RELIEF FOR DREAMers

Posted by Norka M. Schell, Esq.

On June 15, 2012, Secretary Napolitano Announced Deferred Action Process for Young People Who Are Low Enforcement Priorities

Under this directive, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis.

Here are some details of the new policy:

To be eligible, the individual must:

1. Have arrived to the United States under the age of sixteen; 


2. Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum; 


3.  Be currently in school, have graduated from high school, have obtained a general education development certificate, or be honorably discharged veterans of the Coast Guard or Armed Forces of the United States;


4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; 


5. Be between 15 years or older and not above the age of thirty. 

Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action. Individuals will not be eligible if they are not currently in the United States and cannot prove that they have been physically present in the United States for a period of not less than 5 years immediately preceding today’s date.

Deferred action requests are decided on a case-by-case basis. DHS cannot provide any assurance that all such requests will be granted. The use of prosecutorial discretion confers no substantive right, immigration status, or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.

It estimates that this new policy will benefit nearly 1 million DREAMers.

 For individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria and have been offered an exercise of discretion as part of ICE’s ongoing case-by-case review, ICE will immediately begin to offer them deferred action for a period of two years, subject to renewal.

While this guidance takes effect immediately, USCIS and ICE expect to begin implementation of the application processes within sixty days. In the meantime, individuals seeking more information on the new policy should visit USCIS’s website (at www.uscis.gov), ICE’s website (at www.ice.gov), DHS’s website (at www.dhs.gov), or contact my firm at (212) 564-1589.

IMMIGRATION AND POLICY: Employment Opportunities In The U.S. For Mexican a...

IMMIGRATION AND POLICY: Employment Opportunities In The U.S. For Mexican a...: By: NORKA M. SCHELL, Esq. Employment Opportunities in the U.S. for Mexican  And Canadian Citizens A visa classification that is underuti...

Employment Opportunities In The U.S. For Mexican and Canadian Citizens

By: NORKA M. SCHELL, Esq.

Employment Opportunities in the U.S. for Mexican  And Canadian Citizens

A visa classification that is underutilized is the TN Visa and many Canadian and Mexican Citizens may qualify for the TN Visa or TN Status based on their profession and educational levels under NAFTA, the North American Free Trade Agreement. The benefits of entering the U.S. under the TN Visa or TN Status are that it that the TN Visa may be valid for up to three-years and has no renewal limits. You can receive a TN Visa extension each year for an indefinite number of times as long as you meet all of the requirements. The North American Free Trade Agreement (NAFTA) was an agreement signed by the governments of Canada, Mexico, and the United States, creating a trilateral trade bloc in North America. A trade bloc is a type of intergovernmental agreement, often part of a regional intergovernmental organization, where regional barriers to trade, (tariffs and non-tariff barriers) are reduced or eliminated among the participating countries.

The agreement became effective on January 1, 1994. North American Free Trade Agreement (NAFTA) creates special economic and trade relationships for the United States (U.S.), Canada and Mexico. The nonimmigrant NAFTA Professional (TN) visa allows citizens of Canada and Mexico, as NAFTA professionals, to work in the U.S. in a prearranged business activity for a U.S. or foreign employer. To qualify for a TN Visa and be allowed to work in the U.S. the Canadian and Mexican professionals must meet the following conditions: (1) Applicant must be a citizen of Canada or Mexico; (2) Applicant must have a job offer in the United States; (3) Applicant’s job offer must be in a position approved under the NAFTA list; (4) Applicant must have the professional qualification required of the profession; and (5) U.S. job offer must be of a temporary nature and Applicant must prove temporary stay each time the TN Visa is renewed.

Canadian citizens usually do not need a visa as a NAFTA Professional, although a visa can be issued to qualified TN visa applicants upon request. A Canadian citizen without a TN visa can apply at a U.S. port of entry. A Canadian NAFTA Profession will need a TN Visa if he/she is residing in another country with a non-Canadian spouse and child would need a visa to enable the spouse and child to be able to apply for a visa to accompany or join the NAFTA Professional, as a TD visa holder. However, unlike Canadian citizens, Mexican citizens are required to obtain a visa to request admission to the U.S. A complete list of NAFTA approved professions can be found by accessing the State Department’s website at http://www.nafta-sec-alena.org/en/view.aspx?x=343&mtpiID=147#Ap1603.D.1. The NAFTA approved professions are classified under four categories: (1) General (2) Medical and Allied Professions (3) Scientist and (4) Teachers. Under these four subcategories you will find positions such as Accountants, Architects, Computer Science, Economists, Engineer, Graphic Designers, Hotel Managers, Interior Designers, Landscape Architects, Mathematicians, Social Workers, Dentists, Dieticians, Nutritionists, Pharmacists, and Teachers (college, seminary, or university).

Therefore, if you want to know if you or someone you know may qualify for a TN Visa or TN Status, please feel free to contact me directly at (212)564-1589.

USCIS TO CENTRALIZE FILING & ADJUDICATION FOR CERTAIN WAIVERS OF INADMISSIBILITY IN THE US

Beginning on June 4, 2012, individuals abroad who have applied for certain visas and have been found inadmissible by a U.S. Consular Officer, will be able to mail request to waive certain grounds of inadmissibility directly to a USCIS Lockbox facilities. This change affects where individuals abroad who have been found inadmissible for an immigrant visa or a non-immigrant visa K or V visa. Currently, applicants experience processing time from one-month to more than one year depending on their location. The change affects filings for forms I-601, I-212, I-290B. The change is separate and distinct from the provisional waiver proposal published on March 30, 20121. http://www.uscis.gov/

IMMIGRATION AND POLICY: STEEM DESIGNATED DEGREE PROGRAM

IMMIGRATION AND POLICY: STEEM DESIGNATED DEGREE PROGRAM: The Department of Homeland Security (DHS) has expanded the list of STEM -- science, technology, engineering, and math --designated-degree pr...

STEEM DESIGNATED DEGREE PROGRAM

The Department of Homeland Security (DHS) has expanded the list of STEM -- science, technology, engineering, and math --designated-degree program list that qualify eligible graduates on student visas for an optional practical training (OPT) extension. The new courses which are now included to the list of STEEM are: pharmaceutical sciences, econometrics, and quantitative economics.

Under the OPT program, international students who graduate from colleges and universities in the United States are able to remain in the United States and receive training through work experience for up to 12 months.

Students who graduate from a STEM-designated degree program can remain in the United States for an additional 17 months on an OPT STEM extension.  List of the STEM-designated programs are available at http://www.ice.gov/doclib/sevis/pdf/stem-list.pdf.

NKEN V. HOLDER, THE SUPREME COURT

By: Norka M. Schell, Attorney-at-Law

The Board of Immigration Appeals denied Jean Marc Nken's petition to reopen his case regarding his deportation. He appealed arguing that the Board of Immigration Appeals abused its discretion in denying  his motion and should have used its sua sponte power to reopen his proceedings. On appeal, the U.S. Court of Appeals for the Fourth Circuit held that the Board of Immigration Appeals did not abused its discretion. Thereafter, the Supreme Court granted Mr. Nken's motion for a stay of his removal until further proceeding by the Court. 

In Nken v. Holder, 556 U.S. 418 (2009),the Supreme Court, in considering an alien's request for a stay of removal pending adjudication of his petition for review, said, “Although removal is a serious burden for many aliens, that burden alone cannot constitute the requisite irreparable injury. An alien who has been removed may continue to pursue a petition for review, and those aliens who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal.” In so stating, Justice John G. Roberts, Jr., the author of the opinion, was relying on the following statement made by the Office of the Solicitor General (OSG) in its appellate brief on behalf of the respondent in Nken.

In the ordinary case, an alien need not remain in the United States in order to pursue a legal or constitutional claim or benefit from a favorable judicial ruling. The court's review is based on the administrative record, see 8 U.S.C. 1252(b)(4)(A), and written legal briefs, 8 U.S.C. 1252(b)(3)(C), rather than in-person testimony. By policy and practice, the government accords aliens who were removed pending judicial review but then prevailed before the courts effective relief by, inter alia, facilitating the aliens' return to the United States by parole under 8 U.S.C. 1182(d)(5) if necessary, and according them the status they had at the time of removal. Read more www.supremecourt.gov/opinions/08pdf/08-681.pdf

Law Offices of Norka M. Schell, LLC handle litigation. If you or a loved one is facing deportation or removal proceedings, please contact an experienced NY attorney, at (212) 564-1589.

USCIS PROPOSED REVISIONS TO FORM I-9

USCIS notice of a 60-day comment period on the Proposed Revisions to Form I-9, Employment Eligibility Verification, are due on 05/29/2012.

The draft of the Proposed Revisions to Form I-9, Employment Eligibility Verification was published on March 27, 2012, and the key revisions which the USCIS is seeking public comment include:

 1. Expanded Form I-9 instructions and revised layout;
 2. New optional data field to collect the employee's email address and telephone number;
 3. New date fields to collect the foreign passport number and country of issuance;
  if the employees use their I-94 and foreign passport to work authorization.

 Employer must continue to use the current edition of Form I-94 until new revised version has been approved and posted by the federal government.

Public may comment on the Proposed Revisions to the Form I-9 by visiting www.regulations.org

IMMIGRATION AND POLICY: The U.S. Supreme Court hears Oral Argument in Ariz...

IMMIGRATION AND POLICY: The U.S. Supreme Court hears Oral Argument in Ariz...: Norka M. Schell, Attorney-at-Law Law Offices of Norka M. Schell, LLC On Wednesday, the U.S. Supreme Court will hear Arizona v. United Sta...

The U.S. Supreme Court hears Oral Argument in Arizona v. United States - SB 1070

Norka M. Schell, Attorney-at-Law Law Offices of Norka M. Schell, LLC

On Wednesday, the U.S. Supreme Court will hear Arizona v. United States. Tomorrow, the State of Arizona will make its final argument in support of the Arizona Bill -- also known as SB 1070 -- to the U.S. Supreme Court. The justices will consider the legality of the four provisions of the SB 1070 in questions.

Since the SB 1070 was passed in 2010, it's been clear that it leads to racial profiling and discrimination. But it is also a clear unconstitutional violation because it preempts federal law. The SB 1070 requires that Police Officers check the immigration status of anyone they stop in the course of their duties and whom they "reasonable suspect" of being in the United States illegal -- this leads to racial profiling -- even those pulled over for routine traffic violations. If that individual can't provide the proper documentation, she or he may be detained or arrested. The law also authorizes Police Officers, who have received no training in the complexities of immigration law and procedure, to arrests without warrants if the Police Office "suspects" that the individual has committed a deportable offense. The problem with this provision is that the State of Arizona doesn't have the federal authority or the ability to make deportation determinations. That burden would ultimately fall to federal officials, who would be forced to shift the limited resources from the federal government which is now being used to deport individuals with felony conviction and/or multiple misdemeanor convictions - to detained individuals who are considered "low priority" cases simply "suspected" for being in the United States illegally.





P.S.
Amnesty International defines racial profiling as follows: According to Professor David Harris of the University of Toledo College of Law, a leading expert on racial profiling, criminal profiles are a set of personal and behavioral characteristics associated with particular offenses that police use to predict who may commit crimes in the future, or identify what type of person may have committed a particular crime for which no credible suspect has been identified or eye-witness description provided. Criminal profiling becomes racial profiling when these characteristics include race, ethnicity, nationality, or religion.

IMMIGRATION AND POLICY: Matter of Manohar Rao ARRABALLY and Sarala YERRABE...

IMMIGRATION AND POLICY: Matter of Manohar Rao ARRABALLY and Sarala YERRABE...: www.lawschell.com By: Norka M. Schell, Esq.  Beginning April 1, 1997, a person who has been unlawfully present in the U.S. for one year ...

Matter of Manohar Rao ARRABALLY and Sarala YERRABELLY

www.lawschell.com



By: Norka M. Schell, Esq. 

Beginning April 1, 1997, a person who has been unlawfully present in the U.S. for one year or more consecutively and again seeks admission is barred for 10 years from the date of such person's departure or removal from the U.S. INA section 212(a)(9)(B)(i)(II), 8 U.S.C. section 1182(a)(9)(i)(II). In order to trigger the 10-year bar, departure from the U.S. is required, H.R. Conf. Rep. 104-828, 104th Cong., 2d Sess. at 207.
The Board of Immigration Appeal (BIA) has clarified the term - departure --  in the Matter of Arrabally on April 17, 2012 which will help thousands of immigrant applicants who like Manohar Rao Arrabally have been entangled in the web of statutes, regulations, case law, and agency memoranda.

  Manohar Rao Arrabally and Sarala Yerrabelly (husband and wife) are natives and citizens of India who had overstayed their nonimmigrant visas. While they were unlawfully present in the U.S., they filed for their applications to adjust status to legal permanent residents with the United States Citizenship and Naturalization Services (USCIS). 

While their applications still pending, Mr. Arrabally and Mrs. Yerrabelly applied and were granted advance parole documents which gave them the authorization to travel to India to care for their aging parents and return to the U.S. to resume their Adjustment Status Applications. So, they travelled to India and returned to the United States within few month. 

Mr. Arrabally and Mrs. Yerrabelly adjustment status interview was scheduled. They appeared before an Immigration officer as required and were interviewed. The Immigration Officer did not issue a decision on that day. 

Few days later, Mr. Arrabally and Mrs. Yerrabelly received a correspondence from the USCIS informing them that their applications for the adjustment status were denied because they had departed this country (under grants of advance parole) after having been “unlawfully present” here for 1 year or more and were seeking admission less than 10 years after having departed, a set of circumstances that rendered them inadmissible under section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act.

Mr. Arrabally became very confused. He promptly sought reopening of his adjustment application before the USCIS, noting the humanitarian considerations that had prompted his request for advance parole and contending that he and his wife should not be punished for having departed the U.S. when the Department of Homeland Security (DHS) knew about, and expressly approved of, those departures by granting them advance parole. 

In response to Mr. Arrabally's request, a USCIS Field Office Director issued a decision acknowledging the force of some of the male respondent’s arguments but ultimately concluding that his inadmissibility under section 212(a)(9)(B)(i)(II) of the Act necessitated the denial of his application.

In arriving at that conclusion, the Field Office Director invoked Matter of Lemus, 24 I&N Dec. 373 (BIA 2007) (“Lemus I”), in which hold that section 245(i) adjustment is unavailable to aliens who are inadmissible under section 212(a)(9)(B)(i)(II) and are not eligible for a section 212(a)(9)(B)(v) waiver. Short thereafter, DHS started removal proceedings against Mr. Arrabally and  Mrs. Yerrabelly.

Mr. Arrabally and Yerrabelly appeared before an Immigration Judge as requested, conceded removability, and sought to renew their adjustment applications. The Immigration Judge found them inadmissible under section 212(a)(9)(B)(i)(II) of the Act and ineligible for section 245(i) adjustment, and he ordered them removed to India.

Mr. Arrabally and Yerrabelly appealed of the decision to the Board of Immigration Appeal. So the question presented to the Board of Immigration Appeal in this case was "whether the respondents (Mr. Arrabally and Mrs.Yerrabelly) who left the United States temporarily under a grant of advance parole, thereby effected a “departure,” which resulted in their inadmissibility under section 212(a)(9)(B)(i)(II)." 

The Board of Appeal hold that they did not. --- "An alien who leaves the  United States temporarily pursuant to a grant of an advance parole (I-131) does not thereby make a "departure ... from the United States" within the meaning of the section 212(a)(9)(B)(i)(II) (2006). Matter of Lemus, 24. I. & N. Dec. 373 (BIA) (2007). Clarified.

Consequently, Mr. Arraball's and Mrs. Yerrabelly's appeal were sustained in part and the records were remanded to the Immigration Judge for further proceedings. Decided on April 17, 2012. (Matter of Arrabally, & Yerrabelly, 25 I.&N. De. 771 (BIA 2012)).

 

IMMIGRATION AND POLICY: VISA PROCESSING FEES CHANGE

IMMIGRATION AND POLICY: VISA PROCESSING FEES CHANGE: Posted By:  Norka M. Schell, Attorney-at-Law at  Law Offices of Norka M. Schell, LLC Visa Processing Fees Change Today Effective today,...

VISA PROCESSING FEES CHANGE

Posted By:  Norka M. Schell, Attorney-at-Law at 
Law Offices of Norka M. Schell, LLC


Visa Processing Fees Change Today


Effective today, April 13, 2012, the Department of State will adjust visa processing fees. The fees most nonimmigrant visa applications and Border Crossing Cards will increase, while all immigrant visa processing fees will decrease. 


The Department is required to recover, as far as possible, the cost of processing visas through the collection of application fees. For number of reasons, the current fees no longer cover the actual cost of processing nonimmigrant visas. The nonimmigrant visa fee increase will support the additional and expansion of overseas facilities, as well as additional staffing required to meet increased visa demand. 


Although most categories of nonimmigrant visa processing fees will increase, the fee for E visas (treaty-trades and treaty-investors0 and K visas (for fiancee(e)s of U.S. citizens) will decrease. 


Nonimmigrant Visa Processing Fees

• Tourist, Business, Crew Member, Student, Exchange Visitor and Journalist visas. Previous Fee: $140.00 -  New Fee: $160.00
• Petition-Based on visas (H,L,O,P, Q, and R). Previous Fee: $150.00 - New Fee: $190.00
• Treaty Investor and Trader visas (E). Previous Fee: $390.00 -             New Fee: $270.00
• Fiance(e0 visas (K). Previous Fee: $350.00 - New Fee: $240.00
• Border Crossing Cards (age 15 and older). Previous Fee: $140.00 - New Fee $160.00
• Border Crossing Cards (under age 15). Previous Fee: $14.00 - New Fee $15.00

Because of a reallocation of costs associated with immigrant visas, all categories of immigrant visa processing fees will decrease.

Immigrant Visa Processing Fees

• Immediate Relative and Family Preference Application. Previous Fee $330.00 - New Fee $230.00
• Employment-Based Applications. Previous Fee $720.00  - New Fee $405.00
• Other Immigrant Visa Applications. Previous Fee $305.00  - New Fee $220.00
• Diversity Visa Program Fee. Previous Fee $440.00  - New Fee $330.00
• Determining Returning Resident Status. Previous Fee $380.00  - New Fee 275.00

         

IMMIGRATION AND POLICY: H-1B CATEGORY

IMMIGRATION AND POLICY: H-1B CATEGORY: Posted By Attorney Norka M. Schell Law Offices of Norka M. Schell http://www.lawschell.com/ The H-1B nonimmigrant visa category is limi...https://plus.google.com/u/0/b/109668596829989320629/109668596829989320629/posts/2Pa97wSANfJ

H-1B CATEGORY

Posted By Attorney Norka M. Schell
Law Offices of Norka M. Schell
http://www.lawschell.com/

The H-1B nonimmigrant visa category is limited by the terms of the statute to aliens coming to the United States to perform services in a "specialty occupation" for which the alien workers have the necessary credential.

The workers in this category may be filing permanent positions in the United States, as long as they depart the United States at the end of their authorized periods of stay, including any extensions of stay. H-1B workers do not need to maintain a foreign residence during their period of stay in the United States and they may seek permanent residence concurrently with petitioning for or holding H-1B status.

Aliens seeking to perform services in a specialy occupation must establish that they have the qualifications to undertake the services required for that specialty occupation. At a minimum, an alien in a specialty occupation must document that she has he or she has full state licensure to practice in the occupation, if such licensure is required to practice. The alien must also establish that he or she has completed the degree required as the minimum standard for entry into the occupation in the United States, or has experience in the specialty equivalent to the completion of such degree and recognition of expertise in the specialty through progressively responsible positions in the occupation.

Foreign medical graduates seeking admission to engage in direct patient care and health care workers (other than physicians) must meet certain additional requirements to be eligible for H-1B status. On April 2, 2012, the United States Citizenship and Naturalization Services started to accept H-1B petitions for the 2013 fiscal year.

If you need more information about H-1B petition, please contact Law Offices of Norka M. Schell at
(212)564-1589.

IMMIGRATION AND POLICY: USCIS Proposes Process Change for Certain Waivers ...

IMMIGRATION AND POLICY: USCIS Proposes Process Change for Certain Waivers ...: The USCIS proposes process change for certain waivers of inadmissibility RELEASED: March 30, 21012 Proposal would reduce time that the U...

USCIS Proposes Process Change for Certain Waivers of Inadmissibility

The USCIS proposes process change for certain waivers of inadmissibility

RELEASED: March 30, 21012

Proposal would reduce time that the U.S. citizens are separated from immediate relative WASHINGTON-U.S. Citizenship and Immigration Services (USCIS) today posted a Notice of Proposed Rulermaking (NPRM) in the Federal Register that would reduce the time U.S. citizens are separated from their spouses, children, and parents (i.e. immediate relatives) who must obtain an immigrant visa abroad to become lawful permanent residents of the United States. This rule would allow certain immediate relatives of U.S. citizens to apply for a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship.

The proposed rule will not alter how USCIS determines eligibility for a waiver of inadmissibility or how an individual establishes extreme hardship. The law is designed to avoid extreme hardship to U.S. citizens, which is precisely that this proposed rule will more effectively achieve," said USCIS Director Alejandro Mayorkas. "The current process can subject U.S. citizens to months of separation for family members who are waiting for their cases to be processed overseas. The proposed change will have tremendous impact on families by significantly reducing the time of separation."

USCIS also proposes creating a new form for immediate relatives of U.S. citizens who choose to apply for a provisional unlawful presence waiver. Once in effect, this form would be used for individuals filing an application for a provisional unlawful presence application before he or she departs the United States to complete the immigrant visa process at a U.S. Embassy or consulate abroad. The streamlined process would only apply to immediate relatives who are otherwise eligible for an immigrant visa based on an approved immediate relative petition.

The process outlined above is not in effect and is not available until USCIS publishes a final rule with an effective date in the Federal Register. USCIS will consider all public comments on the proposed rule announced today before publishing the final rule in the coming months. Individuals at this time should not be submit an application for a provisional unlawful presence waiver, or allow anyone to submit one on their behalf because it will be rejected.

USCIS encourages the public to submit format input on the proposed rule through www.regulations.gov during a comment period that runs from April 2, 2012 until June 1, 2012.

IMMIGRATION AND POLICY: Matter of LEMUS-Losa

IMMIGRATION AND POLICY: Matter of LEMUS-Losa: Posted by Norka M. Schell, Attorney-at-Law Law Offices of Norka M. Schell, LLC http://www.lawschell.com/ Board of Immigration Appeals ("...

Matter of LEMUS-Losa

Posted by Norka M. Schell, Attorney-at-Law
Law Offices of Norka M. Schell, LLC
http://www.lawschell.com/

Board of Immigration Appeals ("BIA") reaffirms decision that inadmissibility under Immigration and Nationality Act ("INA") 212 (a)(9)(B) renders person ineligible for adjustment of status under INA 245(i).


The respondent, Miguel Lemus-Losa, is a native and citizen of Mexico who first entered the U.S in 1998 or 1999 and remained in the U.S. for approximately two years. He then returned to Mexico in 2001 and remained there until 2003, at which time he again entered the U.S. and remained. Based on the 2003 unlawful entry, DHS initiated removal proceedings against Lemus-Losa in March 2005. In September 2005, based on an approved Petition for Alien Relative with a priority date of March 30, 1992, Lemus-Losa filed an application to adjust his status under § 245(i). His matter was adjourned until December 2005 to enable him to obtain a current visa priority date. The Board's decision noted that the IJ at that time suggested Lemus-Losa might not be eligible for adjustment based on his accrual of over one year of unlawful presence and subsequent entry within 10 years. At the December hearing the IJ denied a request for a second postponement of the matter, opining that it would be useless as Lemus-Losa was inadmissible under § 212(a)(9)(B)(i)(II) and therefore would not be able to adjust his status under § 245(i). Lemus-Losa appealed to the BIA after the IJ denied his request for reconsideration.

The Board, in dismissing the appeal, began by agreeing with the IJ's findings that Lemus-Losa was inadmissible because he was unlawfully present in the U.S. for two years, voluntarily returned to Mexico for roughly two years, and then entered the U.S. without inspection. Lemus-Losa had argued that the title of § 212(a)(9) is “Aliens previously removed” and as such the provisions do not apply to him because he was not removed but rather voluntarily left the U.S. The BIA rejected the argument however, relying on prior case law which held that “the heading of a section cannot limit the plain meaning of the text, and it is of use only when it sheds light on some ambiguous word or phrase.”

On Mar. 19, 2012, the Board of Immigration Appeals, after remand from the U.S. Court of Appeals for the Seventh Circuit reaffirm its prior decision in Matter of Lemus, 24 I &N; Dec. 373 (BIA 2007) that (1) an alien who is unlawfully present in the United States for a period of one year, departs the country, and then seeks admission within 10 years of the date of his or her departure from the United States is inadmissible under the INA 212 (a)(9)(B)(i)(II) [8 USCA 1182(a)(2)(B)(i)(II) (2000) even if the alien's departure was not pursuant to an order of removal and was not a voluntary departure in lieu of being subject to removal proceedings or at the conclusion of removal proceedings and (2) such an alien cannot adjust status under INA 245(i) [8 U.S.C.A. 1255(i)] absent a waiver under the INA 212(a)(9)(B)(v). The BIA nevertheless remanded the matter to the immigration judge to consider two issues: 1. Whether the passage of time has vitiated the respondent's inadmissibility under the INA 212 (a0(9)(B)(i)(II) as it appeared from the record that the respondent departed the United States more than 10 years ago, and 2. Whether as the DHS now contends, the respondent is also inadmissible under INA 212(a)(9)(C)(i)(I)[8 U.S.C.A. 1182 (a)(2)(C)(i)(I)] which the BIA found in Matter of Briones 24 I & N Dec. 355 (BIA 2007), would prevent adjustment of status under the INA 245(i).

IMMIGRATION AND POLICY: TEMPORARY PROTECTED STATUS FOR SYRIAN NATIONALS

IMMIGRATION AND POLICY: TEMPORARY PROTECTED STATUS FOR SYRIAN NATIONALS: FOR IMMEDIATE RELEASE MARCH 23, 2012 STATEMENT FROM SECRETARY OF HOMELAND SECURITY JANET NAPOLITANO ON TEMPORARY PROTECTED STATUS F...

TEMPORARY PROTECTED STATUS FOR SYRIAN NATIONALS

FOR IMMEDIATE RELEASE MARCH 23, 2012 STATEMENT FROM SECRETARY OF HOMELAND SECURITY JANET NAPOLITANO ON TEMPORARY PROTECTED STATUS FOR SYRIAN NATIONAL "In the light of the deteriorating condition in Syria, I am announcing the Department of Homeland Security will be designating Syria for Temporary Protected Status (TPS) for Syrians currently present in the United States. Conditions in Syria have worsened to the point where Syrian nationals already in the United States would face serious treats to their personal safety if they were to return to their home country. Early next week the Department will publish a notice in the Federal Register that will provide further guidance about TPS eligibility requirements and registration procedures. All applicants must undergo full background checks and while Syrians in the United States are encouraged to apply, they should not submit their applications before the notice is published."

GLOBAL ENTRY PROGRAM

Global Entry is an initiative of the Customs and Border Protection introduced in July 2011 that provides expedited immigration and customs clearance to pre-approved, low-risk air travels upon arrival in the United States to U.S. citizens, U.S. permanent residents, Canadian citizens, Canadian landed immigrants, Mexican citizens, and Dutch citizens who are members of Privium,the Netheland trust travel program. Qualified applicants can complete one application and receive access to all modes of travel into the United States by using automated kioski located at selected airport. The program is placed at the following 24 international airports in the United States: Boston-Logon International Airport, Chicago O 'Hare International Airport, Dallas/Ft. Worth International Airport, Detroit Metropolitan Airport, Ft. Lauderdale Hollywood International Airport, George Bush International Airport, Hartsfields-Jackson Atlanta International Airport, Honolulu International Airport, John F. Kennedy International Airport, McCarran International Airport, Los Angeles International Airport, Miami International Airport, Newark Liberty International Airport, Orlando International Airport, Philadelphia International Airport, San Francisco International Airport, San Juan-Luis Munoz Marin International Airport, Orlando-Sanford International Airport, Seattle-Tacoma International Airport, Washington-Dallas International Airport, Minneapolis-St. Paul International Airport, Charlotte Douglas International Airport, Denver International Airport, and Phoenix Sky Harbor International Airport. At the airports, program participants proceed to Global Entry kioskis, present their machine-readable passport or U.S. permanent resident card, place their fingertips on the scanner for fingerprint verification, and make a customs verification. The kioski issues the traveler a transaction receipt and direct them to baggage claim and exit.

IMMIGRATION AND POLICY: VISA WAIVER PROGRAM COMES AT A HIGH COST

IMMIGRATION AND POLICY: VISA WAIVER PROGRAM COMES AT A HIGH COST: Posted by Norka M. Schell, Esq. Congress established the Visa Waiver Program (VWP) "to facilitate international travel and promote the ...

VISA WAIVER PROGRAM COMES AT A HIGH COST

Posted by Norka M. Schell, Esq.

Congress established the Visa Waiver Program (VWP) "to facilitate international travel and promote the effective use of resources of affected government agencies while not posing a threat to the welfare, health, safety, and security of the United States." Nose v. Atty Gen., 993 F.2d 75, 77n. 2(5th Cir. 1993)(quoting 53 Fed. Reg. 24,898 (1988)). Under the VWP, a qualifying visitor may enter the United States without obtaining a visa, so long as, he or she meet the statutory and regulatory requirements. As part of the admission process under the VWP, a visitor must execute certain immigration form known as I-94W, Non immigrant Visa Waiver Arrival/Departure Form, presents a valid passport, and possesses a round-trip ticket. Once admitted under the VWP, a visitor may remain in the United States for 90 days. Under the VWP, a visitor must waive his or her right to contest the government's admissibility determinations and removal actions, except that the visitor may contest removal actions on the basis of asylum. The effects of this no-contest provision are severe. This is what Vera, a citizen of Argentina, found it out. In 2000, when Jordan Vera (also known as Jordana Vera-Serra)("Vera") was just 12-year-old, her Argentina parents brought her to the United States under the VWP. In 2011, while the Immigration Custom Enforcement agents were executing an arrest warrant for her brother, they took her into custody and scheduled removal without an appearance before an Immigration Judge, for staying beyond the 90 days that she was permitted to stay pursuant to the VWP under which she entered this country. Vera argued that the removal order was invalid because she was a minor when she entered in the United States and that she did not received procedural protections to which she would have been entitled absent such a waiver. The Third Circuit denied Vera's appeal, finding no prejudice resulting from their enforcement of the allegedly-defective waiver. The Court held that Vera would not have been allowed to enter without signing the waiver form (I-94W); if Vera had been of majority age and had knowingly and voluntarily had executed the waiver, she would not have been entitled to the procedural protections normally afforded to any alien prior to removal. There is no dispute that Vera knowingly and voluntarily signed the VWP waiver. Accordingly, Vera waived the due process right to a hearing before an immigration judge.

IMMIGRATION AND POLICY: VISA WAITING TIMES

IMMIGRATION AND POLICY: VISA WAITING TIMES: Posted by Norka M. Schell, Esq. The State Department has provided detail on a pilot program that will waive interviews for some nonimmi...

VISA WAITING TIMES

Posted by Norka M. Schell, Esq.

The State Department has provided detail on a pilot program that will waive interviews for some nonimmigrants visa applicants. Under the pilot program, which is expected to run through January 19, 2012, consular officers can waive nonimmigrant visa interviews for certain applicants who are renewing a visa more than 12 months but less than 48 months after the expiration of their visa, and within the same classification as the previous visa.

In the past, the standard procedure was for the visa applicant to make a personal appearance at the consulate, submit the application to a consular representative, and await issuance of the visa. The applicant usually waited in line at that office to submit the papers to a consular representative who made a preliminary review of the papers for completeness. After a wait, during which the papers were reviewed by a consular officer, the applicant would be called to a front counter, window, or desk to be questioned on the application by a consular officer. If the consular officer was satisfied that the visa should be issued, the visa applicant waited while the visa was affixed to his or her passport.

In most cases, the MRV fee and the application fee (if any) must be paid in advance of the interview appointment and evidence of such payment must be as part of the visa application.  On the date of the interview, the applicant must carry the necessary documents, including the appointment notice, visa application form confirmation page, proof of payment of the MRV fee, his or her passport, photos, and supporting documents establishing eligibility for the particular nonimmigrant visa sought.

Immediately preceding the interview with the consular official, the applicant will have his or her fingerprints scanned. This process enables consular offices to deny visas to persons on any watch list and to identify this applicant for purposes of future applications. Applicants will also be required to certify under penalty of perjury, before the interview, that they have read and understood the questions on the visa application and that all statements made on the application are true and correct. The purpose of the requirement is to counter any attempts by visa applicants to repudiate misstatements on their visa applications by claiming that someone else prepared their application and/or changed information on the application between the time of submission and time of the interview. During the interview the applicant will be asked questions addressing his or her eligibility for the visa classification sought and any inadmissibility issues that may apply. The applicant will also be asked to pay the reciprocity fee (if applicable) and any other fees (such as the anti-fraud fee in L-1 blanket petition cases).

Posts no longer provide same-day visa issuance. Issuance of the visa within a few days of the interview is common--the post will typically return the applicant’s passport with the visa using a pre-paid mailer provided by the applicant.

Significant visa issuance delays are possible particularly if there are issues with regard to any security checks that require further “administrative processing.”  Most issues are resolved within 60 days of application.

Information extracted from 2012 Thomson Reuters and U.S. Department of State

IMMIGRATION AND POLICY: 17-Month Extension Of OPT For Students With STEM D...

IMMIGRATION AND POLICY: 17-Month Extension Of OPT For Students With STEM D...: February 08, 2012 Posted by Norka M. Schell, Esq. On April 4, 2008 the Department of Homeland Security (DHS) announced the Optional Prac...

17-Month Extension Of OPT For Students With STEM Degree

February 08, 2012

Posted by Norka M. Schell, Esq.

On April 4, 2008 the Department of Homeland Security (DHS) announced the Optional Practical Training Interim Final Rule. Under that rule, the DHS extended the period of Optional Practical Training (OPT) from 12 to 29 months for qualified F-1 non-immigrant students. The extension also became available to F-1 students with a degree in science, technology, engineering, or mathematics who were employed by businesses enrolled in the E-Verify program.

On February 2, 2012, the Department of Homeland Security ("DHS") proposed another administrative reform. At this time, it proposes to expand eligibility for 17-month extension of Optional Practical Training (OPT) (12+17=29) for F-1 International Students to include a prior degree in science, technology, engineering and mathematics(STEM).

Currently, F-1 students who graduate in programs of study classified as STEM can obtain a 17-month extension of OPT as part of their F-1 status if their degree is included on the DHS list of eligibility for extension of OPT.

If the proposal is approved, it will expand eligibility for extension of OPT by including students with a STEM degree that is not the most recent degree that the student has received.  It will be good for the U.S. economy.

IMMIGRATION JUDGES AND BOARD MAY ADMINISTRATIVELY CLOSE REMOVAL PROCEEDINGS EVEN IF DHS OPPOSES IT

February 06, 2012

Posted by: Norka M. Schell, Esq.


The Matter of Gutierrez is now overruled by Bavakan Avetisyan.

The Board of Immigration Appeals (BIA) held that the Immigration Judges and Board may, in the exercise of independent judgment and discretion, administratively close proceedings under the appropriate circumstances, even if a party opposes. 25 I&N Dec. 688 (BIA 2012)

Bavakan Avetisyan is a woman who is native and citizen of Armenia. She came to the United States legally with a J-1 visa to pursue her studies. She overstayed her visa. She was placed into proceedings by the Department of Homeland Security (DHS). She married to an U.S. citizen and they have a child together. An immigrant petition was filed on her behalf and if approved, Avetisyan, she would eligible to an adjustment of status. While her immigrant petition still pending adjudication, Avetisyan requested the Immigration Judge to administratively close her case. DHS opposed to Avetisyan's request, and instead requested for a continuance of the proceedings. The Immigration Judge denied the DHS's request for continuance and granted Avetisyan's request to administratively close proceedings. The DHS filed an appeal. The appeal was decided and dismissed on January 31, 2012.