USCIS has issued a remainder to the sheepherding industry of the upcoming expiration of the one-time accommodation giving them more time to fully transition to the three-year limitation-of-stay requirements for the H-2A nonimmigrant classification.
USCIS announced the limitation-of-stay requirements under the final rule that became effective on January 17, 2009. USCIS granted a one-time accommodation for sheepherders in H-2A status in December 2009 in deference to their industry's poor exemption from the three-year limitation. This exemption did not impact other H-2A categories.
Time spent as an H-2A sheepherder before the final rule became effective has not counted toward the three-year maximum period of stay. Instead, USCIS started the dock on January 17, 2009, for H-2A sheepherders lawfully present in the United States on that date.
All H-2A nonimmigrant workers, including sheepherders, are subject to a three-month departure requirement once they have been in the United States in H-2A status for a maximum three-year period. For example, H-2A sheepherders present in the United States on January 17, 2009, must depart by January 16, 2012, and remain outside the country for at lease three months before being granted H-2A classification again. USCIS NEWS
DISCLAIMER: THE INFORMATION IN THIS BLOG IS PROVIDED FOR GENERAL INFORMATION ONLY. THE OFFICE OF NORKA M. SCHELL, LLC AND/OR ITS MEMBERS AND/OR EMPLOYEES MAKE NO WARRANTY REGARDING THE ACCURACY OF THIS INFORMATION. WHILE SOME OF THE INFORMATION IS ABOUT LEGAL ISSUES, IT IS NOT LEGAL ADVICE.
January 3, 2012
JUSTICE DEPARTMENT SETTLES ALLEGATIONS OF CITIZENSHIP STATUS DISCRIMINATION AND RETALIATION AGAINST GEORGIA RUG MANUFACTURE
Posted by: Norka M. Schell, Esq.
www.LawSchell.com
"Employers may not treat authorized workers differently during the hiring process based on their national origin or citizenship status. It is illegal when employers take action against workers for asserting their federally protected rights and that type of behavior will be vigorously investigated and prosecuted." Thomas E. Perez.
The Justice Department settled with Garland Sales, Inc., a Georgia rug manufacturer, resolving allegations that it engaged in discrimination by imposing unnecessary documentary requirements on individuals of Hispanic origin when establishing their eligibility to work in the United States, and that it retaliated against a worker for protesting his discriminatory treatment. According to the settlement, Garland has agreed to pay $10,000. in back pay and civil penalties, and to undergo training on proper employment eligibility verification practices. www.justice.gov/opa/pr/2011/December/11-crt-1718.html
www.LawSchell.com
"Employers may not treat authorized workers differently during the hiring process based on their national origin or citizenship status. It is illegal when employers take action against workers for asserting their federally protected rights and that type of behavior will be vigorously investigated and prosecuted." Thomas E. Perez.
The Justice Department settled with Garland Sales, Inc., a Georgia rug manufacturer, resolving allegations that it engaged in discrimination by imposing unnecessary documentary requirements on individuals of Hispanic origin when establishing their eligibility to work in the United States, and that it retaliated against a worker for protesting his discriminatory treatment. According to the settlement, Garland has agreed to pay $10,000. in back pay and civil penalties, and to undergo training on proper employment eligibility verification practices. www.justice.gov/opa/pr/2011/December/11-crt-1718.html
December 23, 2011
SEASON'S GREETING
Dear Clients, Colleagues and Friends,
During the Holiday Season more than ever, our thoughts turn gratefully to those who have make our progress possible.
And in this spirit we say, simply but sincerely,
Thank You and Best Wishes for the Holiday Season and Happy New Year!
Law Offices of Norka M. Schell, LLC
www.LawSchell.com
During the Holiday Season more than ever, our thoughts turn gratefully to those who have make our progress possible.
And in this spirit we say, simply but sincerely,
Thank You and Best Wishes for the Holiday Season and Happy New Year!
Law Offices of Norka M. Schell, LLC
www.LawSchell.com
December 18, 2011
SUPREME COURT: UNANIMOUS DECISION
JUDULANG v. HOLDER, Dec. 12, 2011: the BIA's policy for applying INA 212(c) in deportation case -- the "comparable grounds" rule -- is arbitrary and capricious under Adminstrative Procedure Act. http://ww.supremecourt.gov/opinions/11pdf/10-694.pdf
December 16, 2011
IMMIGRATION AND POLICY: ANCHOR BABIES IS NOW AN OFFENSIVE TERM
ANCHOR BABIES IS NOW AN OFFENSIVE TERM: How do you define babies born to illegal aliens mothers within the United States? "Anchor baby." As per the Wikipedia the term anchor ba...
ANCHOR BABIES IS NOW AN OFFENSIVE TERM
How do you define babies born to illegal aliens mothers within the United States?
"Anchor baby." As per the Wikipedia the term anchor baby means " having a U.S. citizen child confers immigration benefits on the parents and extended family as immigration does allow a U.S. citizen child to sponsor his or her."
The American Heritage dictionary initially defined the term as "a child born to a non citizen mother in a country that grants automatic citizenship to children born on its soil, specially such a child born to parents seeking to secure eventually citizenship for themselves and often other members of their family."
After a long debate on the meaning of the term "anchor baby" the American Heritage Dictionary revised its definition in the lastes edition. Anchor baby now means " Offensive used as a disparaging term for a child born to a noncitizen mother in a country that grants automatic citizenship to children born on its soil, especially when the child's birthplace is thought to have been chosen in order to improve the mother's or other relatives chances of securing eventually citizenship."
"Anchor baby." As per the Wikipedia the term anchor baby means " having a U.S. citizen child confers immigration benefits on the parents and extended family as immigration does allow a U.S. citizen child to sponsor his or her."
The American Heritage dictionary initially defined the term as "a child born to a non citizen mother in a country that grants automatic citizenship to children born on its soil, specially such a child born to parents seeking to secure eventually citizenship for themselves and often other members of their family."
After a long debate on the meaning of the term "anchor baby" the American Heritage Dictionary revised its definition in the lastes edition. Anchor baby now means " Offensive used as a disparaging term for a child born to a noncitizen mother in a country that grants automatic citizenship to children born on its soil, especially when the child's birthplace is thought to have been chosen in order to improve the mother's or other relatives chances of securing eventually citizenship."
November 9, 2011
IMMIGRATION AND POLICY: DHS EXTENDS TPS FOR HONDURAS AND NICARAGUAS
IMMIGRATION AND POLICY: DHS EXTENDS TPS FOR HONDURAS AND NICARAGUAS: By: Norka M. Schell, Esq. On November 4, 2011, U.S. Citizenship and Immigration Services (USCIS) announced the that the DHS Secretary Jane...
IMMIGRATION AND POLICY: "V" Nonimmigrant Visa
IMMIGRATION AND POLICY: "V" Nonimmigrant Visa: The "V" visa is a nonimmigrant visa created to allow families to stay together while waiting for the processing of immigrant visa.
"V" Nonimmigrant Visa
The "V" visa is a nonimmigrant visa created to allow families to stay together while waiting for the processing of immigrant visa.
To qualify for a V visa, a spouse or child (under age 21) of a U.S. lawful permanent resident (LPR) must meet all of the following criteria:
1. The U.S. LPR spouse and/or parent MUST have filed Form I-130, Petition for Alien Relative, with the U.S. Citizenship and Immigration Services (USCIS) on behalf of his or her spouse/child(ren) on or before December 21, 2000;
2.The petition’s priority date must be at least three years old;
3.The priority date must not be current;
4.The applicant must not have already had an immigrant visa interview or be scheduled for an interview;
5.The petition must not already be at a U.S. embassy or consulate for immigrant visa processing; and
6.The applicant must be otherwise eligible as an immigrant.
U.S. embassies and consulates have not issued any V visas for the past several years because applicants with priority dates on or before December 21, 2000, were able to apply for immigrant visas as their priority dates became current. Review the Visa Bulletin for information on the priority dates of petitions for spouses and children of U.S. lawful permanent residents that are currently being processed for immigrant visas.
For more information about "V" Nonimmigrant Visa, see www.travelstate.gov or call the Offices of Norka M. Schell, LLC at (212) 564-1589.
To qualify for a V visa, a spouse or child (under age 21) of a U.S. lawful permanent resident (LPR) must meet all of the following criteria:
1. The U.S. LPR spouse and/or parent MUST have filed Form I-130, Petition for Alien Relative, with the U.S. Citizenship and Immigration Services (USCIS) on behalf of his or her spouse/child(ren) on or before December 21, 2000;
2.The petition’s priority date must be at least three years old;
3.The priority date must not be current;
4.The applicant must not have already had an immigrant visa interview or be scheduled for an interview;
5.The petition must not already be at a U.S. embassy or consulate for immigrant visa processing; and
6.The applicant must be otherwise eligible as an immigrant.
U.S. embassies and consulates have not issued any V visas for the past several years because applicants with priority dates on or before December 21, 2000, were able to apply for immigrant visas as their priority dates became current. Review the Visa Bulletin for information on the priority dates of petitions for spouses and children of U.S. lawful permanent residents that are currently being processed for immigrant visas.
For more information about "V" Nonimmigrant Visa, see www.travelstate.gov or call the Offices of Norka M. Schell, LLC at (212) 564-1589.
November 7, 2011
IMMIGRATION AND POLICY: DHS EXTENDS TPS FOR HONDURAS AND NICARAGUAS
IMMIGRATION AND POLICY: DHS EXTENDS TPS FOR HONDURAS AND NICARAGUAS: By: Norka M. Schell, Esq. On November 4, 2011, U.S. Citizenship and Immigration Services (USCIS) announced the that the DHS Secretary Jane...
DHS EXTENDS TPS FOR HONDURAS AND NICARAGUAS
By: Norka M. Schell, Esq.
On November 4, 2011, U.S. Citizenship and Immigration Services (USCIS) announced the that the DHS Secretary Janet Napolitano has extended the designations of Honduras and Nicaragua for temporary protected status (TPS) for 18 months from the current expiration date of January 5, 2012, to July 5, 2013. There are approximately 64,000 nationals of Honduras and 3,000 nationals of Nicaragua (aliens having no nationality who last habitually resided in these countries) who may be eligible for registration. The extension of the TPS designations of Honduras and Nicaragua is effective January 6, 2012, and will remain in effect through July 5, 2012.
The 60-day reregistration period begins November 4, 2011, and will remain in effect until January 5, 2012.
On November 4, 2011, U.S. Citizenship and Immigration Services (USCIS) announced the that the DHS Secretary Janet Napolitano has extended the designations of Honduras and Nicaragua for temporary protected status (TPS) for 18 months from the current expiration date of January 5, 2012, to July 5, 2013. There are approximately 64,000 nationals of Honduras and 3,000 nationals of Nicaragua (aliens having no nationality who last habitually resided in these countries) who may be eligible for registration. The extension of the TPS designations of Honduras and Nicaragua is effective January 6, 2012, and will remain in effect through July 5, 2012.
The 60-day reregistration period begins November 4, 2011, and will remain in effect until January 5, 2012.
ALABAMA IMMIGRATION LAW SPARKS DOJ INVESTIGATION
Alien students can be specially vulnerable during periods of political crises. Not even a child is exempted from the hostility of those who opposes the undocumented alien population. On November 04, 2011the Department of Justice (DOJ) sent a letter to Alabama School reminding them that states cannot deny a child public access to education based on immigration status. The DOJ also requested information regarding enrollment practices to determine whether each school district is in compliance with federal law and whether further action is warranted.
The Alabama School Superintendent must send to the DOJ the requested information no later than November 14, 2011. www.hufingtonpost.com/2011/11/02/alabama-immigration-law-s_n_1071657.html
The Alabama School Superintendent must send to the DOJ the requested information no later than November 14, 2011. www.hufingtonpost.com/2011/11/02/alabama-immigration-law-s_n_1071657.html
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.
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?
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.
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...
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.
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
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.
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* Research references: Steel on Immigration Law (2d ed.)
* 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.
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* 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
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
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).
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See www.uscis.gov
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