IMMIGRATION AND POLICY: H-1B PROGRAM

IMMIGRATION AND POLICY: H-1B PROGRAM:

By: Norka M. Schell, Esq .

Before setting out to recruit or hire an H-1B foreign worker, employers should be aware of the legal requirements and procedural challenges involved in the program.

H-1B PROGRAM

By:  Norka M. Schell, Esq. 


The procedures involved in having a U.S. company sponsors foreign workers for the appropriate work visas that will enable the foreign workers to work for the company are largely bureaucratic and they were designed to help American companies to employ much needed skilled employees from abroad. One of these work visas is "H-1B" nonimmigrant visa. 


The H-1B program is most known for helping high-technology employers deal with the acute shortage of skilled workers in the domestic labor market. However, it is also used by employers in other fields to hire professionals with particular qualifications or skills.


The H-1B nonimmigrant visa category allows qualified foreign workers to engage in temporary professional employment in the United States, sponsored by a U.S. employer. By using the H-1B program, U.S. employers can recruit and hire foreign workers with appropriate professional credentials to perform services in a "specialty occupation." H-1B classification can be obtain for an initial period of three years, with a maximum total of six years. 


The Department of Labor regulations define a specialty occupation as an occupation that requires theoretical and practical application of a body of specialized knowledge, and attainment of a bachelor's degree or higher degree  (or equivalent) in the specific specialty as a minimum for entry into the occupation in the United States. 


The basic premise of the H-1B category is that there is a United States Employer making a bona fide, nonspeculative job offer for employment in a qualifying occupation to a qualified foreign professional. 


It is important to note that there is an annual limit of 65,000 to new issuance of H-1B nonimmigrant visa.


For more information about H-1B visa, contact the Offices of Norka M. Schell, LLC

IMMIGRATION AND POLICY: FOLLING HURRICANE IRENE

IMMIGRATION AND POLICY: FOLLING HURRICANE IRENE: To My Readers: I hope you and your families are safe following Hurricane Irene. Natural disasters are very stressful and I want to help whe...

FOLLING HURRICANE IRENE

To My Readers:

I hope you and your families are safe following Hurricane Irene. Natural disasters are very stressful and I want to help where I can. 

This week, I am expanding my effort to help those folks in the Tri-State area as they recover from the storm. 

I will extend my work hours to 8:00 P.M. and I will waive my consultation fees until September 10, 2011.

If you have storm-related problems or concerns, please call my office.

I hope these efforts can play a small part in easing some of your worries following the storm. If you need assistance, please call me at              (973)621-9300 or (212)564-1589.

Sincerely, 

Norka M. Schell, Esq. 

Offices of Norka M. Schell, LLC

11 Broadway, Ste. 650

New York, New York 10004 

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.

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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See www.uscis.gov

VISA BULLETIN FOR AUGUST 2011

AUGUST 2011 VISA BULLETIN 

IMMIGRATION AND POLICY: EXPLORING THE ECONOMICS OF IMMIGRATION

IMMIGRATION AND POLICY: EXPLORING THE ECONOMICS OF IMMIGRATION: "Posted by Norka M. Schell, Esq. In the United States, the economic consequences of immigration have been fiercely debated since the ninet..."

EXPLORING THE ECONOMICS OF IMMIGRATION

Posted by Norka M. Schell, Esq. 

In the United States, the economic consequences of immigration have been fiercely debated since the nineteenth century. Some of the debate has centered on fiscal questions, such as the amounts immigrants contribute in taxes and the amounts they receive in public welfare benefits. But most the animated debate has concerned the impact of immigrants on the labor market. Do they siphon jobs away form Americans? Do they, by consuming goods and services and by sustaining otherwise marginal companies or industries, create jobs for Americans.

Most economists today recognize the positive effects that immigration has in our economy.

On the economically optimum level of immigration, immigrants are entrepreneurial and create jobs in the United States. Immigrants started 25 percent of the highest-growth companies between 1990 and 2005, and  these companies directly employ an estimated 220,000 people inside the United States. These immigrant-founded companies include Intel,Google,Yahoo, and eBay, which have all helped drive American leadership in the computer and Internet revolutions and have stimulated business and job creation throughout our economy. These immigrants give the U.S.workforce an important competitive advantage. 


Research shows that immigrants are more likely than U.S. born workers to start new businesses and are among the most prolific inventors in the American economy, generating ideas that lead to new products and more jobs in many sectors including pharmaceuticals and information technology, It is in our national interest to encourage people with great ideas to create new business, industries, and quality jobs in the United States.

Recent research highlights that in the 1990s alone, skilled immigrants helped boost GDP per capita by between 1.4 percent and 2.4 percent. Currently, immigrants represent 24 percent of U.S. scientists and 47 percent of U.S. engineers with bachelor or doctorate degrees. Moreover, foreign-born students studying in our universities have the potential to make significant contributions to our future economic growth if they could stay and work in the United States after they graduate. Exporting this talent to other countries is not in our economic interest. 

Immigrants help address other fiscal challenges by paying their fair share of taxes. Studies consistently suggest that immigrants contribute more in taxes revenue than they use in services.

Texts extract from Building a 21st Century Immigration System: www.whitehouse.gov/immigrationaction.

Immigration And Refugee Law And Policy, Second Edition.

IMMIGRATION AND POLICY: IMMIGRATION AND POLICY: Justice Department Files a Lawsuit Alleging Employ...

IMMIGRATION AND POLICY: IMMIGRATION AND POLICY: Justice Department Files a Lawsuit Alleging Employ...

IMMIGRATION AND POLICY: Justice Department Files a Lawsuit Alleging Employ...

IMMIGRATION AND POLICY: PROTECTED CLASSES: "The Immigration Reform and Control Act of 1986 had as one of its principal purposes stemming the tide of illegal immigration. To accomplish ..."

Justice Department Files a Lawsuit Alleging Employment Discrimination

The Immigration Reform and Control Act of 1986 had as one of its principal purposes stemming the tide of illegal immigration. To accomplish this goal, the Act imposes penalties on employers who hire undocumented aliens. This proscription produced a fear that employer would react to the treat of penalties by refusing to hire all noncitizens (which, given the restrictive construction given to Title VII by the Court, would be permissible) and discriminating generally against "foreign looking" individuals. Consequently, the Act makes it an "unfair immigration-related practice to discriminate against any individual (other than an unauthorized alien)

(A) because of such individual's national origin, or
(B) in the case of a citizen or an intending citizen because of such   individual's citizenship status.

The proscriptions against national origin discrimination are a direct overlap with the proscriptions of national origin discrimination in Title VII. To avoid the problem of overlapping enforcement, the Immigration Reform and Control Act provides coverage to all employers of three or more employees, and exempts an entity's discrimination because of national origin discrimination if the entity is covered by Title VII. Thus, the Immigration Act proscribes national origin discrimination for all employers having between three and fifteen employees.

In prohibiting all employers from discriminating because of citizenship, the Immigration Act extended protections against alienage discrimination well beyond that provided in Title VII, and in so doing protected American citizens against discrimination which favored aliens.

These protections were not accomplished, however, by amending Title VII, and thus do not allow the enforcement actions of that statute to be invoked by a victim of citizenship discrimination. Rather, the Immigration Act established entirely new enforcement mechanisms and procedure within the Department of Justice.

On July 14, 2011 the Justice Department filed a lawsuit against Mar-Jac Poultry Inc., a poultry processing plant in Gainesville, Ga., alleging that Mar-Jacrequires all newly hired non-U.S. citizens to produce specific documents during the Form I-9 process in order to secure their jobs, but the company does not require U.S. citizens to produce any specific documentation. The non-U.S. citizens subjected to the practice were determined to be work authorized by E-Verify, the Department of Homeland Security's Internet-based employment eligibility verification system.

It appears that the Mar-Jac Poultry Inc.'s actions violate the Immigration Act and Title VII by preferring aliens from one nation or area over aliens of a different origin, and a form of citizenship discrimination.

For more information about protection against employment discrimination under the federal immigration law, contact the Law Offices of Norka M. Schell, LLC

IMMIGRATION AND POLICY: THE FIANCE(E) VISA K-1

IMMIGRATION AND POLICY: THE FIANCE(E) VISA K-1: "The K- 1 nonimmigrant visa category permits the fiance(e) of a United States Citizen petitioner to enter the United States for a 90-day peri..."

THE FIANCE(E) VISA K-1

The K-1 nonimmigrant visa category permits the fiance(e) of a United States Citizen petitioner to enter the United States for a 90-day period to marry the petitioner and apply permanent residence.

This is the best visa for a U.S. Citizen considering marriage to a foreigner. The fiance(e) visa is a temporary visa that permits a fiance(e) to travel to the United States and getting married, the fiance(e) can apply for the green card.

1. A fiance(e) visa holder can only adjust status based on the marriage to the fiance(e) petitioner.

2. A fiance(e) visa holder whose bona fide marriage to the fiance(e) visa petitioner is more than 2 years old at the time of the adjustment application is adjudicated is not subject to the provisions for conditional resident status under the section 216 of the Act. 

3. A fiance(e) visa holder satisfies the visa eligibility and visa availability requirements of section 245(a) of the Act on the date he or she is admitted to the United States as a K-1 nonimmigrant, provided that the fiance(e) enters into a bona fide marriage with the fiance(e) petitioner within 90 days.
Matter of SESAY, 25 I&N Dec. (BIA 2011).

For more information about fiance(e) visas, contact the Offices of Norka M. Schell, LLC

IMMIGRATION AND POLICY: Inadmissibility v. Deportability

IMMIGRATION AND POLICY: Inadmissibility v. Deportability: "There is often a great deal of confusion between inadmissibility and deportability. Current law provides for the removal of a wide range of ..."

Inadmissibility v. Deportability

There is often a great deal of confusion between inadmissibility and deportability. Current law provides for the removal of a wide range of individuals. In this context, removal means the ejection of a person from the United. Included in the Immigration and Nationality Act is a long list of "inadmissibility" and "deportability" provisions. The deportability provisions are applied to a person who has been formally admitted to the United States and the inadmissibility grounds are applied to those who have not been legally admitted tothe country. The procedure for ejecting or removing any person, irrespective of whether they have been legally admitted is termed a "removal" hearing. Prior to 1996, the immigration statute provided that questions involving the application of the inadmissibility and deportability provisions were, as general rule, governed by whether a person had gained entry into the United States. The proceedings for those seeking admission were called "exclusion hearings," and for those who had managed to enter, "deportation hearings." In the exclusion hearings, the Immigration Judge determine the applicability of the inadmissibility provisions. In deportation hearings, the Immigration Judge would determine the application of the deportability provisions. In 1996 the Illegal Immigration Reform and Immmigrant Responsibility Act ("IIRAIRA") was enacted. Since then, there have been more efforts at restricting immigrants' access to the courts and expanding the power to remove them.

For more information about Inadmissibility and Deportation, contact the the Law Offices of Norka M. Schell.

IMMIGRATION AND POLICY: REVERIFYING AND UPDATING EMPLOYMENT AUTHORIZATION

IMMIGRATION AND POLICY: REVERIFYING AND UPDATING EMPLOYMENT AUTHORIZATION: "USCIS and ICE are entities within Department of Homeland Security. Once again, auditors at the ICE are cracking down on Employers that are i..."

IMMIGRATION AND POLICY: REVERIFYING AND UPDATING EMPLOYMENT AUTHORIZATION

IMMIGRATION AND POLICY: REVERIFYING AND UPDATING EMPLOYMENT AUTHORIZATION: "USCIS and ICE are entities within Department of Homeland Security. Once again, auditors at the ICE are cracking down on Employers that are i..."

REVERIFYING AND UPDATING EMPLOYMENT AUTHORIZATION

USCIS and ICE are entities within Department of Homeland Security. Once again, auditors at the ICE are cracking down on Employers that are in violation of section 274A  " It is unlawful for a person or other entity to hire, or recruit or refer for a fee, for employment in the United States an alien knowingly the alien is an unauthorized alien (as defined in subsection (h)(3)) with respect to such employment..."

Generally, ICE can audit any employer who has three or more employees. This is a random selection. However, sometimes ICE will target specifics companies that traditionally hire undocumented worker and employers whose employees are privy to sensitive government information.

The purpose of the audits is to determine whether employees are properly authorized to work in the United States. Once ICE selected an employer to audit, the agency sends a notice of inspection requesting Form I-9 documentation, payroll records, copies of immigration filings, copies of SSA communications, information about independent contractors, and related employment information. The timeline for response is short, as ICE mandate that all documentation must be produced within three business days.

Employers that are found in violation of the section 274A of the Act can be subjected to civil and criminal penalties and injunctions for pattern or practice violations. Therefore, employers are encouraged to periodically review their Form I-9 for updated information.

If you think you or your company may be selected for an Audit, you should seek the advice of an immigration attorney immediately on what to do if you or your company is audited and you are questioned by an ICE officer.

If you are not sure whether you or your company is compliance with workplace eligibility laws, contact our law office for more information.

COMPREHENSIVE IMMIGRATION REFORM ACT OF 2011

BREAKING NEWS

On Wednesday, Senator Robert Menendez (D-NJ) introduced the "COMPREHENSIVE IMMIGRATION REFORM ACT OF 2011.

The bill proposes a balance of solutions to fix the U.S. immigration system, such as enhanced measures and a mandatory E-Verify Program, along with strategies to address the current population of undocumented workers, improvement to regulating future flows of legal immigration, a commission to study and regulate temporary worker programs, as well as efforts to support the integration of immigrants into America,

IMMIGRATION AND POLICY: POST CONVICTIONS RELIEF

IMMIGRATION AND POLICY: POST CONVICTIONS RELIEF

IMMIGRATION AND POLICY: POST CONVICTIONS RELIEF

IMMIGRATION AND POLICY: POST CONVICTIONS RELIEF: "Posted by Norka M. Schell The process of the U.S. Government to remove aliens that are viewed as having no right to remain in the United S..."

POST CONVICTIONS RELIEF

Posted by Norka M. Schell

The process of the U.S. Government to remove aliens that are viewed as having no right to remain in the United States is in a state of flux.


Generally, a lawful permanent resident ( "LPR") is placed in removal proceedings when he is convicted of a theft offense or is convicted of a crime of violence where the sentence imposed was at least 1 year of imprisonment aggravated felony.  When this is case, an immigration judge ("IJ") will first determined whether the LPR now referred to as "Respondent" is subject to removal on the ground of the criminal conviction. Assuming that Respondent's conviction has been vacated or his sentence has been reduced to less than 1 year, now the IJ will find that Respondent is not removable and the proceedings will be terminated, and the Respondent will retain his or her LPR status.  

If Respondent were removed from the United States prior to vacate his underlying conviction, he would have been prevented from presenting new evidence in his removal case - evidence that potentially could change the outcome - because he were outside of the United States.

In Reyes-Torres v. Holder, the United States Court of Appeals for the Ninth Circuit recently reversed the BIA decision and granted Mr. Reyes-Torres the right to reopen his case from outside of the United States.

This is the case of Reyes-Torres. Reyes-Torres is a native and citizen of Mexico who obtained lawful permanent residence status (LPR) in 1964. Since then he has been convicted of two crimes. In 1984, Reyes-Torres was convicted of transporting aliens in violation of 8 U.S.C. section 2324(a)(2). In 2007, he was convicted of possession of a controlled substance in violation of California Health and Safety Code Section 11377(a).

The Department of Homeland Security ("DHS") served Reyes-Torres with a Notice to Appear ("NTA") in 2008, charging him with being removable pursuant to: (1) 8 U.S.C. Section 1227(a)(2)(A)(iii) as an alien who has been convicted of an aggravated felony; and (2) 8 U.S.C. Section 1227(a)(2)(B)(i) as an alien who has been convicted of a law relating to a controlled substance. At a hearing before an immigration judge ("IJ"), Reyes-Torres admitted the factual allegations in the NTA, contested removability on the basis of the aggravated felony charge, and conceded removability on the basis of his controlled substance violation. He also stated his intention to seek relief from deportation in the form of cancellation of removal. Howeverf, cancellation of removal relief is unavailable to permanent residents who have been convicted of any aggravated felony. 8 U.S.C. Section 1229b(a)(3).

The IJ issued a written decision finding that because Reyes-Torres's alien transportation conviction constituted an aggravated felony, he was ineligible for relief in the form of cancellation of removal. IJ also ordered him removed to Mexico. Reyes-Torres appealed to the BIA but and the the IJ's decision on September 26, 2008 was upheld.

Reyes-Torres was removed from the United States on October 3, 2008. On October 22, 2008, a California Superior Court judge granted Reyes-Torres's motion to withdraw his guilty plea to the controlled substance charge resulting in his 2007 controlled substance conviction. The judge granted the motion on the ground that Reyes-Torres was not adequately informed of the immigration consequences of the plea. Reyes-Torres now has a clean criminal record, not only under the state law but for immigration purpose as well.  However, vacate of the conviction would have no immediate effect on his immigration status. Reyes-Torres is still a former permanent resident who has been removed as an "aggravated felon." He no longer has a green card, or any other status that would permit him to return to the United States. 

Procedurally, the only way to turn back the clock and restore Reyes-Torres's LPR would be to seek reopening of the removal proceeding from the IJ who ordered him removed or from BIA if it affirmed the removal order. However, federal appellant court have prevented non citizens from presenting new evidence in their cases because they were outside the United States.

On October 27, 2008, Reyes-Torres filed with the BIA a motion to reconsider and reopen proceedings based on the new evidence of the vacated conviction. 

On December 22, 2008, the BIA dismissed Reyes-Torres's motion to reopen and reconsider, concluding that it lacked jurisdiction because Reyes-Torres has been removed from the United States prior to its filing.  The BIA cited the "departure bar" in 8 C.F. R. Section 1003.2(d) for this proposition.  

Reyes-Torres timely petitioned for review of both the BIA's September 26, 2008 decision dismissing his appeal and the BIA's December 22, 2008 decision dismissing his motion to reconsider and reopen.

In its review, the United States Court of Appeals for the Ninth Circuit  did not find necessary to decide whether Reyes-Torres's 1984 conviction  constituted an aggravated felony for removal purposes  because the Anti-Drug Abuse Act of 1988 ("ADAA") which created the category of crimes denominated "aggravated felonies" and provided that aliens convicted of such "aggravated felonies" were subjected to deportation - was enacted November 18, 1988. Since, Reyes-Torres's conviction for alien transportation occurred prior to November 18, 1988, it cannot constitute a removable aggravated felony.

The 2007 guilty pleas has since been vacated and can no longer serve as a basis for removability.

The United States Court of Appeals for the Ninth Circuit granted Reyes-Torres the petition for review and recommend this case to the BIA for further action consistent with its opinion.
_____________________________________________________________________________

Rachel E. Rosenbloom, Northeastern University - School of Law-
American Immigration Council - Court Protects Immigrant's Rights to Reopen Cases from the Outside the US
Ruben Reyes-Torres, United States Court of Appeal for the Ninth Circuit

IMMIGRATION AND POLICY: PREEMPTION ISSUES

IMMIGRATION AND POLICY: PREEMPTION ISSUES: "Posted by Norka M. Schell In the last few years we have seen an intensified public debate over the issue of undocumented immigrants in the..."

PREEMPTION ISSUES

Posted by Norka M. Schell

In the last few years we have seen an intensified public debate over the issue of undocumented immigrants in the United States. Despite Congress determination to address undocumented immigration, it failed to pass comprehensive legislation. Inertia on the part of the federal government is to blame for the frustration at the local level. Since then, a number of states are venting their frustation with the current immigration system. California, Colorado, Florida, Georgia, Indiana, Kentucky, Maine, Maryland, Mississippi, Nebraska, Oregon, South Caroline, Texas, Utah, Alabama, Virginia, and Arizona decided to do something about the immigration problem and have already passed states laws to get tough on immigration and to send a message to the the federal government that something needed to be done now.

States and local ordinances is problematic because it is unnecessarily confusing and blurs the roles and boundaries of the state and local government and federal goverment.

PREEMPTION ISSUES

The determination that a state law or a local ordinance is preempted by federal law originates in the "Supreme Clause" (U.S. Const. art. VI, cl. 2) of the United States Constitution. Preemption may be express or implied. Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 517-29 (M. D. Pa. 2007) [striking down local ordinance that prohibits hiring undocumented persons because it is expressly preempted by IRCA, and striking down the city's tenant registration provisions because they impliedly conflict with federal law]; same as to ordinance requiring tenants to present evidence citizenhip or eligible immigration status. Implied preemption arises where Congress has occupied to subject area to the preclusion of state or local laws because of the nature of the federal interest or the pervasiveness of the federal regulatory scheme or because the state or lacal law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of the Congress or if it is impossible for a party to comply with both state and federal law. Lazano, supra at 525-29. Where sate does not actually conflict with federal immigration law and where area of alw is not traditionally occupied by federal law, state law will be respected. De Canas v. Bica, 424 U.S. 351 (1976). In De Canas the Court adopted three tests to determine whether  a state law relating to immigration is preempted by federal law. A state statute will be deemed preempted if (1) the state law is a regulation of immigration; (2) Congress intended to completely oust state power; (3) the state law stands as "obstacle" to the accomplishment  of congressional objectives or conflicts with federal law, making compliance with both state and federal impossible.

In Chamber of Commerce of the United States of America vs. Whiting, No. 09-115, 2011 WL 2039365 (S. Ct. May 26, 2011) the U.S. Supreme Court held that the legal Arizona Workers Act (LAWA) which provides that the licenses of state employers that knowingly or intentionally employ unauthorized aliens may be, and in certain circumstances must be suspended or revoked and requires all Arizona employers to use the E-Verify system to confirm that their employees are authorized to work in the United States, is not preempted by federal law.

IRCA AND IIRIRA

Justice Roberts began by saying,  "Federal immigration law expressly preempts "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ... unauthorized aliens. A recent enacted Arizona statute -- the Legal Arizona Worker Act -- provides that the licenses of state employers that knowingly or intentionally employ unauthorized aliens may be, and in certain circumstances must be, suspended or revoked. The law also requires that all Arizona employers use a federal electronic verification system to confirm that the workers they employ are legally authorized workers. The question presented is whether federal immigration  law preempts those provisions of Arizona law. Because we conclude that the State's licensing provisions fall squarely within the federal statute's saving clause and that the Arizona regulation does not otherwise conflict with the federal law, we hold that the Arizona law is not preempted."

"Our task then is to make our national laws actually work - to shape a system that reflects our values as a nation of laws and a nation of immigrants. And that means being honest about the problem, and getting past the false debates that divide the country rather than bring it together." President Obama, January 25, 2011

WAIVER OF MISREPRESENTATION OR FRAUD

Posted by:  NORKA M. SCHELL

Under section 212(a)(6)(C)(i) of the INA, and alien who, by fraud or willful misrepresentation of a material fact, seeks to procure, has sought to procure, or has procured a visa, other documentation, or admission into he United States or other benefit provided under the Act, is inadmissible. However, the Attorney General may, in his discretion, waive the application of section 212(a)(6)(C)(i) of the Act in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that refusal of admission to the United States of the alien would result in extreme hardship to the citizen of lawful resident spouse or parent of the alien. INA 212(i).


" M is a native of Peru who first entered the United States in October of 1996 as a visitor using her Peruvian passport which indicated that she was married and listed her married name.  The stamps in her passport indicated that she departed and returned to the United States several times between 1996 and 1999.

M was married to Joe in  1976 in Peru and together the couple had four children. Joe filed paper to end  their marriage in February 1197 and appeared in court in May 1997 to sign additional papers.  Unfortunately to M, her divorce did not become final in May 1997, but in fact became final on October 29, 1998.

Notwithstanding,  M married Paul on August 21 1997.  Paul filed alien relative petition  on M's behalf in September 1997.

In the petition, Paul listed M's name as married name and indicated that she entered the United States on an uncertain date without having been inspected or admitted. The petition claimed that M was married to Paul  and had never been previously married or divorced. The petition only listed  M as having one child.

In support of her petition, M listed no former husbands in the biographic information sheet. In further support of the petition, M  provided a Peruvian passport issued by the Peruvian Consulate Office in New Jersey in July 1997.  The passport listed her name as M and indicated that she was unmarried. The alien relative petition was approved in 1998.

In July 2000, M filed a petition to adjust her status to a lawful permanent resident based upon her marriage to Paul. In her application, again, M claimed that she entered in the United States without inspection and listed only the two children she had with Paul.

Because M sought her adjustment status on a basis of having entered the United States  without inspection, she was required to file a waiver request with the Attorney General which she did in September 2001. Ultimately, her application was granted and her status was adjusted to a lawful permanent resident on 2002. Notably M readily acknowledges that she made misrepresentations in obtaining legal permanent residence.

M alleges that the cause of her misrepresentations (omitting her four children and failing to acknowledge her last marriage) was physical and mental abuse by Paul who she divorced in February 2003.

On October 26, 2006, M married Sam. Shortly after M filed an application for naturalization. In this application, M did not review her prior married names, nor did she acknowledge her prior marriages (Joe and Paul); but for the first time, she revealed all six of her children.

In her application, M also answer "NO" question 22, which asked whether she had ever been married to two persons at the same time. Further M answered "NO" to question 23, which asked if she had ever given false misleading information to any U. S. Government official while applying for any immigration benefits.

Finally, M answered "NO" to question 24, which asked if she had lied to any U.S. Government official to gain entry  or admission to the United States.

As to question regarding previous marriages, M listed Joe e Paul.  M provided documentation showing that she had been married to Paul when she was married to Joe.

United States Citizenship and Services (USCIS) denied M's naturalization application because it found that she lacked " good moral character" and because she was not lawfully admitted as permanent resident.  Specially, the decision noted that M canceled her other children and her prior marriage in the past filings, she lied under oath regarding her prior marriage to Joe, she failed to reveal her married name and she had a bigamous relationship with Paul.

In December 2007, M sougth administrative review of her naturalization application request. The USCIS affirmed the denial and M filed the Petition for Review of Naturalization, pro se, on 2009.  Respondents moved to dismissed and /or summary judgement on August 2009.

The Court granted Respondents' motion to summary judgement."

______________________________________________________________________________
See Leonarda Moore v. John E. Thompson, Janet Napolitano.
Civil No. 09-1747.

IMMIGRATION AND POLICY: TRAVEL WARNING

IMMIGRATION AND POLICY: TRAVEL WARNING: "'The U.S. Department of State recommends that U.S. citizens avoid travel to Egypt due to ongoing political and social unrest. On January 30,..."

TRAVEL WARNING

"The U.S. Department of State recommends that U.S. citizens avoid travel to Egypt due to ongoing political and social unrest. On January 30, the Department of State authorized the voluntary departure of dependents and non-emergency employees. Violent demonstrations have occurred in several areas of Cairo, Alexandria and other part of the country, disrupting road travel between centers and airports.  U.S. citizens currently in Egypt should consider leaving as soon as they can safety do so. Travelers should remain in contact with their airlines or tour operators concerning fight schedules and arrange to arrive at the airport well before the curfew hours from 3:00 p.m. to 8:00 a.m.

U.S. citizens in Egypt who require assistance, or those who are concerned that their U.S. citizen loved one in Egypt may require assistance, should contact the U.S. Department of State and the U.S. Embassy in Cairo at
EgypEmergencyUS@state.gov  or call 1-202-501-4444."  For more information go to htt://travel.state.gov