IMMIGRATION AND POLICY: The U.S. Supreme Court hears Oral Argument in Ariz...

IMMIGRATION AND POLICY: The U.S. Supreme Court hears Oral Argument in Ariz...: Norka M. Schell, Attorney-at-Law Law Offices of Norka M. Schell, LLC On Wednesday, the U.S. Supreme Court will hear Arizona v. United Sta...

The U.S. Supreme Court hears Oral Argument in Arizona v. United States - SB 1070

Norka M. Schell, Attorney-at-Law Law Offices of Norka M. Schell, LLC

On Wednesday, the U.S. Supreme Court will hear Arizona v. United States. Tomorrow, the State of Arizona will make its final argument in support of the Arizona Bill -- also known as SB 1070 -- to the U.S. Supreme Court. The justices will consider the legality of the four provisions of the SB 1070 in questions.

Since the SB 1070 was passed in 2010, it's been clear that it leads to racial profiling and discrimination. But it is also a clear unconstitutional violation because it preempts federal law. The SB 1070 requires that Police Officers check the immigration status of anyone they stop in the course of their duties and whom they "reasonable suspect" of being in the United States illegal -- this leads to racial profiling -- even those pulled over for routine traffic violations. If that individual can't provide the proper documentation, she or he may be detained or arrested. The law also authorizes Police Officers, who have received no training in the complexities of immigration law and procedure, to arrests without warrants if the Police Office "suspects" that the individual has committed a deportable offense. The problem with this provision is that the State of Arizona doesn't have the federal authority or the ability to make deportation determinations. That burden would ultimately fall to federal officials, who would be forced to shift the limited resources from the federal government which is now being used to deport individuals with felony conviction and/or multiple misdemeanor convictions - to detained individuals who are considered "low priority" cases simply "suspected" for being in the United States illegally.





P.S.
Amnesty International defines racial profiling as follows: According to Professor David Harris of the University of Toledo College of Law, a leading expert on racial profiling, criminal profiles are a set of personal and behavioral characteristics associated with particular offenses that police use to predict who may commit crimes in the future, or identify what type of person may have committed a particular crime for which no credible suspect has been identified or eye-witness description provided. Criminal profiling becomes racial profiling when these characteristics include race, ethnicity, nationality, or religion.

IMMIGRATION AND POLICY: Matter of Manohar Rao ARRABALLY and Sarala YERRABE...

IMMIGRATION AND POLICY: Matter of Manohar Rao ARRABALLY and Sarala YERRABE...: www.lawschell.com By: Norka M. Schell, Esq.  Beginning April 1, 1997, a person who has been unlawfully present in the U.S. for one year ...

Matter of Manohar Rao ARRABALLY and Sarala YERRABELLY

www.lawschell.com



By: Norka M. Schell, Esq. 

Beginning April 1, 1997, a person who has been unlawfully present in the U.S. for one year or more consecutively and again seeks admission is barred for 10 years from the date of such person's departure or removal from the U.S. INA section 212(a)(9)(B)(i)(II), 8 U.S.C. section 1182(a)(9)(i)(II). In order to trigger the 10-year bar, departure from the U.S. is required, H.R. Conf. Rep. 104-828, 104th Cong., 2d Sess. at 207.
The Board of Immigration Appeal (BIA) has clarified the term - departure --  in the Matter of Arrabally on April 17, 2012 which will help thousands of immigrant applicants who like Manohar Rao Arrabally have been entangled in the web of statutes, regulations, case law, and agency memoranda.

  Manohar Rao Arrabally and Sarala Yerrabelly (husband and wife) are natives and citizens of India who had overstayed their nonimmigrant visas. While they were unlawfully present in the U.S., they filed for their applications to adjust status to legal permanent residents with the United States Citizenship and Naturalization Services (USCIS). 

While their applications still pending, Mr. Arrabally and Mrs. Yerrabelly applied and were granted advance parole documents which gave them the authorization to travel to India to care for their aging parents and return to the U.S. to resume their Adjustment Status Applications. So, they travelled to India and returned to the United States within few month. 

Mr. Arrabally and Mrs. Yerrabelly adjustment status interview was scheduled. They appeared before an Immigration officer as required and were interviewed. The Immigration Officer did not issue a decision on that day. 

Few days later, Mr. Arrabally and Mrs. Yerrabelly received a correspondence from the USCIS informing them that their applications for the adjustment status were denied because they had departed this country (under grants of advance parole) after having been “unlawfully present” here for 1 year or more and were seeking admission less than 10 years after having departed, a set of circumstances that rendered them inadmissible under section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act.

Mr. Arrabally became very confused. He promptly sought reopening of his adjustment application before the USCIS, noting the humanitarian considerations that had prompted his request for advance parole and contending that he and his wife should not be punished for having departed the U.S. when the Department of Homeland Security (DHS) knew about, and expressly approved of, those departures by granting them advance parole. 

In response to Mr. Arrabally's request, a USCIS Field Office Director issued a decision acknowledging the force of some of the male respondent’s arguments but ultimately concluding that his inadmissibility under section 212(a)(9)(B)(i)(II) of the Act necessitated the denial of his application.

In arriving at that conclusion, the Field Office Director invoked Matter of Lemus, 24 I&N Dec. 373 (BIA 2007) (“Lemus I”), in which hold that section 245(i) adjustment is unavailable to aliens who are inadmissible under section 212(a)(9)(B)(i)(II) and are not eligible for a section 212(a)(9)(B)(v) waiver. Short thereafter, DHS started removal proceedings against Mr. Arrabally and  Mrs. Yerrabelly.

Mr. Arrabally and Yerrabelly appeared before an Immigration Judge as requested, conceded removability, and sought to renew their adjustment applications. The Immigration Judge found them inadmissible under section 212(a)(9)(B)(i)(II) of the Act and ineligible for section 245(i) adjustment, and he ordered them removed to India.

Mr. Arrabally and Yerrabelly appealed of the decision to the Board of Immigration Appeal. So the question presented to the Board of Immigration Appeal in this case was "whether the respondents (Mr. Arrabally and Mrs.Yerrabelly) who left the United States temporarily under a grant of advance parole, thereby effected a “departure,” which resulted in their inadmissibility under section 212(a)(9)(B)(i)(II)." 

The Board of Appeal hold that they did not. --- "An alien who leaves the  United States temporarily pursuant to a grant of an advance parole (I-131) does not thereby make a "departure ... from the United States" within the meaning of the section 212(a)(9)(B)(i)(II) (2006). Matter of Lemus, 24. I. & N. Dec. 373 (BIA) (2007). Clarified.

Consequently, Mr. Arraball's and Mrs. Yerrabelly's appeal were sustained in part and the records were remanded to the Immigration Judge for further proceedings. Decided on April 17, 2012. (Matter of Arrabally, & Yerrabelly, 25 I.&N. De. 771 (BIA 2012)).

 

IMMIGRATION AND POLICY: VISA PROCESSING FEES CHANGE

IMMIGRATION AND POLICY: VISA PROCESSING FEES CHANGE: Posted By:  Norka M. Schell, Attorney-at-Law at  Law Offices of Norka M. Schell, LLC Visa Processing Fees Change Today Effective today,...

VISA PROCESSING FEES CHANGE

Posted By:  Norka M. Schell, Attorney-at-Law at 
Law Offices of Norka M. Schell, LLC


Visa Processing Fees Change Today


Effective today, April 13, 2012, the Department of State will adjust visa processing fees. The fees most nonimmigrant visa applications and Border Crossing Cards will increase, while all immigrant visa processing fees will decrease. 


The Department is required to recover, as far as possible, the cost of processing visas through the collection of application fees. For number of reasons, the current fees no longer cover the actual cost of processing nonimmigrant visas. The nonimmigrant visa fee increase will support the additional and expansion of overseas facilities, as well as additional staffing required to meet increased visa demand. 


Although most categories of nonimmigrant visa processing fees will increase, the fee for E visas (treaty-trades and treaty-investors0 and K visas (for fiancee(e)s of U.S. citizens) will decrease. 


Nonimmigrant Visa Processing Fees

• Tourist, Business, Crew Member, Student, Exchange Visitor and Journalist visas. Previous Fee: $140.00 -  New Fee: $160.00
• Petition-Based on visas (H,L,O,P, Q, and R). Previous Fee: $150.00 - New Fee: $190.00
• Treaty Investor and Trader visas (E). Previous Fee: $390.00 -             New Fee: $270.00
• Fiance(e0 visas (K). Previous Fee: $350.00 - New Fee: $240.00
• Border Crossing Cards (age 15 and older). Previous Fee: $140.00 - New Fee $160.00
• Border Crossing Cards (under age 15). Previous Fee: $14.00 - New Fee $15.00

Because of a reallocation of costs associated with immigrant visas, all categories of immigrant visa processing fees will decrease.

Immigrant Visa Processing Fees

• Immediate Relative and Family Preference Application. Previous Fee $330.00 - New Fee $230.00
• Employment-Based Applications. Previous Fee $720.00  - New Fee $405.00
• Other Immigrant Visa Applications. Previous Fee $305.00  - New Fee $220.00
• Diversity Visa Program Fee. Previous Fee $440.00  - New Fee $330.00
• Determining Returning Resident Status. Previous Fee $380.00  - New Fee 275.00

         

IMMIGRATION AND POLICY: H-1B CATEGORY

IMMIGRATION AND POLICY: H-1B CATEGORY: Posted By Attorney Norka M. Schell Law Offices of Norka M. Schell http://www.lawschell.com/ The H-1B nonimmigrant visa category is limi...https://plus.google.com/u/0/b/109668596829989320629/109668596829989320629/posts/2Pa97wSANfJ

H-1B CATEGORY

Posted By Attorney Norka M. Schell
Law Offices of Norka M. Schell
http://www.lawschell.com/

The H-1B nonimmigrant visa category is limited by the terms of the statute to aliens coming to the United States to perform services in a "specialty occupation" for which the alien workers have the necessary credential.

The workers in this category may be filing permanent positions in the United States, as long as they depart the United States at the end of their authorized periods of stay, including any extensions of stay. H-1B workers do not need to maintain a foreign residence during their period of stay in the United States and they may seek permanent residence concurrently with petitioning for or holding H-1B status.

Aliens seeking to perform services in a specialy occupation must establish that they have the qualifications to undertake the services required for that specialty occupation. At a minimum, an alien in a specialty occupation must document that she has he or she has full state licensure to practice in the occupation, if such licensure is required to practice. The alien must also establish that he or she has completed the degree required as the minimum standard for entry into the occupation in the United States, or has experience in the specialty equivalent to the completion of such degree and recognition of expertise in the specialty through progressively responsible positions in the occupation.

Foreign medical graduates seeking admission to engage in direct patient care and health care workers (other than physicians) must meet certain additional requirements to be eligible for H-1B status. On April 2, 2012, the United States Citizenship and Naturalization Services started to accept H-1B petitions for the 2013 fiscal year.

If you need more information about H-1B petition, please contact Law Offices of Norka M. Schell at
(212)564-1589.

IMMIGRATION AND POLICY: USCIS Proposes Process Change for Certain Waivers ...

IMMIGRATION AND POLICY: USCIS Proposes Process Change for Certain Waivers ...: The USCIS proposes process change for certain waivers of inadmissibility RELEASED: March 30, 21012 Proposal would reduce time that the U...

USCIS Proposes Process Change for Certain Waivers of Inadmissibility

The USCIS proposes process change for certain waivers of inadmissibility

RELEASED: March 30, 21012

Proposal would reduce time that the U.S. citizens are separated from immediate relative WASHINGTON-U.S. Citizenship and Immigration Services (USCIS) today posted a Notice of Proposed Rulermaking (NPRM) in the Federal Register that would reduce the time U.S. citizens are separated from their spouses, children, and parents (i.e. immediate relatives) who must obtain an immigrant visa abroad to become lawful permanent residents of the United States. This rule would allow certain immediate relatives of U.S. citizens to apply for a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship.

The proposed rule will not alter how USCIS determines eligibility for a waiver of inadmissibility or how an individual establishes extreme hardship. The law is designed to avoid extreme hardship to U.S. citizens, which is precisely that this proposed rule will more effectively achieve," said USCIS Director Alejandro Mayorkas. "The current process can subject U.S. citizens to months of separation for family members who are waiting for their cases to be processed overseas. The proposed change will have tremendous impact on families by significantly reducing the time of separation."

USCIS also proposes creating a new form for immediate relatives of U.S. citizens who choose to apply for a provisional unlawful presence waiver. Once in effect, this form would be used for individuals filing an application for a provisional unlawful presence application before he or she departs the United States to complete the immigrant visa process at a U.S. Embassy or consulate abroad. The streamlined process would only apply to immediate relatives who are otherwise eligible for an immigrant visa based on an approved immediate relative petition.

The process outlined above is not in effect and is not available until USCIS publishes a final rule with an effective date in the Federal Register. USCIS will consider all public comments on the proposed rule announced today before publishing the final rule in the coming months. Individuals at this time should not be submit an application for a provisional unlawful presence waiver, or allow anyone to submit one on their behalf because it will be rejected.

USCIS encourages the public to submit format input on the proposed rule through www.regulations.gov during a comment period that runs from April 2, 2012 until June 1, 2012.

IMMIGRATION AND POLICY: Matter of LEMUS-Losa

IMMIGRATION AND POLICY: Matter of LEMUS-Losa: Posted by Norka M. Schell, Attorney-at-Law Law Offices of Norka M. Schell, LLC http://www.lawschell.com/ Board of Immigration Appeals ("...

Matter of LEMUS-Losa

Posted by Norka M. Schell, Attorney-at-Law
Law Offices of Norka M. Schell, LLC
http://www.lawschell.com/

Board of Immigration Appeals ("BIA") reaffirms decision that inadmissibility under Immigration and Nationality Act ("INA") 212 (a)(9)(B) renders person ineligible for adjustment of status under INA 245(i).


The respondent, Miguel Lemus-Losa, is a native and citizen of Mexico who first entered the U.S in 1998 or 1999 and remained in the U.S. for approximately two years. He then returned to Mexico in 2001 and remained there until 2003, at which time he again entered the U.S. and remained. Based on the 2003 unlawful entry, DHS initiated removal proceedings against Lemus-Losa in March 2005. In September 2005, based on an approved Petition for Alien Relative with a priority date of March 30, 1992, Lemus-Losa filed an application to adjust his status under § 245(i). His matter was adjourned until December 2005 to enable him to obtain a current visa priority date. The Board's decision noted that the IJ at that time suggested Lemus-Losa might not be eligible for adjustment based on his accrual of over one year of unlawful presence and subsequent entry within 10 years. At the December hearing the IJ denied a request for a second postponement of the matter, opining that it would be useless as Lemus-Losa was inadmissible under § 212(a)(9)(B)(i)(II) and therefore would not be able to adjust his status under § 245(i). Lemus-Losa appealed to the BIA after the IJ denied his request for reconsideration.

The Board, in dismissing the appeal, began by agreeing with the IJ's findings that Lemus-Losa was inadmissible because he was unlawfully present in the U.S. for two years, voluntarily returned to Mexico for roughly two years, and then entered the U.S. without inspection. Lemus-Losa had argued that the title of § 212(a)(9) is “Aliens previously removed” and as such the provisions do not apply to him because he was not removed but rather voluntarily left the U.S. The BIA rejected the argument however, relying on prior case law which held that “the heading of a section cannot limit the plain meaning of the text, and it is of use only when it sheds light on some ambiguous word or phrase.”

On Mar. 19, 2012, the Board of Immigration Appeals, after remand from the U.S. Court of Appeals for the Seventh Circuit reaffirm its prior decision in Matter of Lemus, 24 I &N; Dec. 373 (BIA 2007) that (1) an alien who is unlawfully present in the United States for a period of one year, departs the country, and then seeks admission within 10 years of the date of his or her departure from the United States is inadmissible under the INA 212 (a)(9)(B)(i)(II) [8 USCA 1182(a)(2)(B)(i)(II) (2000) even if the alien's departure was not pursuant to an order of removal and was not a voluntary departure in lieu of being subject to removal proceedings or at the conclusion of removal proceedings and (2) such an alien cannot adjust status under INA 245(i) [8 U.S.C.A. 1255(i)] absent a waiver under the INA 212(a)(9)(B)(v). The BIA nevertheless remanded the matter to the immigration judge to consider two issues: 1. Whether the passage of time has vitiated the respondent's inadmissibility under the INA 212 (a0(9)(B)(i)(II) as it appeared from the record that the respondent departed the United States more than 10 years ago, and 2. Whether as the DHS now contends, the respondent is also inadmissible under INA 212(a)(9)(C)(i)(I)[8 U.S.C.A. 1182 (a)(2)(C)(i)(I)] which the BIA found in Matter of Briones 24 I & N Dec. 355 (BIA 2007), would prevent adjustment of status under the INA 245(i).

IMMIGRATION AND POLICY: TEMPORARY PROTECTED STATUS FOR SYRIAN NATIONALS

IMMIGRATION AND POLICY: TEMPORARY PROTECTED STATUS FOR SYRIAN NATIONALS: FOR IMMEDIATE RELEASE MARCH 23, 2012 STATEMENT FROM SECRETARY OF HOMELAND SECURITY JANET NAPOLITANO ON TEMPORARY PROTECTED STATUS F...

TEMPORARY PROTECTED STATUS FOR SYRIAN NATIONALS

FOR IMMEDIATE RELEASE MARCH 23, 2012 STATEMENT FROM SECRETARY OF HOMELAND SECURITY JANET NAPOLITANO ON TEMPORARY PROTECTED STATUS FOR SYRIAN NATIONAL "In the light of the deteriorating condition in Syria, I am announcing the Department of Homeland Security will be designating Syria for Temporary Protected Status (TPS) for Syrians currently present in the United States. Conditions in Syria have worsened to the point where Syrian nationals already in the United States would face serious treats to their personal safety if they were to return to their home country. Early next week the Department will publish a notice in the Federal Register that will provide further guidance about TPS eligibility requirements and registration procedures. All applicants must undergo full background checks and while Syrians in the United States are encouraged to apply, they should not submit their applications before the notice is published."

GLOBAL ENTRY PROGRAM

Global Entry is an initiative of the Customs and Border Protection introduced in July 2011 that provides expedited immigration and customs clearance to pre-approved, low-risk air travels upon arrival in the United States to U.S. citizens, U.S. permanent residents, Canadian citizens, Canadian landed immigrants, Mexican citizens, and Dutch citizens who are members of Privium,the Netheland trust travel program. Qualified applicants can complete one application and receive access to all modes of travel into the United States by using automated kioski located at selected airport. The program is placed at the following 24 international airports in the United States: Boston-Logon International Airport, Chicago O 'Hare International Airport, Dallas/Ft. Worth International Airport, Detroit Metropolitan Airport, Ft. Lauderdale Hollywood International Airport, George Bush International Airport, Hartsfields-Jackson Atlanta International Airport, Honolulu International Airport, John F. Kennedy International Airport, McCarran International Airport, Los Angeles International Airport, Miami International Airport, Newark Liberty International Airport, Orlando International Airport, Philadelphia International Airport, San Francisco International Airport, San Juan-Luis Munoz Marin International Airport, Orlando-Sanford International Airport, Seattle-Tacoma International Airport, Washington-Dallas International Airport, Minneapolis-St. Paul International Airport, Charlotte Douglas International Airport, Denver International Airport, and Phoenix Sky Harbor International Airport. At the airports, program participants proceed to Global Entry kioskis, present their machine-readable passport or U.S. permanent resident card, place their fingertips on the scanner for fingerprint verification, and make a customs verification. The kioski issues the traveler a transaction receipt and direct them to baggage claim and exit.

IMMIGRATION AND POLICY: VISA WAIVER PROGRAM COMES AT A HIGH COST

IMMIGRATION AND POLICY: VISA WAIVER PROGRAM COMES AT A HIGH COST: Posted by Norka M. Schell, Esq. Congress established the Visa Waiver Program (VWP) "to facilitate international travel and promote the ...

VISA WAIVER PROGRAM COMES AT A HIGH COST

Posted by Norka M. Schell, Esq.

Congress established the Visa Waiver Program (VWP) "to facilitate international travel and promote the effective use of resources of affected government agencies while not posing a threat to the welfare, health, safety, and security of the United States." Nose v. Atty Gen., 993 F.2d 75, 77n. 2(5th Cir. 1993)(quoting 53 Fed. Reg. 24,898 (1988)). Under the VWP, a qualifying visitor may enter the United States without obtaining a visa, so long as, he or she meet the statutory and regulatory requirements. As part of the admission process under the VWP, a visitor must execute certain immigration form known as I-94W, Non immigrant Visa Waiver Arrival/Departure Form, presents a valid passport, and possesses a round-trip ticket. Once admitted under the VWP, a visitor may remain in the United States for 90 days. Under the VWP, a visitor must waive his or her right to contest the government's admissibility determinations and removal actions, except that the visitor may contest removal actions on the basis of asylum. The effects of this no-contest provision are severe. This is what Vera, a citizen of Argentina, found it out. In 2000, when Jordan Vera (also known as Jordana Vera-Serra)("Vera") was just 12-year-old, her Argentina parents brought her to the United States under the VWP. In 2011, while the Immigration Custom Enforcement agents were executing an arrest warrant for her brother, they took her into custody and scheduled removal without an appearance before an Immigration Judge, for staying beyond the 90 days that she was permitted to stay pursuant to the VWP under which she entered this country. Vera argued that the removal order was invalid because she was a minor when she entered in the United States and that she did not received procedural protections to which she would have been entitled absent such a waiver. The Third Circuit denied Vera's appeal, finding no prejudice resulting from their enforcement of the allegedly-defective waiver. The Court held that Vera would not have been allowed to enter without signing the waiver form (I-94W); if Vera had been of majority age and had knowingly and voluntarily had executed the waiver, she would not have been entitled to the procedural protections normally afforded to any alien prior to removal. There is no dispute that Vera knowingly and voluntarily signed the VWP waiver. Accordingly, Vera waived the due process right to a hearing before an immigration judge.

IMMIGRATION AND POLICY: VISA WAITING TIMES

IMMIGRATION AND POLICY: VISA WAITING TIMES: Posted by Norka M. Schell, Esq. The State Department has provided detail on a pilot program that will waive interviews for some nonimmi...

VISA WAITING TIMES

Posted by Norka M. Schell, Esq.

The State Department has provided detail on a pilot program that will waive interviews for some nonimmigrants visa applicants. Under the pilot program, which is expected to run through January 19, 2012, consular officers can waive nonimmigrant visa interviews for certain applicants who are renewing a visa more than 12 months but less than 48 months after the expiration of their visa, and within the same classification as the previous visa.

In the past, the standard procedure was for the visa applicant to make a personal appearance at the consulate, submit the application to a consular representative, and await issuance of the visa. The applicant usually waited in line at that office to submit the papers to a consular representative who made a preliminary review of the papers for completeness. After a wait, during which the papers were reviewed by a consular officer, the applicant would be called to a front counter, window, or desk to be questioned on the application by a consular officer. If the consular officer was satisfied that the visa should be issued, the visa applicant waited while the visa was affixed to his or her passport.

In most cases, the MRV fee and the application fee (if any) must be paid in advance of the interview appointment and evidence of such payment must be as part of the visa application.  On the date of the interview, the applicant must carry the necessary documents, including the appointment notice, visa application form confirmation page, proof of payment of the MRV fee, his or her passport, photos, and supporting documents establishing eligibility for the particular nonimmigrant visa sought.

Immediately preceding the interview with the consular official, the applicant will have his or her fingerprints scanned. This process enables consular offices to deny visas to persons on any watch list and to identify this applicant for purposes of future applications. Applicants will also be required to certify under penalty of perjury, before the interview, that they have read and understood the questions on the visa application and that all statements made on the application are true and correct. The purpose of the requirement is to counter any attempts by visa applicants to repudiate misstatements on their visa applications by claiming that someone else prepared their application and/or changed information on the application between the time of submission and time of the interview. During the interview the applicant will be asked questions addressing his or her eligibility for the visa classification sought and any inadmissibility issues that may apply. The applicant will also be asked to pay the reciprocity fee (if applicable) and any other fees (such as the anti-fraud fee in L-1 blanket petition cases).

Posts no longer provide same-day visa issuance. Issuance of the visa within a few days of the interview is common--the post will typically return the applicant’s passport with the visa using a pre-paid mailer provided by the applicant.

Significant visa issuance delays are possible particularly if there are issues with regard to any security checks that require further “administrative processing.”  Most issues are resolved within 60 days of application.

Information extracted from 2012 Thomson Reuters and U.S. Department of State

IMMIGRATION AND POLICY: 17-Month Extension Of OPT For Students With STEM D...

IMMIGRATION AND POLICY: 17-Month Extension Of OPT For Students With STEM D...: February 08, 2012 Posted by Norka M. Schell, Esq. On April 4, 2008 the Department of Homeland Security (DHS) announced the Optional Prac...

17-Month Extension Of OPT For Students With STEM Degree

February 08, 2012

Posted by Norka M. Schell, Esq.

On April 4, 2008 the Department of Homeland Security (DHS) announced the Optional Practical Training Interim Final Rule. Under that rule, the DHS extended the period of Optional Practical Training (OPT) from 12 to 29 months for qualified F-1 non-immigrant students. The extension also became available to F-1 students with a degree in science, technology, engineering, or mathematics who were employed by businesses enrolled in the E-Verify program.

On February 2, 2012, the Department of Homeland Security ("DHS") proposed another administrative reform. At this time, it proposes to expand eligibility for 17-month extension of Optional Practical Training (OPT) (12+17=29) for F-1 International Students to include a prior degree in science, technology, engineering and mathematics(STEM).

Currently, F-1 students who graduate in programs of study classified as STEM can obtain a 17-month extension of OPT as part of their F-1 status if their degree is included on the DHS list of eligibility for extension of OPT.

If the proposal is approved, it will expand eligibility for extension of OPT by including students with a STEM degree that is not the most recent degree that the student has received.  It will be good for the U.S. economy.

IMMIGRATION JUDGES AND BOARD MAY ADMINISTRATIVELY CLOSE REMOVAL PROCEEDINGS EVEN IF DHS OPPOSES IT

February 06, 2012

Posted by: Norka M. Schell, Esq.


The Matter of Gutierrez is now overruled by Bavakan Avetisyan.

The Board of Immigration Appeals (BIA) held that the Immigration Judges and Board may, in the exercise of independent judgment and discretion, administratively close proceedings under the appropriate circumstances, even if a party opposes. 25 I&N Dec. 688 (BIA 2012)

Bavakan Avetisyan is a woman who is native and citizen of Armenia. She came to the United States legally with a J-1 visa to pursue her studies. She overstayed her visa. She was placed into proceedings by the Department of Homeland Security (DHS). She married to an U.S. citizen and they have a child together. An immigrant petition was filed on her behalf and if approved, Avetisyan, she would eligible to an adjustment of status. While her immigrant petition still pending adjudication, Avetisyan requested the Immigration Judge to administratively close her case. DHS opposed to Avetisyan's request, and instead requested for a continuance of the proceedings. The Immigration Judge denied the DHS's request for continuance and granted Avetisyan's request to administratively close proceedings. The DHS filed an appeal. The appeal was decided and dismissed on January 31, 2012.

H-2 NUMBERS FOR TEMPORARY NON-AGRICULTURAL WORKER STILL AVAILABLE

February 01, 2012 Posted by Norka M. Schell, Esq. The H-2B visa category is used by U.S. companies temporarily to employ skilled or unskilled foreign nationals in nonagricultural positions for which the employer has a temporary need and for which qualified U.S. workers are unavailable. The company must intended to employ the foreign nationals for a temporary period and the employer's need for the skills possessed by the foreign nationals must also be temporary. H-2 numbers for Temporary non-agricultural worker continue to be available for employment in the first half of FY 2012 which runs from Oct. 1, 2011 to Mar. 31, 2012.

IMMIGRATION AND POLICY: TOURISM IS GOOD FOR AMERICA

IMMIGRATION AND POLICY: TOURISM IS GOOD FOR AMERICA: January 30, 2011 Posted by Norka M. Schell, Esq. Tourism is good for America, even President Obama knows that. On January 19, Presiden...

TOURISM IS GOOD FOR AMERICA

January 30, 2011 Posted by Norka M. Schell, Esq. Tourism is good for America, even President Obama knows that. On January 19, President Obama issues "Executive Order Establishing Visa and Foreign Visitor Processing Goals and Task Force on Travel and Competitiveness." The Travel and Tourism industry is one of the America's leading services sectors and sources of exports. The Executive Order is intended to improve visa and foreign visitor processing and travel promotion in order to create jobs and spur economic growth in the U.S. while continuing to protect national security. The Executive Order establishes a task force on travel and competitiveness to develop a national travel and truism strategy within 90 days of the date of the Executive Order. The task force is charged with: 1. Making recommendations for new policies and initiates to promote domestic and international travel opportunities throughout the United States with the goal of increasing the countries' market share of worldwide travel 2. Considering recommendations to promote and expand travel and tourism opportunities in rural communities, and 3. Identifying and barrier to increasing the United States market share of worldwide travel as well as any other related areas of concern. The President also directs his agencies to develop an implementation plan within 60 days of the Executive Order to (a) increase nonimmigrant visa processing capacity in Brazil and China by 40 percent over the coming year; (b) ensure the 80 percent of nonimmigrant visa applicants are interviewed within three weeks of receipt of application; (c) increase efforts to expand the Visa Waiver Program (VWP) and travel by nationals of VWP participants, and (4) expand reciprocal recognition programs for expedited travel, such as the Global Entry program. With responsibility and committment let's make easy for turists to visit the United States.

No Conviction, But No Freedom: ICE Jails Over 13,000 Immigrants

No Conviction, But No Freedom: ICE Jails Over 13,000 Immigrants

IMMIGRATION AND POLICY: The L-1 Visa Category

IMMIGRATION AND POLICY: The L-1 Visa Category: January 23, 2011 Posted by Norka M. Schell, Esq. The L nonimmigrant visa category is one of the most useful tools available to internati...

The L-1 Visa Category

January 23, 2011

Posted by Norka M. Schell, Esq.

The L nonimmigrant visa category is one of the most useful tools available to international companies needing to bring foreign employees to the United States.  If a few basic requirements can be met, many advantages exist to using the L category.

The L nonimmigrant visa category enables a U.S. employer to transfer a professional employee who are in managerial or executive roles, and specialized knowledge personnel relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the United States. It also enables a foreign company which does not yet have an affiliated U.S. office to send a specialized knowledge employee to the United States to help establish one.

The questions then are: Is the employee to be transferred currently working in an executive, managerial, or specialized knowledge capacity with the company abroad? Will he or she work in one of these capacity with your company in the United States?  

Which of the three capacities is to be filled by the employee in the United States is very important for two reasons:

(1) different limits on stay apply to executive and managers (seven years of    stay) and on specialized knowledge personnel (five years of stay); and

(2) managers and executives have a fast route to permanent residence, unavailable to specialized knowledge personnel, based on the creation of a new preference by the 1990 Act for L-1 types managers and executives.

With regard who qualifies as 'specialized knowledge" employee, the 1990 Act states that an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien:

-- has a specialized knowledge of the company product and its application in international markets, or

-- has an advanced level of knowledge of processes and procedures of the company.

An important note. If the U.S. company and the company abroad have no legal corporate relationship-one, it is not an L-1 situation.

Family members of the L-1, such as the spouse and minor unmarried children under the age of 21, are also entitled to admission in the United States. Once they are admitted, they receive a classification as L-2 status. The L-2 nonimmigrants can undertake courses of study in the U.S. and the spouses can apply and obtain employment authorization.

IMMIGRATION AND POLICY: Timing is Everything: Getting Your Driver's Licens...

IMMIGRATION AND POLICY: Timing is Everything: Getting Your Driver's Licens...: [Source: http://www.ice.gov/doclib/sevis/pdf/bm1112-05-dmv-timing.pdf ] To: All SEVIS Users Date: January 17, 2012 Re: Timing is Everyth...

Timing is Everything: Getting Your Driver's License or Social Security Number

[Source: http://www.ice.gov/doclib/sevis/pdf/bm1112-05-dmv-timing.pdf]

To: All SEVIS

Users Date: January 17, 2012 Re: Timing is Everything: Getting Your Driver’s License or Social Security Number Number 1112-05

Background

New F, M and J nonimmigrants often apply for a driver’s license or Social Security number (SSN) either too early after entering the United States or without the proper documentation. The purpose of the following information is to highlight best practices for incoming F, M and J nonimmigrants.1

Purpose

One of the first things a new F, M or J nonimmigrant typically wants to do after entering the United States is get a driver’s license or, where appropriate, an SSN. Like many things, however, correct timing is everything. The Student and Exchange Visitor Program wants all F, M or J nonimmigrants eligible for a driver’s license or an SSN to have the easiest experience possible. Following these six simple tips makes the process go much smoother and saves a lot of time in the end:

1. Wait 10 days after you arrive in the United States. You may want to apply for a driver’s license or SSN right away, but be patient. The 10-day wait allows time for all the government databases to update with your arrival information.

2. Know what you are applying for and if you are eligible. While you are waiting, talk with your school’s designated school official (DSO) or sponsor’s responsible officer (RO) or alternate responsible officer (ARO) to learn more about your state’s driving rules and regulations. If you want an SSN, have your DSO or RO/ARO confirm that you are eligible before you apply.

3.Make sure your record in the Student and Exchange Visitor Information System (SEVIS) is up-to-date and in Active status. SEVIS is the database that contains information for all F, M and J nonimmigrants in the United States. A DSO manages an F or M nonimmigrant’s SEVIS record. An RO/ARO manages an exchange visitor’s SEVIS record. The DSO or RO/ARO (whichever applies to you) must place your record in Active status when you report to the school or program. Talk with your DSO or RO/ARO before you apply for a license or SSN to make sure your record is Active in SEVIS. If your record is not Active when you apply, your application will be rejected.

F-1 and M-1 students, J-1 exchange visitors, and accompanying F-2, M-2 or J-2 dependents

4. Check your forms. Check all your forms to make sure your information is correct. This
is data integrity. Data integrity is very important because if you have different
information on different forms, it will cause delays. Specifically, check your Form I-94,
“Arrival/Departure Record,” for handwritten information. If the information on your
Form I-94 is different than on your passport or Form I-20, “Certificate of Eligibility for
Nonimmigrant Student Status,” or Form DS-2019, “Certificate of Eligibility for
Exchange Visitor (J-1) Status,” please see the DMV Fact Sheet for more information.

5. Wait two days after your DSO or RO/ARO activates your record in SEVIS. After
your DSO or RO/ARO activates your record in SEVIS, you should wait at least two
federal business days before you apply for a driver’s license or SSN. This gives all the
databases time to update with your new information.

6. Bring all your paperwork. When you go to the Department of Motor Vehicles (DMV) –
the common name for a state government office that issues driver’s licenses – or to the
Social Security office, remember to bring all your paperwork. For most states, the
paperwork includes these documents:

 Form I-20 or Form DS-2019

 Form I-94, “Arrival/Departure Record”

 Passport (with visa, if applicable)

 Proof of legal presence or residence (ask your DSO or RO/ARO what your state

requires)

For an SSN, you must also bring a letter of employment and an endorsed Form I-20 (for
F students). Exchange visitors should consult with their RO/ARO first to make sure the
Social Security Administration requires a letter of employment for the J category.

These six tips should help you get your driver’s license or SSN without having any major
problems. If you are interested in specific details about F-2, M-2 or J-2 dependents, please see
page 8 of the DMV Fact Sheet. Always talk with your DSO or RO/ARO before you try to apply.

Your DSO or RO/ARO may have more information about your particular state. Safe travels!

Learn More

Driving in the United States
http://studyinthestates.dhs.gov/students/resources/driving/

Obtaining a Social Security Number (SSN)
http://studyinthestates.dhs.gov/students/resources/social-security-number/

DMV Fact Sheet
http://www.ice.gov/doclib/sevis/pdf/dmv_factsheet.pdf