7688 (1-800-2372525, TDD for hearing impaired), call the OSC's employer hot line at 1-800-255-8155 (1-800-362-2735, TDD for hearing impaired), sign up for a no-cost webinar at www.justice.gov/about/osc/webinars.php, email to osccrt@usdoj.gov or visit the website at www.justice.gov/crt/about/osc.

IMMIGRATION AND POLICY: Justice Department Reaches Settlement with FTD Inc...

IMMIGRATION AND POLICY: Justice Department Reaches Settlement with FTD Inc...: Postad by Norka M. Schell, Immigration Attorney Law Offices of Norka M. Schell, LLC DEPARTMENT OF JUSTICE IMMEDIATE RELEASE The Justi...

IMMIGRATION AND POLICY: USCIS Updated Version of Form I-881

IMMIGRATION AND POLICY: USCIS Updated Version of Form I-881: Form I-881. A December 14, 2012, version of Form I-881, Application for Suspension of Deportation or Special Rule Cancellation of Removal (...

USCIS Updated Version of Form I-881

Form I-881. A December 14, 2012, version of Form I-881, Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Public Law 105-100, NACARA),16 has been released by USCIS. The agency also continues to accept previous versions, including the July 8, 2011, version.


The new Form I-881 expires on December 31, 2014. The form and its instructions have changed very little from the July 8, 2011, version. As with Form I-829, USCIS has removed the bar code from the form. On the instructions, USCIS has corrected the lettering of the items in Part I, Who Is Eligible to Apply, so that the second item (“A Guatemalan national who:”) is letter “B” rather than a second letter “A”; the agency has updated references to this item accordingly throughout the rest of the document. USCIS has also changed the presentation of some information, making it easier to comprehend, e.g., the “where to file” information on page 7 is now in a table, and the reasons for denial of an application for suspension of deportation or an application for special rule cancellation of removal on pages 7 and 8 are now set out in list format. Additionally, much of Part VIII, Address Notification Requirements, Penalties, Forms, Privacy Act Notice and Paperwork Reduction, has been updated to be consistent with other forms. A few other minor technical changes, such as replacing “biometrics” with “biometric services” are also found on both the form and instructions. For more information, please visit our website at www.lawschell.com

CHANGE OF NON-IMMIGRANT STATUS

By Norka M. Schell, Esq
www.lawschell.com

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. 

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
www.lawschell.com

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.


CREATING A PATH TO CITIZENSHIP FOR UNAUTHORIZED IMMIGRANTS ALREADY HERE THAT IS CONTINGENT UPON SECURING THE BORDER AND COMBATING VISA OVERSTAYS

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.

IMPROVING THE LEGAL IMMIGRATION SYSTEM AND ATTRACTING THE WORLD'S BEST AND BRIGHTEST

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.

STRONG EMPLOYMENT VERIFICATION

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.

ADMITTING NEW WORKERS AND PROTECTING WORKERS' RIGHTS

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.


PRESIDENT OBAMA'S VISION FOR COMPREHENSIVE IMMIGRATION REFORM

CONTINUING TO STRENGTHEN BORDER SECURITY

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.


PATHWAY TO EARNED CITIZENSHIP

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.


CRACKING DOWN ON EMPLOYERS HIRING UNDOCUMENTED WORKERS

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
www.lawschell.com

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.

Unfair Immigration-Related Employment

Unfair Immigration-Related Employment Practice

The Department of Justice (DOJ) has reached an agreement with Centerplate Inc. resolving allegations that the company violated INA § 274B [8 USCA § 1324b] by engaging in a pattern or practice of treating work-eligible noncitizens differently from U.S. citizens during the employment eligibility verification process by requiring specific documents issued by the Department of Homeland Security (DHS) from the former while not making similar requests of the latter. Centerplate, based in Spartanburg, South Carolina, is one of the largest hospitality (food-service) companies in the world. 

The DOJ's investigation was based on a referral from U.S. Citizenship and Immigration Services (USCIS) made pursuant to a memorandum of agreement between USCIS and the DOJ's Civil Rights Division. 

Under the terms of the agreement, Centerplate will pay $250,000 in civil penalties, the third highest amount paid through settlement since the enactment of the anti-discrimination provision in 1986, and will fully compensate any victims who lost wages as a result of the company's discriminatory practices.

If you have been suffering work-related discrimination, please call our the Law Offices of Norka M. Schell at (212)564-1589 to speak with an attorney about your case.

USCIS Expands Services

USCIS Expands Services

National Customer Service Saturday Hours

On January 12, 2013, U.S. Citizenship and Immigration Services' (USCIS') National Customer Service Center (NCSC) expanded its live, toll-free telephone assistance service to included Saturday hours. Customer service representatives at the NCSC can now take calls Monday through Friday from 8:00 a.m. to 8:00 p.m. and Saturdays from 9:00 a.m. to 5:00 p.m., local time.

Customers now are able to call the toll-free number on Saturdays to receive nationwide assistance for immigration services and benefits offered by USCIS. Customer service representatives can answer routine questions on a wide variety of topics related to immigration services and benefits, including ordering forms, processing times, and information on local offices and civil surgeons.

My Case Status and e-Requests

USCIS has also expanded the capabilities of two of its online tools:  My Case Status and E-Request--To permit customers to view the current status of applications that they submit and follow-up their cases, no matter which USCIS form they used. My Case Status now allows individuals to track, through its secure mail initiative (SMI), the mailing and delivery of USCIS-produced cards and documents by permitting them to use USCIS' website to access the U.S. Postal Service tracking numbers of their documents. E-Request now allows customers to inquire electronically about applications and petitions that they submit to USCIS. Individuals may use this tool to request a follow-up on their case status if they do not receive documents related to three of the most-used immigration forms: Form I-485, Application to Adjust Permanent Residence or Adjust Status; Form I-765, Application for Employment Authorization; and Form I-130, Petition for Alien Relative.  

If have an immigration question and like to speak with an attorney, please call our Firm at phone number (212)564-1589.

IMMIGRATION AND POLICY: IT IS TIME FOR COMPREHENSIVE IMMIGRATION REFORM

IMMIGRATION AND POLICY: IT IS TIME FOR COMPREHENSIVE IMMIGRATION REFORM: By Norka M. Schell, Esq.  Law Offices of Norka M. Schell, LLC The need for immigration reform is no longer in question. Our immigrat...

IT IS TIME FOR COMPREHENSIVE IMMIGRATION REFORM

By Norka M. Schell, Esq. 

Law Offices of Norka M. Schell, LLC

The need for immigration reform is no longer in question. Our immigration system is broken, and the American people have called upon the White House and Congress to fix it.  How and when to fix our immigration system are the key questions which the President and Congress must answer to the American people.

Our previous experiences have shown that any long-term solution to the United State's immigration problems must begin with a comprehensive approach to reform that address all aspects of the nation's immigration system. Piecemeal reforms have been tried, and failed.  Therefore, any effective reform bill must address the undocumented population to come out of the shadows and earn legal status; provide fair and lawful ways for American business to hire much-needed immigrant workers; reduce the unreasonable and counterproductive backlogs in family-based and employment-based immigration by reforming the permanent immigration system; and protect the national security and the rule of law. 

Of course, effective enforcement policies are critical to restoring integrity and legitimacy to a system, but the U.S. Immigration Laws are so divorced from our economic and social realities that to think that we will be able to revive our economy and legality without a comprehensive reform of those laws is naiive.  

In the coming months, President Obama and the new Congress will start working on an immigration reform bill, we expect that the White House and the Congress will seriously consider comprehensive immigration reform this time around. 

Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives

IMMIGRATION AND POLICY:: Law Offices of Norka M. Schell, LLC 11 Broadway, Suite 615, New York, NY 10004 Phone (212)564-1580 www.lawschell.com Certain spouses, c...

Law Offices of Norka M. Schell, LLC
11 Broadway, Suite 615, New York, NY 10004
Phone (212)564-1580
www.lawschell.com

Certain spouses, children, and parents of U.S. citizens (immediate relatives) who are in the United States are not eligible to apply for lawful permanent resident (LPR) status while in the United States. Instead, these relatives must travel abroad to obtain an immigrant visa from the Department of State (DOS) to return to the United Sates to request admission as an LPR and, in many cases, also must request from the Department of Homeland Security (DHS) a waiver of inadmissibility as a result of their unlawful presence in the United States. Currently these relatives cannot apply for the waiver until after their immigrant visa interviews abroad.
As a result, these immediately relatives must remain outside of the United States, separated from their U.S. citizen spouses, parents, or children, while USCIS adjudicates their waiver applications. In some cases, waive application processing can take well over one year, prolonging the separation of these immediate relatives from their U.S. citizen spouses, parents, and children. In addition, the action required for these immediate relatives to obtain the LPR status in the United States-departure from the United States to apply for an immigrant visa at a DOS consular abroad-is the very action that triggers the unlawful presence inadmissibility grounds under the Immigration and Nationality Act (INA) section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i). As a result of the often lengthy processing times and uncertainty about whether they qualify for a waiver of the unlawful presence inadmissibility grounds, many immediate relatives who may qualify for an immigrant visa are reluctant to proceed abroad to seek an immigrant visa.

On April 2, 2012, the United States Immigration Services (USCIS) published a Notice of Proposed Rule-making (NPRM) regarding the provisional unlawful presence waiver process. DHS reviewed and considered all of the public comments. As a result, DHS adopted most of the public comments and produced a final rule. The completion of the provisional unlawful presence waiver process was then announced to the public on January 2, 2012 by the Secretary of Homeland Security, Janet Napolitano. This final rule is expected to result in a reduction of the time that U.S. citizens are separated from their immediate relatives, thus reducing the financial and emotional hardship for these families. In addition, the Federal Government should achieve increased efficiencies in processing immigrant visas for individuals subject to the unlawful presence inadmissibility bars under the INA section 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B).

USCIS will start accepting unlawful presence waiver application (I-601A) on March 4, 2013. It is important to keep in mind that the provisional unlawful presence waiver process does not confer any legal status, protect against the accrual of additional periods of unlawful presence, authorize an alien to enter the United States without securing a visa or other appropriate entry document, convey any interim benefits (e.g., employment authorization, parole, or advance parole), or protect an alien from being placed in removal proceedings or removed from the United States in accordance with current DHS policies governing initiation of removal proceedings and the use of prosecutorial discretion.

For questions about the provisional unlawful presence waiver process please visit the Law Offices of Norka M. Schell, LLC's website www.lawschell.com or call our office at (212)564-1589 to speak with an attorney or visit the USCIS website at www.uscis.gov>

IMMIGRATION AND POLICY: Final Rule to Support Family Unity During Waiver P...

IMMIGRATION AND POLICY: Final Rule to Support Family Unity During Waiver P...: Homeland Security  Release Date: January 2, 2012 Today the Secretary of Homeland Security Jane Napolitano announced the posting of a fi...

Final Rule to Support Family Unity During Waiver Process

Homeland Security 
Release Date: January 2, 2012

Today the Secretary of Homeland Security Jane Napolitano announced the posting of a final rule in the Federal Register that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances. The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin. The process will be effective on March 4, 2012 and more information about the filing process will be made available in the coming weeks.

U.S. Citizenship and Immigration Services (USCIS) received more than 4,000 comments in response to the April 2, 2012 proposed rule and considered all  of them in preparing the final rule.

"The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves, "USCIS Director Mayorkas said. "The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon."

Under the current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of States has determined that they are inadmissible.

In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. USCIS will publish a new form, Form I-601A, Application fro a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process.

Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. Individuals who file the Form I-601A must notify the Department of State's National Visa Center that they are or will be seeking a provisional waiver from USCIS. The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives.
For more information about the Release, please call our office at (212)564-1589 to speak with an attorney or visit the www.uscis.gov.

IMMIGRATION AND POLICY: Employment Discrimination Claim Settled (Form I-9/...

IMMIGRATION AND POLICY: Employment Discrimination Claim Settled (Form I-9/...: Justice Department settled discrimination claim against Oregon Homecare Provider. ComForcare In-Home Care & Senior Services, a home pr...

Employment Discrimination Claim Settled (Form I-9/ E-Verify)

Justice Department settled discrimination claim against Oregon Homecare Provider. ComForcare In-Home Care & Senior Services, a home provider for sick and elderly patients in Tigard, Ore. The agreement resolve claims that the provider violated the anti-discrimination provision of the Immigration and Nationality Act (INA), when it demanded unnecessary documentation from a newly naturalized citizen in response to an initial mismatch in E-Verify and then refused to hire her when she did not produce it. ion

The investigation stemmed from a charge filed by a naturalized U.S. citizen, who was not allowed to work for ComForce after the company received an initial mismatch in her data in E-Verify, called a tentative non-confirmation.  E-Verify is an Internet-based system run by U.S. Citizenship and Immigration Services (USCIS) that confirms employment eligibility by comparing information from an employee's Form I-9 to from that all new employees must complete upon hire, to data in the Department of Homeland Security's and Social Security Administration's records. 

If an employee receives a tentative non-confirmation, E-Verify requires the employer to provide the employee with a tentative non-confirmation notice offering the employee the choice to contest the mismatch.   If the employee decides to contest the mismatch, the employee must be allowed to work while resolving a tentative non-confirmation, and the rules do not permit an employer to request additional documentation based on a tentative non-confirmation.   ComForcare failed to provide the charging party with written notice of her tentative non-confirmation, as required by E-Verify, demanded that she produce an “alien card” and did not allow her to start working.   When the charging party informed ComForcare that, as a naturalized citizen, she did not possess an alien card, ComForcare demanded her naturalization papers even though she had already produced proper work authorization documents during the Form I-9 process. The investigation also established that ComForcare requested that non-U.S. citizens and persons perceived to be non-U.S. citizens produce specific employment eligibility documents to establish their employment eligibility rather than allowing these individuals to show their choice of valid documentation.  

       Under the settlement agreement, ComForcare will pay approximately $525 in back pay to the charging party and $1,210 in civil penalties to the United States.   ComForcare will also train its human resources staff about employers’ responsibilities to avoid discrimination in the employment eligibility verification process and be subject to reporting and compliance monitoring by the department for eighteen months.  

          “This case illustrates the importance of following E-Verify rules consistently regardless of citizenship status or perceived status, or risk running afoul of the anti-discrimination provision,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division.   “Subjecting naturalized citizens to heightened documentary standards that result in the loss of employment constitutes discrimination, and the Division is fully committed to enforcing the law that prohibits it.”

      The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices is responsible for enforcing the anti-discrimination provision of the INA, which protects work-authorized individuals from employment discrimination on the basis of citizenship status or national origin discrimination, including discrimination in hiring and the employment eligibility verification (Form I-9) process. 

      For more information about protections against employment discrimination under federal immigration law, call our office at (212)564-1589 or visit our website at   www.lawschell.com  or contact OSC’s worker hotline at 1-800-255-7688 (1-800-237-2515, TDD for hearing impaired).

IMMIGRATION AND POLICY: USCIS Will Collect New Immigration Fee On Feb. 1, ...

IMMIGRATION AND POLICY: USCIS Will Collect New Immigration Fee On Feb. 1, ...: United States Immigration and Naturalization (USCIS) announced that starting on Feb. 1, 2013, it will begin collecting a new USCIS Immigra...

USCIS Will Collect New Immigration Fee On Feb. 1, 2013

United States Immigration and Naturalization (USCIS) announced that starting on Feb. 1, 2013, it will begin collecting a new USCIS Immigration Fee of $165 for foreign nationals seeking permanent residence in the United States. The new fee will allow USCIS to recover the costs of processing visas after individuals receive their visa packages from the Department of State (DOS) abroad.

USCIS has worked closely with the DOS to implement the new fee which allows USCIS to recover the costs of processing immigration visas in the United States after immigrant visa holder receive their visa packages from DOS. This includes staff time to handle, file and maintain the immigrant visa package, and the cost of producing and delivering the permanent  resident card. The implementation of this new fee is further detailed in the December 14, 2012 Federal Register notice.

In order to simplify and centralize the payment process, applicants will pay online through the USCIS website after they receive their visa package from DOS and before they depart for the United States. DOS will provide applicants with specific information on how to submit payment when they attend their consular interview. The new fee is in addition to fees charged by DOS associated with an individual's immigrant visa application.

USCIS  processes approximately 35,00 immigrant visa packages each month. Prospective adoptive parents whose child will enter the United States under the Orphan or Hague processes are exempt from the new fee.

For more information contact our offices or visit the USCIS Immigrant Fee website. 

USCIS - Temporary Protected Status Re-registration Period Extended for Haitian Nationals

USCIS - Temporary Protected Status Re-registration Period Extended for Haitian Nationalswww.lawschell.com

USCIS - Temporary Protected Status Re-registration Period Extended for Haitian Nationals

USCIS - Temporary Protected Status Re-registration Period Extended for Haitian Nationals

IMMIGRATION AND POLICY: Visa Bulletin For January 2013

IMMIGRATION AND POLICY: Visa Bulletin For January 2013: Posted by Norka M. Schell, Esq.  www.lawschell.com Family-Sponsored Preferences Family-Sponsored All Charge-ability Areas Except Th...

Visa Bulletin For January 2013

Posted by Norka M. Schell, Esq. 
www.lawschell.com


Family-Sponsored Preferences

Family-Sponsored	All Charge-ability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
F1	22DEC05	22DEC05	22DEC05	08JUL93	22DEC97
F2A	22SEP10	22SEP10	22SEP10	01SEP10	22SEP10
F2B	08DEC04	08DEC04	08DEC04	22NOV92	15APR02
F3	22JUN02	22JUN02	22JUN02	08MAR93	08AUG92
F4	08APR01	08APR01	08APR01	22JUL96	15APR89

Employment-Based Preferences

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	08DEC07	01SEP04	C	C
3rd	01FEB07	22SEP06	08NOV02	01FEB07	15AUG06
Other Workers	01FEB07	01JUL03	08NOV02	01FEB07	15AUG06
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th Targeted EmploymentAreas/ Regional Centers and Pilot Programs	C	C	C	C	C

IMMIGRATION AND POLICY: LAW OFFICES OF NORKA M. SCHELL, LLC

IMMIGRATION AND POLICY: LAW OFFICES OF NORKA M. SCHELL, LLC: Happy Holidays! Wishing clients and friends Happy Holidays and  Best Wishes for the New Year. 11 Broadway, Suite 615 ...

IMMIGRATION, CRIMINAL AND EMPLOYMENT LAW

Posted by Norka M. Schell

www.lawschell.com

The immigration process, including removal, is a civil case. Despite the fact that immigration process is a civil process; criminal law plays an important role in the immigration law context. In the Immigration and Naturalization Act (INA), the criminal grounds of deportability involve crimes of moral turpitude, convictions, aggravated felonies, high speed flight, and failure to register as a sex offender. During a removal proceedings, an Immigration Judge will determined  whether a noncitizen will be removed from the United States because of the effect on immigration status of a guilty plea or a finding of guilt.

Employment law is also relevant in the immigration law context. For example, hiring an undocumented alien is considered a crime. Section of 274A of the INA imposes civil and in some cases criminal sanctions on employers who hire aliens who do not have permission to work in the United States. Lawful permanent residents, temporary permanent residents, asylees, refugees, certain persons incidental to non-immigrant status, and certain other person granted employment authorization may work in the United States. Employers can not discriminate against noncitizen**. 

For more information, please call our firm at (212)564-1589 to speak with an attorney. 

*Representing Clients In Immigration Court, AILA 2009 & 2010 Editions

**Westlaw-Steel on Immigration Law, Aug. 2012

LAW OFFICES OF NORKA M. SCHELL, LLC

Happy Holidays!

Wishing clients and friends Happy Holidays and 

Best Wishes for the New Year.

11 Broadway, Suite 615
New York, New York 10004
Tel. (212)564-1589
Fax (973)621-9300
Website: www.lawschell.com

IMMIGRATION AND POLICY: Matter of Ramiro SANCHEZ-HERBERT, Respondent

IMMIGRATION AND POLICY: Matter of Ramiro SANCHEZ-HERBERT, Respondent: Posted by Norka M.  Schell, Esq.  www.lawschell.com Ramiro Sanchez-Herbert ("respondent") is a citizen of Mexico.  On October 16, 2007...