Pageviews last month
June 9, 2014
SCIALABBA V. DE OSORIO
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: SCIALABBA v. DE OSORIO: Posted by NYC Norka M. Schell, NYC Immigration Lawyer Law Offices of Norka M. Schell, LLc Tel. (212) 564-1589 Today, June 09, 2014, the...
SCIALABBA v. DE OSORIO
Posted by NYC Norka M. Schell, NYC Immigration Lawyer
Law Offices of Norka M. Schell, LLc
Tel. (212) 564-1589
Today, June 09, 2014, the U.S. Supreme Court uphold BIA's narrow interpretation of the Child Status Protection Act (CSPA) provisions.
The Court reversed and remanded the Nineth Circuit's decision in De Osorio v. Mayorkas, holding that the Child Status Protection Act under the INA section 203 (h)(3) is ambiguous and that a court must defer to BIA's narrow interpretation in Matter of Wang.
The Court found that in order to "automatically converted" to a new visa category, aged-out children must continue to have a qualifying preference relationship with the initial petition.
See http://www.supremecourt.gov/opinions/13pdf/12-930_3d46.pdf
May 23, 2014
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: IMMIGRATION STRATEGIES FOR TRANSFERRING PERSONNEL ...
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: IMMIGRATION STRATEGIES FOR TRANSFERRING PERSONNEL ...: One of the critical concerns of companies with operations both in the United States and overseas is the ability to transfer key personnel to...
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: IMMIGRATION STRATEGIES FOR TRANSFERRING PERSONNEL ...
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: IMMIGRATION STRATEGIES FOR TRANSFERRING PERSONNEL ...: One of the critical concerns of companies with operations both in the United States and overseas is the ability to transfer key personnel to...
IMMIGRATION STRATEGIES FOR TRANSFERRING PERSONNEL TO THE UNITED STATES
One of the critical concerns of companies with operations both in the United States and overseas is the ability to transfer key personnel to the United States with speed and certainty. United States immigration law provides several options for transferring personnel, depending on the tenure of the worker with the organization, the nationality of the company and the worker, and qualifications of the worker.
Temporary Visa Options - while many individuals would prefer to acquire permanent residence (a "green card") in the United States immediately, the length of time needed to process an application for permanent residence (usually at least a year, and frequently several years) and the pace of international business mean that an employee being transferred to the United States will need to commence work in a temporary (called "nonimmigrant") visa classification authorizing employment in the United States.
The B-1, or visitor for business, visa is a valuable option to companies for short term transfer where the employee will continue to be employed and paid by the company outside of the United States during the temporary assignment in the United States.
The L-1, or intracompany transferee, visa enables overseas companies with parents, subsidiary, affiliate or branch office in the United States to transfer managers, executives and "specialized knowledge" employees to the United States.
The E-1 treaty trade visa and E-2 treaty investor visa are only available to employees of companies owned at least 50% by nationals of a country that has a special treaty relationship with the United States or individuals who are nationals of the treaty country.
Employees who do not qualify either under E-1 or E-2 treaty trader/treaty investor category or the L-1 intracompany transferee category as managers, executives, supervisors or specialized knowledge may need to obtain H visa.
To explore your options, please call our NYC office at (212)564-1589 to schedule your consultation with our NYC Business Immigration Lawyers or visit our website to complete our online consultation form.
Temporary Visa Options - while many individuals would prefer to acquire permanent residence (a "green card") in the United States immediately, the length of time needed to process an application for permanent residence (usually at least a year, and frequently several years) and the pace of international business mean that an employee being transferred to the United States will need to commence work in a temporary (called "nonimmigrant") visa classification authorizing employment in the United States.
The B-1, or visitor for business, visa is a valuable option to companies for short term transfer where the employee will continue to be employed and paid by the company outside of the United States during the temporary assignment in the United States.
The L-1, or intracompany transferee, visa enables overseas companies with parents, subsidiary, affiliate or branch office in the United States to transfer managers, executives and "specialized knowledge" employees to the United States.
The E-1 treaty trade visa and E-2 treaty investor visa are only available to employees of companies owned at least 50% by nationals of a country that has a special treaty relationship with the United States or individuals who are nationals of the treaty country.
Employees who do not qualify either under E-1 or E-2 treaty trader/treaty investor category or the L-1 intracompany transferee category as managers, executives, supervisors or specialized knowledge may need to obtain H visa.
To explore your options, please call our NYC office at (212)564-1589 to schedule your consultation with our NYC Business Immigration Lawyers or visit our website to complete our online consultation form.
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: IMMIGRATION ADVOCATES FOCUS THEIR ANGRY ON THE HOU...
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: IMMIGRATION ADVOCATES FOCUS THEIR ANGRY ON THE HOU...: Posted by Norka M. Schell, Immigration Lawyer Law Offices of Norka M. Schell, LLC New York City, New York Tel. (212)564-1589 website: w...
IMMIGRATION ADVOCATES FOCUS THEIR ANGRY ON THE HOUSE GOP LEADER
Posted by Norka M. Schell, Immigration Lawyer
Law Offices of Norka M. Schell, LLC
New York City, New York
Tel. (212)564-1589
website: www.lawschell.com
WASHINGTON (AP) — "Immigration advocates angry that legislation has stalled in Congress are increasingly focusing their ire at one person: Eric Cantor, the House majority leader.
Law Offices of Norka M. Schell, LLC
New York City, New York
Tel. (212)564-1589
website: www.lawschell.com
WASHINGTON (AP) — "Immigration advocates angry that legislation has stalled in Congress are increasingly focusing their ire at one person: Eric Cantor, the House majority leader.
More so than House Speaker John Boehner of Ohio, Cantor is seen as responsible for the House's election-year failure to act on immigration 11 months after the Senate passed a wide-ranging bill with billions for border security and a path to citizenship for the 11.5 million immigrants in the country illegally. The issue is a top priority for President Barack Obama.
"Eric Cantor is the No. 1 guy standing between the American people and immigration reform," Frank Sharry, executive director of America's Voice, a pro-immigrant group, said on a conference call Wednesday organized by Democratic activists and immigrant advocates to criticize Cantor.
The Virginia Republican, widely seen as having ambitions of being speaker one day, faces a tea party primary challenge June 10 and has hardened his stance on immigration.
Cantor and the chairman of the House Judiciary Committee, fellow Virginian Bob Goodlatte, announced last summer that they were developing legislation offering citizenship to immigrants brought illegally to this country as kids. The bill never appeared.
And according to Rep. Jeff Denham, R-Calif., Cantor committed last year to helping him bring legislation to a vote granting citizenship to immigrants brought here illegally as kids who serve in the military. No agreement was reached, and Cantor's office announced Friday that Denham's measure would not even be allowed to come to the floor this year as part of the annual defense bill, which the House is considering this week.
Denham said the announcement took him by surprise after talking with Cantor earlier in the day, and he had no explanation.
Cantor's spokesman, Doug Heye, said that Cantor continues to support Denham's bill, the ENLIST Act, as well as legislation allowing citizenship to kids brought illegally, and conversations are ongoing. Heye said Cantor never committed to bringing the ENLIST Act to a vote, just to working on it.
Political considerations play no role, Heye said.
"On the issue of kids, he thinks that's a great place to start and wants to continue to work on that. He supports the principle behind the ENLIST Act," Heye said. "These are things that he believes because they're the right things for him to do. It's not a political calculation. Eric Cantor's position on immigration remains consistent."
But Cantor is facing pressure on immigration from his primary opponent, Dave Brat, an economics professor at Randolph-Macon College. Brat is a long-shot to unseat Cantor, who cruised to a seventh term with 58 percent of the vote in 2012. But his candidacy has attracted attention from prominent Republicans such as columnist Ann Coulter, who described Cantor as "amnesty-addled."
Earlier this month at a convention in Cantor's district, Virginia conservatives booed the majority leader and ousted one of his allies as chairman of a local Republican committee, elevating a tea party favorite instead.
Brat has seized on the dispute around Denham's bill, accusing Cantor in an opinion piece published in a local online community forum of supporting the legislation "until he saw my primary challenge and principled conservatives' stand on amnesty."
Even before his primary drew near, Cantor was seen as the member of House Republican leadership most opposed to acting on immigration legislation.
Boehner is viewed as an ally by immigration advocates, based partly on his ties to the business community, which supports overhauling immigration laws. Boehner also has said repeatedly in public and in private that he wants to deal with the immigration issue.
Cantor, on the other hand, is seen as reluctant. According to Heye, Cantor hasn't weighed in on the question of whether Republicans must support immigration reform in order to ensure the GOP's viability as a political party — a position that's become an article of faith with establishment Republicans such as Boehner.
And Cantor has ties to tea party lawmakers whose support might be helpful if he does one day seek the speakership. These conservatives largely oppose immigration legislation.
Boehner earlier this month refused to commit to serving another full term as speaker, but Heye denied Cantor was eyeing the speakership in making decisions. "He's running for re-election as majority leader and we've not said anything more than that," said Heye." Writer Erica Werner
May 12, 2014
ABDELGHANY, 26 I&N Dec. 254 (BIA 2014)
Posted by: Norka M. Schell, NYC Immigration Lawyer
Law Offices of Norka M. Schell, LLC
Tel. (212)564-1589
www.lawschell.com
Law Offices of Norka M. Schell, LLC
Tel. (212)564-1589
www.lawschell.com
ABDELGHANY |
(1) A lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered before April 24, 1996, is eligible to apply for discretionary relief under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), unless: (a) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act, 8 U.S.C. §§ 1182(a)(3)(A), (B), (C), or (E), or (10)(C) (2012); or (b) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.
(2) A lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered between April 24, 1996, and April 1, 1997, is eligible to apply for discretionary relief from removal or deportation under former section 212(c) of the Act unless:
(1) the applicant’s removal or deportation proceedings commenced on or after April 24, 1996, and the conviction renders the applicant removable or deportable under one or more of the deportability grounds enumerated in section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277 (as amended); or
(2) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act; or (3) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.
(3) A lawful permanent resident who is otherwise eligible for relief under former section 212(c) of the Act may apply for such relief in removal or deportation proceedings without regard to whether the relevant conviction resulted from a plea agreement or a trial and without regard to whether he or she was removable or deportable under the law in effect when the conviction was entered.
L.D.G. v. Holder, Waiver of Inadmissibility Under Sec. 212(d)(3)(A)
Posted by: Norka M. Schell, NYC Immigration Lawyer
Law Offices of Norka M. Schell, LLC
Tel. (212)564-1589
Website: www.lawschell.com
L.D.G. v. Holder (7th Cir. Mar. 12, 2014)
The Seventh Circuit granted a petition for review of the Board’s decision affirming that an Immigration Judge lacked jurisdiction to adjudicate an application for a waiver of inadmissibility under section 212(d)(3)(A) of the Act. The petitioner applied for a nonimmigrant visa under section 101(a)(15)(U) of the Act but was found ineligible because she had been convicted of a drug offense. She sought a waiver of inadmissibility, which, if granted, would allow for approval of the U visa application. The Immigration Judge found that he lacked jurisdiction to consider the request for a waiver. The Board affirmed, noting that the petitioner had not been denied an initial opportunity to seek a waiver of inadmissibility with the DHS under section 212(d)(14) of the Act. The Board additionally held that since the petitioner’s illegal entry was the cause of her inadmissibility, she was applying for a retroactive waiver, which the Seventh Circuit had found to be barred in Borrego v. Mukasey, 539 F.3d 689 (7th Cir. 2008). The court first clarified that the petitioner was not seeking a retroactive waiver by distinguishing the facts in her case from those in Borrego. Borrego sought a waiver after a visa had been improvidently issued while she was subject to a 5-year bar from entering the U.S., but this petitioner had not yet been issued a visa. The court explained that retroactive waivers “relieve . . . the effects of past conduct, but this does not make the waivers themselves retroactive.”
Rather, a waiver is retroactive when it “works to salvage relief previously granted for which the applicant was not qualified, and thus was void from the outset.” Regarding the question of jurisdiction, the court found that deference was not warranted, because the Board (which is part of Department of Justice) was not interpreting its own agency’s regulation, but rather one issued by the DHS. The court held that section 212(d)(14), which grants the Secretary of the DHS authority to waive most statutory grounds of inadmissibility for U visa applicants, does not limit section 212(d)(3)(A), which grants the Attorney General broad discretion to grant waivers of inadmissibility to nonimmigrant visa applicants. The court further noted that a scheme authorizing one agency to grant a waiver in order to apply for a visa from another agency “is neither unprecedented nor unique.” The court therefore vacated the removal order and remanded the case for the Immigration Judge to consider the waiver request.
Law Offices of Norka M. Schell, LLC
Tel. (212)564-1589
Website: www.lawschell.com
L.D.G. v. Holder (7th Cir. Mar. 12, 2014)
The Seventh Circuit granted a petition for review of the Board’s decision affirming that an Immigration Judge lacked jurisdiction to adjudicate an application for a waiver of inadmissibility under section 212(d)(3)(A) of the Act. The petitioner applied for a nonimmigrant visa under section 101(a)(15)(U) of the Act but was found ineligible because she had been convicted of a drug offense. She sought a waiver of inadmissibility, which, if granted, would allow for approval of the U visa application. The Immigration Judge found that he lacked jurisdiction to consider the request for a waiver. The Board affirmed, noting that the petitioner had not been denied an initial opportunity to seek a waiver of inadmissibility with the DHS under section 212(d)(14) of the Act. The Board additionally held that since the petitioner’s illegal entry was the cause of her inadmissibility, she was applying for a retroactive waiver, which the Seventh Circuit had found to be barred in Borrego v. Mukasey, 539 F.3d 689 (7th Cir. 2008). The court first clarified that the petitioner was not seeking a retroactive waiver by distinguishing the facts in her case from those in Borrego. Borrego sought a waiver after a visa had been improvidently issued while she was subject to a 5-year bar from entering the U.S., but this petitioner had not yet been issued a visa. The court explained that retroactive waivers “relieve . . . the effects of past conduct, but this does not make the waivers themselves retroactive.”
Rather, a waiver is retroactive when it “works to salvage relief previously granted for which the applicant was not qualified, and thus was void from the outset.” Regarding the question of jurisdiction, the court found that deference was not warranted, because the Board (which is part of Department of Justice) was not interpreting its own agency’s regulation, but rather one issued by the DHS. The court held that section 212(d)(14), which grants the Secretary of the DHS authority to waive most statutory grounds of inadmissibility for U visa applicants, does not limit section 212(d)(3)(A), which grants the Attorney General broad discretion to grant waivers of inadmissibility to nonimmigrant visa applicants. The court further noted that a scheme authorizing one agency to grant a waiver in order to apply for a visa from another agency “is neither unprecedented nor unique.” The court therefore vacated the removal order and remanded the case for the Immigration Judge to consider the waiver request.
April 28, 2014
PARDONS
By Norka M. Schell, NYC Immigration Lawyer
Law Offices of Norka M. Schell, LLC
Tel. (212)554-1589
Website: www.lawschell.com
A non citizen is inadmissible to the United States if he or she has committed or, in some cases admits to committing, a crime involving moral turpitude (unless the person was under 18 years of age at the time the crime was committed, he or she committed only one crime the penalty for which was less than one year imprisonment and a sentence of six months or less was imposed, and the crime was committed or the person was released from confinement more than five years before applying for admission) or multiple criminal convictions for which the aggregate sentences to confinement were five years or more. A non citizen may be removed from the United States if he or she was inadmissible at the time of entry or upon conviction of the following: (1) a crime involving moral turpitude committed within five years of entry (or 10 years in the case of an offender with certain lawful permanent resident status) and for which a sentence of one year or longer may be imposed; (2) two or more crimes of moral turpitude not arising out of a single scheme; (3) an aggravated felony; (4) a drug offense (other than one involving possession of 30 grams or less of marijuana for one's own use); (5) certain firearms offenses; (7) certain immigration offenses; or (8) a domestic violence offense.
There are some forms of relief available to non citizens with criminal convictions under certain conditions which may include the following:
(1) cancellation of removal for certain permanent resident
(2) former INA section 212(c) relief
(3) asylum
(4) withholding or removal
(5) relief under the Convention Against Torture (CAT)
(6) general nonimmigrant waiver
(7) waiver for certain criminal conduct
(8) the "petty offense" exception
(9) citizenship
Unfortunately, most of the available relief does not eliminate grounds of inadmissibility for a great number of crimes.
Non citizens subject to removal based on convictions for crimes of moral turpitude, aggravated felonies, high speed flight and multiple criminal convictions may avoid removal if granted a "full and unconditional" pardon by the President, the governor of the State, or a constitutionally recognized executive. A pardon will only waive the grounds of removal specifically set forth in INA section 237(a)(2)(A)(v) [8 U.S.C.A. section 1227 (a)(2)(A)(v)] which are crimes of moral turpitude, multiple criminal convictions, aggravated felony, and high speed flight from a DHS checkpoint. No implicit waivers may be read into the statute.
A pardon eliminates the immigration consequences of a given crime for future entries. Therefore, a non citizen who has received a pardon is not deportable as inadmissible at the time of admission for a crime or crimes covered in the pardon.
State of New York Pardon
The authority to issue pardons in the state of New York is vested with the governor. Similar to procedures in other states, the governor is required to report annually on the number of pardons and his or her reasons for granting such. The Board of Parole is charged with advising the governor on clemency cases when so requested. Absent compelling reasons, a pardon will not be considered if there are administrative remedies available. In New York, pardons are only considered for the following reasons: (1) to set aside a conviction in cases of innocence; (2) to relieve collateral disability; or (3) to prevent deportation or permit reentry. An Executive Clemency Bureau within the Division of Parole is charged with screening candidates for eligibility requirements, gathering materials relating to applications, and responding to letters from applicants and other relating tot he application process. In recent years there have been very few pardons granted in New York.
Law Offices of Norka M. Schell, LLC
Tel. (212)554-1589
Website: www.lawschell.com
A non citizen is inadmissible to the United States if he or she has committed or, in some cases admits to committing, a crime involving moral turpitude (unless the person was under 18 years of age at the time the crime was committed, he or she committed only one crime the penalty for which was less than one year imprisonment and a sentence of six months or less was imposed, and the crime was committed or the person was released from confinement more than five years before applying for admission) or multiple criminal convictions for which the aggregate sentences to confinement were five years or more. A non citizen may be removed from the United States if he or she was inadmissible at the time of entry or upon conviction of the following: (1) a crime involving moral turpitude committed within five years of entry (or 10 years in the case of an offender with certain lawful permanent resident status) and for which a sentence of one year or longer may be imposed; (2) two or more crimes of moral turpitude not arising out of a single scheme; (3) an aggravated felony; (4) a drug offense (other than one involving possession of 30 grams or less of marijuana for one's own use); (5) certain firearms offenses; (7) certain immigration offenses; or (8) a domestic violence offense.
There are some forms of relief available to non citizens with criminal convictions under certain conditions which may include the following:
(1) cancellation of removal for certain permanent resident
(2) former INA section 212(c) relief
(3) asylum
(4) withholding or removal
(5) relief under the Convention Against Torture (CAT)
(6) general nonimmigrant waiver
(7) waiver for certain criminal conduct
(8) the "petty offense" exception
(9) citizenship
Unfortunately, most of the available relief does not eliminate grounds of inadmissibility for a great number of crimes.
Non citizens subject to removal based on convictions for crimes of moral turpitude, aggravated felonies, high speed flight and multiple criminal convictions may avoid removal if granted a "full and unconditional" pardon by the President, the governor of the State, or a constitutionally recognized executive. A pardon will only waive the grounds of removal specifically set forth in INA section 237(a)(2)(A)(v) [8 U.S.C.A. section 1227 (a)(2)(A)(v)] which are crimes of moral turpitude, multiple criminal convictions, aggravated felony, and high speed flight from a DHS checkpoint. No implicit waivers may be read into the statute.
A pardon eliminates the immigration consequences of a given crime for future entries. Therefore, a non citizen who has received a pardon is not deportable as inadmissible at the time of admission for a crime or crimes covered in the pardon.
State of New York Pardon
The authority to issue pardons in the state of New York is vested with the governor. Similar to procedures in other states, the governor is required to report annually on the number of pardons and his or her reasons for granting such. The Board of Parole is charged with advising the governor on clemency cases when so requested. Absent compelling reasons, a pardon will not be considered if there are administrative remedies available. In New York, pardons are only considered for the following reasons: (1) to set aside a conviction in cases of innocence; (2) to relieve collateral disability; or (3) to prevent deportation or permit reentry. An Executive Clemency Bureau within the Division of Parole is charged with screening candidates for eligibility requirements, gathering materials relating to applications, and responding to letters from applicants and other relating tot he application process. In recent years there have been very few pardons granted in New York.
A "Conviction" Under Immigration Law
By Norka M. Schell, Immigration Lawyer
Law Offices of Norka M. Schell, LLC
Tel. (212)564-1589
Website: www.lawschell.com
Most crime-related grounds of deportability, as well as some crime-related grounds of inadmissibility, require a conviction in order to make the non citizen deportable or inadmissible. Even where a conviction is not required, the Department of Homeland Security (DHS) may not be able to establish criminal conduct without a conviction.
What is a conviction under immigration law? To determine what is a conviction under immigration law, one must look first to the immigration statute that defines "conviction," added by the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA). A conviction exists where there has been a formal judgement of guilty entered by a court or if adjudication has been withheld, where all of the following elements are present:
(1) a judge or a jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilty; and
(2) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.
A conviction does not occur at the time the court accepts the guilty plea, but rather at the "date on which judgment is entered on the docket" which under the Federal R. Crim. P. 32(d)(1) is after sentencing.
Before 1996, the immigration law did not include a definition of "conviction." What state dispositions constituted a conviction was a matter of case law. In a key decision in 1988, Matter of Ozkok, the Board of Immigration Appeals (BIA) ruled that a conviction exits for immigration purposes if a court entered a formal judgment of guilt or, if adjudication of guilt was withheld, where all of the following three elements were present: (1) a judge or jury found the individual guilty, or admitted sufficient facts to warrant a finding of guilty, (2) the judge ordered some form of punishment, penalty, or restraint on the person's liberty to the imposed, and (3) a judgment or adjudication of guilt may be entered if the person violates the terms of the person's probation or fails to comply with the requirements of the court's order, without availability of further proceedings on the question of guilt or innocence.
Thus, even before 1996, the BIA had defined conviction to include some dispositions that did not constitute a formal judgment of guilt, i.e., cases where there was some finding or admission of guilt by where the state deferred formal adjudication and might even eventually dismiss the criminal charges. The BIA did, however, exclude from its "conviction" determination any disposition where adjudication of guilt had been withheld based on fulfillment of certain conditions if a further hearing on guilt or innocence was required if those conditions were not fulfilled.
Under the current statutory definition of conviction, a state disposition is not a conviction under immigration law unless there has some finding, plea, or admission of guilt.
The statutory definition of a conviction under INA section 101(a)(48)(A) requires some form of penalty or punishment to be imposed. The BIA has determined that the imposition of costs and surcharges in a criminal sentence constitutes a "form of penalty or punishment" for purpose of this section.
Where a state allows for the entry of a judgment of guilt under a standard less than "beyond a reasonable doubt" and the state need not provide counsel or a jury, a "criminal conviction" is not a conviction under the INA section 101(a)(48)(A).
While the federal definition of conviction is controlling, a person will not be deemed convicted under the INA if there is a no plea entered under state law.
A conviction vacated for a legal defect (and not due to a rehabilitative statue) is not a conviction for immigration purposes.
Conviction on appeal
Before Congress codified the definition of conviction in 1996, the Supreme Court had required that a conviction be final before it could be used to support a conviction-based ground of deportability. The Board of Immigration Appeals had also found that a conviction does not count for immigration purpose s until direct appellate review has been exhausted of waived. Although some federal reviewing courts have indicated that the statutory definition of conviction added to the immigration statute in 1996 eliminated the finality requirement, other courts have indicated that the finality requirement remains in force.
Even if finality is still required before a conviction may be used to support a conviction based-ground of removability, the Board has held that New York State court's acceptance of a late-filed appeal under N.Y. Crim. Proc. Law section 460.30 does not prevent the conviction from being deemed a valid predicate for a charge of removability. However, in an unpublished decision, the Second Circuit has reversed this decision, stating the BIA misinterpreted New York law and finding that a section 460.30 late appeal is equivalent to any other direct appeal for the purposes of finality. The Second Circuit then remanded for the Board to address, in the first instance, the effect of the IIRIRA's definition of conviction on the traditional finality requirement.
Law Offices of Norka M. Schell, LLC
Tel. (212)564-1589
Website: www.lawschell.com
Most crime-related grounds of deportability, as well as some crime-related grounds of inadmissibility, require a conviction in order to make the non citizen deportable or inadmissible. Even where a conviction is not required, the Department of Homeland Security (DHS) may not be able to establish criminal conduct without a conviction.
What is a conviction under immigration law? To determine what is a conviction under immigration law, one must look first to the immigration statute that defines "conviction," added by the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA). A conviction exists where there has been a formal judgement of guilty entered by a court or if adjudication has been withheld, where all of the following elements are present:
(1) a judge or a jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilty; and
(2) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.
A conviction does not occur at the time the court accepts the guilty plea, but rather at the "date on which judgment is entered on the docket" which under the Federal R. Crim. P. 32(d)(1) is after sentencing.
Before 1996, the immigration law did not include a definition of "conviction." What state dispositions constituted a conviction was a matter of case law. In a key decision in 1988, Matter of Ozkok, the Board of Immigration Appeals (BIA) ruled that a conviction exits for immigration purposes if a court entered a formal judgment of guilt or, if adjudication of guilt was withheld, where all of the following three elements were present: (1) a judge or jury found the individual guilty, or admitted sufficient facts to warrant a finding of guilty, (2) the judge ordered some form of punishment, penalty, or restraint on the person's liberty to the imposed, and (3) a judgment or adjudication of guilt may be entered if the person violates the terms of the person's probation or fails to comply with the requirements of the court's order, without availability of further proceedings on the question of guilt or innocence.
Thus, even before 1996, the BIA had defined conviction to include some dispositions that did not constitute a formal judgment of guilt, i.e., cases where there was some finding or admission of guilt by where the state deferred formal adjudication and might even eventually dismiss the criminal charges. The BIA did, however, exclude from its "conviction" determination any disposition where adjudication of guilt had been withheld based on fulfillment of certain conditions if a further hearing on guilt or innocence was required if those conditions were not fulfilled.
Under the current statutory definition of conviction, a state disposition is not a conviction under immigration law unless there has some finding, plea, or admission of guilt.
The statutory definition of a conviction under INA section 101(a)(48)(A) requires some form of penalty or punishment to be imposed. The BIA has determined that the imposition of costs and surcharges in a criminal sentence constitutes a "form of penalty or punishment" for purpose of this section.
Where a state allows for the entry of a judgment of guilt under a standard less than "beyond a reasonable doubt" and the state need not provide counsel or a jury, a "criminal conviction" is not a conviction under the INA section 101(a)(48)(A).
While the federal definition of conviction is controlling, a person will not be deemed convicted under the INA if there is a no plea entered under state law.
A conviction vacated for a legal defect (and not due to a rehabilitative statue) is not a conviction for immigration purposes.
Conviction on appeal
Before Congress codified the definition of conviction in 1996, the Supreme Court had required that a conviction be final before it could be used to support a conviction-based ground of deportability. The Board of Immigration Appeals had also found that a conviction does not count for immigration purpose s until direct appellate review has been exhausted of waived. Although some federal reviewing courts have indicated that the statutory definition of conviction added to the immigration statute in 1996 eliminated the finality requirement, other courts have indicated that the finality requirement remains in force.
Even if finality is still required before a conviction may be used to support a conviction based-ground of removability, the Board has held that New York State court's acceptance of a late-filed appeal under N.Y. Crim. Proc. Law section 460.30 does not prevent the conviction from being deemed a valid predicate for a charge of removability. However, in an unpublished decision, the Second Circuit has reversed this decision, stating the BIA misinterpreted New York law and finding that a section 460.30 late appeal is equivalent to any other direct appeal for the purposes of finality. The Second Circuit then remanded for the Board to address, in the first instance, the effect of the IIRIRA's definition of conviction on the traditional finality requirement.
March 14, 2014
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: HIZAM V. KERRY, 12-3810
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: HIZAM V. KERRY, 12-3810: By Norka M. Schell, NYC Immigration Business Lawyer Law Offices of Norka M. Schell, LLC www.lawschell.com The Department of State (DOS) ...
HIZAM V. KERRY, 12-3810
By Norka M. Schell, NYC Immigration Business Lawyer
Law Offices of Norka M. Schell, LLC
www.lawschell.com
The Department of State (DOS) has revoked a passport of a man who has lived in the United States since 1989 because the U.S. Embassy decided it has made a mistake by recognized his citizenship in the first place, and now the U.S. Court of Appeals for the Second Circuit on March 12, 2014 "reluctantly" said it was powerless to help Yemeni-born Abdo Hizam, who always believed he was a U.S. citizen until the DOS wrote him in 2011 and said it mistakenly issued a key document believing Hizam's father had been here long enough to confer citizenship on his son. To continue reading click here.
Law Offices of Norka M. Schell, LLC
www.lawschell.com
The Department of State (DOS) has revoked a passport of a man who has lived in the United States since 1989 because the U.S. Embassy decided it has made a mistake by recognized his citizenship in the first place, and now the U.S. Court of Appeals for the Second Circuit on March 12, 2014 "reluctantly" said it was powerless to help Yemeni-born Abdo Hizam, who always believed he was a U.S. citizen until the DOS wrote him in 2011 and said it mistakenly issued a key document believing Hizam's father had been here long enough to confer citizenship on his son. To continue reading click here.
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: APRIL 2014 BULLETIN VISA UPDATE
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: APRIL 2014 BULLETIN VISA UPDATE: Posted by Norka M. Schell, NYC Business Immigration Lawyer Law Offices of Norka M. Schell, LLC Tel. (212)564-1589 www.lawschell.com FAM...
APRIL 2014 BULLETIN VISA UPDATE
Posted by Norka M. Schell, NYC Business Immigration Lawyer
Law Offices of Norka M. Schell, LLC
Tel. (212)564-1589
www.lawschell.com
FAMILY SPONSORED PREFERENCES
Law Offices of Norka M. Schell, LLC
Tel. (212)564-1589
www.lawschell.com
FAMILY SPONSORED PREFERENCES
Family-Sponsored | All Chargeability Areas Except Those Listed | CHINA-mainland born | INDIA | MEXICO | PHILIPPINES |
F1 | 22FEB07 | 22FEB07 | 22FEB07 | 01NOV93 | 01NOV01 |
F2A | 08SEP13 | 08SEP13 | 08SEP13 | 15APR12 | 08SEP13 |
F2B | 22OCT06 | 22OCT06 | 22OCT06 | 01MAY93 | 08JUN03 |
F3 | 15JUL03 | 15JUL03 | 15JUL03 | 22JUN93 | 22FEB93 |
F4 | 22NOV01 | 22NOV01 | 22NOV01 | 22NOV96 | 01OCT90 |
EMPLOYMENT BASED PREFERENCES
Employment- Based |
All Chargeability Areas Except Those Listed
| China - mainland born | INDIA | MEXICO | PHILIPPINES |
1st | C | C | C | C | C |
2nd | C | 08MAR09 | 15NOV04 | C | C |
3rd | 01OCT12 | 01OCT12 | 15SEP03 | 01OCT12 | 15JUN07 |
Other Workers | 01OCT12 | 01OCT12 | 15SEP03 | 01OCT12 | 15JUN07 |
4th | C | C | C | C | C |
Certain Religious Workers | C | C | C | C | C |
5th
Targeted EmploymentAreas/ Regional Centers and Pilot Programs | C | C | C | C | C |
March 13, 2014
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: H-1B FISCAL YEAR 2015 CAP SEASON BEGINS ON APRIL 1...
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: H-1B FISCAL YEAR 2015 CAP SEASON BEGINS ON APRIL 1...: By Norka M. Schell, NYC Business Immigration Lawyer Law Offices of Norka M. Schell, LLC Phone (212)564-1589 Website: www.lawschell.com ...
H-1B FISCAL YEAR 2015 CAP SEASON BEGINS ON APRIL 1, 2014
By Norka M. Schell, NYC Business Immigration Lawyer
Law Offices of Norka M. Schell, LLC
Phone (212)564-1589
Website: www.lawschell.com
U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized field, including but not limited to scientist, engineers, or computer programmers. The Fiscal Year (FY) 2015 Cap season begin on April 1, 2014.
When qualification is based on an alien filing a position in a specialty occupation, the position to be filled by the alien must required the services of someone who has the credentials for that specialty occupation. The requirement that an H-1B position be in a specialty occupation can be easily met in most cases because the position involved has already clearly been held by the Service to be in a profession (which is the definitional equivalent of a specialty occupation). In those cases, the employer needs to do little to document the nature of the position. This rule of thumb applies to the following positions: engineers, accountants, lawyers, scientists, librarians, psychologists, financial analysts, systems analysts, architects, teachers, professors, journalists, editors, technical publications writes, management consultants, market research analysts.
There are gray areas around the fringes of some of these occupational titles. For example, there may be "teaching" positions in some private schools or day-care settling that are not documented as specialty occupations. If the setting is marginally related to the traditional school environment, submission of some documentation that professional teaching credentials are required would be a good idea.
The employer must do more than simply name a job title from the above list expect that classification as specialty occupation will follow. The employer must state the degree requirement and also give a description of the job duties that makes it clear that the job title fits the actual duties to be performed by the alien. As long as the job duties described by the employer fit the job title of a specialty occupation, however, the employer in these cases should not need to submit any supporting documentation regarding the nature of the position.
For assistance with your H-1B non-immigrant visa petitions for FY 2015, please contact our office or visit our website.
Law Offices of Norka M. Schell, LLC
Phone (212)564-1589
Website: www.lawschell.com
U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized field, including but not limited to scientist, engineers, or computer programmers. The Fiscal Year (FY) 2015 Cap season begin on April 1, 2014.
When qualification is based on an alien filing a position in a specialty occupation, the position to be filled by the alien must required the services of someone who has the credentials for that specialty occupation. The requirement that an H-1B position be in a specialty occupation can be easily met in most cases because the position involved has already clearly been held by the Service to be in a profession (which is the definitional equivalent of a specialty occupation). In those cases, the employer needs to do little to document the nature of the position. This rule of thumb applies to the following positions: engineers, accountants, lawyers, scientists, librarians, psychologists, financial analysts, systems analysts, architects, teachers, professors, journalists, editors, technical publications writes, management consultants, market research analysts.
There are gray areas around the fringes of some of these occupational titles. For example, there may be "teaching" positions in some private schools or day-care settling that are not documented as specialty occupations. If the setting is marginally related to the traditional school environment, submission of some documentation that professional teaching credentials are required would be a good idea.
The employer must do more than simply name a job title from the above list expect that classification as specialty occupation will follow. The employer must state the degree requirement and also give a description of the job duties that makes it clear that the job title fits the actual duties to be performed by the alien. As long as the job duties described by the employer fit the job title of a specialty occupation, however, the employer in these cases should not need to submit any supporting documentation regarding the nature of the position.
For assistance with your H-1B non-immigrant visa petitions for FY 2015, please contact our office or visit our website.
March 7, 2014
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: RECRUITING FOREIGN NATIONALS
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: RECRUITING FOREIGN NATIONALS: By Norka M. Schell, NYC Business Immigration Lawyer Law Offices of Norka M. Schell, LLC Phone: (212)564-1589 Website: www.lawschell.com...
RECRUITING FOREIGN NATIONALS
By Norka M. Schell, NYC Business Immigration Lawyer
Law Offices of Norka M. Schell, LLC
Phone: (212)564-1589
Website: www.lawschell.com
Foreign nationals, including those who have been (and continue to be) legally present in the United States, are not all automatically authorized to work. Although some foreigner maintain visa statuses that allow them virtually unlimited authorization for employment, others are eligible to work only in certain types of jobs and for certain employers. For instance, H-1B members of a specialty occupation, J-1 exchange visitors, L-1A and L-1B intra-company transferees, O-1 aliens of extraordinary ability, and TN status professionals who are citizens of Canada or Mexico.
Foreign nationals in other visa classification, such as L-2, E-2, and J-2 for spouses of L,E,and J principals, may work provided they apply for, and renew periodically, an Employment Authorization Document from United States Citizenship and Immigration Services ("USCIS").
Students or recent graduates holding F-1 status may be eligible to apply for employment authorization in limited situations, but are not automatically entitled to begin employment without first being approved through the school by the USCIS.
Obtaining and maintaining an Employment Authorization Document takes time, employers and foreign nationals should expect to encounter costs and delays in the process.
For assistance with recruiting foreign nationals, please call my office at (212)564-1589.
Law Offices of Norka M. Schell, LLC
Phone: (212)564-1589
Website: www.lawschell.com
Foreign nationals, including those who have been (and continue to be) legally present in the United States, are not all automatically authorized to work. Although some foreigner maintain visa statuses that allow them virtually unlimited authorization for employment, others are eligible to work only in certain types of jobs and for certain employers. For instance, H-1B members of a specialty occupation, J-1 exchange visitors, L-1A and L-1B intra-company transferees, O-1 aliens of extraordinary ability, and TN status professionals who are citizens of Canada or Mexico.
Foreign nationals in other visa classification, such as L-2, E-2, and J-2 for spouses of L,E,and J principals, may work provided they apply for, and renew periodically, an Employment Authorization Document from United States Citizenship and Immigration Services ("USCIS").
Students or recent graduates holding F-1 status may be eligible to apply for employment authorization in limited situations, but are not automatically entitled to begin employment without first being approved through the school by the USCIS.
Obtaining and maintaining an Employment Authorization Document takes time, employers and foreign nationals should expect to encounter costs and delays in the process.
For assistance with recruiting foreign nationals, please call my office at (212)564-1589.
EMPLOYERS' NEED FOR A STRATEGY TO RECRUIT FOREIGN NATIONALS
By Norka M. Schell, NYC Business Immigration Lawyer
Law Offices Of Norka M. Schell, LLC
Tel. (2120564-1589
Website: www.lawschell.com
Although most employers have mastered the recruitment procedures required by the employment laws, few employers has put sophisticated procedure into place relative to recruitment of foreign nationals. United States employers that recruit or receive employment inquires from foreign nationals must master specific issues related to United States Citizenship and Immigration Services ("USCIS") employment authorization, export control licenses, and prohibitions against discrimination. Employers that want to avoid Department of Homeland Security ("DHS") employment authorization and export control issues by not hiring certain foreign nationals must implement sophisticated procedures that do not violate discrimination laws. Employers that decide to hire foreign national affected by DHS and export control requirements also must implement sophisticated procedures related to that hiring.
For questions with regard recruitment of foreign nationals and employment discrimination based on nationality, please contact my office at phone number (212)564-1589.
Law Offices Of Norka M. Schell, LLC
Tel. (2120564-1589
Website: www.lawschell.com
Although most employers have mastered the recruitment procedures required by the employment laws, few employers has put sophisticated procedure into place relative to recruitment of foreign nationals. United States employers that recruit or receive employment inquires from foreign nationals must master specific issues related to United States Citizenship and Immigration Services ("USCIS") employment authorization, export control licenses, and prohibitions against discrimination. Employers that want to avoid Department of Homeland Security ("DHS") employment authorization and export control issues by not hiring certain foreign nationals must implement sophisticated procedures that do not violate discrimination laws. Employers that decide to hire foreign national affected by DHS and export control requirements also must implement sophisticated procedures related to that hiring.
For questions with regard recruitment of foreign nationals and employment discrimination based on nationality, please contact my office at phone number (212)564-1589.
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: UPDATED VISA BULLETIN FOR MARCH 2014
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: UPDATED VISA BULLETIN FOR MARCH 2014: Posted by Norka M. Schell, NYC Business Immigration Lawyer Law Offices Of Norka M. Schell, LLC Phone (2120564-1589 Website : www.lawsche...
UPDATED VISA BULLETIN FOR MARCH 2014
Posted by Norka M. Schell, NYC Business Immigration Lawyer
Law Offices Of Norka M. Schell, LLC
Phone (2120564-1589
Website: www.lawschell.com
Family-Sponsored Preferences
Employment-Based Preferences
Law Offices Of Norka M. Schell, LLC
Phone (2120564-1589
Website: www.lawschell.com
Family-Sponsored Preferences
Family-Sponsored | All Chargeability Areas Except Those Listed | CHINA-mainland born | INDIA | MEXICO | PHILIPPINES |
F1 | 01FEB07 | 01FEB07 | 01FEB07 | 15OCT93 | 15AUG01 |
F2A | 08SEP13 | 08SEP13 | 08SEP13 | 15APR12 | 08SEP13 |
F2B | 01SEP06 | 01SEP06 | 01SEP06 | 01MAY93 | 08JUN03 |
F3 | 15JUN03 | 15JUN03 | 15JUN03 | 08JUN93 | 15FEB93 |
F4 | 08NOV01 | 08NOV01 | 08NOV01 | 15NOV96 | 01SEP90 |
Employment-Based Preferences
Employment- Based |
All Chargeability Areas Except Those Listed
| China - mainland born | INDIA | MEXICO | PHILIPPINES |
1st | C | C | C | C | C |
2nd | C | 15FEB09 | 15NOV04 | C | C |
3rd | 01SEP12 | 01SEP12 | 15SEP03 | 01SEP12 | 01MAY07 |
Other Workers | 01SEP12 | 01SEP12 | 15SEP03 | 01SEP12 | 01MAY07 |
4th | C | C | C | C | C |
Certain Religious Workers | C | C | C | C | C |
5th
Targeted EmploymentAreas/ Regional Centers and Pilot Programs | C | C | C | C | C |
February 19, 2014
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: DACA RENEWAL
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: DACA RENEWAL: Posted by Norka M. Schell, NYC Business Immigration Lawyer Law Offices of Norka M. Schell, LLC Tel. (212)564-1589 Website: www.lawsche...
DACA RENEWAL
Posted by Norka M. Schell, NYC Business Immigration Lawyer
Law Offices of Norka M. Schell, LLC
Tel. (212)564-1589
Website: www.lawschell.com
If you were granted deferred action for childhood arrival (DACA) prior to August 15, 2012, or if you
were granted DACA by U.S. Immigration and Customs Enforcement prior to August
15, 2012 or are a DACA recipient with an employment authorization document
(EAD) that will expire in the next 120 days, you must apply for DACA renewal to
avoid any lapse in your employment authorization or accrual of unlawful
presence in the United States.
For more information, please contact the Law Offices of Norka M. Schell, LLC at (212)564-1589 or visit the USCIS website at www.uscis.gov.
February 10, 2014
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: MARCH 2014 VISA BULLETIN UPDATED
IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: MARCH 2014 VISA BULLETIN UPDATED: Posted by Norka M. Schell, NYC Immigration Lawyer Law Offices of Norka M. Schell, LLC Tel. (212) 564-1589 www.lawschell.com FAMILY-SPO...
MARCH 2014 VISA BULLETIN UPDATED
Posted by Norka M. Schell, NYC Immigration Lawyer
Law Offices of Norka M. Schell, LLC
Tel. (212) 564-1589
www.lawschell.com
FAMILY-SPONSORED PREFERENCES
Law Offices of Norka M. Schell, LLC
Tel. (212) 564-1589
www.lawschell.com
FAMILY-SPONSORED PREFERENCES
Family-Sponsored | All Chargeability Areas Except Those Listed | CHINA-mainland born | INDIA | MEXICO | PHILIPPINES |
F1 | 01FEB07 | 01FEB07 | 01FEB07 | 15OCT93 | 15AUG01 |
F2A | 08SEP13 | 08SEP13 | 08SEP13 | 15APR12 | 08SEP13 |
F2B | 01SEP06 | 01SEP06 | 01SEP06 | 01MAY93 | 08JUN03 |
F3 | 15JUN03 | 15JUN03 | 15JUN03 | 08JUN93 | 15FEB93 |
F4 | 08NOV01 | 08NOV01 | 08NOV01 | 15NOV96 | 01SEP90 |
EMPLOYMENT- BASED PREFERENCES
Employment- Based |
All Chargeability Areas Except Those Listed
| China - mainland born | INDIA | MEXICO | PHILIPPINES |
1st | C | C | C | C | C |
2nd | C | 15FEB09 | 15NOV04 | C | C |
3rd | 01SEP12 | 01SEP12 | 15SEP03 | 01SEP12 | 01MAY07 |
Other Workers | 01SEP12 | 01SEP12 | 15SEP03 | 01SEP12 | 01MAY07 |
4th | C | C | C | C | C |
Certain Religious Workers | C | C | C | C | C |
5th
Targeted EmploymentAreas/ Regional Centers and Pilot Programs | C | C | C | C | C |
Subscribe to:
Posts (Atom)