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Changes in New York Criminal Law May Serve As a Basis for Immigration MTR

November 28, 2018

Changes in New York Criminal Law May Serve As a Basis for Immigration MTR

Author: New York Immigration Attorney Alena Shautsova

Recently, New York highest Court, the Court of Appeals held that a defendant facing criminal charges with a risk of deportation should be entitled to a jury trial. Under  State Criminal Procedure regulations  340.40, a criminal defendant may be denied a jury trial for certain offenses. As such, such a person will face a bench trial instead: a trial where a judge without a jury will decide his/her faith.  

This regulations and practice have been found violating immigrants’ rights who may face deportation/removal even for otherwise low-level offenses.  The court held:

“It is now beyond cavil that the penalty of deportation is among the most extreme and that it may, in some circumstances, rival incarceration in its loss of liberty,” Stein wrote. “Accordingly, we hold that a noncitizen defendant charged with a deportable crime is entitled to a jury trial under the Sixth Amendment, notwithstanding that the maximum authorized sentence is a term of imprisonment of six months or less.”

It means that in every case, a careful analysis of the consequences of the potential conviction is required. It also means, that those who were convicted of deportable offenses and now are facing deportation, should be able to file corresponding motions to reopen their cases both in criminal and immigration courts. 

If you have Immigration questions related to criminal convictions, please call our office for a consultation at  917 885 2261.

 

 

Legalization of Marijuana and US Admissibility

October 19, 2018

Legalization of Marijuana and US Admissibility

 

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Author: US Immigration Attorney Alena Shautsova

US Federal laws prohibit use and distribution of marijuana, and even though on a state level in certain jurisdictions, use of marijuana and its possession would not even cause criminal charges any longer, on a Federal level, and particularly for Immigration purposes, affairs related to it may cause serious problems.

Generally speaking, persons who are involved in manufacturing and distributing of marijuana would be inadmissible in the US. Drug-related offenses are the toughest ones for US Immigration purposes: there is no even a waiver for the most of them. 

But recently, countries started to liberalize their policies to toward marijuana. Specifically, Canada legalized it. Now, a person may be involved in acts that are considered to be legal in their country, but illegal in the US. What will happen if the person is seeking to come to the US?

The answer was recently provided by CBP:

 “A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. however, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible.”

It means that just working for the industry will not make on inadmissible, but if the person is coming, let’s say to explore business opportunities related to the same, he/she will not be able to enter the US. 

 

Brooklyn DA to Expunge Small Drug Convictions

September 21, 2018

Brooklyn DA to Expunge Small Drug Convictions

 

Foliage Cannabis Marijuana Lush Plants Nat

Author: New  York Immigration Attorney Alena Shautsova

In the light of the general liberalization of laws related to marijuana, Brooklyn DA announced a new program that would permit those convicted in Kings county to apply for an expungement of convictions related to unlawful possession of marijuana.  It should be noted, that on a Federal level, possession of marijuana is still a crime related to a controlled substance, which, depending on the amount, may make a person inadmissible and/or deportable. 

The program by Brooklyn DA to expunge small drug convictions would allow many to clear their records, and potentially, qualify for Immigration benefits they could not qualify previously. The subjects of the convictions could request the convictions to be dismissed. Moreover, those with outstanding summons warrants will be able to vacate their warrants: an outstanding warrant is a red flag for any immigrant, and must be addressed ASAP. 

You can learn more about Brooklyn DA’s programs here: http://brooklynda.org/begin-again/.

If you have Immigration concerns related to convictions, please book a consultation at http://www.shautsova.com.

O Visa Consultation Letters

September 19, 2018

O Visa Consultation Letters

Author: US Visa Attorney Alena Shautsova

To receive an O visa in the US, a petition by a potential employer has to be approved.   O-1 and O-2 nonimmigrant visas are available to individuals with extraordinary ability in science, education, business, athletics, or the arts, and individuals with extraordinary achievement in the motion picture or television industry, and certain essential support personnel. A consultation letter from a U.S. peer group, labor organization, and/or management organization is generally required for petitions in the O visa classification. As a part of the approval process, the employer has to reach out to the designated union/organization and request an opinion: if this union agrees that the subject of the petition is deserving to work in the US in a particular field. Not all the fields, by the way, have such unions.  For example,   the American Federation of Musicians (AFM), issues consultation letters for artists and groups in which instrumentalists make up least 50% of the personnel. Other unions issue consultation letters for artists such as dancers, actors, stage managers, stage technicians, operatic singers, and writers.

In the past, it was the petitioner’s job to reach out to the union and collect the letter/recommendation which could have been positive or “no objections” or negative. 

Recently, due to the fraud concerns, USCIS determined that negative consultation opinions must be sent by the unions to USCIS directly. It is an important change in the process of obtaining an O visa.  This new procedure affects only negative letters, not the positive consultations. 

 

What is Happening with DACA?

August 23, 2018

What is Happening with DACA?

Author: New York Immigration Attorney Alena Shautsova

DACA was restored….not so fast. On August 17, 2018 the same court that previously ordered to restore the program fully, including the part of it that used to provide advance parole was again stayed by the same court. NAACP v. Trump, 8/17/18.

What happened was that the government decided to appeal Court’s August 3rd order regarding the full restoration of the program, and filed a motion to clarify the order and motion to stay. The Plaintiffs in the case agreed that the stay will be appropriate with regard to the new applications, hence the stay was granted. 

It means that those who hold DACA cards that are expiring will be able to file the renewal applications, but no new applications and no applications for advance parole will be accepted. 

 

 

New Policy Regarding Unlawful Presence for F, M and J Visa Holders

August 13, 2018

New Policy Regarding Unlawful Presence for F, M and J Visa Holders

Author: US Visa Attorney Alena Shautsova

Recently, Trump administration started implementing new Immigration policies which construe Immigration laws stricter and with greater negative consequences for the non-residents. For example, several months ago, USCIS announced that the D/S (duration of status) exception of unlawful presence for M, F and J students will be abolished. Meaning, that these visa holders will start accumulating unlawful presence as soon as their program/status expires, and not only when a judge or USCIS determined that their status was “stopped.”  This new policy announcement was in conflict with the existing law allowing F and M  students to apply for reinstatement of status within 5 months of loss of such status, which would negate any determination of “unlawful presence.”

As a result, USCIS eventually changed its policy and the final version of it states that no unlawful presence will be accumulated if the person in F or M status filed a subsequently approved application for reinstatement of status. The new policy is as such:

F, J, or M nonimmigrants who failed to maintain their nonimmigrant status7 before August 9, 2018 start accruing unlawful presence based on that failure on August 9, 2018,8 unless the alien had already started accruing unlawful presence on the earliest of the following:

  • The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the alien violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after the Form I-94, Arrival/Departure Record, expired, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge ordered the alien excluded, deported or removed (whether or not the decision is appealed).

 

F, J, or M nonimmigrants who failed to maintain nonimmigrant status on or after August 9, 2018 An F, J, or M nonimmigrant begin accruing unlawful presence, due to a failure to maintain his or her status on or after August 9, 2018, on the earliest of any of the following:

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity or the day after he or she engages in an unauthorized activity;
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
  • The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed).

Significantly, nonimmigrants who are not issued a Form I-94, Arrival/Departure Record, are treated as nonimmigrants admitted for D/S (as addressed in Chapter 40.9.2(b)(1)(E)(ii)) for purposes of determining unlawful presence.

USCIS ADOPTS NEW POLICY FOR NTAs

July 6, 2018

USCIS ADOPTS NEW POLICY FOR NTAs

Author: New York Immigration Lawyer Alena Shautsova

USCIS changes policy on how and when it will be referring applicants to court. Now, all persons who applied for Immigration benefits and were denied will be issued Notices to Appear. A Notice to Appear is a charging document that means that the person is going to be placed in removal proceedings in Immigration Court. 

Under the new policy, the following cases will be referred to court: 

  • Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case is denied for reasons other than fraud.
  • Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before USCIS without issuing an NTA.
  • Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
  • Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

The revised policy does not change the USCIS policy for issuing an NTA in the following categories:

  • Cases involving national security concerns;
  • Cases where issuing an NTA is required by statute or regulation;
  • Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status;
  • DACA recipients and requestors when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA.

Updates on Trump Executive Order Regarding Family Separation

June 20, 2018

 

 

Updates on Trump Executive Order Regarding Family Separation

Why Trump is digging in on separating families at the border

Author: New York Immigration lawyer Alena Shautsova

Trump, as promised, signed an Executive Order stopping Family separation on the Southern Border. The Order, however, protects families from separation for 20 days only. In addition, the “zero tolerance” policy stays in place. 

The order directs other agencies, including the Pentagon, to take steps to find places to house family units.
The order specifies that migrants entering the US with children will not be kept together if there’s a fear for the child’s welfare. Families will also be prioritized in the adjudication process.
 
It is anticipated that the order will be challenged. It presents a new ground to challenge prolonged family detention. 

Unlawful Presence For F, M and J Students

May 25, 2018

Unlawful Presence For F,  M and J Students

Author: New York Immigration Lawyer Alena Shautsova

Major changes are coming to the Immigration filed and how the laws are implemented. For almost two decades, students admitted on F, J, and M programs were admitted for Duration of Status (D/S) and were not acquiring unlawful presence if they overstayed their visas unless an Immigration Judge or a DHS made a determination that their status was terminated. 

Previously, for example,  a J1 student who came on a Work and Travel program and overstayed her visa, would not face the 3/10 year unlawful presence bars if she later left the US and applied for, let’s say an Immigrant visa.  The amount of time that was overstayed would not matter.  Now, however, DHS made it clear, that even those admitted for Duration of Status will be accumulating the unlawful presence time after their authorized stay expires (stay including the authorized periods that are grunted to students after the expiration of their programs which is 60 days for F students and 30 days for J students). 

It means that those who overstay their student visas, dispte the D/S admission will face 3/10 unlawful presence bars and will have to take this into consideration when making decisions about applying for reinstatement, changing status or returning back home.  A person who is subject to an unlawful presence bar must receive a waiver to come back to the US before the ban expires. 

The new calculation of unlawful presence will come into effect on August 9, 2018. Prior to this date, the old rule is in effect. 

USCIS Will Destroy Undelivered Documents

April 3, 2018

USCIS Will Destroy Undelivered Documents

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Author: New York Immigration Lawyer Alena Shautsova

Sad news came today from USCIS: the agency announced that it will start physically destroying documents green card, employment authorizations and travel documents that were marked as “undeliverable” if within 60 days the beneficiary did not contact USCIS.

In my practice, I at times,  get notices from USCIS that the documents it was to deliver to my office somehow were “undeliverable.”  I am not sure where the confusion comes from: from the post office itself or incorrect spelling of addresses, but it does happen. Imagine also, a person after an interview is told that USCIS will make a decision within 90 days.  A person does not expect the green card to arrive earlier than 90 days. A person may not even know that USCIS tried to deliver his/her green card and does not contact USCIS within 60 days…. I just do not see how this new practice will make life easier for anyone. I cannot imagine that anyone who spent time and money on Immigration documents would intentionally fail to contact USCIS within two months period. If people would miss the 60 days deadline, it is likely because they had  no clue that the document was attempted to be mailed to them. Now, on top of waiting for the document, they will find an unpleasant surprise: their documents will be destroyed and they will have to file for the replacement….