RESCISSION OF DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA)

Press Release                                                            Date: September 5, 2017

1. WHY IS DHS PHASING OUT THE DACA PROGRAM? 
– Taking into consideration the federal court rulings in ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that program should be terminated. As such, the Acting Secretary of Homeland Security rescinded the June 15, 2012 memorandum establishing the DACA program.
2. WHAT IS GOING TO HAPPEN TO CURRENT DACA HOLDERS?
– Current DACA recipients will be permitted to retain both the period of deferred action and their employment authorization documents (EADs) until they expire, unless terminated or revoked. DACA benefits are generally valid for two years from the date of issuance.
3. WHAT HAPPENS TO INDIVIDUALS WHO CURRENTLY HAVE AN  INITIAL DACA REQUEST PENDING?
– Due to the anticipated costs and administrative burdens associated with rejecting all pending initial requests, USCIS will adjudicate – on an individual, case-by-case basis -all properly filed DACA initial requests and associated applications for EADs that have been accepted as of September 5, 2017.
4. WHAT HAPPENS TO INDIVIDUALS WHO CURRENTLY HAVE A  REQUEST FOR RENEWAL OF DACA PENDING?
– Due to the anticipated costs and administrative burdens associated with rejecting all pending renewal requests, USCIS adjudicate – on an individual, case-by-case basis- properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted as of September 5, 2017, and from current beneficiaries whose benefits will expire between September 5, 2017 and March 5, 2018 that have been accepted as of October 5, 2017. USCIS will reject all new requests to renew DACA and associated applications for EAD filed after October 5, 2017.
5- IS THERE STILL TIME FOR CURRENT DACA RECIPIENTS TO  FILE A REQUEST TO RENEW THEIR DACA? 
– USCIS will only accept renewal requests and associated applications for EADs for the class of individuals described above in the the time period described above.
6. WHAT HAPPENS WHEN AN INDIVIDUAL’S DACA BENEFITS  EXPIRE OVER THE COURSE OF THE NEXT TWO YEARS?  WILL INDIVIDUALS WITH EXPIRED DACA BE CONSIDERED  ILLEGALLY PRESENT IN THE COUNTRY? 
– Current law does not grant any legal status for the class of individuals who are current recipients of DACA. Recipients of DACA are currently unlawfully present in the United States with their removal deferred. When their period of deferred action expires or terminated, their removal will no longer be deferred and they will no longer be eligible for lawful employment.
Only US Congress has the authority to amend the existing immigration laws.
 
7.  ONCE AN INDIVIDUAL’S DACA EXPIRES, WILL THEIR CASE  BE  REFERRED TO ICE FOR ENFORCEMENT PURPOSE?
– Information provided to USCIS in DACA requests will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings, unless the requester meets the criteria of the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’s Notice to Appear guidance. This policy, which may be modified, suspended, or rescinded at any time with out notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.
To be continued 

USCIS ALERTS THOSE AFFECTED BY HURRICANE HARVEY

USCIS offers immigration services that may help people affected by unforeseen circumstances, including disasters such as Hurricane Harvey.

The following measures may be available on a case-by-case basis upon request:

  • Changing a nonimmigrant status or extending a nonimmigrant stay for an individual currently in the United States. Failure to apply for the extension or change before expiration of your authorized period of admission may be excused if the delay was due to extraordinary circumstances beyond your control;
  • Re-parole of individuals previously granted parole by USCIS;
  • Expedited processing of advance parole requests;
  • Expedited adjudication of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited adjudication of employment authorization applications, where appropriate;
  • Consideration of fee waivers due to an inability to pay;
  • Assistance for those who received a Request for Evidence or a Notice of Intent to Deny but were unable to submit evidence or otherwise respond in a timely manner;
  • Assistance if you were unable to appear for a scheduled interview with USCIS;
  • Expedited replacement of lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (Green Card); and
  • Rescheduling a biometrics appointment.

Note: When making a request, please explain how the impact of Hurricane Harvey created a need for the requested relief. Call the National Customer Service Center at 800-375-5283.

Returning To The United States Following Removal

Hundreds of thousands of people are deported from the United States every year. Most are unable to return to the United States on an immigrant visa, due to a variety of factors. Some lack a way to obtain a new immigrant visa, and others face grounds of inadmissibility for which they are unable to obtain a waiver.

In some cases, however, a non-immigrant visa may provide a way for a person to return to the United States following removal. If the applicant is able to meet the general requirements for such a visa, a waiver of inadmissibility may be sought under  the Immigration and Nationality Act (INA). Non-immigrant waiver are available for a broad range of inadmissibility grounds. Under certain circumstances, even an applicant with a “lifetime bar” (for example, a former lawful permanent resident deported due to an aggravated felony conviction) may obtain such a waiver.

Rescission of Memorandum Providing for Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”)

Release Date:
June 15, 2017

On June 15, Department of Homeland Security Secretary John F. Kelly, after consulting with the Attorney General, signed a memorandum rescinding the November 20, 2014 memorandum that created the program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) because there is no credible path forward to litigate the currently enjoined policy.

The rescinded memo purported to provide a path for illegal aliens with a U.S. citizen or lawful permanent resident child to be considered for deferred action.  To be considered for deferred action, an alien was required to satisfy six criteria:

(1) as of November 20, 2014, be the parent of a U.S. citizen or lawful permanent resident;

(2) have continuously resided here since before January 1, 2010;

(3) have been physically present here on November 20, 2014, and when applying for relief;

(4) have no lawful immigration status on that date;

(5) not fall within the Secretary’s enforcement priorities; and

(6) “present no other factors that, in the exercise of discretion, make [ ] the grant of deferred action inappropriate.”

Prior to implementation of DAPA, twenty-six states challenged the policies established in the DAPA memorandum in the U.S. District Court for the Southern District of Texas. The district court enjoined implementation of the DAPA memorandum, the United States Court of Appeals for the Fifth Circuit affirmed the district court’s decision, and the Supreme Court allowed the district court’s injunction to remain in place.

The rescinded policy also provided expanded work authorization for recipients under the DACA program for three years versus two years.  This policy was also enjoined nationwide and has now been rescinded.

The June 15, 2012 memorandum that created the Deferred Action for Childhood Arrivals (DACA) program will remain in effect.

For more information, see our frequently asked questions.

ALIENS PRESENT WITHOUT admission or parole

(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

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

“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 1Propósito. 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 2Política. 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 3Suspensão 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

Release Date: 

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

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.

Ratings and Reviews