Can a TN Visa Holder Change Job Duties If They Remain With The Same Employer?

Canadians and Mexicans can live and work in the United States if they fall the category of "NAFTA Professionals." The non-citizen may qualify for a TN Visa if the following requirements are met:

• The profession falls under the list of occupations recognized by NAFTA
• The non-citizen possesses the specific criteria for that profession
• The employer requires requires someone in that professional capacity
• The Non-Citizen has a job offer, confirmed in writing, from a U.S. employer

However, what do you do if your job duties change? What if your original job duties fell under the list of NAFTA occupations but your new job duties are not covered? Can you remain in the U.S. and continue to work even though your job duties have significantly changed?

8 CFR 214.6(g) states that: "With a Form I-94. An alien may be readmitted to the United States in TN classification for the remainder of the authorized period of TN admission on Form I-94, without presentation of the letter or supporting documentation described in paragraph (d)(3) of this section, and without the prescribed fee set forth in 8 CFR 103.7(b)(1) , provided that the original intended professional activities and employer(s) have not changed, and the Form I-94 has not expired. (Paragraph (g) revised 10/16/08; 73 FR 61332 )."

It appears, at the very least, that if your "original intended professional activities" have changed you must file an I-129 and update with your new job duties in order to be entitled to readmission. If you leave the U.S. during the course of your TN visa's validity and re-enter, and the job duties have changed such that the original TN visa no longer reflects the correct job duties, you may be found inadmissible.

The Borowski Immigration Law Office is located just five minutes from the Peace Bridge and less than thirty minutes from the Rainbow Bridge and Queenston-Lewiston Bridge. We are proud to represent and counsel Canadians with their U.S. Immigration Law issues. You can reach me at 716-418-7431 or by e-mail through my website at www.borowskilaw.com.

Batavia Immigration Court Deportation Cases

Recently I have had a lot of calls from people with family members being held in the Buffalo Federal Detention Facility. These individuals have been placed in removal proceedings in the Batavia Immigration Court in Batavia, NY which is part of the detention facility. These family members want to know if there is any way to fight the deportation of their loved ones.

Most non-citizens living in upstate New York who are placed in removal proceedings (deportation cases) and detained by Immigration & Customs Enforcement (ICE) are taken to the immigration jail in Batavia, NY which is located about forty-five minutes east of Buffalo, NY.

Likewise, anyone arrested by ICE along the Canadian border with New York State is also taken to the Buffalo Federal Detention Facility in Batavia, NY to face deportation proceedings.

The Immigration Judges at this facility are Steven Connelly and John B. Reid. Immigration Court is held on most weekdays and the majority of the respondents are not represented by counsel. The Court is located at 4250 Federal Drive, Room F108, Batavia, New York 14020 and their phone number is 585-345-4300.

As a Buffalo Immigration Lawyer, my office is located near downtown Buffalo, NY but I handle immigration law matters in Batavia, NY on a regular basis. I am available to visit your family member, analyze their Notice to Appear (DHS form I-862) and determine if they are eligible for relief from removal. As a Batavia Immigration Lawyer I fight for your right to remain in the United States.

I can also file a motion for bond to get your family member out of BFDF and back home. When a detained non-citizen is released on bond from the Buffalo Federal Detention Facility, their case is transferred to the Buffalo Immigration Court. My office is located just five minutes from the Buffalo Immigration Court.

Matthew Borowski at Borowski Law is an immigration lawyer in Buffalo who can fight against deportation. Please call me at 716-418-7431 to discuss your immigration problem today.

NY's Highest Court Rules That Judges Must Inform Defendants of Possible Deportation as a Result of Criminal Guilty Pleas

Trial judges in New York must warn non-citizen defendants that they could be deported before accepting guilty pleas in felony cases, the state Court of Appeals has ruled. Defendants are entitled to be notified of such “a grave impact and frequent occurrence,” the Court of Appeals said. The majority cited increased deportations by immigration authorities under tougher US laws and enforcement policy.
Judge Sheila Abdus-Salaam rejected the argument that Immigration and Customs Enforcement (ICE) has considerable discretion in deciding whom to deport. The roughly 188,000 non-citizen convicts now deported annually, up from about 37,000 when the federal law was amended in 1996, “would probably beg to differ on the point, and rightly so."

"A majority of this Court, consisting of Chief Judge Lippman, Judges Graffeo, Read, Rivera and me, finds that deportation is a plea consequence of such tremendous importance, grave impact and frequent occurrence that a defendant is entitled to notice that it may ensue from a plea. We therefore hold that due process compels a trial court to apprise a defendant that, if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony."

The decision was made in three separate cases where non-citizen defendants pleaded guilty to felonies without the court explaining that they could be deported.

This is a landmark decision which will have a broad impact on deportations in New York State. It goes further along the road paved by Padilla v Kentucky which requires that criminal defense counsel apprise their clients of the potential immigration consequences of a criminal conviction. Unfortunately, and likely due to misunderstandings about how the immigration laws work, the judges on the Court of Appeals have only held that the judge has a duty to apprise the defendant in felony matters. As any seasoned deportation defense practitioner knows, many misdemeanors can have consequences just as severe as felonies and indeed could be classified as "aggravated felonies" under the Immigration & Nationality Act (INA).

The cases are the People v. Juan Jose Peque, the People v. Robert Diaz and the People v. Michael Thomas, New York State Court of Appeals, Nos. 163-165.

 

The full decision is available here: http://www.nycourts.gov/ctapps/Decisions/2013/Nov13/163-164-165opn13-Decision.pdf

 I am sure we will be hearing a lot more about the impact of People v. Peque over the coming months. If you've pleaded guilty to, been convicted of, or charged with a New York felony and are facing potential deportation consequences, call my Buffalo Immigration Law Office immediately at (716) 418-7431 or visit the Buffalo Immigration Law firm of Matthew Borowski, Esq. at http://www.borowskilaw.com to discuss your removal defense options under this new case.

Matthew Borowski, Esq. Discusses the Importance of Retaining Counsel in Immigration Court Matters

Watch Buffalo Immigration Lawyer Matthew Borowski, Esq. speak about deportation defense (removal defense) in the Immigration Courts in Buffalo and Batavia, NY. He highlights the importance of hiring legal counsel to fight against deportation, and how he helps non-citizens in removal proceedings by offering legal services at an affordable rate. You can reach Matthew at  716-418-7431 or www.borowskilaw.com

http://www.youtube.com/watch?v=-PZLJajpp1U

It's Veterans Day and U.S. Veterans Are Getting Deported

Interesting read:

http://fusion.net/american_dream/story/veterans-day-us-veterans-deported-206794

Former NYPD Police Chief Bernard Kerik: "Our Prison System Is Broken"

The NYPD Police Chief - a one-time Bush candidate for Secretary of Homeland Security - was sentenced to three years in federal prison for tax fraud and lying to the White House. Now, out of prison, he has some harsh criticism for the American system of criminal injustice.

5 grams of cocaine - the same weight as a five cent nickel - can land a man in federal prison for ten years. Kerik, the same man who used to run Rikers Island, calls that sort of policy "insane" and calls for fundamental changes to the U.S. system of incarceration.

Watch the video now

Deferred Action for Childhood Arrivals: Enrollment in a GED Program Is Enough to Satisfy the Education Requirement

Today I had a prospective client call me who was placed in removal proceedings in 2011 and has an upcoming Master Calendar Hearing. He inquired about his eligibility for deferred action. Deferred action for childhood arrivals was implemented in 2012 and is a form of prosecutorial discretion which allows those undocumented immigrants who entered the U.S. as children to remain in the country, and work lawfully.  Deferred action is granted only for a period of two years, subject to renewal.

To qualify for deferred action, childhood arrivals must be "currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States."

The young man who called me this morning was only enrolled in a GED program, but had not yet completed the requirements for the certificate. He wasn't enrolled in a traditional school or university.

I was able to give him some good news - according to USCIS, to be considered “currently in school” under the guidelines, you must be enrolled in:

• a public or private elementary school, junior high or middle school, high school, or secondary school;
• an education, literacy, or career training program (including vocational training) that is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement; or
• an education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under state law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a General Educational Development (GED) exam or other equivalent state-authorized exam.

A GED Program, as it turns out, is sufficient to qualify a childhood arrival for deferred action. The young man I spoke with is currently in removal proceedings, but that doesn't disqualify someone from deferred action.

While the deferred action program is clearly a compromise and does not lead to permanent residency, it's a much needed departure from the way things were before -- with families being torn apart and children being sent back to countries where they have nothing and no one to return to.

If you think you or a loved one may be eligible for deferred action, or you need help with any other immigration problem, please contact the law office at (716) 418-7431 to discuss your case.