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...

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...

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, the DHS filed a notice to appear with the Immigration Court charging that Ramiro Sanchez-Herbert as being an alien present in the United States without being admitted or paroled under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2006).

Ramiro Sanchez-Herbert retained an immigration lawyer to assist him with his immigration proceedings. Ramiro Sanchez-Herbert appeared for his master calendar hearing with his lawyer and conceded removability. The Immigration Judge granted Ramiro Sanchez-Herbert a series of continuances relating to an application for adjustment status and other issues.

The Immigration Judge scheduled Ramiro Sanchez-Herbert’s master calendar hearing for February 3, 2011.  On February 3, 2011, at the master calendar hearing Ramiro Sanchez-Herbert’s lawyer appeared by himself because Ramiro Sanchez-Herbert left the country to Mexico.  The lawyer made a motion to terminate the proceedings, presenting evidence indicating that Ramiro Sanchez-Herbert had voluntarily returned to Mexico. The Department of Homeland Security (DHS) moved for the Immigration Judge to proceed with the hearing in absentia. The Immigration Judge granted Ramiro Sanchez-Herbert’s lawyer's motion to terminate the proceedings. The DHS appealed the Immigration Judge’s decision. The BIA granted the appealed.

Holding ---The Immigration Judge erred in terminating proceedings on the grounds that she did not have jurisdiction. The respondent’s departure from the United States after he was placed in proceedings did not disvest the Immigration Judge of jurisdiction over the proceedings. Once a notice to appear has been filed with the Immigration Court, jurisdiction vests.  As long as the allegations and charges stated in the notice to appear continue to be applicable, the alien remains subject to removal. See Matter of Brown, 18 I&N Dec. 324, 325 (BIA 1982).

An alien does not need to be physically in the United States for the Immigration Judge to retain jurisdiction over pending proceedings and to conduct an in absentia hearing. 

For assistance or information about immigration proceedings, please contact our office at (212)564-1589 to speak with an immigration attorney.

IMMIGRATION AND POLICY: Visa Bulletin For December 2012

IMMIGRATION AND POLICY: Visa Bulletin For December 2012:

Visa Bulletin For December 2012

FAMILY BASED PREFERENCE

Family-Sponsored	All Charge-ability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
F1	01DEC05	01DEC05	01DEC05	01JUL93	08OCT97
F2A	22AUG10	22AUG10	22AUG10	01AUG10	22AUG10
F2B	15NOV04	15NOV04	15NOV04	01NOV92	22MAR02
F3	08JUN02	08JUN02	08JUN02	01MAR93	01AUG92
F4	01APR01	01APR01	01APR01	22JUL96	22MAR89

EMPLOYMENT SPONSORED PREFERENCE

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	22OCT07	01SEP04	C	C
3rd	22DEC06	01JUL06	01NOV02	22DEC06	15AUG06
Other Workers	22DEC06	01JUL03	01NOV02	22DEC06	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

For detailed information, please visit our site at www.lawschell.com

USICS Holds Stakeholder Engagement on I-601 Waivers

Posted by Norka M. Schell, Esq.

www.lawschell.com 

On November 13, 2012, U.S. Citizenship and Immigration Services' (USCIS') Public Engagement Division held a stakeholder engagement to discuss the transition to centralized lockbox filing of Form I-601, Application for Waiver of Grounds of Inadmissibility, filed by applicants outside the U.S. 

Effective Dec. 5, 2012, applicants in Mexico may no longer file Form I-601, Application for Waiver 
of Grounds of Inadmissibility at the USCIS Ciudad Juarez Field Office or any associated Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. Applicants in Mexico must now file Form  I-601 and associated Form I-212 with the USCIS Phoenix Lockbox. 

On June 4, 2012, USCIS adopted a comprehensive change to the Form I-601 filing process for waiver applicants located outside the United States requiring that waiver filers located abroad file their waiver application with the USCIS Phoenix Lockbox. For the first 6 months of this change, through Dec. 4, 2012, USCIS made an exception allowing Form I-601 waiver applicants located in 
Mexico the option of filing their Form I-601 applications and any associated Forms I-212, with the USCIS Ciudad Juarez Field Office or with the USCIS Phoenix Lockbox. This exception expired on December 4, 2012. 

The announcement does not affect Form I-601 filings that may be eligible for processing by a USCIS international office due to exceptional and compelling humanitarian reasons or Form I-601 filings with the Havana Field Office for waiver applicants in Cuba. For further information, please call our office at (212)564-1589 or see the USCIS website at www.uscis.gov.

IMMIGRATION AND POLICY: Popsy Pop ice cream company agrees to pay more tha...

IMMIGRATION AND POLICY: Popsy Pop ice cream company agrees to pay more tha...: SOMERDALE, N.J.   -- Popsy Pop LLC in Somerdale has agreed to pay $34,200 in back wages to 55 workers and $48,000 in civil money penaltie...

Popsy Pop ice cream company agrees to pay more than $82,000 in back wages and penalties following US Labor Department investigation

SOMERDALE, N.J. -- Popsy Pop LLC in Somerdale has agreed to pay $34,200 in back wages to 55 workers and $48,000 in civil money penalties after an investigation by the U.S. Department of Labor’s Wage and Hour Division found willful violations of the H-2B provisions of the Immigration and Nationality Act.

The H-2B guest worker program permits employers to temporarily hire nonimmigrants to perform nonagricultural labor or services in the United States. Popsy Pop recruited workers from Eastern Europe, Central and South America and the Caribbean to drive trucks and sell ice cream throughout New Jersey, Pennsylvania and Delaware.

The investigation found that the company misrepresented the number of positions available and dates of need when submitting an application for workers under the H-2B program; misrepresented the wages to be paid when recruiting U.S. workers; placed workers in areas outside the area of intended employment described on the application; failed to pay the workers the offered wage rate indicated on the application; and failed to notify federal agencies — the U.S. Department of Labor and the U.S. Department of Homeland Security — when H-2B workers were separated early from their employment.

H-2B employment must be of a temporary nature, such as a one-time occurrence or for a seasonal or peak load need. The program requires the employer to attest to the Department of Labor that it will offer a wage that equals or exceeds the highest of the prevailing wage, applicable federal minimum wage, state minimum wage or local minimum wage for the occupation in the area of intended employment during the entire period of the approved certification. Additionally, certain recruitment and displacement standards have been established in order to protect similarly employed workers in the United States.

“Employers who bring in foreign workers under the H-2B program must demonstrate they have taken certain steps to recruit U.S. workers and will pay the foreign workers wages that do not have an adverse effect on wage rates for U.S. workers,” said Patrick Reilly, director of the Wage and Hour Division’s Southern New Jersey office. “This investigation revealed that H-2B workers were paid commissions not disclosed to potential U.S. workers during the recruitment period, which is likely to have discouraged them from applying for these positions.”

Under consent findings and an order signed by an administrative law judge of the Department of Labor, which provide for an enhanced compliance program in addition to the back wages and penalties, Popsy Pop agreed to comply fully with all terms of the H-2B program in the future; implement compliance monitoring through a neutral third party to review hiring, employment and payroll practices; and implement an improved program for seeking out qualified U.S. workers to fill jobs. The company also agreed that if it commits any future violations that go uncorrected, it will be subject to an automatic one-year debarment from the H-2B program.

For more information about federal wage laws, call the Law Offices of Norka M. Schell, LLC at (212)564-1589 or the Wage and Hour Division’s toll-free helpline at 866-4US-WAGE (487-9243) or its Southern New Jersey office at 609-538-8310, or visit http://www.dol.gov/whd.

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

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

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

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

DOL Issues Instructions for Business Affected by Hurricane Sandy

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

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

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

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

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

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

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

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

IMMIGRATION AND POLICY: Matter of Jaime Enrique VALENZUELA-FELI

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

Matter of Jaime Enrique VALENZUELA-FELI

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

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

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

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


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

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