Publications

October, 2006

LOTTERY, DIVERSIFIED VISAS FOR 2008 REGISTRATION:

One entry is allowed per person.  Spouses and unmarried alien children under 21 must be named.  Each entrant must have a high school education or its equivalent or within the past 5 years had two years of work experience in an occupation requiring at least two years training or experience.

If an applicant wins the lottery he/she if physically in the U.S. must prove that he/she is eligible to adjust.  50,000 diversity visas are available for DV 2008.  No fee is charged for submitting an application.  The period of registration is between October 4, 2006 and ends on December 3, 2006.

The following countries are not eligible for this year’s diversity program:

AGGRAVATED FELONIES AND ILLICIT TRAFFICKING IN DRUGS

The Supreme Court of the United States decided last week in its October term that
a state court conviction for possession of a small quantity of illegal drugs may not be treated as an aggravated felony for deportation purposes even though the state defined the trafficking as a felony.  The implications for an alien of a conviction for an aggravated felony means automatic deportation, a denial of the right to appeal and a permanent bar to reenter the U.S.  A drug trafficking crime is defined as any felony punishable under the Controlled Substance Act.  The government’s current view is that any state may define a controlled substance violation as a felony even though the quantity of drugs may be miniscule.  A majority of Supreme Court justices decided that state felonies for drugs shall not be dispositive and only the federal standard of what is an aggravated felony shall apply.  Otherwise, any state could banish any immigrant by labeling minor offenses as felonies.

THE CHILD STATUS PROTECTION ACT- REINTENTION OF PRIORITY DATES

A recent Board of Immigration Appeals (BIA) decision found that a minor child of a beneficiary of a preference petition, who ages out, viz, 21 years or older before the parent’s residence is granted, which resulted in making the child ineligible for the benefits of the parent’s preference, now may retain the earlier priority date of the original petition that enabled the parent to become a permanent resident.  The parent may apply for the child who would be eligible under the second preference as the unmarried son or daughter of the parent who obtained permanent residence.  The son or daughter may recapture the original priority date of the parent’s preference.

DENIAL OF AN APPLICATION/PETITION AFTER OCTOBER 1, 2006 MAY RESULT IN A NOTICE TO APPEAR (NTA) WHICH COULD RESULT IN A PROMPT REMOVAL HEARING

The Associate Director of the United States Citizenship and Immigration Services (USCIS) has ordered that NTA’s should be sent simultaneously with a Notice of Denial if the applicant appears removable and without apparent means of relief.  Before, NTA’s were normally only sent to applicants who appeared to have committed a fraud or to someone who appeared dangerous.  Now, any one who seems to be out of status may be subject to an NTA notice.   Even though the order allows for prosecutional discretion, the increasing stringent surveillance of aliens suggests that immigration officers will issue NTA’s without considering humanitarian concerns.  Hence it is crucial that an application/petition be reviewed carefully before sending it in to the USCIS because even minor mistakes such as incorrectly completing an affidavit of support, or because someone missed a previous appointment for fingerprints for adjustment of status could result in an NTA.

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New York Immigration Lawyers > Immigration Publications > October 2006