Unfair Immigration Related Employment Practices

Posted by the NY Immigration Attorney Norka M. Schell

NY Law Offices of Norka M. Schell, LLC

www.lawchell.com

An agreement was reached between the Department of Justice (DOJ), Tuscany Hotel and Casino LLC (Tuscany) in Las Vegas, Nevada.  Settling a lawsuit alleging that the company violated INA § 274 B, which bars unfair immigration-related employment practices. 

The DOJ, in a case filed in May 2012, alleged that Tuscany treated noncitizens differently from U.S. citizens during the employment eligibility verification and reverification process. The complaint alleged that Tuscany required noncitizen employees to provide more or different documents or information than it required from citizen employees during the initial employment eligibility verification process and then used the documents or information that it gathered to impose improper document requests on noncitizens during the reverification process as a condition of continued employment. 

The complaint further alleged that Tuscany subjected noncitizen employees' documents to a heightened review process by senior human resources representatives that was not applied to documents presented by U.S. citizens.

Under the terms of the settlement agreement, Tuscany will pay $49,000 in civil penalties to the U.S. government and full back pay to a victim. Tuscany also agreed to: 

(1) implement new employment eligibility verification policies and procedures that treat all employees equally regardless of citizenship status, 

(2) conduct training for its human resources staff on their responsibility to avoid discrimination in the employment eligibility verification process, and 

(3) be subject to reporting and monitoring requirements.

For more information on above topic, please contact our New York Office at (212) 564-1589.

IMMIGRATION AND POLICY: Employee Rights Tookkit

IMMIGRATION AND POLICY: Employee Rights Tookkit: Posted by the NY Immigration Attorney Norka M. Schell Employee Rights Toolkit U.S. Citizenship and Immigration Services (USCIS) has an...

Employee Rights Tookkit

Posted by the NY Immigration Attorney Norka M. Schell

Employee Rights Toolkit

U.S. Citizenship and Immigration Services (USCIS) has announced that it has released a new online “Employee Rights Toolkit” to increase awareness about employee rights during the employment eligibility verification process. This toolkit, designed for workers, worker advocates, and other stakeholders, contains a variety of educational materials, such as E-Verify employee rights videos, informative fliers, brochures, and posters. It also contains information about USCIS multilingual engagement opportunities and guidance on avoiding immigration scams or the unauthorized practice of immigration law and videos, audios, and handouts about Self Check, a free online service of E-Verify that allows workers to check their own employment eligibility status. 

Most of the materials are available in English and Spanish. The entire toolkit may be viewed online at http://1.usa.gov/PnX3XM 

IMMIGRATION AND POLICY: Visa Bulletin for November 2012

IMMIGRATION AND POLICY: Visa Bulletin for November 2012: Posted by the New York Immigration Attorney Norka M. Schell NY Law Offices of Norka M. Schell, LLC www.lawschell.com             ...

Visa Bulletin for November 2012

Posted by the New York Immigration Attorney Norka M. Schell
NY Law Offices of Norka M. Schell, LLC
www.lawschell.com

                        Visa Bulletin for November 2012

Family Priority Date 

F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 22JUN10.

 F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 22JUN10 and earlier than 15JUL10. 

All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.

Employment Preference Categories 

The Employment First Preference category remained current for all chargeability areas. 

The Second Preference cutoff for all areas except China mainland-born and India are now current. The cut-off for China mainland-born advanced six weeks to September 1, 2007. The cut-off for India remained at September 1, 2004.

The Employment Third Preference category for Mexico and Worldwide advanced one month to stand at November 22, 2006. The cut-off for the Philippines advanced one week to August 8, 2006. The cutoff date for India also advanced one week to stand at October 22, 2002. The cutoff for mainland-born China advanced 10 weeks to April 15, 2006. For the Third Preference Other Workers category, the Worldwide and Mexico dates advanced one month to November 22, 2006. The Philippines cutoff date advanced one week to August 8, 2006. China mainland-born advanced over one week to stand at July 1, 2003. The cutoff date for India advanced one week to October 22, 2002.

The Fourth Preference categories are now all current as is the Fifth Preference. 

Important Note:

Immigrant visa numbers in the diversity visa (DV) category are now available to qualified DV-2013 applicants chargeable to all regions and eligible countries as follows (visas are available only for applicants with DV lottery rank numbers below the cutoff number): Africa: 13,900, except Egypt: 6,600, Ethiopia: 9,100, and Nigeria: 8,500; Asia: 2,350; Europe: 7,000; North America (Bahamas): 2; Oceania: 400; South America and the Caribbean: 500. 

For  more information please view our website news and resources or contact the New York Law Offices of Norka M. Schell, LLC at (212) 564-1589. 

IMMIGRATION AND POLICY: Designation of Military Physicians as Civil Surgeo...

IMMIGRATION AND POLICY: Designation of Military Physicians as Civil Surgeo...: Posted by Norka M. Schell, Esquire www.lawschell.com U.S. Department of Homeland Security U.S. Citizenship and Immigration Services INS ...

Designation of Military Physicians as Civil Surgeons for Members and Veterans of the Armed Forces and Eligible Dependents

Posted by Norka M. Schell, Esquire
www.lawschell.com

U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
INS Policy and Procedural Memoranda

Policy Memorandum 

SUBJECT: Designation of Military Physicians as Civil Surgeons for Members and Veterans of the Armed Forces and Eligible Dependents Dated September 26, 2012

 Purpose 

 *1 The purpose of this policy memorandum (PM) is to grant military physicians a blanket designation as civil surgeons to facilitate the medical exam required for members and veterans of the Armed Forces and certain eligible dependents. This blanket designation will assist members and veterans of the Armed Forces and their eligible dependents in receiving immigration medical examinations in a timely fashion.

 Scope

 Unless specifically exempted herein, this PM applies to and is binding on all USCIS employees. Authority Section 232(b) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1222(b) 8 CFR 232.2(b) 42 CFR 34.2(c).

Background INA section 232 requires arriving aliens to be examined by medical officers of the United States Public Health Services (USPHS). If medical officers of USPHS are not available, USCIS may designate civil surgeons to perform these testing requirements. Currently, under 8 CFR 232.2(b), civil surgeons are designated by the District Directors. According to 8 CFR 232.2(b), physicians qualify for civil surgeon designation if they are licensed physicians and if they have no less than 4 years of professional experience. Current guidance in Adjudicator's Field Manual(AFM) Chapter 83.4(a)(2) specifies that “licensed physicians” are physicians licensed to practice medicine in the state where they render medical services. This licensing requirement may discourage medical officers of the Armed Forces (military physicians) from becoming designated civil surgeons.

As a result, Armed Forces members and their dependents must pay for the immigration medical examination, even though the services could easily be provided by these military physicians at no cost. Additionally, the logistics to arrange for the medical examination by a non-military designated civil surgeon may prove burdensome to the military member and his or her dependent, and distract from a military member's readiness.

 Policy

 To ease difficulties encountered by physicians and applicants in the military, USCIS is issuing a blanket civil surgeon designation to qualifying military physicians to permit them to perform the immigration medical examination and complete the Report of Medical Examination and Vaccination Record, Form I-693, for eligible members and veterans of the Armed Forces and their dependents.

Participation in this blanket civil surgeon designation is entirely voluntary and at the discretion of each military medical facility. This blanket designation only applies to military physicians who:

 • Meet the professional qualifications of a civil surgeon, as described in AFM Chapter 83.4(a)(2), except that the physician may be licensed in any state, and is not required to be licensed in the state in which the physician is performing the immigration medical examination;

• Are employed by DoD (either as Armed Forces physicians or as civilian physicians) or are civilian contract providers; and

 • Are authorized to provide medical services at an MTF for Armed Forces personnel, veterans, and dependents that is located within the United States.

*2 Neither the medical facility nor the physician who qualifies for and wishes to participate in the blanket designation needs to obtain approval from USCIS prior to performing immigration medical examinations for Armed Forces personnel, veterans, and dependents at an MTF. However, military physicians must review and be familiar with the Centers for Disease Control and Prevention's (CDC's) Technical Instructions for the Medical Examination of Aliens in the United States (Technical Instructions) before they can begin performing immigration medical examinations. They must comply with the Technical Instructions in completing all immigration medical examinations.

Pursuant to the understanding reached between USCIS and the CDC, military physicians who qualify under this blanket civil surgeon designation may perform the entire immigration medical examination as long as the exam is conducted in the United States on the premises of an MTF and conducted for an Armed Forces member, veteran, or dependent who is eligible to receive medical care at that MTF. Military physicians must apply for civil surgeon designation under the standard designation process, as outlined in AFM Chapter 83.4(a)(4), if they wish to complete immigration medical examinations:

 • In a U.S. location other than on the premises of an MTF; or
 • For individuals other than those Armed Forces members, veterans, or dependents who are authorized to receive medical services at an MTF. Armed Forces members, veterans, and dependents will need to visit a physician designated as a civil surgeon through USCIS's standard application process if they:
 • Prefer to have the immigration medical examination performed by a physician who does not qualify under this blanket designation for military physicians;
 • Prefer to have the immigration medical examination performed in a U.S. location other than at the MTF at which they are authorized to receive medical services; or
 • Do not have access to a military physician who is performing immigration medical examinations under this blanket designation. Military physicians operating under the blanket civil surgeon designation must record the results of the immigration medical examination on the Form I-693 according to the standard procedures all civil surgeons are required to follow. In accordance with the agreements reached with the CDC, a military physician operating under the blanket civil surgeon designation is required to certify the Form I-693 by providing both of the following on the form: 
• The blanket designated civil surgeon's signature on the Form I-693. The signature may be the original (handwritten) or stamped signature. Nurses or other health care professionals may, but are not required to, co-sign the Form I-693. However, a form that has been signed only by a registered nurse, physician's assistant, or other medical professional who is not a licensed physician is not sufficient. USCIS will send the applicant a Request for Evidence (RFE) for corrective action if the Form I-693 was not signed by a licensed physician who qualifies as a civil surgeon under this blanket designation.

*3  The official stamp or raised seal of the MTF. The signed Form I-693 must be placed in a sealed envelope, according to the instructions listed on the form. Use This PM is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner. 

Contact Information Questions or suggestions regarding this PM should be directed through appropriate channels to the Office of Policy and Strategy, Residence and Naturalization Division.

IMMIGRATION AND POLICY: UNDERSTANDING THE VISA BULLETIN

IMMIGRATION AND POLICY: UNDERSTANDING THE VISA BULLETIN: By Attorney Norka M. Schell Law Offices of Norka M. Schell, LLC How are are visa numbers allocated? Do you read a Visa Bulletin?  Takin...

UNDERSTANDING THE VISA BULLETIN

By Attorney Norka M. Schell
Law Offices of Norka M. Schell, LLC

How are are visa numbers allocated? Do you read a Visa Bulletin?

 Taking as an example the Visa Bulletin for the month of October of  2012, you first should be aware of the following rules:

The Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320. Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.

The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows: FAMILY-SPONSORED PREFERENCES First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference. Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers: A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit; B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation. Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences. Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences. Here is how you read a Visa Bulletin: On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available.

Let's view the Visa Bulletin for month of October 2012.  But keep in mind that numbers are available only to applicants whose priority date is earlier than the cut-off date.

Family-Sponsored

         ALL            CHINA       INDIA       MEXICO   PHILIPPINES
         Countries

F1    08OCT05   08OCT05   08OCT05        15JUN93      01APR96
F2A  01JUN10   01JUN10    01JUN10        15MAY10     01JUN10
F2B  15SEP04   15SEP04     15SEP04         01OCT92      22JAN02
F3    22MAY02  22MAY02  22MAY02       08FEB93       22JUL92
F4    15MAR01   5FEB01     15MAR01        22JUN96      08FEB89 

For October, F2A numbers exempt from per-country limit are available to applicants from all countries with priority dates earlier than 15 MAY 10. The F2A numbers subject to per-country limit are available to applicants chargeable to all countries except Mexico with priority dates beginning 15 MAY 10 and earlier than 01 JUN 2010.

The visa numbers are also allocated to people who are seeking to enter the United States to work under the employment-based preference.  Under the employment-based preference there are:

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

 Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

 Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".

 Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

 Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

 Here are how you read: the letter "C" means current, i.e., numbers are available for all qualified applicants; and letter "U" means that there are no numbers available.


Here is how you read it: Employment- Based All Chargeability Areas Except those listed CHINA- mainland born INDIA MEXICO PHILIPPINES

Employment-based


           ALL            CHINA              INDIA               MEXICO          PHILIPPINES
          Countries
       

1st         C                   C                        C                           C                       C


2nd   01JAN12     15JUL07              01SEP04               01JAN12               01JAN12


3rd    22OCT06    08FEB06             15OCT02              22OCT06              01AUG06


*Other Workers

         22OCT06    22JUN03               15OCT02             22OCT06              01AUG06

4th        C                 C                               C                             C                        C

Certain Religious Workers

             U                 U                                U                              U                        U

5th Targeted Employment Areas/ Regional Centers

             C                 C                                 C                               C                        C

5th Pilot Programs

             U                  U                                U                                U                        U


Department of State Visa Office releases a new visa bulletin on or about the tenth of each month with information on cut-off dates for the following month.

IMMIGRATION AND POLICY: EB-5 Regional Center Program

IMMIGRATION AND POLICY: EB-5 Regional Center Program: The House of Representative has passed S. 3235, a bill to extend by three years the authorization of the EB-5 Regional Center Program.  Th...

EB-5 Regional Center Program

The House of Representative has passed S. 3235, a bill to extend by three years the authorization of the EB-5 Regional Center Program. 

The Immigration and Nationality Act, section 203(b)(5) established a class of immigrant visas (EB-5) for individuals who invest either $500,000 or $1 million (depending on whether the investment is in a targeted employment area or not) in a new commercial enterprise located within the U.S. and who will create full-time employment for not fewer than 10 qualified employees.  There are two distinct EB-5 pathways for an alien investor to gain lawful permanent residence:

(1)  Basic Program and 

(2) Immigrant Investor Pilot Program.

It is important to note that the EB-5 requirements for an investor under the pilot program are essentially the same as in the basic EB-5 investor program except the Pilot Program provides for investments that are affiliated with an economic unit known as a “regional center.” 

Investments made through regional centers can take advantage of a more expansive concept of job creation, including both “indirect” and “direct” jobs.

The S. 3235 bill is now pending the President's signature. 

IMMIGRATION AND POLICY: U.S. v. Santiago's Repacking, Inc.

IMMIGRATION AND POLICY: U.S. v. Santiago's Repacking, Inc.:                              U. S. v. Santiago’s Repacking, Inc.   The Office of Chief Administrative Hearing Officer ("OCAHO") granted...

U.S. v. Santiago's Repacking, Inc.

                             U. S. v. Santiago’s Repacking, Inc.  

The Office of Chief Administrative Hearing Officer ("OCAHO") granted Immigration and Customs Enforcement partial summary decision in employer sanctions case and reduced penalties assessed for I-9 violations. 

The OCAHO is  within the Executive Office for Immigration Review (EOIR), and it has jurisdiction over, among other things, civil penalty cases arising under the Immigration Nationality Act's employer sanctions provision, section 274A.

In U.S. v. Santiago's Repacking, Inc, the Administrative Law Judge (ALJ) Ellen K. Thomas granted U.S. Immigration and Customs Enforcement's (ICE's) motion for summary decision with respect to liability on two counts of its three-count complaint, granted the respondent Santiago's Repacking, Inc. summary judgment on the third count, and imposed reduced penalties.

Count I of ICE's complaint against Santiago's Repacking, Inc. (Santiago's) asserted that Santiago's hired 24 individuals and failed to prepare or present Form I-9 for them upon request. 

Count II alleged that Santiago's hired 30 additional individuals and also failed to prepare or present Forms I-9 for them upon request but sought lesser penalties. 

Count III alleged that the company hired one individual, Santiago Moreno, for whom it failed to ensure that the individual properly completed Section 1 of the form and/or failed itself to properly complete Section 2 or 3. 

Penalties sought were assessed at the rate of $981 for each of the violations in Count I, $935 for each of the violations in Count II, and $935 for the violation in Count III, for a total civil money penalty of $52,529. 

 At the conclusion of the hearing, ALJ Thomas concluded that Santiago's Repacking, Inc. is a small business and it has no history of previous violation. As a result she found that the proposed fines were at the high end of the permissible penalty range and, considering the record as a whole, the statutory factors, and the evidentiary submissions, concluded that they should be adjusted as Santiago's Repacking, Inc.'s is a small company with ordinary business income in 2010 of only $58,457 and its payroll for that entire year was $226,531, so that the proposed penalties are close to the total of the company's business income for 2010. Thus, she adjusted the penalty to $400 for each of the violations in Count I and $350 for each of the violations in Count II, for a total of $20,100.  For more information please see the September 10, 2012, 89 No. 35 Interpreter Releases 1713. 

IMMIGRATION AND POLICY: DHS OUTLINES TIPS FOR STUDENTS

IMMIGRATION AND POLICY: DHS OUTLINES TIPS FOR STUDENTS: Posted by Norka M. Schell, Esq.  Law Offices of Norka M. Schell, LLC www.lawschell.com DHS Outlines Tips for Students Seeking Driv...

DHS OUTLINES TIPS FOR STUDENTS

Posted by Norka M. Schell, Esq. 

Law Offices of Norka M. Schell, LLC

www.lawschell.com

DHS Outlines Tips for Students Seeking Driver's License or Social Security Number

     Seeking a driver's license and a social security number can be complicated, especially for a foreigner. Knowing this, the Department of Homeland Security outlines six very useful tips for foreign students on how to seek a driver's license or/or a social security number in the United States.  

      1. Wait ten days after you arrive in the United States. You may want to apply for a driver's license or SSN [social security number] right away, but be patient. This step saves you 20 or more days of waiting! These ten days allow time for all the government databases to update with your arrival information. While you are waiting, talk with your designated school official (DSO) to learn more about your state's driving rules and regulations.

2. Make sure you are in active status in the Student and Exchange Visitor Information System (SEVIS). SEVIS is the database that manages information for all F and M students and J exchange visitors in the United States. Your DSO activates your record in SEVIS when you register for classes or check in for a program. Talk with your DSO before you apply for a license to make sure you are active in SEVIS.

3. Wait two days after your DSO activates you in SEVIS. After your DSO activates your record in SEVIS, you should wait at least two business days before you apply for a driver's license or SSN. This gives all the databases time to update with your new information. This step can also save you 20 or more days of waiting.

4. Check your forms. You should check all your forms to make sure your information is correct. This is called data integrity. Data integrity is very important because if you have different information on different forms, it will only cause more delays. For guidance, see SEVP's FAQ on Data Integrity. 

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

• Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status” or DS-2019, “Certificate of Eligibility for Exchange Visitor (J-1) Status”

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

• Passport (with visa if applicable)

• Proof of legal presence or residence (ask your DSO what your state requires)

• For an SSN, you must also bring a letter of employment and an endorsed Form I-20 (for F students). See SEVP's DMV Fact Sheet for more details on the appropriate paperwork you should bring.

    6. Don't wait too long to apply: While you shouldn't rush to get a driver's license or SSN, waiting too long can also be a problem. Verification issues can create significant delays in getting a driver's license or SSN; which, if you are to begin working, could delay or even jeopardize your employment opportunity. To avoid this, do not wait too long to begin the application process, but instead begin as soon you are eligible. http://studyinthestates.dhs.gov/2012/08/timing-is-everything-getting-your-drivers-license-or-social-security-number.

If we can assist you, please feel free to contact our office at (212)564-1589.

LAW OFFICES OF NORKA M. SCHELL, LLC: MANOHOR RAO ARRABALLY UPDATED

IMMIGRATION AND POLICY: MANOHOR RAO ARRABALLY UPDATED: Posted by: Norka M. Schell  New York Immigration Attorney Law Offices of Norka M. Schell, LLC www.lawschell.com    Here is the...

MANOHOR RAO ARRABALLY UPDATED

Posted by: Norka M. Schell 

New York Immigration Attorney

Law Offices of Norka M. Schell, LLC

www.lawschell.com 

 Here is the amended on the decision of Matterr of Manohar Rao Arrabally and Yerrabelly which was 

decided on August 16, 2012. 

The Board of Immigration Appeals held that the Respondents, 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). We hold that they did not.

Background

An alien who leaves the United States temporarily pursuant to a grant of advance parole

does not thereby make a “departure . . . from the United States” within the meaning

of section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C.

§ 1182(a)(9)(B)(i)(II) (2006). Matter of Lemus, 24 I&N Dec. 373 (BIA 2007), clarified.

In a decision dated August 20, 2009, an Immigration Judge found the

Respondents inadmissible as charged under section 212(a)(7)(A)(i)(I) of the

Immigration and Nationality Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (2006),

as intending immigrants not in possession of valid immigrant visas or other

entry documents. He further found them ineligible for adjustment of status

under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2006), based on their

inadmissibility under section 212(a)(9)(B)(i)(II), and he ordered them removed

from the United States.

Board of Immigration Appeals

This case presents the question whether the respondents, 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). We hold that they did not. Consequently, the respondents’

Cite as 25 I&N Dec. 771 (BIA 2012).

The respondents seek adjustment of status under section 245(i) of the Act (rather than

section 245(a)) because they “failed . . . to maintain continuously a lawful status since entry into the United States” within the meaning of section 245(c) of the Act. Section 245(i) adjustment is available for a fee to certain aliens who are “physically present in the United States” but covered by section 245(c). Section 245(i)(1)(A)(ii) of the Act. The appeal will be sustained in part and the record will be remanded to the

Immigration Judge for further proceedings.

LAW OFFICES OF NORKA M. SCHELL, LLC: MATTER OF Mahvah AKRAM, Respondent

IMMIGRATION AND POLICY: MATTER OF Mahvah AKRAM, Respondent: Posted by Norka M. Schell, Immigration Attorney Law Offices of Norka M. Schell, LLC www.lawschell.com Decided on August 1, 2012 This c...

MATTER OF Mahvah AKRAM, Respondent

Posted by Norka M. Schell, Immigration Attorney
Law Offices of Norka M. Schell, LLC
www.lawschell.com

Decided on August 1, 2012

This case addresses the question whether an alien who was admitted to the United States as a K-4 non immigrant pursuant to section 101(a)(15)(K)(iii) of the Immigration and Nationality Act,

8 U.S.C. § 1101(a)(15)(K)(iii) (2006), can adjust status without demonstrating immigrant visa eligibility and availability as the beneficiary of an approved immigrant visa petition filed by his or her stepparent, the United States citizen K visa petitioner. 

(1) An alien who was admitted to the United States as a K-4 nonimmigrant may not

adjust status without demonstrating immigrant visa eligibility and availability as the

beneficiary of a Petition for Alien Relative (Form I-130) filed by his or her stepparent,

the United States citizen K visa petitioner.

(2) A K-4 derivative child of a K-3 nonimmigrant who married the United States citizen

K visa petitioner after the K-4 reached the age of 18 is ineligible for adjustment of status

because he or she cannot qualify as the petitioner’s “stepchild.”

In a decision dated May 21, 2010, an Immigration Judge denied Mahvash Akram's application for adjustment of status and granted her request for voluntary departure. Mahvash Akram appealed from that decision and submitted two motions to remand. 

The case addressed the question whether an alien who was admitted to the United States as a K-4 nonimmigrant pursuant to section 101(a)(15)(K)(iii) of the Immigration and Nationality Act,

8 U.S.C. § 1101(a)(15)(K)(iii) (2006), can adjust status without demonstrating

immigrant visa eligibility and availability as the beneficiary of an approved

immigrant visa petition filed by his or her stepparent, the United States citizen

K visa petitioner. 

The Board of Immigration Appeals (BIA) concluded that the Respondent, a K-4 nonimmigrant who was over 18 years of age when her K-3 mother married the K visa petitioner, was ineligible to adjust her status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006), because she can not qualify as the petitioner’s “stepchild.” The BIA denied the two motions and dismissed the appeal.  

For assistance with your legal matter, please contact our office at (212)564-1589. 

IMMIGRATION AND POLICY: ICE AGENTS SUES DHS AND ICE OVER DACA

IMMIGRATION AND POLICY: ICE AGENTS SUES DHS AND ICE OVER DACA: Posted by Norka M. Schell, Esq. www.lawschell.com The Consideration for Deferred Action for Childhood Arrivals ("DACA") is under attack....

ICE AGENTS SUES DHS AND ICE OVER DACA

Posted by Norka M. Schell, Esq.

www.lawschell.com

The Consideration for Deferred Action for Childhood Arrivals ("DACA") is under attack. Ten officers and agents of U.S. Immigration and Customs Enforcement ("ICE") have filed a lawsuit in the District Court for the Northern District of Texas against the Department of Homeland Security (DHS) Secretary Janet Napolitano and ICE Director John Morton challenging the Obama administration's deferred action for childhood arrivals (DACA) directive and associated prosecutorial discretion memorandum "that prevent ICE officers, employees, and agents from fulfilling their sworn oath to uphold the law and defend defended the United States Constitution."  The Plaintiffs allege that the directive "commands ICE officers to violates federal law... commands ICE officers to violate their oaths to uphold and support federal law, violates the Administrative Procedure Act, unconstitutionally usurps and encroaches upon the legislative powers of Congress, as defined in Article I of the United States Constitution, and violates the obligation of the executive branch to faithfully execute the law, as required by Article II, Section 3, of the United States Constitution. 

IMMIGRATION AND POLICY: DEFERRED ACTION FOR CHILDHOOD ARRIVALS PROCESS

IMMIGRATION AND POLICY: DEFERRED ACTION FOR CHILDHOOD ARRIVALS PROCESS: By Norka M. Schell, Esq. Deferred Action for Childhood Arrival Questions and Answers In the light of the estimate 12 plus million undocu...

DEFERRED ACTION FOR CHILDHOOD ARRIVALS PROCESS

By Norka M. Schell, Esq.
Deferred Action for Childhood Arrival Questions and Answers

In the light of the estimate 12 plus million undocumented immigrants in the United States, mounting visa application backlogs, minimal workplace enforcement, it is clear that our current immigration laws do not meet the needs of our economy or hundreds of thousands of undocumented high school students and graduates. Despite of our broken immigration system, Congress still has not passed a comprehensive immigration reform.

On the other hand, the Obama's Administration  in an attempt to fulfill the President's promises to undocumented immigrant communities, announced on June 15, 2012 that it will grant Deferred Action status to young child undocumented high school students and graduates. Beginning tomorrow, August 16, 2012, the United States Immigration and Naturalization Service will accept applications for request consideration of Deferred Action for Childhood Arrivals.

Where did the Obama's Administration get  the Deferred Action for Childhood Arrivals idea?

The idea to grant and extend Deferred Action to young people -- Childhood Arrival -- originated from Temporary Protected Status program, also known as "TPS."

Generally, a Temporary Protected Status program establishes a temporary safe haven in the United States for nationals or a foreign status (or if stateless if person habitually resided in the foreign state) if the Attorney General, after consultation with appropriate government agencies, determines with respect to that foreign state that:

1. There is an ongoing armed conflict within the state (or a part of the state) posing a serious threat to the personal safety of the county's nationals if returned there. INA Section 244(b)(1)(A), 8 U.S.C 124a(b)(1)(A); or

2. There has been an earthquake, flood, drought, epidemic or other environmental disaster resulting in a substantial but temporary disruption of living conditions in the area affected; the foreign state is unable temporarily to handle the return of its nationals and the foreign state has affirmatively requested designation, INA Section 244(b)(1)(8),  8 U.S.C. Section 1245a(b)(1)(B); or

3. There exist extraordinary and temporary conditions in the foreign state preventing its nationals from returning safely, unless Attorney General determines that it is contrary to national interest to allow those aliens to remain temporarily. INA Section 244(b)(1)(C),  8 U.S.C Section 125a(b)(1)(C).

A Temporary Protected Status Program can be withdrawn or terminated if:

1. The Attorney General finds person was not eligible
2. The person fails maintain continuous physical presence
3. The person fails without good cause, to re-register with Department of Homeland Security
4. The Attorney General terminate the program.

"Bravo" to the Obama's Administration for its cleverness and courage to find a way for temporary relief to the undocumented high school students and graduates. I hope that the U.S. Congress re-examine immigration reform and find the way to grant to the "undocumented" high school students and graduates permanent safe haven in the United States. 

IMMIGRATION AND POLICY: IMMIGRATION AND POLICY: DEFERRED ACTION FOR CHILDH...

IMMIGRATION AND POLICY: IMMIGRATION AND POLICY: DEFERRED ACTION FOR CHILDH...: IMMIGRATION AND POLICY: DEFERRED ACTION FOR CHILDHOOD ARRIVALS : By Attorney Norka M. Schell On August 3, 2012, the Department of Homeland...

IMMIGRATION AND POLICY: DEFERRED ACTION FOR CHILDHOOD ARRIVALS

IMMIGRATION AND POLICY: DEFERRED ACTION FOR CHILDHOOD ARRIVALS: By Attorney Norka M. Schell On August 3, 2012, the Department of Homeland Security (DHS) announced that USCIS will begin accepting request...

DEFERRED ACTION FOR CHILDHOOD ARRIVALS

By Attorney Norka M. Schell

On August 3, 2012, the Department of Homeland Security (DHS) announced that USCIS will begin accepting request for Deferred Action for Childhood Arrival on August 15, 2012, when USCIS expects to post the application form and instructions on its website. Requests for relief are to be decided on a case-by-case basis, and applicants must pass a background check before they can receive deferred action.

I advise the Childhood Arrivals to proceed with caution because the deferred action is a discretionary decision where DHS will determine on a case-by-case of not to pursue enforcement against a person for a specific period. A grant of a deferred action status will not confer lawful immigration status, alter an individual's existing immigration status, or provide a path to citizenship. It only means that time in deferred action status will be considered a period of stay authorized the Secretary of DHS. DHS can renew or terminate a grant of deferred action at any time.

If you need assistance regarding Deferred Action, you should contact my office at (212)564-1589.

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