Author Archives: Norka M Schell

Terrorism-Related Inadmissibility Grounds (TRIG)

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Terrorism-Related Inadmissibility Grounds (TRIG)

Generally, any individual who is a member of a “terrorist organization” or who has engaged or engages in terrorism-related activity as defined by the Immigration and Nationality Act (INA) is “inadmissible” (not allowed to enter) the United States and is ineligible for most immigration benefits.
The definition of terrorism-related activity is relatively broad and may apply to individuals and activities not commonly thought to be associated with terrorism.
As a result, Congress created a statutory exemption provision through which the Secretaries of Homeland Security and State may exempt individuals from the grounds of inadmissibility.
TRIG Inadmissibility Terrorist Activity Categories of Terrorist Organizations Exemptions Inadmissibilty
Congress has determined that some individuals should not be allowed entry into the United States. The reasons individuals are denied admission vary and can be found in INA section 212, codified as Title 8 of the U.S. Code, section 1182. Terrorism-related inadmissibility grounds (TRIG), exclude persons who have participated in various kinds of activity, including activity that is generally illegal and/or violent.
The grounds for inadmissibility include, but are not limited to, individuals who: Engaged in ‘terrorist activity;’” Are engaged or are likely to engage in terrorist activity after entry; Incited terrorist activity with intent to cause serious bodily harm or death; Are representatives or current members of a terrorist organization; Endorsed or espoused terrorist activity; Received military-type training from or on behalf of a terrorist organization; or Are spouses or children of anyone who has engaged in terrorist activity within the last five years (with certain exceptions).
Terrorist Activity
The term terrorist activity covers various actions commonly associated with terrorism such as kidnapping, assassination, hijacking, nuclear, biological, or chemical agents, the use of firearms or other dangerous devices etc.
 The INA defines terrorist activity quite expansively such that the term can apply to persons and actions not commonly thought of as terrorists and to actions not commonly thought of as terrorism. Significantly, there is no exception under the law for “freedom fighters,” so most rebel groups would be considered to be engaging in terrorist activity even if fighting against an authoritarian regime.
 
 Engaging in Terrorist Activity
This includes actions such as planning or executing a terrorist activity, soliciting others to do so, providing material support to a terrorist organization or member of a terrorist organization, and soliciting funds or recruiting members for a terrorist organization. See INA section 212(a)(3)(B). Material Support The term “material support” includes actions such as providing a safe house, transportation, counterfeit documents, or funds to a terrorist organization or its members. It also includes any action that can assist a terrorist organization or one of its members in any way, such as providing food, helping to set up tents, distributing literature, or making a small monetary contribution.
 
Categories of Terrorist Organizations Tier I 
These organizations are also referred to as Foreign Terrorist Organizations (FTOs). FTOs are foreign organizations that are designated by the Secretary of State in accordance with section 219 of the INA, as amended.
There are three basic criteria for an organization to be considered an FTO: It must be a foreign organization. The organization must engage in terrorist activity, as defined in section 212 (a)(3)(B) of the INA (8 U.S.C. § 1182(a)(3)(B)), or terrorism, as defined in or retain the capability and intent to engage in terrorist activity or terrorism. The organization’s terrorist activity or terrorism must threaten the security of U.S. nationals or the national security (national defense, foreign relations, or the economic interests) of the United States.
 Tier II
The Secretary of State, in consultation with or upon the request of the Attorney General, may designate terrorist organizations for immigration purposes, after a finding that the organization engages in terrorist activity as defined in section 212(a)(3)(B)(iv) of the INA (8 U.S.C. § 1182(a)(3)(B)(iv)); see section 212(a)(3)(B)(vi) of the INA. This authority is known as the “Terrorist Exclusion List (TEL)” authority. A TEL designation will generally exclude aliens associated with entities on the TEL from entering the United States.
 
Tier III
These organizations are defined by law as “a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in,” terrorist activity. Tier III organizations are also called “undesignated terrorist organizations” because they qualify as terrorist organizations based on their activities alone without undergoing a formal designation process like Tier I and Tier II organizations. Instead, the determination of whether a group can be considered a Tier III organization is made on a case-by-case basis, in connection with the review of an application for an immigration benefit. Tier III organizations arise and change over time.
Exemptions
he Secretaries of State and Homeland Security, can grant exemptions from the terrorism-related inadmissibility grounds for much of the activity covered under the statute (see section 212(d)(3)(B) of the INA). To date, the Secretaries have exercised their authority to grant a number of group-based situational exemptions.

Immigration Issues In 2016 And What We To Expect In 2017

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By: Immigration Attorney Norka M. Schell
In the year of 2016, the election of Donald Trump was significant for the direction it signaled U.S. immigration policy would be taking in the foreseeable future.

The elected President proposes to build a wall on the Mexican border; to deport illegal immigrants; and to block the inflow of Muslims and he (the elected President) found favor with many voters in America who were obviously frustrated with the path immigration policy had been taking.

In 2016, the Congress once again failed to address the problem of Comprehensive Immigration Reform. The Congressional deadlocked over a wide range of issues, a significant one being immigration reform and the presence of some 11 million illegal immigrants in the United States, left people frustrated and unhappy.

In 2016, we had the failure of President Obama`s DACA/DAPA Initiative.

The DACA, Deferred Action for Childhood Arrivals, Program protects unauthorized immigrants born after June 15, 1981 who were brought to the United States before their 16th birthday and have been in the country since June 15, 2007 from deportation.

The DAPA, Deferred Action for Parents of Americans and Lawful Permanent Residents, Program would have protected unauthorized parents of children who are U.S. citizens or legal permanent residents born on or before Nov. 20, 2014 from deportation.

Both Programs, DACA/DAPA, were aimed at helping certain non-violent illegal immigrants who immigrated to the country while under 16 years of age or who had close family members that attained permanent resident or citizenship status. The programs would have granted them temporary three year relief from removal and the right to work. The programs were ultimately blocked by a divided Supreme court.

What can we expect in 2017 with regards to immigration?

As per Forbes, under the Trump`s Administration:

1. large-scale immigration efforts are unlikely to meet with success in the face of practicality and resistance, smaller steps may succeed;

2. helping so-called Dreamers through Congressional action and court challenges to government measures taken in the absence of due process could very well be the only way immigration reform can be achieved;

3. a comprehensive immigration reform effort by a Republican-controlled Congress is conceivable, but an effort would likely be dominated by enforcement at the expense of addressing the key issue of a pathway to citizenship for 11 million illegal immigrants in the United States; and

4. improving the slow processing of family-based spousal sponsorship cases is possible.

El Salvador’s Gang Violence is Forcing Thousands to Flee

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By: Walter Ewing

In the event that there was any doubt, women and children from Central America’s Northern Triangle—El Salvador, Guatemala, and Honduras—are fleeing the same horrific conditions that were driving them out of their countries in large numbers two years ago. That is why apprehensions of Northern Triangle refugees have gone up this year, once again drawing attention to the fact that Central Americans are not going to stop risking their lives to get here when their lives are so risky back home.
Just how risky is driven home by two reports about the dire situation in El Salvador that were released in September 2016 by the Immigration and Refugee Board of Canada (IRB). The first report focused on the gang violence in the country; specifically, the Mara Salvatrucha (MS-13) and the Barrio 18 (M-18).
The second IRB report dealt with women as victims of violence in El Salvador. Within the neighborhoods that gangs control, women are considered gang property. They are forced to be the “girlfriends” of gang members—and saying “no” to this arrangement is punishable by death.
Judging from these statistics, to call El Salvador a “war zone” is no exaggeration. And, as with any war zone, El Salvador—and Honduras, and Guatemala—produces a stream of refugees searching for safe haven. One can only hope that the U.S. government will stop acting as if they are unauthorized immigrants and start treating them like the asylum-seekers they truly are.

Detention, Arraignment, Bail, and Release

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In New York City, defendants are brought before a Judge for arraignment within 24 hours of the arrest. After the case has been docketed by the court and the complaint and accused’s criminal history are ready, the defendant is brought to Criminal Court for arraignment.

In New York City’s five boroughs, criminal court arraignments are held day and night, seven days a week, 365 days a year, from 8:00 AM to 1:00 AM. Our lawyers are on-call and will attend arraignment with your loved one.

At the arraignment, the primary issue will be whether or not the Judge will set bail or release the individual on his or her “own recognizance” (without requiring any bail).  If the Judge decides that the accused cannot be trusted to return to court without some encouragement, the Judge may set bail.  The decisions to set bail and the amount of bail to set are discretionary, and depend on three factors: 1) prior criminal history, 2) the seriousness of the alleged conduct, and 3) community ties of the accused.

At Law Offices of Norka M. Schell, LLC, we review the case with your loved one before arraignment before presenting the Judge with a thorough case for release.

MARRIAGE AND MARITAL UNION FOR NATURALIZATION

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Validity of Marriage for Immigration Purposes

The applicant must establish validity of his or her marriage. In general, the legal validity of a marriage is determined by the law of the place where the marriage was celebrated? (“place-of-celebration rule”). Under this rule, a marriage is valid for immigration purposes in cases where the marriage is valid under the law of the jurisdiction in which it is performed.

In all cases, the burden is on the applicant to establish that he or she has a valid marriage with his or her U.S. citizen spouse for the required period of time. In most cases, a marriage certificate is prima facie evidence that the marriage was properly and legally performed.

USCIS does not recognize the following relationships as marriages?, even if valid in the place of celebration.

•Polygamous marriages;

•Certain marriages that violate the strong public policy of the state of residence of the couple;

•Civil unions, domestic partnerships, or other such relationships not recognized as marriages in the place of celebration;

•Relationships where one party is not present during the marriage ceremony (proxy marriages) unless the marriage has been consummated; or

•Relationships entered into for purposes of evading immigration laws of the United States.

Validity of Marriage Between Two Persons of the Same Sex

In June 2013, the Supreme Court held that section 3 of the Defense of Marriage Act (DOMA), which had limited the terms “marriage” and “spouse” to opposite-sex marriages for purposes of all federal laws, was unconstitutional.In accordance with the Supreme Court decision, USCIS determines the validity of a same-sex marriage by the place-of-celebration rule, just as USCIS applies this rule to determine the validity of an opposite-sex marriage.

Therefore, in cases of marriage between persons of the same sex, officers will review the laws of the jurisdiction in which the marriage took place to determine if the jurisdiction recognizes same-sex marriages and the marriage otherwise is legally valid.

Since the place-of-celebration rule governs same-sex marriages in exactly the same way that it governs opposite-sex marriages, unless the marriage is polygamous or otherwise falls within an exception to the place-of-celebration rule as discussed above, the legal validity of a same-sex marriage is determined exclusively by the law of the jurisdiction where the marriage was celebrated.

If the same-sex couple now resides in a jurisdiction different from the one in which they celebrated their marriage, and that jurisdiction does not recognize same-sex marriages, the officer will look to the law of the state where the marriage was celebrated in order to determine the validity of the marriage. The domicile state’s laws and policies on same-sex marriages will not affect whether USCIS will recognize a marriage as valid.

Finding Protection Under US Immigration Law

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Undocumented immigrant victims of violence historically have been extremely reluctant to seek justice for the crimes perpetrated against them because to do so inevitably requires the involvement of law enforcement. Those who have no status in the United States understand full well that if they contact the police, immigration authorities may follow behind, and deportation back to their native countries might be the ultimate consequence of coming forward. In the past, this meant that battered spouses remained in abusive marriages, victims of human trafficking did not attempt to flee from their tormentors, and those who were victimized by criminal acts did not report the offense to police, making communities less safe for all of us.

Fortunately, in the past two decades, Congress recognized this troubling and its serious consequences on the necessary enforcement of our criminal laws. In 1994, the Violence Against Women Act (VAWA) authorized “self-petitioning” for permanent residence to those married to a U.S. citizen or a lawful permanent resident who are subjected to domestic violence. It also created a special “waiver” allowing victims of domestic violence who attained a “conditional” residence of two years to become full permanent residents without further assistance from the abusive sponsoring spouses. Then in 2000, an amendment to VAWA, the Victims of Trafficking and Violence Protection Act (Pub. L. No. 106-386, 114 Stat. 1464), created special visas for victims of violent crimes and victims of human trafficking who cooperate with law enforcement in the investigation and prosecution of those offenses. Even asylum, which may not be an obvious form of relief in such cases, has more recently evolved to include women who have experienced domestic violence as potential “members of a particular social group” for the purposes of establishing asylum protection in the United States.The benefits these provisions of law have afforded immigrant survivors of violence  are invaluable for their safety and stability, and to resolving serious affronts against our society as a whole.
By Sophie Feal and Emma Buckthal, published on Criminal Justice, Spring 2016

U.S. TAX GUIDE FOR ALIENS

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There are two classifications of people that the United States uses in regards to taxes tax residents and non-tax residents. If you have immigrated into the United States, you may be wondering how to figure out how immigration and taxes apply to you.

 

There are many situations in which you may be required to pay United States taxes even if you are not a United States citizen. Whether you have to file and pay taxes depends on whether the government has classified you as tax resident or not. For example, all permanent residents or green card holders are considered to be tax residents. Not all non-immigrant visa holders are tax residents, however. Even if you are not a tax resident, it may still be a good idea to file an income tax return if you have been working for an employer that withholds taxes from your wages – you might get a tax refund.
U.S. tax residents must report their entire income to the IRS and pay taxes. It does not matter whether the money was earned within the country or internationally, all income must be reported to the IRS.
Reporting all your income to the IRS does not mean that all of your income will be taxed by the government. Those decisions are governed by internationally taxes treaties.
GREEN CARD HOLDERS
If you are a Green Card Holder, you may be wondering how your immigration status and taxes will work. On the date that you acquired your status as a green card holder, you were considered to be a tax resident, but this is only true for people who are in the country under the non-immigrant visa status,  not green cards. If you have a green card and you do not travel abroad all year, you still must report all of your income to the IRS.
Like almost every other taxpayer in the United States, Green Card Holders must file an IRS Form 1040 each year by April 15th. If you fall to file you U.S. taxes as a Green Card Holder, you may hurt your chances of becoming a U.S. citizen. Additionally, if you intentionally do not file your taxes, you may also be charged and guilty of a crime which could result in the loss of your Green Card and you may be deported from the United States. You can find out more about your situation by visiting the IRS website and navigate to IRS Form 519, U.S. Tax Guide for Aliens, which can answer many of your questions.

LIMITED RELIEF – DEFERRED ACTION

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The U.S. Department of Homeland Security (“DHS”) – U.S. Citizenship and Immigration Services (‘USCIS”) does bring removal proceedings against every alien whom it suspects of being deportable. For one thin, it recognizes that there are certain cases in which extraordinary sympathetic factors would make removal unconscionable. For another, the DHS could not remove all deportable alien even if it wanted to. Removal proceedings require apprehension, investigation, proceedings, possible detentions, prosecution, adjudication, removal, and recording-keeping. Like any other government agency, the DHS has limited resources. It has to decide how it can most efficiently allocate those resources (a) between law enforcement functions and other functions, and (b) within law enforcement.

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

H-2B Returning Workers Exempted from the H-2B Cap for Fiscal Year 2016

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H-2B Employers Urged to Identify Returning Workers when Filing Petitions

Effective December 18, 2015, H-2B workers identified as “returning workers” are exempted from the fiscal year (FY) 2016 annual H-2B cap of 66,000 visas. See Immigration and Nationality Act (INA) §214(g)(9)(a), 8 U.S.C. 1184(g)(9)(a), as revised by Consolidated Appropriations Act of 2016 (Public Law 114-113).

A returning worker is defined as an H-2B worker who was previously counted against the annual H-2B cap of 66,000 visas during FYs 2013, 2014, or 2015. This means:

  • In general, if you (the employer) submit a petition requesting an employment start date in FY 2016 (from October 1, 2015 – September 30, 2016) for an H-2B worker, the H-2B worker can only be considered a returning worker if he or she had been previously issued an H-2B visa or provided H-2B status between October 1, 2012, and September 30, 2015.
  • If the prospective worker is in the United States in H-2B status, and is seeking to extend his or her stay, change employers, or change the terms and conditions of employment, then the worker would not be counted toward the H-2B cap and you would not need to request that the person be classified as a returning worker.
  • Any prospective H-2B worker who does not qualify as a returning worker will be subject to the FY 2016 H-2B cap unless he or she has previously been counted toward the H-2B cap or is cap-exempt.

Under this legislation, the returning worker program only applies to petitions pending or approved on or after December 18, 2015, requesting named H-2B workers with an employment start date beginning in FY 2016.