Deferred Action Process for Young People Who Are Low Enforcement Priorities

Posted by Norka M. Schell, Esq. 
Law Offices of Norka M. Schell, LLC
11 Broadway, Suite 615, New York, NY 10004
Phone (212)564-1589

Deferred Action Process for Young People Who Are Low Enforcement Priorities Update

"U.S. Citizenship and Immigration Services (USCIS) alerts eligible individuals NOT to submit a deferred action request under the Deferred Action Process for Young People memorandum issued by Secretary Napolitano on June 15. If you submit now, your application will be rejected. The Secretary’s directive gives USCIS 60 days to create a process to accept these requests and we are unable to accept requests at this time.  Please continue to check our website for updates."

"Over the past three years, this Administration has undertaken an unprecedented effort to transform the immigration enforcement system into one that focuses on public safety, border security and the integrity of the immigration system. As DHS continues to focus its limited enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety, including aliens convicted of crimes, with particular emphasis on violent criminals, felons, and repeat offenders, DHS will move to exercise prosecutorial discretion to ensure that enforcement resources are not expended on low priority cases, such as individuals who were brought to this country through no fault of their own as children, have not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, and meet other key criteria.

Effective immediately, certain young people who were brought to the United States through no fault of their own as young children and meet several key criteria will be considered for relief from removal from the country or entered into removal proceedings. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal.

Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action. Individuals will not be eligible if they are not currently in the United States and cannot prove that they have been physically present in the United States for a continuous period of not less than 5 years immediately preceding today’s date. The use of prosecutorial discretion confers no substantive right or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.

While this guidance takes effect immediately, USCIS and ICE expect to begin implementation of the application processes within sixty days. Do not apply -  this application process is not yet available. If you apply early, your application will be rejected.  Beginning June18, 2012, individuals can call USCIS’ hotline at 1-800-375-5283 or ICE’s hotline at 1-888-351-4024 during business hours with questions or to request more information on the forthcoming process.

Frequently Asked Questions

Who is eligible to receive deferred action under the Department’s new directive?
Pursuant to the Secretary’s June 15, 2012 memorandum, in order to be eligible for deferred action, individuals must:

1. Have come to the United States under the age of sixteen;
2. Have continuously resided in the United States for at least five years preceding June 15, 2012 and are present in the United States on June 15, 2012;
3. Currently be in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
5. Not be above the age of thirty.

Individuals must also complete a background check and, for those individuals who make a request to USCIS and are not subject to a final order of removal, must be 15 years old or older.

What is deferred action?
Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Deferred action does not confer lawful status upon an individual. In addition, although an alien granted deferred action will not be considered to be accruing unlawful presence in the United States during the period deferred action is in effect, deferred action does not absolve individuals of any previous or subsequent periods of unlawful presence.

Under existing regulations, an individual who has been granted deferred action is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate “an economic necessity for employment.” Deferred action can be terminated at any time at the agency’s discretion or renewed by the agency.

How will the new directive be implemented?
Individuals who are not in removal proceedings or who are subject to a final order of removal will need to submit a request for a review of their case and supporting evidence to U.S. Citizenship and Immigration Services (USCIS). Individuals may request deferred action if they meet the eligibility criteria. In the coming weeks, USCIS will outline and announce the procedures by which individuals can engage in this process. This process is not yet in effect and requests should not be submitted at this time. Beginning June 18, individuals may call the USCIS hotline at 1-800-375-5283, from 8 a.m. to 8 p.m., with questions or to request more information on the new process. The hotline offers assistance in English and Spanish. Individuals seeking more information on the new process should visit USCIS’s website (at http://www.uscis.gov).

For individuals who are in removal proceedings before the Executive Office for Immigration Review, ICE will, in the coming weeks, announce the process by which qualified individuals may request a review of their case. Additional information is available from the ICE Office of the Public Advocate at http://www.ice.gov/about/offices/enforcement-removal-operations/publicadvocate/Beginning June 18, individuals may call the ICE hotline at 1-888-351-4024, from 9 a.m. to 5 p.m., with questions or to request more information on the new process.

For individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria as part of ICE’s case-by-case review, ICE will immediately begin to offer deferred action for a period of two years, subject to renewal.

Are individuals who receive deferred action pursuant to the new directive eligible for employment authorization?
Yes. Pursuant to existing regulations, individuals who receive deferred action may apply for and may obtain employment authorization from USCIS provided they can demonstrate an economic necessity for their employment. Information about employment authorization requests is available on USCIS’s website at http://www.uscis.gov/i-765.

Does the process result in permanent lawful status for beneficiaries?
No. The grant of deferred action under this new directive does not provide an individual with permanent lawful status or a pathway to obtaining permanent lawful status. Only the Congress, acting through its legislative authority, can confer the right to permanent lawful status.

Why will deferred actions only be granted for two years?
Grants of deferred action will be issued in increments of two years. At the expiration of the two year period, the grant of deferred action can be renewed, pending a review of the individual case.

If an individual’s period of deferred action is extended, will individuals need to re-apply for an extension of their employment authorization?
Yes. If an individual applies for and receives an extension of the period for which he or she was granted deferred action, he or she must also request an extension of his or her employment authorization.

Does this policy apply to those who are subject to a final order of removal?
Yes. An individual subject to a final order of removal who can demonstrate that he or she meets the eligibility criteria can request a review of his or her case and receive deferred action for a period of two years, subject to renewal. All cases will be considered on an individualized basis.

This process is not yet in effect and requests should not be submitted at this time. In the coming weeks, USCIS will outline and announce the procedures by which individuals can engage in this process. Beginning June 18, individuals may call the USCIS hotline at 1-800-375-5283, from 8 a.m. to 8 p.m., with questions or to request more information on the new process. The hotline offers assistance in English and Spanish. Individuals seeking more information on the new process should visit USCIS’s website (at http://www.uscis.gov).

How soon after USCIS receives a request to review a case will the individual receive a decision on his or her request?
USCIS will provide additional information on this issue in the coming weeks. Information will be made publicly available at http://www.uscis.gov/.

If an individual who is about to be removed by ICE believes he or she satisfies the eligibility criteria for the new process, what steps should he or she take to ensure his or her case is reviewed before removal?
Individuals who believe they can demonstrate that they satisfy the eligibility criteria and are about to be removed should immediately contact either the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week) or the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9am – 5pm, Monday – Friday) or by e-mail at EROPublicAdvocate@ice.dhs.gov.

If an individual who satisfies the eligibility criteria is encountered by Customs and Border Protection (CBP) or ICE, will he or she be placed into removal proceedings?
This policy is intended to allow ICE and CBP to focus on priority cases. Pursuant to the direction of the Secretary of Homeland Security, for individuals who satisfy the eligibility criteria, CBP or ICE should exercise their discretion to prevent them from being apprehended, placed into removal proceedings, or removed. If individuals, including individuals in detention, believe they were placed into removal proceedings in violation of this policy, they should contact either the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week) or the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9am – 5pm, Monday – Friday) or by e-mail at EROPublicAdvocate@ice.dhs.gov.

If an individual accepted an offer of administrative closure under the case-by-case review process or if his or her case was terminated as part of the case-by-case review process, can he or she receive deferred action under the new process?
Yes. Individuals who can demonstrate that they meet the eligibility criteria will be eligible for deferred action even if they had accepted an offer of administrative closure or termination under the case-by-case review process. For individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria as part of ICE’s case-by-case review, ICE will immediately begin to offer deferred action for a period of two years, subject to renewal.

If an individual declined an offer of administrative closure under the case-by-case review process, can he or she receive deferred action under the new process?
Yes. Individuals who can demonstrate that they meet the eligibility criteria will be eligible for deferred action even if they declined an offer of administrative closure under the case-by-case review process.

If an individual’s case was reviewed as part of the case-by-case review process but he or she was not offered administrative closure, can he or she receive deferred action under the new process?
Yes. Individuals who can demonstrate that they meet the eligibility criteria will be eligible for deferred action even if they were not offered administrative closure following review of their case as part of the case-by-case review process.

Will DHS personnel responsible for reviewing requests for an exercise of prosecutorial discretion under this process receive special training?
Yes. ICE and USCIS personnel responsible for considering requests for an exercise of prosecutorial discretion under the Secretary’s directive will receive special training.

Will individuals be subject to background checks before they can receive an exercise of prosecutorial discretion?
Yes. All individuals will undergo biographic and biometric background checks prior to receiving an exercise of prosecutorial discretion. Individuals who have been convicted of any felony, a significant misdemeanor offense, three or more misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or otherwise pose a threat to national security or public safety are not eligible to be considered for deferred action under the new process.

What do background checks involve?
Background checks involve checking biographic and biometric information provided by the individuals against a variety of databases maintained by DHS and other federal government agencies.

What documentation will be sufficient to demonstrate that an individual came to the United States before the age of 16?
Documentation sufficient for an individual to demonstrate that he or she came to the United States before the age of 16 includes, but is not limited to: financial records, medical records, school records, employment records, and military records.

What documentation will be sufficient to demonstrate that an individual has resided in the United States for a least five years preceding June 15, 2012?
Documentation sufficient for an individual to demonstrate that he or she has resided in the United States for at five years immediately preceding June 15, 2012 includes, but is not limited to: financial records, medical records, school records, employment records, and military records.

What documentation will be sufficient to demonstrate that an individual was physically present in the United States as of June 15, 2012?
Documentation sufficient for an individual to demonstrate that he or she was physically present on June 15, 2012, the date the memorandum was issued, includes, but is not limited to: financial records, medical records, school records, employment records, and military records.

What documentation will be sufficient to demonstrate that an individual is currently in school, has graduated from high school, or has obtained a general education development certificate (GED)?
Documentation sufficient for an individual to demonstrate that he or she is currently in school, has graduated from high school, or has obtained a GED certificate includes, but is not limited to: diplomas, GED certificates, report cards, and school transcripts.

What documentation will be sufficient to demonstrate that an individual is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States?
Documentation sufficient for an individual to demonstrate that he or she is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States includes, but is not limited to: report of separation forms, military personnel records, and military health records.

What steps will USCIS and ICE take to prevent fraud in the new processes?
An individual who knowingly makes a misrepresentation to USCIS or ICE, or knowingly fails to disclose facts to USCIS or ICE, in an effort to receive deferred action or work authorization in this new process will be treated as an immigration enforcement priority to the fullest extent permitted by law, subjecting the individual to criminal prosecution and/or removal from the United States.

Are individuals with a conviction for a felony offense, a significant misdemeanor offense, or multiple misdemeanors eligible for an exercise of prosecutorial discretion under this new process?
No. Individuals who have been convicted of a felony offense, a significant misdemeanor offense, or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct are not eligible to be considered for deferred action under the new process.

What offenses qualify as a felony?
A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.

What offenses qualify as a “significant misdemeanor”?
A significant misdemeanor is a federal, state, or local criminal offense punishable by no more than one year of imprisonment or even no imprisonment that involves: violence, threats, or assault, including domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; driving under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs.

How many non-significant misdemeanors constitute “multiple misdemeanors” making an individual ineligible for an exercise of prosecutorial discretion under this new process?
An individual who is not convicted of a significant misdemeanor but is convicted of three or more other misdemeanors not occurring on the same day and not arising out of the same act, omission, or scheme of misconduct is not eligible to be considered for deferred action under this new process.

What qualifies as a national security or public safety threat?
If the background check or other information uncovered during the review of an individual’s request for deferred action indicates that the individual’s presence in the United States threatens public safety or national security, he or she will be ineligible for an exercise of prosecutorial discretion. Indicia that an individual poses such a threat include, but are not limited to, gang membership, participation in criminal activities, or participation in activities that threaten the United States.

How will ICE and USCIS handle cases involving individuals who do not satisfy the eligibility criteria under this new process but may be eligible for an exercise of prosecutorial discretion under the June 2011 Prosecutorial Discretion Memoranda?
If an individual has a final order of removal and USCIS determines that he or she does not satisfy the eligibility criteria, then it will reject the individual’s request for deferred action. That individual may then request an exercise of prosecutorial discretion under the ICE June 2011 Prosecutorial Discretion Memoranda through any of the established channels at ICE, including through a request to the ICE Office of the Public Advocate or to the local Field Office Director. USCIS will not consider requests for review under the ICE June 2011 Prosecutorial Discretion Memoranda.

If an individual is currently in removal proceedings and ICE determines that he or she does not satisfy the eligibility criteria for deferred action under this process, it will then consider whether the individual is otherwise eligible for an exercise of prosecutorial discretion under its current practices for assessing eligibility under the June 2011 Prosecutorial Discretion Memoranda.

Will there be supervisory review of decisions by ICE and USCIS under this process?
Yes. Both ICE and USCIS will develop protocols for supervisory review as part of their implementation of the new process.

Can individuals appeal a denial by ICE or USCIS of their request for an exercise of prosecutorial discretion under the new process?
No. Individuals may not appeal a denial by ICE or USCIS of their request for an exercise of prosecutorial discretion. However, ICE and USCIS will develop protocols for supervisory review as part of their implementation of the new process. Although there is no right for appeal, individuals in removal proceedings who believe their cases were not correctly handled may contact the ICE Office of the Public Advocate either by phone at 1-888-351-4024 or by e-mail atEROPublicAdvocate@ice.dhs.gov.

Will dependents and other immediate relatives of individuals who receive deferred action pursuant to this process also be eligible to receive deferred action?
No. The new process is available only to those who satisfy the eligibility criteria. As a result, the immediate relatives, including dependents, of individuals who receive deferred action pursuant to this process are not eligible to apply for deferred action as part of this process unless they independently satisfy the eligibility criteria.

If an individual’s request to USCIS for deferred action is denied, will he or she be placed in removal proceedings?
For individuals whose requests for deferred action are denied by USCIS, USCIS will apply its existing Notice to Appear guidance governing USCIS’s referral of cases to ICE and issuance of notices to appear. Under this guidance, individuals whose requests are denied under this process will be referred to ICE if they have a criminal conviction or there is a finding of fraud in their request.

Should individuals who are not in removal proceedings but believe themselves to be eligible for an exercise of deferred action under this process seek to place themselves into removal proceedings through encounters with ICE or CBP?
No. Individuals who are not in removal proceedings but believe that they satisfy the eligibility criteria should submit their request for review of their case to USCIS under the procedures that USCIS will implement.

This process is not yet in effect and requests should not be submitted at this time. Beginning June 18, individuals may call the USCIS hotline at1-800-375-5283, from 8 a.m. to 8 p.m., with questions or to request more information on the new process. The hotline offers assistance in English and Spanish. Individuals seeking more information on the new process should visit USCIS’s website (at http://www.uscis.gov).

If I receive deferred action through this process, will I be able to travel outside the United States?
USCIS is exploring this issue and will resolve it in the coming weeks as part of its implementation plan.

Will there be any exceptions to the requirement that an individual must have resided in the United States for a least five years preceding June 15, 2012?
An individual must demonstrate that he or she has resided in the United States for a least five years preceding June 15, 2012. Brief and innocent absences undertaken for humanitarian purposes will not violate this requirement.

What should I do if I am eligible under this process and have been issued an ICE detainer following an arrest by a state or local law enforcement officer?
If you meet the eligibility criteria and have been served a detainer, you should immediately contact either the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week) or the ICE Office of the Public Advocate either through the Office’s hotline at 1-888-351-4024 (staffed 9am – 5pm, Monday – Friday) or by e-mail at EROPublicAdvocate@ice.dhs.gov.

Does deferred action provide individuals with a path to citizenship or permanent legal status?
No. A grant of deferred action is a form of prosecutorial discretion that does not confer a path to citizenship or lawful permanent resident status. Only the Congress, acting through its legislative authority, can confer these rights.

Why isn’t DHS allowing other individuals to request deferred action under this process?
As a general matter, young people who, through no fault of their own, were brought to this country as children, lacked the intent to violate the law and our ongoing review of pending removal cases is already offering administrative closure to many of them. However, additional measures are necessary to ensure that our enforcement resources are not expended on these low priority cases but are instead appropriately focused on people who meet our enforcement priorities.

Does this Administration remain committed to comprehensive immigration reform?
Yes. The Administration has consistently pressed for passage of comprehensive immigration reform, including the DREAM Act, because the President believes these steps are critical to building a 21st century immigration system that meets our nation’s economic and security needs.

Is passage of the DREAM Act still necessary in light of the new process?
Yes. As the President has stated, individuals who would qualify for the DREAM Act deserve certainty about their status, and this new process does not provide that certainty. Only the Congress, acting through its legislative authority, can confer the certainty that comes with a pathway to permanent lawful status.

How can I get more information on the new process?
Individuals seeking more information on the new process should visit ICE’s website (atwww.ice.gov), USCIS’s website (at www.uscis.gov), or DHS’s website (at www.dhs.gov). Beginning June 18, individuals can also call ICE’s hotline (at 1-888-351-4024) or USCIS’s hotline (at 1-800-375-5283) during business hours with questions or to request more information on the new process."

Please continue to check out my website for update. 

IMMIGRATION AND POLICY: IMMIGRATION AND POLICY: STUDENT VISA REFORM ACT

IMMIGRATION AND POLICY: IMMIGRATION AND POLICY: STUDENT VISA REFORM ACT

IMMIGRATION AND POLICY: STUDENT VISA REFORM ACT

IMMIGRATION AND POLICY: STUDENT VISA REFORM ACT: Posted by NORKA M. SCHELL, ESQ.   Law Offices of Norka M. Schell, LLC Website: www.lawschell.com  On June 28, 2012, the House Judiciary ...

STUDENT VISA REFORM ACT

Posted by NORKA M. SCHELL, ESQ. 
 Law Offices of Norka M. Schell, LLC
Website: www.lawschell.com 


On June 28, 2012, the House Judiciary Committee voted to pass H.R. 3120, the Student Visa Reform Act, to the full House of Representatives for consideration. The provisions on the the bill would be effective 180 days after the adoption of the bill and would apply to the applications filed after the effective date. In addition, for three years from the effective date, "alien seeking to enter the United States to pursue a course of study at a college or university that has been certified by the Secretary of Homeland Security may be granted a nonimmigrant visa without regard to the whether or not that college or university has been accredited or been denied accreditation by an entity described in section 101(a)(52) of the Act, as amended by section 2(2) of the Act.

IMMIGRATION AND POLICY: WORKERS' COMPENSATION FOR UNDOCUMENTED ALIEN

IMMIGRATION AND POLICY: WORKERS' COMPENSATION FOR UNDOCUMENTED ALIEN: By: NORKA M. SCHELL, ESQ.  Whether Federal Immigration Reform and Control Act (IRCA) preempts state law awards of workers' compensation be...

WORKERS' COMPENSATION FOR UNDOCUMENTED ALIEN

By: NORKA M. SCHELL, ESQ. 


Whether Federal Immigration Reform and Control Act (IRCA) preempts state law awards of workers' compensation benefits to illegal aliens. 


The U.S. Supreme Court has denied a request to rule on whether federal immigration law prevents illegal aliens from recovering benefits under state worker's compensation laws.


State legislatures and courts have the authority to determine whether, and under what circumstances, undocumented workers are entitled to workers' compensation benefits for injuries sustained while working illegally. 


Many undocumented employees in the United States work at jobs in very hazardous conditions. As a result, the undocumented workers often sustain injuries or develop diseases and conditions that are related to the workplace and employment. Undocumented employees who injury themselves in workplace can receive workers' compensation benefits.


Workers' compensation is an administrative remedy and it is intended to compensate an employee in a timely manner for injuries sustained in, or related to, the workplace. 


The purpose of worker's compensation is to provide monetary benefits as compensation to an employee who injured himself or herself in the workplace.  


While federal law bans the employment of illegal immigrants by making it unlawful for an employer to knowingly hire or continue to employ an undocumented alien Immigration Reform and Control Act of 1986 (IRCA), some of the undocumented workers often use false or borrowed identification papers in order to secure employment. 


IRCA does not preempt state workers' compensation law, and thus workers' compensation employee, who is an illegal alien, falls within Workers' Compensation Act's broad definition of "employee," is not disqualified by her or his status as illegal alien from receiving workers' compensation benefits.  


Workers' compensation statute provides that immigration status is irrelevant to eligibility for workers' compensation benefits. Ceasing payment of workers' compensation benefits to undocumented workers would act as an incentive to unscrupulous employers to hire illegal aliens. 


If employers do not want to pay workers' compensation to illegal aliens, they need to stop employing them. For more information about this top, please contact the Attorney Norka M. Schell at (212)564-1589. 

IMMIGRATION AND POLICY: IMMIGRATION AND POLICY: Changes in U.S. Treaty Tra...

IMMIGRATION AND POLICY: IMMIGRATION AND POLICY: Changes in U.S. Treaty Tra...: IMMIGRATION AND POLICY: Changes in U.S. Treaty Trader and Investor Visas (... : Posted by Norka M. Schell, Esq.   US Embassy Press Release...

IMMIGRATION AND POLICY: IMMIGRATION AND POLICY: Changes in U.S. Treaty Tra...

IMMIGRATION AND POLICY: IMMIGRATION AND POLICY: Changes in U.S. Treaty Tra...: IMMIGRATION AND POLICY: Changes in U.S. Treaty Trader and Investor Visas (... : Posted by Norka M. Schell, Esq.   US Embassy Press Release...

IMMIGRATION AND POLICY: Changes in U.S. Treaty Trader and Investor Visas (...

IMMIGRATION AND POLICY: Changes in U.S. Treaty Trader and Investor Visas (...: Posted by Norka M. Schell, Esq.   US Embassy Press Release   Beginning July 1, 2012 the U.S. Mission in Mexico will centralize all E-vis...

Changes in U.S. Treaty Trader and Investor Visas (E visas) Processing

Posted by Norka M. Schell, Esq. 


 US Embassy Press Release 


 Beginning July 1, 2012 the U.S. Mission in Mexico will centralize all E-visas adjudications in Mexico at the visa posts. After Jul1, all review of E visa applications in Mexico will occur at the following three posts: U.S. Embassy in Mexico City; U.S. Consulate General in Monterrey; and U.S. Consulate General in Tijuana. 


To facilitate and to ensure an efficient, thorough and transparent review of all E visa applications, all submissions of documents in support of the application must be organized and presented in the standardized format as described for E-1s and E-2s on the U.S. Mission website (mexico.state.gov).


Scheduling of appointments and payment of fees will continue to be done through the US Embassy online services and call center. Applicants may continue to choose any one of the our 14 Applicant Service Centers (ASC) throughout Mexico to provide the required biometrics (digital photographs and fingerprints). The ASC will then schedule appointments for interview in one of the three processing posts, Mexico City, Monterrey or Tijuana, based on applicant's preference and appointment availability. Documents in support of the application may be submitted in person at the ASC in Mexico City, Monterrey or Tijuana or mailed directly by the applicant to the visa section which will conduct the interview and adjudicate the visa. 


Treaty Trader visas (E-1) and Treaty Investor visa (E-2) are non-immigrant visas for nationals of a country with which the United States maintains a treaty of friendship, commerce and navigation (which includes Mexico) who wish to go to the United States for one of two purposes: to carry on substantial trade, principally between the United States and the treaty country (E-1); or to develop and direct the operations of an enterprise in which the national has invested or is in the process of investing a substantial amount of capital (E-2). For additional information about E visas and detail on how to apply, please visit the U.S. Embassy's website (mexico.usembassy.gov).

IMMIGRATION AND POLICY: Matter of Isidro-Zamorano

IMMIGRATION AND POLICY: Matter of Isidro-Zamorano: Norka M. Schell, Esq. Cancellation of removal is a form of discretionary relief from removal.  To be eligible for cancellation of removal,...

Matter of Isidro-Zamorano

Norka M. Schell, Esq.

Cancellation of removal is a form of discretionary relief from removal.  To be eligible for cancellation of removal, an applicant must establish, among other things, “that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.”  For immigration purpose, a “child” is “an unmarried person under twenty-one years of age.”

The Board of Immigration Appeals (BIA or Board) in Matter of Isidro-Zamorano, 25 I. & N. Dec. 829 (B.I.A. June 15, 2012), held that an applicant for cancellation of removal whose son or daughter met the definition of a “child” when the application was filed but turned 21 years of age before the immigration judge (IJ) adjudicated the application on the merits no longer has a qualifying relative under INA § 240A(b)(1)(D).

Isidro-Zamorano is a native and citizen of Mexico who entered the U.S. without inspection on May 1, 1994. His son, who is a U.S. citizen, was born on January 29, 1985. Isidro-Zamorano was caught by Immigration and placed in proceedings. He was found in violation of immigration law. He filed his application for cancellation of removal in 2005 when his son was under the age of 21. His son turned 21 in January 2006 before the cancellation application was adjudicated. The Immigration Judge found that Isidro-Zamorano's son could no longer be a qualifying relative for purposes of establishing the respondent's eligibility for cancellation of removal and denied the application.

IMMIGRATION AND POLICY: RELIEF FOR DREAMers

IMMIGRATION AND POLICY: RELIEF FOR DREAMers: Posted by Norka M. Schell, Esq. On June 15, 2012, Secretary Napolitano Announced Deferred Action Process for Young People Who Are Low Enfo...

DHS ANNOUNCEMENT - RELIEF FOR DREAMers

IMMIGRATION AND POLICY: Posted by Norka M. Schell, Esq.Secretary Napolitan...: Posted by Norka M. Schell, Esq. Secretary Napolitano Announces Deferred Action Process for Young People Who Are Low Enforcement Priorities ...

RELIEF FOR DREAMers

Posted by Norka M. Schell, Esq.

On June 15, 2012, Secretary Napolitano Announced Deferred Action Process for Young People Who Are Low Enforcement Priorities

Under this directive, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis.

Here are some details of the new policy:

To be eligible, the individual must:

1. Have arrived to the United States under the age of sixteen; 


2. Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum; 


3.  Be currently in school, have graduated from high school, have obtained a general education development certificate, or be honorably discharged veterans of the Coast Guard or Armed Forces of the United States;


4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; 


5. Be between 15 years or older and not above the age of thirty. 

Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action. Individuals will not be eligible if they are not currently in the United States and cannot prove that they have been physically present in the United States for a period of not less than 5 years immediately preceding today’s date.

Deferred action requests are decided on a case-by-case basis. DHS cannot provide any assurance that all such requests will be granted. The use of prosecutorial discretion confers no substantive right, immigration status, or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.

It estimates that this new policy will benefit nearly 1 million DREAMers.

 For individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria and have been offered an exercise of discretion as part of ICE’s ongoing case-by-case review, ICE will immediately begin to offer them deferred action for a period of two years, subject to renewal.

While this guidance takes effect immediately, USCIS and ICE expect to begin implementation of the application processes within sixty days. In the meantime, individuals seeking more information on the new policy should visit USCIS’s website (at www.uscis.gov), ICE’s website (at www.ice.gov), DHS’s website (at www.dhs.gov), or contact my firm at (212) 564-1589.

IMMIGRATION AND POLICY: Employment Opportunities In The U.S. For Mexican a...

IMMIGRATION AND POLICY: Employment Opportunities In The U.S. For Mexican a...: By: NORKA M. SCHELL, Esq. Employment Opportunities in the U.S. for Mexican  And Canadian Citizens A visa classification that is underuti...

Employment Opportunities In The U.S. For Mexican and Canadian Citizens

By: NORKA M. SCHELL, Esq.

Employment Opportunities in the U.S. for Mexican  And Canadian Citizens

A visa classification that is underutilized is the TN Visa and many Canadian and Mexican Citizens may qualify for the TN Visa or TN Status based on their profession and educational levels under NAFTA, the North American Free Trade Agreement. The benefits of entering the U.S. under the TN Visa or TN Status are that it that the TN Visa may be valid for up to three-years and has no renewal limits. You can receive a TN Visa extension each year for an indefinite number of times as long as you meet all of the requirements. The North American Free Trade Agreement (NAFTA) was an agreement signed by the governments of Canada, Mexico, and the United States, creating a trilateral trade bloc in North America. A trade bloc is a type of intergovernmental agreement, often part of a regional intergovernmental organization, where regional barriers to trade, (tariffs and non-tariff barriers) are reduced or eliminated among the participating countries.

The agreement became effective on January 1, 1994. North American Free Trade Agreement (NAFTA) creates special economic and trade relationships for the United States (U.S.), Canada and Mexico. The nonimmigrant NAFTA Professional (TN) visa allows citizens of Canada and Mexico, as NAFTA professionals, to work in the U.S. in a prearranged business activity for a U.S. or foreign employer. To qualify for a TN Visa and be allowed to work in the U.S. the Canadian and Mexican professionals must meet the following conditions: (1) Applicant must be a citizen of Canada or Mexico; (2) Applicant must have a job offer in the United States; (3) Applicant’s job offer must be in a position approved under the NAFTA list; (4) Applicant must have the professional qualification required of the profession; and (5) U.S. job offer must be of a temporary nature and Applicant must prove temporary stay each time the TN Visa is renewed.

Canadian citizens usually do not need a visa as a NAFTA Professional, although a visa can be issued to qualified TN visa applicants upon request. A Canadian citizen without a TN visa can apply at a U.S. port of entry. A Canadian NAFTA Profession will need a TN Visa if he/she is residing in another country with a non-Canadian spouse and child would need a visa to enable the spouse and child to be able to apply for a visa to accompany or join the NAFTA Professional, as a TD visa holder. However, unlike Canadian citizens, Mexican citizens are required to obtain a visa to request admission to the U.S. A complete list of NAFTA approved professions can be found by accessing the State Department’s website at http://www.nafta-sec-alena.org/en/view.aspx?x=343&mtpiID=147#Ap1603.D.1. The NAFTA approved professions are classified under four categories: (1) General (2) Medical and Allied Professions (3) Scientist and (4) Teachers. Under these four subcategories you will find positions such as Accountants, Architects, Computer Science, Economists, Engineer, Graphic Designers, Hotel Managers, Interior Designers, Landscape Architects, Mathematicians, Social Workers, Dentists, Dieticians, Nutritionists, Pharmacists, and Teachers (college, seminary, or university).

Therefore, if you want to know if you or someone you know may qualify for a TN Visa or TN Status, please feel free to contact me directly at (212)564-1589.

USCIS TO CENTRALIZE FILING & ADJUDICATION FOR CERTAIN WAIVERS OF INADMISSIBILITY IN THE US

Beginning on June 4, 2012, individuals abroad who have applied for certain visas and have been found inadmissible by a U.S. Consular Officer, will be able to mail request to waive certain grounds of inadmissibility directly to a USCIS Lockbox facilities. This change affects where individuals abroad who have been found inadmissible for an immigrant visa or a non-immigrant visa K or V visa. Currently, applicants experience processing time from one-month to more than one year depending on their location. The change affects filings for forms I-601, I-212, I-290B. The change is separate and distinct from the provisional waiver proposal published on March 30, 20121. http://www.uscis.gov/

IMMIGRATION AND POLICY: STEEM DESIGNATED DEGREE PROGRAM

IMMIGRATION AND POLICY: STEEM DESIGNATED DEGREE PROGRAM: The Department of Homeland Security (DHS) has expanded the list of STEM -- science, technology, engineering, and math --designated-degree pr...

STEEM DESIGNATED DEGREE PROGRAM

The Department of Homeland Security (DHS) has expanded the list of STEM -- science, technology, engineering, and math --designated-degree program list that qualify eligible graduates on student visas for an optional practical training (OPT) extension. The new courses which are now included to the list of STEEM are: pharmaceutical sciences, econometrics, and quantitative economics.

Under the OPT program, international students who graduate from colleges and universities in the United States are able to remain in the United States and receive training through work experience for up to 12 months.

Students who graduate from a STEM-designated degree program can remain in the United States for an additional 17 months on an OPT STEM extension.  List of the STEM-designated programs are available at http://www.ice.gov/doclib/sevis/pdf/stem-list.pdf.

NKEN V. HOLDER, THE SUPREME COURT

By: Norka M. Schell, Attorney-at-Law

The Board of Immigration Appeals denied Jean Marc Nken's petition to reopen his case regarding his deportation. He appealed arguing that the Board of Immigration Appeals abused its discretion in denying  his motion and should have used its sua sponte power to reopen his proceedings. On appeal, the U.S. Court of Appeals for the Fourth Circuit held that the Board of Immigration Appeals did not abused its discretion. Thereafter, the Supreme Court granted Mr. Nken's motion for a stay of his removal until further proceeding by the Court. 

In Nken v. Holder, 556 U.S. 418 (2009),the Supreme Court, in considering an alien's request for a stay of removal pending adjudication of his petition for review, said, “Although removal is a serious burden for many aliens, that burden alone cannot constitute the requisite irreparable injury. An alien who has been removed may continue to pursue a petition for review, and those aliens who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal.” In so stating, Justice John G. Roberts, Jr., the author of the opinion, was relying on the following statement made by the Office of the Solicitor General (OSG) in its appellate brief on behalf of the respondent in Nken.

In the ordinary case, an alien need not remain in the United States in order to pursue a legal or constitutional claim or benefit from a favorable judicial ruling. The court's review is based on the administrative record, see 8 U.S.C. 1252(b)(4)(A), and written legal briefs, 8 U.S.C. 1252(b)(3)(C), rather than in-person testimony. By policy and practice, the government accords aliens who were removed pending judicial review but then prevailed before the courts effective relief by, inter alia, facilitating the aliens' return to the United States by parole under 8 U.S.C. 1182(d)(5) if necessary, and according them the status they had at the time of removal. Read more www.supremecourt.gov/opinions/08pdf/08-681.pdf

Law Offices of Norka M. Schell, LLC handle litigation. If you or a loved one is facing deportation or removal proceedings, please contact an experienced NY attorney, at (212) 564-1589.

USCIS PROPOSED REVISIONS TO FORM I-9

USCIS notice of a 60-day comment period on the Proposed Revisions to Form I-9, Employment Eligibility Verification, are due on 05/29/2012.

The draft of the Proposed Revisions to Form I-9, Employment Eligibility Verification was published on March 27, 2012, and the key revisions which the USCIS is seeking public comment include:

 1. Expanded Form I-9 instructions and revised layout;
 2. New optional data field to collect the employee's email address and telephone number;
 3. New date fields to collect the foreign passport number and country of issuance;
  if the employees use their I-94 and foreign passport to work authorization.

 Employer must continue to use the current edition of Form I-94 until new revised version has been approved and posted by the federal government.

Public may comment on the Proposed Revisions to the Form I-9 by visiting www.regulations.org

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.