AS 2021 DRAWS TO A CLOSE, THERE IS A SIGN THAT THE NEW YEAR MAY BE BETTER THAN THE LAST

The direction of COVID-19 variants remains difficult to predict, but the CDC now recommends lifting the travel restrictions imposed in Proclamation 10315. And, the President, Joseph R. Biden Jr. has done that.

” In light of these changed circumstances, and based on the recommendation of the CDC, I have determined that it is in the interests of the United States to revoke Proclamation 10315.  The travel restrictions imposed by that proclamation are no longer necessary to protect the public health.

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, except as provided in Proclamation 10294 of October 25, 2021 (Advancing the Safe Resumption of Global Travel During the COVID-19 Pandemic), or any other applicable proclamation, the unrestricted entry into the United States of persons described in section 1 of Proclamation 10315 is no longer detrimental to the interests of the United States.  I therefore hereby proclaim the following:

Section 1.  Revocation.  Proclamation 10315 is revoked.

Sec. 2.  Review of Agency Actions.  The Secretary of State, the Secretary of Transportation, and the Secretary of Homeland Security shall review any regulations, orders, guidance documents, policies, and any other similar agency actions developed pursuant to Proclamation 10315 and, as appropriate, shall consider revising or revoking these agency actions consistent with the policy set forth in this proclamation.

Sec. 3.  Effective Date.  This proclamation is effective at 12:01 a.m. eastern standard time on December 31, 2021.

Sec. 4.  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-eighth day of December, 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-sixth.”

HAPPY NEW YEAR!

NORKA M. SCHELL, ESQ.

MASK MANDATE

Dear Client and Visitors,

Please be advised that effective Monday, December 13, 2021, New York State has ordered an indoor mask mandate.

Please plan to wear a proper-fitting mask at Servcorp | 17 State Street. If you do not have one, feel free to ask the front desk.

Thank you.

LAW OFFICES OF NORKA M. SCHELL, LLC

 

U.S. Department of Justice, U.S. Labor Departments Reach Settlements with Facebook Resolving Claims of Discrimination Against U.S. Workers and Potential Regulatory Recruitment Violations

On October 19, 2021, the U.S. Department of Justice and the U.S. Department of Labor announced separate settlement agreements with Facebook regarding its use of the permanent labor certification program (PERM). The Justice Department’s settlement resolves its claims that Facebook routinely refused to recruit, consider or hire U.S. workers, a group that includes U.S. citizens, U.S. nationals, asylees, refugees, and lawful permanent residents, for positions it had reserved for temporary visa holders in connection with the PERM process. Additionally, the Labor Department’s settlement resolves issues it separately identified through audit examinations of Facebook’s recruitment activities related to its PERM applications filed with the Employment and Training Administration’s Office of Foreign Labor Certification (OFLC).

In December 2020, the Justice Department filed a lawsuit against Facebook, alleging that from at least Jan. 1, 2018, until at least Sept. 18, 2019, Facebook routinely reserved jobs for temporary visa holders through the PERM process. Specifically, the lawsuit alleged that, in contrast to its standard recruitment practices, Facebook used recruiting methods designed to deter U.S. workers from applying to certain positions, such as requiring applications to be submitted by mail only; refused to consider U.S. workers who applied to the positions; and hired only temporary visa holders. According to the lawsuit, Facebook’s hiring process for these positions intentionally discriminated against U.S. workers because of their citizenship or immigration status, in violation of the anti-discrimination provision of the Immigration and Nationality Act (INA). The INA generally prohibits employers from discriminating against workers because of their citizenship or immigration status.

In early 2021, the Labor Department initiated audit examinations of Facebook’s pending PERM applications to determine compliance with regulatory requirements. As a result of these audits, OFLC identified potential regulatory recruitment violations and sought additional information from Facebook in an effort to confirm that Facebook followed all applicable regulatory requirements regarding the posting and advertisement requirements for these positions.

Under the DOJ settlement, Facebook will pay a civil penalty of $4.75 million to the United States, pay up to $9.5 million to eligible victims of Facebook’s alleged discrimination, and train its employees on the anti-discrimination requirements of the INA. In addition, Facebook will be required to conduct more expansive advertising and recruitment for its job opportunities for all PERM positions, accept electronic resumes or applications from all U.S. workers who apply, and take other steps to ensure that its recruitment for PERM positions closely matches its standard recruitment practices. Today’s civil penalty and backpay fund represent the largest fine and monetary award that the Division ever has recovered in the 35-year history of the INA’s anti-discrimination provision.

“Facebook is not above the law, and must comply with our nation’s federal civil rights laws, which prohibit discriminatory recruitment and hiring practices,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “Companies cannot set aside certain positions for temporary visa holders because of their citizenship or immigration status. This settlement reflects the Civil Rights Division’s commitment to holding employers accountable and eradicating discriminatory employment practices.”

Under the DOL OFLC settlement, Facebook will conduct additional notice and recruitment for U.S. workers and will be subject to ongoing audits to ensure its compliance with applicable regulations.

“This settlement is an important step forward and means that U.S. workers will have a fair chance to learn about and apply for Facebook’s job opportunities,” said Seema Nanda, Solicitor at the Department of Labor. “No matter an employer’s size or reach, the Department of Labor is committed to vigorously enforcing the law.”

The Department of Justice, Civil Rights Division’s Immigrant and Employee Rights Section (IER) is responsible for enforcing the anti-discrimination provision of the INA. The statute prohibits citizenship or immigration status and national origin discrimination in hiring, firing or recruitment, or referral for a fee; unfair documentary practices; and retaliation and intimidation.

Applicants or employees who believe they were discriminated against based on their citizenship, immigration status, or national origin in hiring, firing, recruitment, or during the employment eligibility verification process (Form I-9 and E-Verify); or subjected to retaliation, can file a charge. The public also can contact IER’s worker hotline at 1-800-255-7688; call IER’s employer hotline at 1-800-255-8155 (1-800-237-2515, TTY for hearing impaired); email [email protected]; sign up for a free webinar, or visit IER’s English and Spanish websites.

The Department of Labor, Employment and Training Administration’s Office of Foreign Labor Certification (OFLC) provides national leadership and policy guidance to carry out the responsibilities of the Secretary of Labor under the INA, as amended, concerning the admission of foreign workers to the United States for employment.

A permanent labor certification allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS), the employer must obtain a certified labor certification application from OFLC. The Secretary of Labor must certify to the USCIS that there are not sufficient U.S. workers able, willing, qualified, and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Suspected violations relating to the PERM labor certification process can be promptly referred to OFLC at [email protected]

HOW DOES AN IMMIGRANT LOSE HIS OR HER LAWFUL PERMANENT RESIDENT STATUS?

An immigrant can lose his Lawful Permanent Resident (LPR) status when he or she demonstrates his or her intent to no longer reside in the United States as an LPR after departing the United States. In addition, abandonment of LPR status by a parent is imputed to a minor child who is in the parent’s custody and control. While LPRs are permitted to travel outside the United States, depending on the length and circumstances of the trip abroad, the trip may lead to a determination that the LPR abandoned his or her LPR status.

If the evidence suggests that an applicant abandoned his or her LPR status and was subsequently erroneously permitted to enter as a returning LPR, the applicant is ineligible for naturalization. This is because the applicant failed to establish that he or she was lawfully admitted for permanent residence at the time of the subsequent reentry and failed to meet the continuous residence requirement for naturalization.

DACA NOTICE OF PROPOSED RULEMAKING

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 106, 236, and 274a
[CIS No. 2691–21; DHS Docket No. USCIS–
2021–0006] RIN 1615–AC64

Deferred Action for Childhood Arrivals
AGENCY: U.S. Citizenship and
Immigration Services, DHS.
ACTION: Notice of proposed rulemaking.

USCIS notice of proposed rulemaking (NPRM) on DACA. If finalized as proposed, the NPRM would codify the existing DACA policy with a few limited changes. Comments are due 11/29/21. (86 FR 53736, 9/28/21). ACTION: Notice of proposed rulemaking.

 

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/