LAW OFFICES OF NORKA M SCHELL, LLC: PROSECUTORIAL DISCRETION NOTICE

IMMIGRATION AND POLICY: PROSECUTORIAL DISCRETION NOTICE: Posted by Attorney Norka M. Schell EOIR HAS POSTED THE FOLLOWING NOTICE ON ITS WEBSITE In 2011, the Department of Homeland Security (DH...

PROSECUTORIAL DISCRETION NOTICE

Posted by Attorney Norka M. Schell

EOIR HAS POSTED THE FOLLOWING NOTICE ON ITS WEBSITE

In 2011, the Department of Homeland Security (DHS) announced a new process to ensure that its resources are focused on its highest enforcement priorities. This process is referred to as "prosecutorial discretion," or "PD." Under the PD, DHS reviews pending cases to see whether they meet certain criteria for cases that are considered a low enforcement priority. If a case meets the criteria, DHS  may request "administrative closure" of the case.

"Administrative closure" is an order by the court that removes the case from the court's calendar of hearings. Administrative closure does not mean that your case is completed or that the court has granted any application for relief that you may have filed with the court. If the court orders your case administratively closed, it simply means you will have no further hearings unless you or DHS specifically ask the court to schedule a hearing.

DHS is currently reviewing cases already filed with and pending before the Immigration Court to see whether any cases should be administratively closed. If DHS agrees that your case meets the PD criteria, then DHS may file a motion asking the court to administratively close your case. Immigration judges are prepared to adjudicate these motion on a case-by-case basis as they are filed.

If you need further guidance regarding PD, you should contact my office at (212)564-1589 or website www.lawschell.com. If you have questions, you may also contact the Office of Chief Counsel. Contact information is also available at http://www.ice.gov/contact/opla/.

HOUSE PASSES STUDENT VISA REFORM ACT

IMMIGRATION AND POLICY: HOUSE PASSES STUDENT VISA REFORM ACT: Posted by: ATTORNEY NORKA M. SCHELL Tel. (212)564-1589 On August1, 2012, the House of Representatives passed H.R. 3120, the Student Vis...

HOUSE PASSES STUDENT VISA REFORM ACT

Posted by: ATTORNEY NORKA M. SCHELL

Tel. (212)564-1589

On August1, 2012, the House of Representatives passed H.R. 3120, the Student Visa Reform Act.

The bill amends INA Section 214(m) so that only schools accredited by an accrediting agency recognized by the Secretary of Education would be eligible to sponsor students for non immigrant visas.docs.house.gov/billsthisweek/.../BILLS-112hr3120-SUS.pdf

IMMIGRATION AND POLICY: DHS Outlines Deferred Action for Childhood Arrival...

IMMIGRATION AND POLICY: DHS Outlines Deferred Action for Childhood Arrival...: Posted by Norka M. Schell, Esq.  Law Offices of Norka M. Schell, LLC The Department of Homeland Security t oday  provided additional info...

DHS Outlines Deferred Action for Childhood Arrival Process

Posted by Norka M. Schell, Esq. 
Law Offices of Norka M. Schell, LLC


The Department of Homeland Security today  provided additional information on the deferred action for childhood arrivals process in preparation for the August 15 implementation date. 


On June Secretary of Homeland Security Janet Napolitano announced that certain young people who came to the United States as children and meet other key guidelines may be eligible, on a case-by-case basis, to receive deferred action. U.S. Citizenship and Immigration Services (USCIS) is finalizing a process by which potentially eligible individuals may request consideration of deferred action for childhood arrivals. 


USCIS expected to make all forms, instructions, and additional information relevant to the deferred action for childhood arrivals process available on August 15 2012. USCIS will then immediately begin accepting requests for consideration of deferred action  for childhood arrivals. 


The information shared during today's call includes the following highlights:

1. Requestors - those in removal proceedings, those with final orders, and those who have never been in removal proceedings - will be able to affirmatively request consideration of deferred action for childhood arrivals with USCIS.

2. Requestors will use a form developed for this purpose

3. Requestors will mail their deferred action request together with an application for an employment authorization document and all applicable fees to the USCIS lockbox. 

4. All requestors must provide biometrics and undergo background checks. 

5. All four USCIS Service Center will review requests. 

It is important to note that this process is not yet in effect and individuals who believes they meet the guidelines of this new process should not request consideration of deferred action before August 15, 2012. 


Be aware of scam and unauthorized practitioners of immigration law. 


For more information, contact (212)564-1589.

IMMIGRATION AND POLICY: ADMINISTRATIVE CLOSURE & TERMINATION OF PROCEEDING...

IMMIGRATION AND POLICY: ADMINISTRATIVE CLOSURE & TERMINATION OF PROCEEDING...: Author: Norka M. Schell, Esq.  Law Offices of Norka M. Schell, LLC                                             THE DIFFERENCE BETWEEN  ...

ADMINISTRATIVE CLOSURE & TERMINATION OF PROCEEDINGS

Author: Norka M. Schell, Esq. 
Law Offices of Norka M. Schell, LLC


                                           THE DIFFERENCE BETWEEN 
ADMINISTRATIVE CLOSURE AND TERMINATION OF PROCEEDINGS

If you are in immigration proceedings or know someone who is in proceedings, you may have heard the terms "administrative closure" and "termination of proceedings." What are these terms and what are the differences between them?

 Administrative closure is a procedural mechanism used to temporarily remove a case from the immigration court's calender. The Board of Immigration Appeals (Board) "urged" Department of Homeland Security (DHS) to administratively close cases where there is a pending visa petition that is prima facie approvable. In evaluating a request for administrative closure, Immigration Judges have the authority to administratively close a case which is before him or her over a party's objection where it is "otherwise appropriate under the circumstance."  A person whose case has been administratively closed remains in removal proceedings, and either party ( the respondent or the DHS ) can request that the case be placed back on the court's calender at any time. A party, whose case has been administratively close, does not waive any rights obtained when the case was closed.

By contrast, termination of proceedings means that the case has ended and the respondent is no longer in removal proceedings. A party in proceedings may request the court for dismissal of his case and only the court, upon motion, may then terminate the proceedings. The reason for termination include that the Notice to Appear was "improvidently issued." Upon termination, the individual will revert to the same status he or she was in prior commencement of proceedings. If the government wants to place the individual back into proceedings after a case is terminated, it must file a new Notice to Appear with the court.

Whether a request for an administrative closure or a motion to terminate proceedings might be filed in a particular case, it is a legal question.

IMMIGRATION AND POLICY: EXERCISING PROSECUTORIAL DISCRETION FOR DREAMers

IMMIGRATION AND POLICY: EXERCISING PROSECUTORIAL DISCRETION FOR DREAMers

DHS CONFERENCE INVITATION

Posted by Norka M. Schell 
www.lawschell.com


IMMEDIATE RELEASE

DHS Conference Call Invitation: Secretary Napolitano’s June 15 Memorandum Deferred Action For Childhood Arrivals U.S. Citizenship and Immigration Services sent this bulletin at 07/25/2012 04:05 PM EDT Dear Stakeholder, On June 15, 2012, Secretary Janet Napolitano issued a memorandum to DHS components on the exercise of prosecutorial discretion with respect to certain childhood arrivals on a case-by-case basis.

U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement invite interested individuals to participate in a joint national teleconference to provide further details and collect additional input regarding the implementation of Secretary Napolitano’s memorandum on Thursday, July 26 from 4pm – 5pm (Eastern).

 To Participate in the July 26 Conference Call Please use the information below to join the session. We recommend calling in at least 20 minutes prior to the start of the teleconference. Call-in Number: 1-800-779-9654 Passcode: DHS

 This call is intended for stakeholders only. Members of the media should call (202)282-8010 with inquiries.

Kind regards, U.S. Citizenship and Immigration Services

The mayor's got moves like Obama

The mayor's got moves like Obama

IMMIGRATION AND POLICY: EXERCISING PROSECUTORIAL DISCRETION FOR DREAMers

IMMIGRATION AND POLICY: EXERCISING PROSECUTORIAL DISCRETION FOR DREAMers: Posted by: Norka M. Schell, Esq.  Law Offices of Norka M. Schell, LLC Tel. (212)564-1589 www.lawschell.com On July 19, 2012, Secretary...

EXERCISING PROSECUTORIAL DISCRETION FOR DREAMers

Posted by: Norka M. Schell, Esq. 
Law Offices of Norka M. Schell, LLC
Tel. (212)564-1589
www.lawschell.com

On July 19, 2012, Secretary Napolitano testified before the House of Judiciary Committee and clarified that "deferred action for DREAMers is not "amnesty" and does not provide green cards or any other legal status that would put DREAMers on the path to citizenship".

Here is some history on Prosecutorial Discretion. Since the 1996 amendments to the Immigration and Nationality Act (INA) which limited the authority of immigration judges to provide relief from removal in many cases, there has been increased attention to the scope and discretion of former Immigration and Nationality Services' (INS) prosecutorial discretion.

"Prosecutorial discretion" is the authority of an agency charged with enforcing a law to decide whether to enforce, or not to enforce, the law against someone. The Department of Homeland Security (DHS), like other law enforcement agencies, has prosecutorial discretion and exercises it every day. In the immigration context, the term applies not only to the decision to place someone in proceedings, but also to a broad range of other discretionary enforcement decisions.

The favorable exercise of prosecutorial discretion to grant deferred action to DREAMer only means --a discretionary decision not to assert the full scope of the DHS's enforcement authority as permitted under the law. DHS can not admit an inadmissible alien to the United States unless a waiver is available or unless Congress pass a DREAM Act legislation and President Obama signs it.

When President Obama announced on June 16 that DHS will grant deferred action to DREAMers, he only confirmed that we already know -- DHS has finite resources and it is not possible for DHS to investigate and prosecute all immigration violations. Therefore, it will focuses its finite resources in furtherance of its enforcement priority -- serious criminals, threats to national security, recent border crossers and repeat immigration violators.

The guideline on deferred action program would be available on August 1, and applications would be available on August 15. There will be an application fee but the amount is yet unknown.

IMMIGRATION AND POLICY: Deferred Action Process for Young People Who Are L...

IMMIGRATION AND POLICY: Deferred Action Process for Young People Who Are L...: 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

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...