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.
July 2, 2012
IMMIGRATION AND POLICY: WORKERS' COMPENSATION FOR UNDOCUMENTED ALIEN
IMMIGRATION AND POLICY: WORKERS' COMPENSATION FOR UNDOCUMENTED ALIEN: By: NORKA M. SCHELL, ESQ. Whether Federal Immigration Reform and Control Act (IRCA) preempts state law awards of workers' compensation be...
WORKERS' COMPENSATION FOR UNDOCUMENTED ALIEN
By: NORKA M. SCHELL, ESQ.
Whether Federal Immigration Reform and Control Act (IRCA) preempts state law awards of workers' compensation benefits to illegal aliens.
The U.S. Supreme Court has denied a request to rule on whether federal immigration law prevents illegal aliens from recovering benefits under state worker's compensation laws.
State legislatures and courts have the authority to determine whether, and under what circumstances, undocumented workers are entitled to workers' compensation benefits for injuries sustained while working illegally.
Many undocumented employees in the United States work at jobs in very hazardous conditions. As a result, the undocumented workers often sustain injuries or develop diseases and conditions that are related to the workplace and employment. Undocumented employees who injury themselves in workplace can receive workers' compensation benefits.
Workers' compensation is an administrative remedy and it is intended to compensate an employee in a timely manner for injuries sustained in, or related to, the workplace.
The purpose of worker's compensation is to provide monetary benefits as compensation to an employee who injured himself or herself in the workplace.
While federal law bans the employment of illegal immigrants by making it unlawful for an employer to knowingly hire or continue to employ an undocumented alien Immigration Reform and Control Act of 1986 (IRCA), some of the undocumented workers often use false or borrowed identification papers in order to secure employment.
IRCA does not preempt state workers' compensation law, and thus workers' compensation employee, who is an illegal alien, falls within Workers' Compensation Act's broad definition of "employee," is not disqualified by her or his status as illegal alien from receiving workers' compensation benefits.
Workers' compensation statute provides that immigration status is irrelevant to eligibility for workers' compensation benefits. Ceasing payment of workers' compensation benefits to undocumented workers would act as an incentive to unscrupulous employers to hire illegal aliens.
If employers do not want to pay workers' compensation to illegal aliens, they need to stop employing them. For more information about this top, please contact the Attorney Norka M. Schell at (212)564-1589.
Whether Federal Immigration Reform and Control Act (IRCA) preempts state law awards of workers' compensation benefits to illegal aliens.
The U.S. Supreme Court has denied a request to rule on whether federal immigration law prevents illegal aliens from recovering benefits under state worker's compensation laws.
State legislatures and courts have the authority to determine whether, and under what circumstances, undocumented workers are entitled to workers' compensation benefits for injuries sustained while working illegally.
Many undocumented employees in the United States work at jobs in very hazardous conditions. As a result, the undocumented workers often sustain injuries or develop diseases and conditions that are related to the workplace and employment. Undocumented employees who injury themselves in workplace can receive workers' compensation benefits.
Workers' compensation is an administrative remedy and it is intended to compensate an employee in a timely manner for injuries sustained in, or related to, the workplace.
The purpose of worker's compensation is to provide monetary benefits as compensation to an employee who injured himself or herself in the workplace.
While federal law bans the employment of illegal immigrants by making it unlawful for an employer to knowingly hire or continue to employ an undocumented alien Immigration Reform and Control Act of 1986 (IRCA), some of the undocumented workers often use false or borrowed identification papers in order to secure employment.
IRCA does not preempt state workers' compensation law, and thus workers' compensation employee, who is an illegal alien, falls within Workers' Compensation Act's broad definition of "employee," is not disqualified by her or his status as illegal alien from receiving workers' compensation benefits.
Workers' compensation statute provides that immigration status is irrelevant to eligibility for workers' compensation benefits. Ceasing payment of workers' compensation benefits to undocumented workers would act as an incentive to unscrupulous employers to hire illegal aliens.
If employers do not want to pay workers' compensation to illegal aliens, they need to stop employing them. For more information about this top, please contact the Attorney Norka M. Schell at (212)564-1589.
June 24, 2012
IMMIGRATION AND POLICY: IMMIGRATION AND POLICY: Changes in U.S. Treaty Tra...
IMMIGRATION AND POLICY: IMMIGRATION AND POLICY: Changes in U.S. Treaty Tra...: IMMIGRATION AND POLICY: Changes in U.S. Treaty Trader and Investor Visas (... : Posted by Norka M. Schell, Esq. US Embassy Press Release...
IMMIGRATION AND POLICY: IMMIGRATION AND POLICY: Changes in U.S. Treaty Tra...
IMMIGRATION AND POLICY: IMMIGRATION AND POLICY: Changes in U.S. Treaty Tra...: IMMIGRATION AND POLICY: Changes in U.S. Treaty Trader and Investor Visas (... : Posted by Norka M. Schell, Esq. US Embassy Press Release...
June 22, 2012
IMMIGRATION AND POLICY: Changes in U.S. Treaty Trader and Investor Visas (...
IMMIGRATION AND POLICY: Changes in U.S. Treaty Trader and Investor Visas (...: Posted by Norka M. Schell, Esq. US Embassy Press Release Beginning July 1, 2012 the U.S. Mission in Mexico will centralize all E-vis...
Changes in U.S. Treaty Trader and Investor Visas (E visas) Processing
Posted by Norka M. Schell, Esq.
US Embassy Press Release
Beginning July 1, 2012 the U.S. Mission in Mexico will centralize all E-visas adjudications in Mexico at the visa posts. After Jul1, all review of E visa applications in Mexico will occur at the following three posts: U.S. Embassy in Mexico City; U.S. Consulate General in Monterrey; and U.S. Consulate General in Tijuana.
To facilitate and to ensure an efficient, thorough and transparent review of all E visa applications, all submissions of documents in support of the application must be organized and presented in the standardized format as described for E-1s and E-2s on the U.S. Mission website (mexico.state.gov).
Scheduling of appointments and payment of fees will continue to be done through the US Embassy online services and call center. Applicants may continue to choose any one of the our 14 Applicant Service Centers (ASC) throughout Mexico to provide the required biometrics (digital photographs and fingerprints). The ASC will then schedule appointments for interview in one of the three processing posts, Mexico City, Monterrey or Tijuana, based on applicant's preference and appointment availability. Documents in support of the application may be submitted in person at the ASC in Mexico City, Monterrey or Tijuana or mailed directly by the applicant to the visa section which will conduct the interview and adjudicate the visa.
Treaty Trader visas (E-1) and Treaty Investor visa (E-2) are non-immigrant visas for nationals of a country with which the United States maintains a treaty of friendship, commerce and navigation (which includes Mexico) who wish to go to the United States for one of two purposes: to carry on substantial trade, principally between the United States and the treaty country (E-1); or to develop and direct the operations of an enterprise in which the national has invested or is in the process of investing a substantial amount of capital (E-2). For additional information about E visas and detail on how to apply, please visit the U.S. Embassy's website (mexico.usembassy.gov).
US Embassy Press Release
Beginning July 1, 2012 the U.S. Mission in Mexico will centralize all E-visas adjudications in Mexico at the visa posts. After Jul1, all review of E visa applications in Mexico will occur at the following three posts: U.S. Embassy in Mexico City; U.S. Consulate General in Monterrey; and U.S. Consulate General in Tijuana.
To facilitate and to ensure an efficient, thorough and transparent review of all E visa applications, all submissions of documents in support of the application must be organized and presented in the standardized format as described for E-1s and E-2s on the U.S. Mission website (mexico.state.gov).
Scheduling of appointments and payment of fees will continue to be done through the US Embassy online services and call center. Applicants may continue to choose any one of the our 14 Applicant Service Centers (ASC) throughout Mexico to provide the required biometrics (digital photographs and fingerprints). The ASC will then schedule appointments for interview in one of the three processing posts, Mexico City, Monterrey or Tijuana, based on applicant's preference and appointment availability. Documents in support of the application may be submitted in person at the ASC in Mexico City, Monterrey or Tijuana or mailed directly by the applicant to the visa section which will conduct the interview and adjudicate the visa.
Treaty Trader visas (E-1) and Treaty Investor visa (E-2) are non-immigrant visas for nationals of a country with which the United States maintains a treaty of friendship, commerce and navigation (which includes Mexico) who wish to go to the United States for one of two purposes: to carry on substantial trade, principally between the United States and the treaty country (E-1); or to develop and direct the operations of an enterprise in which the national has invested or is in the process of investing a substantial amount of capital (E-2). For additional information about E visas and detail on how to apply, please visit the U.S. Embassy's website (mexico.usembassy.gov).
June 21, 2012
IMMIGRATION AND POLICY: Matter of Isidro-Zamorano
IMMIGRATION AND POLICY: Matter of Isidro-Zamorano: Norka M. Schell, Esq. Cancellation of removal is a form of discretionary relief from removal. To be eligible for cancellation of removal,...
Matter of Isidro-Zamorano
Norka M. Schell, Esq.
Cancellation of removal is a form of discretionary relief from removal. To be eligible for cancellation of removal, an applicant must establish, among other things, “that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” For immigration purpose, a “child” is “an unmarried person under twenty-one years of age.”
The Board of Immigration Appeals (BIA or Board) in Matter of Isidro-Zamorano, 25 I. & N. Dec. 829 (B.I.A. June 15, 2012), held that an applicant for cancellation of removal whose son or daughter met the definition of a “child” when the application was filed but turned 21 years of age before the immigration judge (IJ) adjudicated the application on the merits no longer has a qualifying relative under INA § 240A(b)(1)(D).
Isidro-Zamorano is a native and citizen of Mexico who entered the U.S. without inspection on May 1, 1994. His son, who is a U.S. citizen, was born on January 29, 1985. Isidro-Zamorano was caught by Immigration and placed in proceedings. He was found in violation of immigration law. He filed his application for cancellation of removal in 2005 when his son was under the age of 21. His son turned 21 in January 2006 before the cancellation application was adjudicated. The Immigration Judge found that Isidro-Zamorano's son could no longer be a qualifying relative for purposes of establishing the respondent's eligibility for cancellation of removal and denied the application.
Cancellation of removal is a form of discretionary relief from removal. To be eligible for cancellation of removal, an applicant must establish, among other things, “that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” For immigration purpose, a “child” is “an unmarried person under twenty-one years of age.”
The Board of Immigration Appeals (BIA or Board) in Matter of Isidro-Zamorano, 25 I. & N. Dec. 829 (B.I.A. June 15, 2012), held that an applicant for cancellation of removal whose son or daughter met the definition of a “child” when the application was filed but turned 21 years of age before the immigration judge (IJ) adjudicated the application on the merits no longer has a qualifying relative under INA § 240A(b)(1)(D).
Isidro-Zamorano is a native and citizen of Mexico who entered the U.S. without inspection on May 1, 1994. His son, who is a U.S. citizen, was born on January 29, 1985. Isidro-Zamorano was caught by Immigration and placed in proceedings. He was found in violation of immigration law. He filed his application for cancellation of removal in 2005 when his son was under the age of 21. His son turned 21 in January 2006 before the cancellation application was adjudicated. The Immigration Judge found that Isidro-Zamorano's son could no longer be a qualifying relative for purposes of establishing the respondent's eligibility for cancellation of removal and denied the application.
June 19, 2012
IMMIGRATION AND POLICY: RELIEF FOR DREAMers
IMMIGRATION AND POLICY: 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 Enfo...
June 15, 2012
DHS ANNOUNCEMENT - RELIEF FOR DREAMers
IMMIGRATION AND POLICY: Posted by Norka M. Schell, Esq.Secretary Napolitan...: Posted by Norka M. Schell, Esq. Secretary Napolitano Announces Deferred Action Process for Young People Who Are Low Enforcement Priorities ...
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.
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.
June 7, 2012
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.
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.
May 23, 2012
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.
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.
May 17, 2012
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.
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.
May 11, 2012
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
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
April 24, 2012
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
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.
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.
April 20, 2012
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)).
April 13, 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
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
April 5, 2012
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.
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.
March 30, 2012
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.
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.
March 26, 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).
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).
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