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November 7, 2011

IMMIGRATION AND POLICY: REMOVAL PROCEEDINGS

IMMIGRATION AND POLICY: REMOVAL PROCEEDINGS

IMMIGRATION AND POLICY: REMOVAL PROCEEDINGS

IMMIGRATION AND POLICY: REMOVAL PROCEEDINGS: By: Norka M. Schell, Esq.

REMOVAL PROCEEDINGS

By: Norka M. Schell, Esq.

Jose, from Columbia, applied for adjustment of status. At the interview, the USCIS officer learns that Joe made a false claim to U.S. citizenship last December by showing a U.S. citizen birth certificate to qualify for a social security number. Jose is placed in removal proceedings.

Raul, from Mexico, crossed the border into Texas without documents and met up with a smuggler, who agree to drive him to New York. A few miles from the border, their car was stopped by border patrol agents and Raul was placed in removal proceedings.

Maria, from India, entered the United States with a tourist visa and has remainded beyond her authorized stay. Maria may be placed in removal proceedings because she violated her tourist status.  

You probably know someone who was placed in removal proceedings. But what is "removal proceeding"?

A removal proceed is an immigration court hearing before the immigration judge to determine whether a non citizen will be removed from the United Sates because of a violation  of an immigration law.


The Immigration and Nationality Act (“INA”) expressly charges the Attorney General (“AG”) with the administration and enforcement” of the immigration laws. More specifically, it gives the “AG” both the power and the duty “to control and guard the boundaries and border of the United States against the illegal entry of aliens.” The “AG” has authorized the Department of Homeland Securuty ("DHS") employee who bears the title “immigration officer” to exercise those and other powers. Immigration officers include all immigration inspectors at the border, all border patrol agents, all investigators, and many others. The “AG” may also deputize properly trained state employers to perform investigation, apprehension, and detention functions.


DHS does not bring removal proceedings against every alien whom it suspects of being deportable. For one things, it recognizes that there are certain cases in which extraordinary sympathetic factors would make removal unconscionable. For another, DHS could not remove all deportable aliens even if it wanted to. Removal proceedings require apprehension, investigation, processing, possibly detention, prosecution, adjudication, removal, and record-keeping. Like any other government agency, DHS has limited resources. It has to decide how it can most effectively allocate those resources between law enforcement functions and other functions, and within law enforcement.

For some time DHS policy has been to refrain from initiating removal proceedings in certain unusually compassionate cases. That policy has been given different names over the years: “prosecutorial discretion”, “nonpriority status”, and deferred action”. Whatever the name, the theory has been that the case is simply put on the back burner. Technically DHS remains free to proceed against the alien in the future if its workload or its priorities changes; realistically, since the actual reason for holding back is the presence of exceptionally sympathetic factors, relief will typically be permanent unless those individual factors change.

Once removal proceeding starts, the Immigration Judge acquires jurisdiction over the case. At that point the DHS no longer has the discretion not to prosecute; it may file a motion to dismiss (without prejudice), but is up to the immigration judge whether to grant the motion.


Individuals in removal proceedings are called "respondents". Respondents in proceedings have a right to be represented by counsel at their own expenses; right to be advised of eligibility for relief; and right to due process.


Unfortunately, most respondents face removal proceedings unrepresented and an increasing number are detained. If a respondent is unrepresented, the likelihood of him avoiding deportation is much smaller than it is for those who have the resources to retain counsel.

If you would like more information on removal proceendings, call the Offices of Norka M. Schell, LLC at (212) 564-1589.

October 27, 2011

IMMIGRATION AND POLICY: No Relief for Inadmissible Alien Under the Preside...

IMMIGRATION AND POLICY: No Relief for Inadmissible Alien Under the Preside...: Criminal activity can affect an alien's immigration status in various ways. It can constitute a ground for inadmissibility or a ground for d...

No Relief for Inadmissible Alien Under the President Obama's Proclamation

Criminal activity can affect an alien's immigration status in various ways. It can constitute a ground for inadmissibility or a ground for deportability or both. It can destroy an alien's statutory eligibility for various forms of affirmative relief from removal. It can determine whether an alien will be detained while removal proceedings are pending. It can make a person ineligible for naturalization. And it can weigh against the favorable exercise of administrative discretion n a whole range of contexts.

On August 8, 2011, President Barack Obama issued a presidential proclamation suspending the entry as immigrants and nonimmigrants of persons who have participated in serious violations of human rights and humanitarian law and those who engage in other related abuses. Specifically, entry is suspended for:

1. Any alien planned, ordered, assisted, aided, and abetted, committed, or otherwise participated in including through command responsibility, widespread, or systematic violence against any civilian population based in whole or in part on race, color, descent, sex, disability, membership in an indigenous group, language, religion, political opinion, national origin, ethnicity, membership in particular social group, birth, or sexual orientation or gender identity or who attempted or conspired to do so.

2. Any alien who planned, ordered, aided or abetted, committed, or otherwise participated in, including through command responsibility, war crimes, crimes against humanity or other serious violations of human rights or who attempted or conspired to do so.

What do you think are the rationales for having such a proclamation?

September 28, 2011

IMMIGRATION AND POLICY: EMPLOYMENT CREATION IMMIGRATION CLASSIFICATION

IMMIGRATION AND POLICY: EMPLOYMENT CREATION IMMIGRATION CLASSIFICATION: BY: NORKA M. SCHELL, ESQ. Immigrant investors are entrepreneurial and create jobs in the United States. WHAT IS THE EB-5 VISA? Th...

EMPLOYMENT CREATION IMMIGRATION CLASSIFICATION

BY: NORKA M. SCHELL, ESQ.

Immigrant investors are entrepreneurial and create jobs in the United States.

 WHAT IS THE EB-5 VISA?    

The EB-5 visa category is one of the five employment-related bases for obtaining permanent residence in the United States. It refers to EB-5 immigrant classification because it is the fifth employment-related basis listed in the Immigration and Nationality Act (INA). The EB-5 was crated by Congress in 1990. Of the approximately 10,000 visa that are available yearly for this preference, 3,000 are reserved for entrepreneurs who invest in targeted employment areas and 3,000 visa is set aside for entrepreneurs who immigrate through a regional center pilot program.

WHAT ARE THE BENEFITS FOR THE INVESTORS?

The EB-5 visa category allows qualifying investor, and any accompanying or following to join spouses and children, to obtain lawful permanence status if the qualifying investor meets the statutory requirements.


WHAT ARE THE STATUTORY REQUIREMENTS?

(1) Be one in which the investor has invested or in the process of investing at least $1 million ( or at  list $500.000 if investing in a "targeted  employment area;" 

(2) Benefit the U.S. economy;

(3) Create full-time employment for at least 10 US workers.

Moreover, the investor must have at least a policy-making role in the enterprise.


WHAT IS THE ALTERNATIVE TO EB-5 immigrant investor category?

An alternative to the EB-5 immigrant investor category, there is the Treaty Trader (E-1) and Treaty Investor (E-2) visa.

The E-1 and E-2 are for a national for a country with which the U.S. maintains treaty of commerce and navigation who is coming to the United States to carry on substantial trade, including trade of services or technology, principally between United States and the treaty country, or to develop and direct the operations of an enterprises in which the national has invested, or is in the process of investing a substantial amount of capital, under the provisions of the INA.

September 15, 2011

CONVICTION UNDER IMMIGRATION LAW By: Norka M. Sc...

IMMIGRATION AND POLICY: CONVICTION UNDER IMMIGRATION LAW


By: Norka M. Sc...
: CONVICTION UNDER IMMIGRATION LAW By: Norka M. Schell Attorney-at-Law Was there ever a conviction? And, if so, what subsequent su...
CONVICTION UNDER IMMIGRATION LAW


By: Norka M. Schell
      Attorney-at-Law

Was there ever a conviction?  And, if so, what subsequent subsequent developments might erase that conviction?


Common to several deportability grounds is a requirement that the alien have been "convicted" of a certain. Some difficult problems of great practical importance can arise in determining whether the action a court has taken amounts to "conviction" for deportation purpose.  A conviction for immigration purpose must be a final judgment of guilt.

 Under the INA section 101(a)(48)(A), the term "conviction" means, with respect to an alien, a formal judgement of guilt of the alien entered by a court, or if  adjudication of guilt has been withheld, where--

     (i) a judge or 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 guilt, and
     (ii) 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 judgement is entered on the docket" which under the Federal R. Crim. P. 32(d)(1) is after sentencing.

Under the Immigration and Nationality Act ("INA"), an alien will be found deportable if convicted of certain crimes, for instance: general crimes; drug offenses; crimes relating to firearms; miscellaneous crimes; and crimes of domestic violence, stalking, or violation of a protective order.

General Crimes are: crime of moral turpitude (CIMTs); multiple criminal convictions; aggravated felonies; high speed flight; and failure to register as a sex offender.

Miscellaneous Crimes are: espionage; sabotage; treason and sedition; Mmilitary selective service act; trading with the Enemy Act; Sections of the U.S. Code dealing with threats against the president and against successors to the presidency; the prohibiting expeditions against friendly nations; the section of the INA relating to importation of foreign nationals for immoral purposes; and the section of the INA relating to travel documentation requirements.

Many states now employ some method of ameliorating the consequences of a conviction. The procedures vary from state to state and include provisions for annulling or setting aside the conviction, permitting withdrawal of plea, sealing the records after completion of a sentence or probation, and deferring adjudication of guilt with dismissal of proceedings following a probationary period. Many states have more than one ameliorative provision, some apply only to youthful or first offenders, and others being available to the convicted population at large.

Outcomes that do not constitute a conviction under immigration law
Conviction vacated on the merits;
Acquittal or finding of not guilty;
Conviction that is not final;
 Conviction from which the defendant has taken an appeal of right that is still pending, or for which the time to file a notice of appeal has not expired;
Nolle Prosequi;
 Refusal to prosecute;
Certain Pre-Plea/Diversionary Program;
State counterpart of the Federal First Offender Act (FFOA);
Conviction in proceedings in the U.S. that do not require proof of guilt beyond a reasonable doubt or otherwise comport with standard criminal proceedings; withholding of adjudication where no criminal penalty or punishment is imposed; juvenile delinquency finding.

Erasing a Conviction

The validity of a criminal conviction may not be collaterally attacked in removal proceedings. However, there are various post-conviction remedies that can be pursued in the court that entered the conviction.

If you would like addition information on conviction under immigration law, please contact my office at   (212) 564-1589.




September 9, 2011

IMMIGRATION AND POLICY: H-1B PROGRAM


By: Norka M. Schell, Esq .
Before setting out to recruit or hire an H-1B foreign worker, employers should be aware of the legal requirements and procedural challenges involved in the program.

H-1B PROGRAM

By:  Norka M. Schell, Esq


The procedures involved in having a U.S. company sponsors foreign workers for the appropriate work visas that will enable the foreign workers to work for the company are largely bureaucratic and they were designed to help American companies to employ much needed skilled employees from abroad. One of these work visas is "H-1B" nonimmigrant visa. 


The H-1B program is most known for helping high-technology employers deal with the acute shortage of skilled workers in the domestic labor market. However, it is also used by employers in other fields to hire professionals with particular qualifications or skills.


The H-1B nonimmigrant visa category allows qualified foreign workers to engage in temporary professional employment in the United States, sponsored by a U.S. employer. By using the H-1B program, U.S. employers can recruit and hire foreign workers with appropriate professional credentials to perform services in a "specialty occupation." H-1B classification can be obtain for an initial period of three years, with a maximum total of six years. 


The Department of Labor regulations define a specialty occupation as an occupation that requires theoretical and practical application of a body of specialized knowledge, and attainment of a bachelor's degree or higher degree  (or equivalent) in the specific specialty as a minimum for entry into the occupation in the United States. 


The basic premise of the H-1B category is that there is a United States Employer making a bona fide, nonspeculative job offer for employment in a qualifying occupation to a qualified foreign professional. 


It is important to note that there is an annual limit of 65,000 to new issuance of H-1B nonimmigrant visa.


For more information about H-1B visa, contact the Offices of Norka M. Schell, LLC







August 29, 2011

IMMIGRATION AND POLICY: FOLLING HURRICANE IRENE

IMMIGRATION AND POLICY: FOLLING HURRICANE IRENE: To My Readers: I hope you and your families are safe following Hurricane Irene. Natural disasters are very stressful and I want to help whe...

FOLLING HURRICANE IRENE

To My Readers:

I hope you and your families are safe following Hurricane Irene. Natural disasters are very stressful and I want to help where I can. 

This week, I am expanding my effort to help those folks in the Tri-State area as they recover from the storm. 

I will extend my work hours to 8:00 P.M. and I will waive my consultation fees until September 10, 2011.

If you have storm-related problems or concerns, please call my office.

I hope these efforts can play a small part in easing some of your worries following the storm. If you need assistance, please call me at              (973)621-9300 or (212)564-1589.

Sincerely, 

Norka M. Schell, Esq. 
Offices of Norka M. Schell, LLC
11 Broadway, Ste. 650
New York, New York 10004 

August 12, 2011

DUAL CITIZENSHIP

Posted by Norka M. Schell, Esq. 


* Dual citizenship exists because of the laws of the country granting nationality control nationality. International law imposes very few limitations on countries regarding whom they decide to make a citizen of their country. There are, of course, some limitations. The treaties or conventions to which the country is a party may impose similar restrictions. There is also internationally recognized "minimum contacts" types of jurisdictional requirement before one country will recognized the naturalization of a person by another country. However, given these limitations, all questions regarding the nationality of a person are determined in accordance with the laws of the country of claimed nationality. If a person has two or more nationalities because of this form of determination, the person is considered a dual national, i.e., a national of each of these States. 


Most countries subscribe to the principles of nationality by descent (jus sanguinis), i.e., by being the child of a national, nationality by birth within a certain territory (jus soli), or a combination of these two principles. Therefore, it is not uncommon for a person to derive citizenship in one country because he or she was born there (jus soli) while deriving citizenship of another country under the principle of jus sanguinis, as the child of a citizen of absent a specific statutory requirement. 


___________
* Research references: Steel on Immigration Law (2d ed.)

IMMIGRATION AND POLICY: PLACE IN REMOVAL PROCEEDINGS

IMMIGRATION AND POLICY: PLACE IN REMOVAL PROCEEDINGS: "PLACE IN REMOVAL PROCEEDING By: Norka M. Schell, Esq. A removal proceedings is an immigration court hearing to determine whether a no..."

PLACE IN REMOVAL PROCEEDINGS

PLACE IN REMOVAL PROCEEDING



By: Norka M. Schell, Esq.


A removal proceedings is an immigration court hearing to determine whether a non-citizen will be removed from the United States. Any person in the United States who is not a citizen of the United States may be removed to another country.


Hypothetical Situation


Maria is from Columbia. She entered in the United States on a student visa in September 2000. On March 2001, Maria dropped out of school and started working at a company by using a fake green card. Last month, USICE conducted a workplace raid at the job site and arrested her.


Is Maria in removal proceedings?


Maria is not a citizen of the United States. She is a citizen of Columbia. Therefore, she is an alien. Any alien in the United States can be placed in removal proceeding. Maria will be placed in formal proceedings when USICE files the Notice to Appear (NTA) in court.


The NTA must specify: (1) the nature of the proceedings again Maria; (2) the legal authority for the proceedings; (3) the acts or conduct that allegedly violate the law; (4) the formal charges and the statutory provisions allegedly violated; (5) Maria's right to representation, including time to secure counsel, and a list of available pro bono counsel; (6) the requirement that Maria provides in writing her address and telephone number, and the consequences of failing to do so, including the consequences of failing to appear at the hearing; and (7) the time and place of the hearing and the consequences of failing to appear, including the entry of a removal order in absentia.


The NTA needs only be in English, and needs only ten days notice of the hearing. In the NTA, Maria is called "RESPONDENT" (the person who must respond to the charges).


Proper Service

The NTA shall be served on the on Maria in person, or if personal service is not practicable, the NTA shall be served by regular mail to Maria or her counsel of record.

Assuming that USICE places Maria in proceedings and charged her with deportability, USICE will have the burden of establishing by "clear and convincing evidence" that Maria is deportable. This standard is lower than "beyond a reasonable doubt" standard used in a criminal proceedings, but higher than the "preponderance of evidence" standard used in civil proceedings. When USICE has the burden of proof, it is important that Maria's attorney holds them to it.


Maria's Rights

During proceedings, Maria has a right to counsel at her own expense, and she must be given adequate opportunity to obtain counsel.


While in proceedings Maria shall have a reasonable opportunity to examine the evidence against her, to present evidence on her own behalf, and to cross-examine government witnesses.


Maria must be notified that she may communicate with the consul or diplomatic officer of the country of her nationality.


If Maria does not understand English, she has the right to a translator as part of the right to present evidence and cross-examine witnesses.


While in proceedings Maria shall have a reasonable opportunity to examine the evidence against her, to present evidence on her own behalf, and to cross-examine government witnesses.


The immigration judge shall inform Maria of her apparent eligibility to apply for relief and will have the opportunity to make application during the hearing.


In all "applications for relief" from removal, the burden of proof is upon Maria.





















August 8, 2011

EMPLOYMENT-BASED SECOND PREFERENCE

Posted by: Norka M. Schell, Esq.


EMPLOYMENT-BASE SECOND PREFERENCE IMMIGRANT VISA CATEGORY

Questions and Answers

1. What is the EB-2 Immigrant Visa Category?
A. Congress created the employment-based second preference visa category    with the Immigration Act of 1990. This classification includes:

  • Members of the professions holding advanced degrees or their equivalent,   and

  • Individuals who because of their exceptional ability in the sciences, art, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professionals, or business are sought by an employer in the United States.


  • 2. Does anyone with an advanced degree qualify for an EB-2 Immigrant Visa?
    A. No, not every individual with an advanced degree will qualify. It must be demonstrated that the occupation is a profession. The term "profession" is defined by as "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. Occupations include but are not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries.

    3. Can an entrepreneur qualify as a member of a profession holding an advanced degree?
    A. Yes. An entrepreneur can qualify if the:
    • Entrepreneur will be working for a U.S. employer who files an petition on the entrepreneur's behalf,
    • Entrepreneur is a member of the profession holding an advanced degree or foreign equivalent degree,
    • Underlying position requires, at minimum, a professional holding an advanced degree or the equivalent,
    • Petitioning employer has received an individual labor certification for the Department of Labor; or
    • Entrepreneur meets all the specific job requirements listed on the individual labor certification.
    4. Can an entrepreneur qualify as an individual of exceptional ability in the sciences, arts, or business?
    A. Yes. An entrepreneur can qualify if the:
    • Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur's behalf,
    • Entrepreneur will be working in the sciences, arts, or business,
    • Entrepreneur has exceptional ability in the sciences, arts, or business,
    • Entrepreneur will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States
    • Petitioning employer has received an individual labor certification from the Department of Labor; or
    • Entrepreneur meets all the specific job requirements listed on the individual labor certification.
    5. Why is a labor certification required to qualify for an EB-2 Immigrant Visa Category?
    A. The labor certification process exists to protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing equally qualified U.S. workers.

    6. How can an entrepreneur establish that he or she has exceptional ability in the science, arts, or business?
    A. First, the entrepreneur would need to establish that they meet at least three of the criteria found at 8 CFR 204.5(k)(3)(iii). The criteria are:

    • (A) An official academic record showing that the beneficiary has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning  relating to the area of exceptional ability
    • (B) Evidence in the form of letter(s) from current or former employer(s) showing that the beneficiary has at least ten years of full-time experience in the occupation for which he or she is being sought
    • (C) A license to practice the profession or certification for a particular profession or occupation
    • (D) Evidence that the beneficiary has commanded a salary, or other remuneration of services, which demonstrates exceptional ability
    • (E) Evidence of membership in professional associations, or 
    • (F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.  
    It should be noted that, as set forth in sub paragraph (A) above, the regulation requires that the alien (in this case, the entrepreneur) have a degree "relating to" the area of exceptional ability. This means that the entrepreneur's degree need not be in the same field of claimed exceptional ability, but only that it be related to that field. For example, an entrepreneur seeking to start an Internet-related business and who claims exceptional ability in that field might qualify with a degree in computer science, network technology, or certain area of business.

    Second, the entrepreneur must demonstrate that he or she has meets at least three of the six regulatory criteria for exceptional ability, can he or she submit other evidence to demonstrate exceptional ability in the sciences, arts or business.

    7. How does an entrepreneur show that he or she will substantial benefit prospectively the national economy, cultural or educational interest, or welfare of the United States?
    A. The entrepreneur could demonstrate that at lease one aspect of the welfare of the United States will be "substantially" better off were the entrepreneurial enterprise to be located in the United States. It should noted that the term "welfare" as used by the statute is a broad concept and could refer to any number of areas.

    8. Is there a "national interest waiver" (NIW)? And if so, what is it. Can an entrepreneur qualify for a NIW?
    A. The National Interest Waiver (NIW) is a waiver of the job offer requirement for individuals who wish to immigrate to the United States in the second preference category who are members of the professions holding advanced degrees or individuals of exceptional ability in the arts, sciences or business. Entrepreneur, if they qualify can obtain a waiver of the job offer requirement if it is in the national interest.

    9. Is there a definition of National Interest?
    A. The term "National Interest" is not defined in the statute or the regulation, but a waiver request requires a showing "significantly above that for prospective national benefit. In a precedent decision concerning NIWs, Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT).
    __________________________________________________________________________________

    July 31, 2011

    IMMIGRATION AND POLICY: EXPLORING THE ECONOMICS OF IMMIGRATION

    IMMIGRATION AND POLICY: EXPLORING THE ECONOMICS OF IMMIGRATION: "Posted by Norka M. Schell, Esq. In the United States, the economic consequences of immigration have been fiercely debated since the ninet..."

    EXPLORING THE ECONOMICS OF IMMIGRATION

    Posted by Norka M. Schell, Esq. 

    In the United States, the economic consequences of immigration have been fiercely debated since the nineteenth century. Some of the debate has centered on fiscal questions, such as the amounts immigrants contribute in taxes and the amounts they receive in public welfare benefits. But most the animated debate has concerned the impact of immigrants on the labor market. Do they siphon jobs away form Americans? Do they, by consuming goods and services and by sustaining otherwise marginal companies or industries, create jobs for Americans.

    Most economists today recognize the positive effects that immigration has in our economy.

    On the economically optimum level of immigration, immigrants are entrepreneurial and create jobs in the United States. Immigrants started 25 percent of the highest-growth companies between 1990 and 2005, and  these companies directly employ an estimated 220,000 people inside the United States. These immigrant-founded companies include Intel,Google,Yahoo, and eBay, which have all helped drive American leadership in the computer and Internet revolutions and have stimulated business and job creation throughout our economy. These immigrants give the U.S.workforce an important competitive advantage. 


    Research shows that immigrants are more likely than U.S. born workers to start new businesses and are among the most prolific inventors in the American economy, generating ideas that lead to new products and more jobs in many sectors including pharmaceuticals and information technology, It is in our national interest to encourage people with great ideas to create new business, industries, and quality jobs in the United States.


    Recent research highlights that in the 1990s alone, skilled immigrants helped boost GDP per capita by between 1.4 percent and 2.4 percent. Currently, immigrants represent 24 percent of U.S. scientists and 47 percent of U.S. engineers with bachelor or doctorate degrees. Moreover, foreign-born students studying in our universities have the potential to make significant contributions to our future economic growth if they could stay and work in the United States after they graduate. Exporting this talent to other countries is not in our economic interest. 

    Immigrants help address other fiscal challenges by paying their fair share of taxes. Studies consistently suggest that immigrants contribute more in taxes revenue than they use in services.

    Texts extract from Building a 21st Century Immigration System: www.whitehouse.gov/immigrationaction.

    Immigration And Refugee Law And Policy, Second Edition.


    July 19, 2011

    IMMIGRATION AND POLICY: IMMIGRATION AND POLICY: Justice Department Files a Lawsuit Alleging Employ...

    IMMIGRATION AND POLICY: IMMIGRATION AND POLICY: Justice Department Files a Lawsuit Alleging Employ...

    IMMIGRATION AND POLICY: Justice Department Files a Lawsuit Alleging Employ...

    IMMIGRATION AND POLICY: PROTECTED CLASSES: "The Immigration Reform and Control Act of 1986 had as one of its principal purposes stemming the tide of illegal immigration. To accomplish ..."

    Justice Department Files a Lawsuit Alleging Employment Discrimination

    The Immigration Reform and Control Act of 1986 had as one of its principal purposes stemming the tide of illegal immigration. To accomplish this goal, the Act imposes penalties on employers who hire undocumented aliens. This proscription produced a fear that employer would react to the treat of penalties by refusing to hire all noncitizens (which, given the restrictive construction given to Title VII by the Court, would be permissible) and discriminating generally against "foreign looking" individuals. Consequently, the Act makes it an "unfair immigration-related practice to discriminate against any individual (other than an unauthorized alien)

    (A) because of such individual's national origin, or
    (B) in the case of a citizen or an intending citizen because of such   individual's citizenship status.

    The proscriptions against national origin discrimination are a direct overlap with the proscriptions of national origin discrimination in Title VII. To avoid the problem of overlapping enforcement, the Immigration Reform and Control Act provides coverage to all employers of three or more employees, and exempts an entity's discrimination because of national origin discrimination if the entity is covered by Title VII. Thus, the Immigration Act proscribes national origin discrimination for all employers having between three and fifteen employees.

    In prohibiting all employers from discriminating because of citizenship, the Immigration Act extended protections against alienage discrimination well beyond that provided in Title VII, and in so doing protected American citizens against discrimination which favored aliens.

    These protections were not accomplished, however, by amending Title VII, and thus do not allow the enforcement actions of that statute to be invoked by a victim of citizenship discrimination. Rather, the Immigration Act established entirely new enforcement mechanisms and procedure within the Department of Justice.

    On July 14, 2011 the Justice Department filed a lawsuit against Mar-Jac Poultry Inc., a poultry processing plant in Gainesville, Ga., alleging that Mar-Jacrequires all newly hired non-U.S. citizens to produce specific documents during the Form I-9 process in order to secure their jobs, but the company does not require U.S. citizens to produce any specific documentation. The non-U.S. citizens subjected to the practice were determined to be work authorized by E-Verify, the Department of Homeland Security's Internet-based employment eligibility verification system.

    It appears that the Mar-Jac Poultry Inc.'s actions violate the Immigration Act and Title VII by preferring aliens from one nation or area over aliens of a different origin, and a form of citizenship discrimination.

    For more information about protection against employment discrimination under the federal immigration law, contact the Law Offices of Norka M. Schell, LLC

    July 13, 2011

    IMMIGRATION AND POLICY: THE FIANCE(E) VISA K-1

    IMMIGRATION AND POLICY: THE FIANCE(E) VISA K-1: "The K- 1 nonimmigrant visa category permits the fiance(e) of a United States Citizen petitioner to enter the United States for a 90-day peri..."

    THE FIANCE(E) VISA K-1

    The K-1 nonimmigrant visa category permits the fiance(e) of a United States Citizen petitioner to enter the United States for a 90-day period to marry the petitioner and apply permanent residence.

    This is the best visa for a U.S. Citizen considering marriage to a foreigner. The fiance(e) visa is a temporary visa that permits a fiance(e) to travel to the United States and getting married, the fiance(e) can apply for the green card.

    1. A fiance(e) visa holder can only adjust status based on the marriage to the fiance(e) petitioner.

    2A fiance(e) visa holder whose bona fide marriage to the fiance(e) visa petitioner is more than 2 years old at the time of the adjustment application is adjudicated is not subject to the provisions for conditional resident status under the section 216 of the Act. 

    3. A fiance(e) visa holder satisfies the visa eligibility and visa availability requirements of section 245(a) of the Act on the date he or she is admitted to the United States as a K-1 nonimmigrant, provided that the fiance(e) enters into a bona fide marriage with the fiance(e) petitioner within 90 days.
    Matter of SESAY, 25 I&N Dec. (BIA 2011).

    For more information about fiance(e) visas, contact the Offices of Norka M. Schell, LLC

    IMMIGRATION AND POLICY: Inadmissibility v. Deportability

    IMMIGRATION AND POLICY: Inadmissibility v. Deportability: "There is often a great deal of confusion between inadmissibility and deportability. Current law provides for the removal of a wide range of ..."

    Inadmissibility v. Deportability

    There is often a great deal of confusion between inadmissibility and deportability. Current law provides for the removal of a wide range of individuals. In this context, removal means the ejection of a person from the United. Included in the Immigration and Nationality Act is a long list of "inadmissibility" and "deportability" provisions. The deportability provisions are applied to a person who has been formally admitted to the United States and the inadmissibility grounds are applied to those who have not been legally admitted tothe country. The procedure for ejecting or removing any person, irrespective of whether they have been legally admitted is termed a "removal" hearing. Prior to 1996, the immigration statute provided that questions involving the application of the inadmissibility and deportability provisions were, as general rule, governed by whether a person had gained entry into the United States. The proceedings for those seeking admission were called "exclusion hearings," and for those who had managed to enter, "deportation hearings." In the exclusion hearings, the Immigration Judge determine the applicability of the inadmissibility provisions. In deportation hearings, the Immigration Judge would determine the application of the deportability provisions. In 1996 the Illegal Immigration Reform and Immmigrant Responsibility Act ("IIRAIRA") was enacted. Since then, there have been more efforts at restricting immigrants' access to the courts and expanding the power to remove them.

    For more information about Inadmissibility and Deportation, contact the the Law Offices of Norka M. Schell.

    July 6, 2011

    IMMIGRATION AND POLICY: REVERIFYING AND UPDATING EMPLOYMENT AUTHORIZATION

    IMMIGRATION AND POLICY: REVERIFYING AND UPDATING EMPLOYMENT AUTHORIZATION: "USCIS and ICE are entities within Department of Homeland Security. Once again, auditors at the ICE are cracking down on Employers that are i..."

    IMMIGRATION AND POLICY: REVERIFYING AND UPDATING EMPLOYMENT AUTHORIZATION

    IMMIGRATION AND POLICY: REVERIFYING AND UPDATING EMPLOYMENT AUTHORIZATION: "USCIS and ICE are entities within Department of Homeland Security. Once again, auditors at the ICE are cracking down on Employers that are i..."

    REVERIFYING AND UPDATING EMPLOYMENT AUTHORIZATION

    USCIS and ICE are entities within Department of Homeland Security. Once again, auditors at the ICE are cracking down on Employers that are in violation of section 274A  " It is unlawful for a person or other entity to hire, or recruit or refer for a fee, for employment in the United States an alien knowingly the alien is an unauthorized alien (as defined in subsection (h)(3)) with respect to such employment..."

    Generally, ICE can audit any employer who has three or more employees. This is a random selection. However, sometimes ICE will target specifics companies that traditionally hire undocumented worker and employers whose employees are privy to sensitive government information.

    The purpose of the audits is to determine whether employees are properly authorized to work in the United States. Once ICE selected an employer to audit, the agency sends a notice of inspection requesting Form I-9 documentation, payroll records, copies of immigration filings, copies of SSA communications, information about independent contractors, and related employment information. The timeline for response is short, as ICE mandate that all documentation must be produced within three business days.

    Employers that are found in violation of the section 274A of the Act can be subjected to civil and criminal penalties and injunctions for pattern or practice violations. Therefore, employers are encouraged to periodically review their Form I-9 for updated information.

    If you think you or your company may be selected for an Audit, you should seek the advice of an immigration attorney immediately on what to do if you or your company is audited and you are questioned by an ICE officer.

    If you are not sure whether you or your company is compliance with workplace eligibility laws, contact our law office for more information.