Category Archives: Uncategorized

ALIENS PRESENT WITHOUT admission or parole

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(i) In general.-An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.

(ii) Exception for certain battered women and children.-Clause (i) shall not apply to an alien who demonstrates that-

(I) the alien is a VAWA self-petitioner;

(II)(a) the alien has been battered or subjected to extreme cruelty by a spouse or parent, or by a member of the spouse’s or parent’s family residing in the same household as the alien and the spouse or parent consented or acquiesced to such battery or cruelty, or (b) the alien’s child has been battered or subjected to extreme cruelty by a spouse or parent of the alien (without the active participation of the alien in the battery or cruelty) or by a member of the spouse’s or parent’s family residing in the same household as the alien when the spouse or parent consented to or acquiesced in such battery or cruelty and the alien did not actively participate in such battery or cruelty, and

(III) there was a substantial connection between the battery or cruelty described in sub-clause (I) or (II) and the alien’s unlawful entry into the United States.

Inadmissibility because of criminal history

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Not all criminal history disqualifies an applicant from receiving a visa or green card. Generally speaking, immigration authorities may deny entry if you have been convicted of any of the following crimes of “moral turpitude”:

·         Drug crimes

·         Recent misdemeanors

·         Crimes involving fraud

 ·         Crimes involving theft

·         Violent crimes

·         Sex crimes

Even crimes that normally would render a person inadmissible may be subject to a waiver under certain circumstances. Moreover, convictions that appear to have been politically motivated may not result in disqualification.

Contact a firm that can help you deal with your criminal history

While immigration law is generally not kind to those with criminal records, our attorneys at Law Offices of Norka M. Schell, LLC know the exemptions and intricacies that can allow our clients in New York to avoid removal or start a new life in America. Contact our experienced immigration lawyers in New York City today at 1 (212) 564-1589 for creative solutions to your complex immigration problems.  For an office appointment in Boston, Massachusetts, call 1 (781) 223-6100.

DECRETO DO EXECUTIVO PARA PROTEGER A NAÇÃO CONTRA A ENTRADA DE TERRORISTAS ESTRANGEIROS NOS ESTADOS UNIDOS

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“Pela autoridade que me foi conferida como presidente pela Constituição e pelas leis dos Estados Unidos da América, incluindo a Lei de Imigração e Nacionalidade (INA), Título 8 do Código dos EUA, parágrafo 1101 e alterações subsequentes, e a seção 301 do Título 3 do Código dos Estados Unidos, e para proteger os americanos de ataques terroristas cometidos por estrangeiros admitidos nos Estados Unidos, fica pelo presente decreto determinado o que segue:

Seção 1. Propósito. O processo de emissão de vistos tem um papel crucial para detectar indivíduos com vínculos terroristas e impedir que entrem nos EUA. Talvez em nenhum momento isso tenha ficado mais evidente do que nos ataques terroristas de 11 de setembro de 2001, quando a política do Departamento de Estado impediu os funcionários consulares de investigar adequadamente os pedidos de visto de vários dos 19 estrangeiros que mataram quase 3 mil americanos. E enquanto o processo de emissão de vistos era revisto e alterado após os ataques de 11 de setembro com a finalidade de identificar melhor potenciais terroristas e impedi-los de receber vistos, essas medidas não impediram ataques cometidos por estrangeiros admitidos nos Estados Unidos.

Vários estrangeiros foram condenados ou implicados em crimes relacionados com terrorismo desde 11 de setembro de 2001, inclusive estrangeiros que entraram nos Estados Unidos após receber visto de visitante, estudante ou trabalho ou que entraram pelo programa dos Estados Unidos de reassentamento de refugiados. As condições de deterioração em determinados países por causa de guerra, conflitos, desastres e agitação civil aumentam a probabilidade de que os terroristas recorram a todos os meios possíveis para entrar nos Estados Unidos. Os Estados Unidos devem manter-se vigilantes durante o processo de emissão de vistos a fim de garantir que os aprovados para admissão não pretendam prejudicar os americanos e não tenham nenhuma ligação com o terrorismo.

Com o propósito de proteger os americanos, os Estados Unidos devem garantir que as pessoas admitidas neste país não tenham atitudes hostis contra ele e seus princípios fundadores. Os Estados Unidos não podem e não devem admitir pessoas que não defendam a Constituição ou que colocariam ideologias violentas acima da lei americana. Além disso, os Estados Unidos não devem admitir pessoas que participem de atos de fanatismo ou ódio (incluindo homicídios de “honra”, outras formas de violência contra as mulheres ou a perseguição de pessoas que praticam religiões diferentes da sua) ou aquelas que oprimem os americanos de qualquer raça, gênero ou orientação sexual.

Seção 2. Política. É política dos Estados Unidos proteger seus cidadãos de estrangeiros que pretendem cometer atentados terroristas nos Estados Unidos e evitar a admissão de estrangeiros que pretendem explorar as leis de imigração dos Estados Unidos para fins maléficos.

Seção 3. Suspensão da emissão de vistos e outros benefícios de imigração para cidadãos de países que causam preocupação especial. (a) O secretário de Segurança Interna, em consulta com o secretário de Estado e o diretor de Inteligência Nacional, deve imediatamente fazer uma análise com o objetivo de determinar as informações necessárias de qualquer país para fins de investigações relacionadas com qualquer visto, admissão ou outro benefício nos termos da INA (adjudicações), com o propósito de verificar se a pessoa que solicita o benefício é quem alega ser e não representa ameaça à segurança ou à segurança pública…”.

USCIS Will Accept H-1B Petitions for Fiscal Year 2018 Beginning April 3, 2017

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Release Date: March 15, 2017

U.S. Citizenship and Immigration Services will begin accepting H-1B petitions subject to the fiscal year 2018 cap on April 3, 2017. All cap-subject H-1B petitions filed before April 3, 2017, for the FY 2018 cap will be rejected.

The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B specialty occupations may include fields such as science, engineering and information technology.

Congress set a cap of 65,000 H-1B visas per fiscal year. An advanced degree exemption from the H-1B cap is available for 20,000 beneficiaries who have earned a U.S. master’s degree or higher. The agency will monitor the number of petitions received and notify the public when the H-1B cap has been met.?

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.