ANNOUNCEMENT

I am proud to announce that I have been nominated to Co-Chair the AILA NY Asylum Committee 2021-2022.
The American Immigration Lawyers Association (AILA) is the national association of more than 15,000 attorneys and law professors who practice and teach immigration law. AILA member attorneys represent the U.S. families seeking permanent residence for close family members, as well as, U.S. businesses seeking talent from the global marketplace. AILA members also represent foreign students, entertainers, athletes, and asylum seekers. Founded in 1946, AILA is a nonpartisan, not-for-profit organization that provides continuing legal education, information, professional services, and expertise through its chapters and national committees.

VICTIMS OF DOMESTIC VIOLENCE AND SEXUAL ASSAULT MAY HAVE “U NON-IMMIGRANT VISA” OPTION

As a law enforcement official, you play an important role in the application process for U nonimmigrant status (also known as a U visa). The U visa can be a key tool to support your case. The U visa can help certain crime victims feel safer reporting crimes, so that they may be more willing to work with you, even if they do not have lawful immigration status.

If approved, the U visa provides the victim with:
• temporary immigration status including work authorization;
• temporary immigration status for qualifying family members of the victim; and
• the possibility of lawful permanent resident status.

U VISA ELIGIBILITY
U.S. Citizenship and Immigration Services (USCIS), within the Department of Homeland Security (DHS), decides if a person is eligible for a U visa. Law enforcement does not determine who is eligible for a U visa; however, law enforcement provides information so that USCIS can determine if the person:• is a victim of a qualifying crime or criminal activity;
• has information about the crime or criminal activity; and
• is, was, or is likely to be helpful in the detection or investigation of the qualifying crime
or criminal activity, or the prosecution, conviction, or sentencing of the perpetrator of
the qualifying crime or criminal activity.

WHAT CONSTITUTES A QUALIFYING CRIME OR CRIMINAL ACTIVITY?

The following table lists the criminal activities that are considered “qualifying criminal activities” for purposes of U visa eligibility. These are general categories of crimes and it is important to note that any similar criminal activities that violate Federal, state, or local laws may also be considered “qualifying criminal activities” for purposes of U visa eligibility.

• Abduction
• Abusive Sexual Contact
• Being Held Hostage
• Blackmail
• Domestic Violence
• Extortion
• False Imprisonment
• Felonious Assault
• Female Genital Mutilation
• Fraud in Foreign Labor
Contracting
• Incest
• Involuntary Servitude
• Kidnapping
• Manslaughter
• Murder
• Obstruction of Justice
• Peonage
• Perjury
• Prostitution
• Rape
• Sexual Assault
• Sexual Exploitation
• Slave Trade
• Stalking
• Torture
• Trafficking
• Witness Tampering
• Unlawful Criminal
Restraint
Qualifying crimes include any similar activity where the nature and elements of the crime are substantially similar to one of
the crimes listed. Attempt, conspiracy, or solicitation to commit any of the crimes listed above may also count as a “qualifying
criminal activity.”

DOES THE VICTIM AUTOMATICALLY RECEIVE AU VISA BECAUSE A CERTIFICATION HAS BEEN SIGNED?
No. The certification by itself does not grant any immigration benefit. USCIS reviews all of the evidence submitted along with the certification to determine whether a victim is eligible for a U visa. USCIS also conducts a thorough background check of each U visa petitioner (as well as each
included family member).

WHO IS RESPONSIBLE FOR PREVENTING U VISA FRAUD?
The USCIS Fraud Detection and National Security Directorate works to ensure that individuals seeking to
defraud our immigration system are not granted a U Visa.

WHERE CAN I FIND ADDITIONAL INFORMATION? Call the Law Offices of Norka M. Schell, LLC at (212)258-0713 to speak with an immigration lawyer.

Notice to Appear, Cancellation of Removal and Niz-Chavez v. Garland

On April 29, 2021, the U.S. Supreme Court issued Niz-Chavez v. Garland, 141 S. Ct. 1474
(2021), holding unequivocally that a Notice to Appear (NTA)—the charging document that
commences immigration court removal proceedings—must contain the time and place of the
hearing in a single document in order to trigger the stop-time rule in cancellation of removal
cases, and that a subsequently-issued hearing notice does not stop time if the NTA did not
include the required information.

Mr. Niz-Chavez entered the United States in 2005. In 2013, DHS served him an NTA that did
not list a time or place for his initial hearing. Two months later, Mr. Niz-Chavez received a
hearing notice stating the time and place of his hearing. Mr. Niz-Chavez applied for withholding
of removal and protection under the Convention Against Torture, which the IJ denied. Mr. NizChavez appealed to the BIA, also requesting that the BIA remand to the IJ so that he could apply
for non-LPR cancellation of removal based on Pereira. The BIA denied Mr. Niz-Chavez’s
motion to remand and the Sixth Circuit subsequently denied Mr. Niz-Chavez’s petition for
review, holding that the stop-time rule was triggered when the government had finished
delivering all of the information required by INA § 239(a)(1), which occurred when Mr. Niz Chavez received his hearing notice.

The Supreme Court then reversed the Sixth Circuit. The Court found that the plain language
of INA § 239(a)(1)—which uses the indefinite article “a” when referring to “a ‘notice to
appear’”—leaves no room to permit a second document to cure the defect. Reversing the Sixth
Circuit’s decision, the Court concluded that “the government must issue a single and
comprehensive notice before it can trigger the stop-time rule.”

 

 

U.S. Supreme Court hands victory to immigrants facing deportation

By: Andrew Chung

The U.S. Supreme Court on Thursday offered new hope to thousands of long-term immigrants seeking to avoid deportation in a ruling that faulted the federal government for improperly notifying a man who came to the United States illegally from Guatemala to appear for a removal hearing.

The justices, in a 6-3 decision that divided the high court’s conservative bloc, overturned a lower court’s decision that had prevented Agusto Niz-Chavez from pursuing his request to cancel the attempted expulsion based on the length of time he had lived in the United States. He lives in Michigan with his family after entering the United States illegally in 2005.

The justices decided that federal immigration law requires authorities to include all relevant details for a notice to appear for a hearing in one document rather than sending the information across multiple documents. While a technical issue, the ruling could affect hundreds of thousands of immigration cases.

“In this case, the law’s terms ensure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him,” conservative Justice Neil Gorsuch wrote in the ruling.

Gorsuch was joined by the court’s three liberal justices as well as conservative Justices Clarence Thomas and Amy Coney Barrett.

In a dissent, conservative Justice Brett Kavanaugh, joined by Chief Justice John Roberts and Justice Samuel Alito, said the ruling was “perplexing as a matter of statutory interpretation and common sense.”

The ruling upends years of practice by the U.S. Department of Homeland Security and in the short term will slow down the number of people placed in immigration proceedings, said Cornell University immigration law professor Stephen Yale-Loehr.

For many, Yale-Loehr added, “it does give them a second chance to try to prove that they qualify for cancellation of removal and other forms of relief.”

Under federal law, immigrants who are not lawful permanent residents may apply to have their deportation canceled if they have been in the United States for at least 10 years. The time counted to reach that threshold ends when the government initiates immigration proceedings with a notice to appear, a limit is known as the “stop-time” rule.

In 2013, eight years after he entered the country, police stopped Niz-Chavez for a broken tail light on his vehicle. The federal government followed up with a notice to appear for a deportation hearing.

After the Supreme Court in 2018 found in another case that notices to appear that omitted the time and date of the hearing were deficient, Niz-Chavez cited his faulty notice to argue that the stop-time rule had not been triggered in his case.

The Cincinnati, Ohio-based 6th U.S. Circuit Court of Appeals ruled against him in 2019, saying that the relevant information can be sent in more than one document. The Supreme Court overturned that ruling.

Article available at Reuters https://www.reuters.com/world/us/us-supreme-court-hands-victory-immigrants-facing-deportation-2021-04-29/

THE WHITE HOUSE PRESIDENT PROCLAMATION

     The suspension of entry imposed in Proclamation 10014 of April 22, 2020 (Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak), as extended by section 1 of Proclamation 10052 of June 22, 2020 (Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak), and section 1 of Proclamation 10131 of December 31, 2020 (Suspension of Entry of Immigrants and Nonimmigrants Who Continue To Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak), does not advance the interests of the United States.  To the contrary, it harms the United States, including by preventing certain family members of United States citizens and lawful permanent residents from joining their families here.  It also harms industries in the United States that utilize talent from around the world.  And it harms individuals who were selected to receive the opportunity to apply for, and those who have likewise received, immigrant visas through the Fiscal Year 2020 Diversity Visa Lottery.  Proclamation 10014 has prevented these individuals from entering the United States, resulting, in some cases, in the delay and possible forfeiture of their opportunity to receive Fiscal Year 2020 diversity visas and to realize their dreams in the United States.
NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act, 8 U.S.C. 1182(f) and 1185(a), hereby find that the unrestricted entry into the United States of persons described in section 1 of Proclamation 10014 is not detrimental to the interests of the United States.  I therefore hereby proclaim the following:
Section 1.  Revocation.  Proclamation 10014, section 1 of Proclamation 10052, and section 1 of Proclamation 10131 are revoked.
Sec. 2.  Review of Agency Guidance.  The Secretary of State, the Secretary of Labor, and the Secretary of Homeland Security shall review any regulations, orders, guidance documents, policies, and any other similar agency actions developed pursuant to Proclamation 10014 and, as appropriate, issue revised guidance consistent with the policy set forth in this proclamation.
Sec. 3.  General Provisions.  (a)  Nothing in this proclamation shall be construed to impair or otherwise affect:
(i)   the authority granted by law to an executive department or agency, or the head thereof; or
(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b)  This proclamation shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c)  This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-fourth day of February, in the year of our Lord two thousand twenty-one, and of the Independence of the United States of America the two hundred and forty-fifth

JOSEPH R. BIDEN JR.

DOS Provides Information on Immigrant Visa Prioritization

April 30, 2021

DOS announced U.S. embassies and consulates are using a tiered approach to triage immigrant visa applications and to address the backlog in the processing of immigrant visas. DOS identified four priority tiers listing the main categories of immigrant visas in each:

  • Tier One: Immediate relative intercountry adoption visas, age-out cases (cases where the applicant will soon no longer qualify due to their age), and certain Special Immigrant Visas (SQ and SI for Afghan and Iraqi nationals working with the U.S. government)
  • Tier Two: Immediate relative visas; fiancé(e) visas; and returning resident visas
  • Tier Three: Family preference immigrant visas and SE Special Immigrant Visas for certain employees of the U.S. government abroad
  • Tier Four: All other immigrant visas, including employment preference and diversity visas

Per DOS, “consular sections, where possible, are scheduling some appointments within all four priority tiers every month.”

Biden Administration Rescinds Trump Policy Affecting Sponsors Of Young Migrants

March 12, 2021

The Biden administration rescinded a 2018 agreement between the Department of Homeland Security and Health and Human Services that encouraged child welfare officers to share sensitive personal information about potential sponsors for unaccompanied children with immigration enforcement agents.

The move is part of a larger effort to reduce the number of children in U.S. custody by encouraging family members and other potential sponsors – regardless of their own legal status – to come forward to take care of unaccompanied minors.

An administration official says the decision “sends a really strong signal” that the Office of Refugee Resettlement and HHS are not involved in immigration enforcement.

The Biden administration is struggling with a rapidly increasing number of children traveling without parents arriving at the border. A record number of unaccompanied minors are being held in warehouse-like detention facilities run by U.S. Customs and Border Protection near the southern border.

PUBLIC CHARGE

USCIS is no longer applying the August 2019 Public Charge Final Rule. As a consequence, among other changes, USCIS will apply the public charge inadmissibility statute consistent with the 1999 Interim Field Guidance. In other words, USCIS is not considering an applicant’s receipt of Medicaid (except for long-term institutionalization at the government’s expense), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination.

On Nov. 2, 2020, the U.S. District Court for the Northern District of Illinois vacated the Inadmissibility on Public Charge Grounds final rule (84 Fed. Reg. 41,292 (Aug. 14, 2019)), as amended by Inadmissibility on Public Charge Grounds; Correction, 84 Fed. Reg. 52,357 (Oct. 2, 2019) (Public Charge Final Rule) nationwide. That decision was stayed by the U.S. Court of Appeals for the Seventh Circuit.

On March 9, 2021, the Seventh Circuit lifted its stay, and the U.S. District Court for the Northern District of Illinois’ order vacating the Public Charge Final Rule went into effect. When the vacatur went into effect, USCIS immediately stopped applying the Public Charge Final Rule to all pending applications and petitions that would have been subject to the rule. USCIS continues to apply the public charge inadmissibility statute, including consideration of the statutory minimum factors in the totality of the circumstances, in accordance with the 1999 Interim Field Guidance that was in place before the Public Charge Final Rule was implemented. In addition, USCIS will no longer apply the separate, but related, “public benefits condition” to applications or petitions for extension of nonimmigrant stay and change of nonimmigrant status.

Applicants and petitioners should not provide information or evidence related solely to the Public Charge Final Rule. That means that applicants for adjustment of status should not submit Form I-944, Declaration of Self Sufficiency, or any evidence or documentation required by Form I-944 when they file their Form I-485. Applicants and petitioners for extension of nonimmigrant stay and change of nonimmigrant status should not provide information related to the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3).

If an applicant or petitioner already provided information related solely to the Public Charge Final Rule, and USCIS adjudicates the application or petition on or after March 9, 2021, USCIS will not consider any information that relates solely to the Public Charge Final Rule, including, for example, information provided on Form I-944, evidence or documentation submitted with Form I-944, or information on the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3). Any other information received will be evaluated consistent with the statute, regulations, and policies in effect at the time of adjudication.

If you received a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) requesting information that is solely required under the Public Charge Final Rule, including but not limited, to Form I-944, and your response is due on or after March 9, 2021, you do not need to provide that information. However, you do need to respond to the aspects of the RFE or NOID that otherwise pertain to the eligibility for the immigration benefit sought. If USCIS requires additional information or evidence to make a public charge inadmissibility determination under the statute and consistent with the 1999 Interim Field Guidance, we will issue another RFE or NOID.

USCIS will issue additional guidance regarding the use of affected forms. In the interim, USCIS will not reject any Form I-485 based on the inclusion or exclusion of Form I-944, and will not reject Form I-129, Form I-129CW, Form I-539, or Form I-539A based on whether the public benefits questions (Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3)) have been completed or left blank.

DOS: 45-Day Review Following the Revocation of Proclamations 9645 and 9983

DOS, Mar. 8, 2021

“On January 20, President Biden signed Proclamation 10141, “Ending Discriminatory Bans on Entry to the United States.” President Biden has made clear that the now-rescinded Proclamations 9645 and 9983 were a stain on our national conscience, contravened our values, jeopardized our alliances and partnerships, separated loved ones, and undermined our national security.

Applicants from the affected countries may no longer be denied on the basis of nationality, and the Department has taken a number of steps to ensure that applicants previously refused visas under Proclamations 9645 and 9983 will not have future visa applications prejudiced in any way by those prior decisions.

As part of Proclamation 10141, President Biden directed the State Department, within 45 days, to provide a report including a proposal for individuals whose immigrant visa applications were denied due to Proclamations 9645 or 9983 and seek to have their applications reconsidered. The Department has provided the results of our review to the White House.

The Department explored every possible avenue under the law for providing relief to affected individuals.  Those whose immigrant visa applications received a final refusal on or after January 20, 2020 due to the Proclamations may seek re-adjudication without resubmitting their application forms or paying any additional fees, provided the underlying visa petitions remain valid. Under current regulations, those whose immigrant visa applications were denied prior to January 20, 2020 may also be reconsidered, but these individuals must submit new applications and pay a new application fee.

FY 2017 – FY 2020 Diversity Visa applicants who were not issued visas are statutorily barred from being issued visas based on their selection as Diversity Visa applicants in those fiscal years, as the deadlines for visa issuance in those fiscal years have expired.

As the Department works to serve affected applicants as quickly as possible, the health and safety of our workforce and customers remains paramount. The COVID-19 pandemic, and the health safeguards it has necessitated, continue to severely impact the number of visas our embassies and consulates abroad are able to process. Our team in Washington and around the world continue to work tirelessly to find ways to increase the number of immigrant visa appointments, and will continue to do so in the coming months.”

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Rescission of 2017 Policy Memorandum PM-602-0142

Effective immediately, USCIS rescinds PM-602-0142 “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions.’”

USCIS officers should not apply PM-602-0142 to any pending or new requests for H-1B classification, including motions on and appeals of revocations and denials of H-1B
classification. Further guidance will be forthcoming. PM-602-0142.1_RescissionOfPM-602-0142.pdf (uscis.gov)