JCOHS Lawyers and Attorneys

As everyone understands there are a number of Commonwealth Government taxes. The major ones are CGT, FBT, ICT, GST, LCT and PAYG (earn/withholding). At this stage this paper will only deal with GST legislation. The main piece of GST legislation is a new tax system (Goods and Services Tax Act 1999) which came into operation on 1 July 2000 and is payable only on supplies and importations made on or after that date. GST is charged at the rate of 10% on most goods and services consumed in Australia. It is important to keep in mind that the manipulation of GST is an offence which is punishable by fine, penalty, criminal sanction and may amount to a false or misleading claim which may contravene the Trade Practices Act 1974. Where ambiguities arise they have been traditionally resolved in favour of the taxpayer, however the pendulum has swung to look at the purpose or intent of the legislation in its overall context.

It is fair to say that GST applies to most businesses. Most businesses should have an ABN and be registered for GST so that they can charge either their customers or clients for goods and services. Effectively GST input tax credits can be claimed by all of those involved in the supply chain except the final consumer. There are a number of GST-free goods which include a number of hospital, medical, child care, religious, charitable, state-based services, education courses and duty free goods to name but a few.

Registration is central with the imposition of GST however problems can arise as there are basically three categories of potential registrants:

1 those who cannot be registered;

2 those who can be registered but do not have to be;

3 those who are required to be registered.

In order to be registered you must be carrying on an enterprise and it is mandatory where your annual turnover exceeds $50,000. Issues arise in a GST context depending upon your status e.g. employer and employee; employer and independent sub-contractor; principal and agent; partners, licensor/licensee and joint venturers. In the vast majority of cases in order to overcome any conflict the entity should have an ABN and be registered for GST provided they are carrying on an enterprise.

Complications can arise where both goods or services are sold, however the problem becomes more complicated in the services sector for some participants. An entity is liable to pay GST where it makes a taxable supply or importation. A taxable supply covers a wide range of transactions. It sounds trite to say but for there to be a taxable supply there must be a supply and this occurs when something passes from one entity to another in certain circumstances. There are mixed and composite supplies and to some extent this depends upon whether the parts of the supply may be separately identified. With mixed supplies there has to be apportionment. There has to be a consistent identifiable methodology which is adopted when dealing with these matters. Where goods are partly taxable and partly GST-free then any additional service has to be dealt with in the same way.

Ever since the introduction of the GST there have been a number of attempts by a number of tax-payers to avoid paying GST. The ATO looks strictly at the basis of the relationship between the taxpayer and any other party with whom they are dealing. For example, contractors who are service providers or putative or deemed employees. This examination goes not only to the issue of GST non-compliance but to whether or not PAYGW obligations have also been met. The following quote was taken from an ATO information bulletin with respect to the latter point: “Establishments that pay service providers are reminded of their withholding obligations, particularly the no-ABN withholding obligations where the service provider is a contractor. If the service provider does not quote their ABN or provide a statement by a supplier – reason for non-quoting an ABN to an enterprise form, the establishment must withhold 48.5% of the total payment and send the amount withheld to the Tax Office.” Of course any PAYGW obligation is now satisfied at 46.5% as against the 48.5% stated above. Of course all enquiries precipitated by the Tax Office will also extend to SGL and when they are not satisfied with the so-called contractor as an independent sub-contractor they will be made accountable for any shortfall in the superannuation guarantee component.

The status of the worker is all important. The Tax Office often describe persons engaging in a particular activity as a worker and this pervades the whole approach to this area including GST, PAYG (E&W) and SGL. Questions could arise as to whether the entity is acting as an agent for the service provider for not making GST supplies to clients or could be making taxable supplies to workers for example including facilities or administrative services. One of the key questions in this area is whether or not A or B are entities which are running separate and distinct enterprises involving the supply of services? Obviously it is better for the tax office if A is an employer as it streamlines the analysis and leads to the ready identification of what taxes have to be paid where the taxpayer is non-compliant. Alternatively much the same could be said where A is the principal and B the agent or vice-versa. Alternatively some of the same arguments could be used where A is the employer and B is a contractor. However, difficulties arise where the ATO encounters licensors and licensees; lessors and lessees; and bailors and bailees in their respective industries. The question of tax compliance or non-compliance is in part tied up with the question of exploitation by B of any available asset which they have a right to use or occupy. It is further complicated by whether or not separate payments have been received or where one of the parties accepts a group payment on behalf of both.

This is a complicated area which requires the detailed attention of a pure tax lawyer to ensure you are properly advised before you commit to a course of action or have any dealings with the ATO especially where you may be or are tax non-compliant.



By: Frank Egan – LAC Lawyers

About the Author:

A marriage is treated as a sacred bond among two individuals where the couple makes a solemn promise to stay together till ‘death” parts them from each other. However, two individuals are bound to have their distinct personalities and therefore, differences are bound to arise. At times these differences become too great to be resolved and the couple then heads towards a divorce, which may be mutual or else may have to be sorted out after a bitter fight. Now, a divorce is an emotionally and mentally devastating experience, whether done agreeably or in a forced manner, hence, it is to be expected that the concerned individual will not be in a state to make the right decisions during the proceedings. Also, any divorce is subject to the law of the state and such legalities are best handled only by a professional. It is therefore, advisable to take the help and guidance of a divorce lawyer New York to get through any divorce proceedings.

If you are a resident of New York city, then it would be easy for you to get access to many a divorce lawyer New York, however, it is important to choose the services of an experienced and competent professional to get the best advantage for your case. A divorce lawyer New York can be located with the help of the Internet or the yellow pages or possibly even with the reference of a friend, but even then it is advisable to do your background research well, before you approach the lawyer. It is natural to assume that any good lawyer is bound to charge higher fees for his services but even then it is necessary to clarify the details and find out whether he would charge a fees even for a simple consultation before he actually accepts your case.

Once you have located and hired the best divorce lawyer New York, then you can easily leave the divorce proceedings in the experienced hands of your lawyer. Every state has different and specific laws for a divorce case and only a lawyer is best qualified to deal with such nitty gritties of the law. Also, there are many sensitive issues which need to be dealt with tactfully during a divorce proceeding like the distribution of accounts, settlement of financial issues and even child custody, if required. All such issues are professionally and sensitively tackled by a competent lawyer who has the requisite experience in dealing with such issues.

When a divorce lawyer New York has been carefully selected and hired by a client, the lawyer also needs to win the faith of this client to get the details of every fact and figure of the divorce case. Similarly the client must also trust his or her lawyer and ensure that the lawyer is aware of every aspect of the case in order to provide the best guidance and handle the case accordingly. So, although a divorce is a painful experience, not just for the couple involved but also for their friend sand family, the journey can be made much simpler and easier with the help and service of a competent divorce lawyer.



By: damey

About the Author:

The Najdovski Law Firm  PLLC may be able to help you seek compensation for your suffering due to a doctor’s or hospital’s error.  If you have been injured, either psychologically or physically due to the negligence or lack of care of a doctor or hospital, you should not hesitate to have The Najdovski Law Firm review your medical malpractice case today.  

The Najdovski Law Firm has over twenty years solid experience in the areas of lawsuits due to a serious lack of patient care, emergency room errors or failure to diagnosis, improperly not admitting a patient as an in-patient but rather providing minimal care in the emergency room, birth injuries, surgical errors, wrong diagnosis or failure to diagnose.  Sadly, these errors when they do occur have at times catastrophic results with life altering consequences.  Sometimes patients are not aware of their rights to compensation, which keeps them from bringing their medical malpractice case to a professional medical malpractice lawyer before the legal deadline.

Most people are not aware that there is a deadline by which you must file a claim against a doctor or hospital, and once that deadline passes, you then cannot sue.  You are forever barred.



If you believe you have been a victim of medical malpractice, it is important that you document the incident with thorough paperwork and pictures and contact a medical malpractice lawyer as soon as possible.  However, some patients are afraid that they do not have enough information to make a case.  The Najdovski Law Firm PLLC will obtain all of the medical documentation on your case, which requires you to sign a HIPAA(Health Insurance Portability and Accountability Act), authorization.  Your medical providers must release all of your medical records once that document is sent to them by the Najdovski Law Firm.

Doctors and hospitals should be held accountable for their mistakes.  Contact a top NY medical malpractice lawyer today.  You may visit our website at www.medical-attorneys.com for further information.  

Attorney Najdovski is the Founding Member of the New York City law firm, The Najdovski Law Firm PLLC and is experienced in helping those who have been injured due to medical malpractice.  Attorney Najdovski has appeared in the Supreme Courts of New York, Kings, Richmond, Queens, Nassau, Suffolk and Westchester Counties, as well as in the Courts of Connecticut and New Jersey 1000s of times, has deposed 100s of witnesses and has been involved in numerous settlement negotiations.  His trial firm is highly capable of dedicating time and resources to individual cases.  They specialize in accepting mostly catastrophic and large damages cases.  Instead of questioning whether or not you have a case, contact an attorney at the Najdovski Law Firm PLLC.



By: Emily Right

About the Author:

Why Would the Consulate Deny My Visa?

www.cundyandmartin.com

There are many reasons under the immigration law that a person may be deemed “inadmissible” to the United States and therefore, a consulate would deny a visa.  These reasons include health related grounds – including mental disorders and drug additions, crimal related grounds, security related grounds, foreign policy reasons, public charge reasons – ability for financial support, prior immigration violations, and fraud or misrepresentation.

Below is the language of the law, Immigration and Nationality Act (INA), detailing the grounds of “inadmissibility” – reasons a consulate would deny a visa.

———————————————–

INA Sec. 212(a)

See §309 IIRAIRA for effective date & transition provisions.

Classes of aliens ineligible for visas or admission.–Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

212(a)(1) Health-related grounds.–

212(a)(1)(A) In general.–Any alien–

212(a)(1)(A)(i) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance, which shall include infection with the etiologic agent for acquired immune deficiency syndrome,

212(a)(1)(A)(ii)

Effective “with respect to applications for immigrant visas or for adjustment of status filed after September 30, 1996.” IIRAIRA §341(c).

except as provided in subparagraph (C), who seeks admission as an immigrant, or who seeks adjustment of status to the status of an alien lawfully admitted for permanent residence, and who has failed to present documentation of having received vaccination against vaccine-preventable diseases, which shall include at least the following diseases: mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B, and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee for Immunization Practices,

212(a)(1)(A)(iii) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services in consultation with the Attorney General)–

212(a)(1)(A)(iii)(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or

212(a)(1)(A)(iii)(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior, or

212(a)(1)(A)(iv) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to be a drug abuser or addict, is inadmissible.

212(a)(1)(B) Waiver authorized.–For provision authorizing waiver of certain clauses of subparagraph (A), see subsection (g).

212(a)(1)(C) Exception from immunization requirement for adopted children 10 years of age of younger.–Clause (ii) of subparagraph (A) shall not apply to a child who —

212(a)(1)(C)(i) is 10 years of age or younger,

212(a)(1)(C)(ii) is described in section 101(b)(1)(F), and

212(a)(1)(C)(iii) is seeking an immigrant visa as an immediate relative under section 201(b),

if, prior to the admission of the child, an adoptive parent or prospective adoptive parent of the child, who has sponsored the child for admission as an immediate relative, has executed an affidavit stating that the parent is aware of the provisions of subparagraph (A)(ii) and will ensure that, within 30 days of the child’s admission, or at the earliest time that is medically appropriate, the child will receive the vaccinations identified in such subparagraph..

212(a)(2) Criminal and related grounds.–

212(a)(2)(A) Conviction of certain crimes.–

212(a)(2)(A)(i) In general.–Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of–

212(a)(2)(A)(i)(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or

212(a)(2)(A)(i)(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.

212(a)(2)(A)(ii) Exception.–Clause (i)(I) shall not apply to an alien who committed only one crime if–

212(a)(2)(A)(ii)(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

212(a)(2)(A)(ii)(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

212(a)(2)(B) Multiple criminal convictions.–Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement

The term “actually imposed” was deleted after this word by IIRAIRA §322(a)(2)(B). Change applies to “convictions and sentences entered before, on, or after the date of the enactment of this Act. Subparagraphs (B) and (C) of section 240(c)(3) of the Immigration and Nationality Act, as inserted by section 304(a)(3) of [IIRAIRA], shall apply to proving such convictions.”were 5 years or more is inadmissible.

212(a)(2)(C) Controlled substance traffickers.–Any alien who the consular officer or the Attorney General knows or has reason to believe–

212(a)(2)(C)(i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so; or

212(a)(2)(C)(ii) is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity, is inadmissible.

212(a)(2)(D) Prostitution and commercialized vice.–Any alien who–

212(a)(2)(D)(i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status,

212(a)(2)(D)(ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10-year period) received, in whole or in part, the proceeds of prostitution, or

212(a)(2)(D)(iii) is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution, is inadmissible.

212(a)(2)(E) Certain aliens involved in serious criminal activity who have asserted immunity from prosecution.–Any alien–

212(a)(2)(E)(i) who has committed in the United States at any time a serious criminal offense (as defined in section 101(h)),

212(a)(2)(E)(ii) for whom immunity from criminal jurisdiction was exercised with respect to that offense,

212(a)(2)(E)(iii) who as a consequence of the offense and exercise of immunity has departed from the United States, and

212(a)(2)(E)(iv) who has not subsequently submitted fully to the jurisdiction of the court in the United States having jurisdiction with respect to that offense, is inadmissible.

212(a)(2)(F) Waiver authorized.–For provision authorizing waiver of certain subparagraphs of this paragraph, see subsection (h).

212(a)(2)(G) Foreign government officials who have committed particularly severe violations of religious freedom.–Any alien who, while serving as a foreign government official, was responsible for or directly carried out, at any time, particularly severe violations of religious freedom, as defined in section 3 of the International Religious Freedom Act of 1998 (22 U.S.C. 6402), is inadmissible.

212(a)(2)(H) Significant traffickers in persons.–

212(a)(2)(H)(i) In general.–Any alien who is listed in a report submitted pursuant to section 111(b) of the Trafficking Victims Protection Act of 2000, or who the consular officer or the Attorney General knows or has reason to believe is or has been a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe forms of trafficking in persons, as defined in the section 103 of such Act, is inadmissible.

212(a)(2)(H)(ii) Beneficiaries of trafficking.–Except as provided in clause (iii), any alien who the consular officer or the Attorney General knows or has reason to believe is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity, is inadmissible.

212(a)(2)(H)(iii) Exception for certain sons and daughters.–Clause (ii) shall not apply to a son or daughter who was a child at the time he or she received the benefit described in such clause.

212(a)(2)(I) Money laundering.–Any alien–

212(a)(2)(I)(i) who a consular officer or the Attorney General knows, or has reason to believe, has engaged, is engaging, or seeks to enter the United States to engage, in an offense which is described in section 1956 or 1957 of title 18, United States Code (relating to laundering of monetary instruments); or

212(a)(2)(I)(ii) who a consular officer or the Attorney General knows is, or has been, a knowing aider, abettor, assister, conspirator, or colluder with others in an offense which is described in such section; is inadmissible.

212(a)(3)

See also §411(c) of USA PATRIOT Act, P.L. 107-56, Retroactive Application of Amendments.

Security and related grounds.–

212(a)(3)(A) In general.–Any alien who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in–

212(a)(3)(A)(i) any activity

212(a)(3)(A)(i)(I) to violate any law of the United States relating to espionage or sabotage or

212(a)(3)(A)(i)(II) to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information,

212(a)(3)(A)(ii) any other unlawful activity, or

212(a)(3)(A)(iii) any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means, is inadmissible.

212(a)(3)(B)

See §411(c) of USA PATRIOT Act, P.L. 107-56, 115 Stat. 272, (10/26/01) for “Special Rule for Aliens in Exclusion or Deportation Proceedings.”

The amendments made by §103 of REAL ID Act, P.L. 109-13 (5/11/05) take effect on date of enactment. They and §212(a)(3)(B) shall apply to: (1) removal procedings instituted before, on, or after the date of enactment of this division; and (2) acts and conditions constituting a ground for inadmissibility, excludability, deportation, or removal occurring or existing before, on, or after such date.

Terrorist activities.–

212(a)(3)(B)(i) In general.–Any alien who–

212(a)(3)(B)(i)(I) has engaged in a terrorist activity,

212(a)(3)(B)(i)(II) a consular officer, the Attorney General, or the Secretary of Homeland Security knows, or has reasonable ground to believe, is engaged in or is likely to engage after entry in any terrorist activity (as defined in clause (iv)),

212(a)(3)(B)(i)(III)

See §342 of IIRAIRA, effective “on the date of the enactment of [IIRAIRA] and shall apply to incitement regardless of when it occurs.”

has, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity;

212(a)(3)(B)(i)(IV) is a representative (as defined in clause (v)) of–

212(a)(3)(B)(i)(IV)(aa) a terrorist organization (as defined in clause (vi)); or

212(a)(3)(B)(i)(IV)(bb) a political, social, or other group that endorses or espouses terrorist activity;

212(a)(3)(B)(i)(V) is a member of a terrorist organization described in subclause (I) or (II) of clause (vi);

212(a)(3)(B)(i)(VI) is a member of a terrorist organization described in clause (vi)(III), unless the alien can demonstrate by clear and convincing evidence that the alien did not know, and should not reasonably have known, that the organization was a terrorist organization;

212(a)(3)(B)(i)(VII) endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization;

212(a)(3)(B)(i)(VIII) has received military-type training (as defined in section 2339D(c)(1) of title 18, United States Code) from or on behalf of any organization that, at the time the training was received, was a terrorist organization (as defined in clause (vi)); or

212(a)(3)(B)(i)(IX) is the spouse or child of an alien who is inadmissible under this subparagraph, if the activity causing the alien to be found inadmissible occurred within the last 5 years, is inadmissible. An alien who is an officer, official, representative, or spokesman of the Palestine Liberation Organization is considered, for purposes of this Act, to be engaged in a terrorist activity.

A literal reading of §103(a) of P.L. 109-13 (REAL ID Act) (5/11/05), which revised INA §212(a)(3)(B)(i), would put the words “is inadmissible” at the end of subclause (IX). However, placement at the beginning of the “outdented” paragraph resuming clause (B)(i) (as here), reflects the likely intention of Congress (and the position of the same words before the amendment).

212(a)(3)(B)(ii) Exception–Subclause (IX) of clause (i) does not apply to a spouse or child–

212(a)(3)(B)(ii)(I) who did not know or should not reasonably have known of the activity causing the alien to be found inadmissible under this section; or

212(a)(3)(B)(ii)(II) whom the consular officer or Attorney General has reasonable grounds to believe has renounced the activity causing the alien to be found inadmissible under this section.

212(a)(3)(B)(iii) “Terrorist activity” defined.–As used in this Act, the term “terrorist activity” means any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following:

212(a)(3)(B)(iii)(I) The highjacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle).

212(a)(3)(B)(iii)(II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained.

212(a)(3)(B)(iii)(III) A violent attack upon an internationally protected person (as defined in section 1116(b)(4) of title 18, United States Code) or upon the liberty of such a person.

212(a)(3)(B)(iii)(IV) An assassination.

212(a)(3)(B)(iii)(V) The use of any–

212(a)(3)(B)(iii)(V)(a) biological agent, chemical agent, or nuclear weapon or device, or

212(a)(3)(B)(iii)(V)(b) explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.

212(a)(3)(B)(iii)(VI) A threat, attempt, or conspiracy to do any of the foregoing.

212(a)(3)(B)(iv) Engage in terrorist activity defined.–As used in this Act, the term “engage in terrorist activity” means, in an individual capacity or as a member of an organization–

212(a)(3)(B)(iv)(I) to commit or to incite to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity;

212(a)(3)(B)(iv)(II) to prepare or plan a terrorist activity;

212(a)(3)(B)(iv)(III) to gather information on potential targets for terrorist activity;

212(a)(3)(B)(iv)(IV) to solicit funds or other things of value for–

212(a)(3)(B)(iv)(IV)(aa) a terrorist activity;

212(a)(3)(B)(iv)(IV)(bb) a terrorist organization described in clause (vi)(I) or (vi)(II); or

212(a)(3)(B)(iv)(IV)(cc) a terrorist organization described in clause (vi)(III), unless the solicitor can demonstrate by clear and convincing evidence that he did not know, and should not reasonably have known, that the organization was a terrorist organization;

212(a)(3)(B)(iv)(V) to solicit any individual–

212(a)(3)(B)(iv)(V)(aa) to engage in conduct otherwise described in this subsection;

212(a)(3)(B)(iv)(V)(bb) for membership in a terrorist organization described in clause (vi)(I) or (vi)(II); or

212(a)(3)(B)(iv)(V)(cc) for membership in a terrorist organization described in clause (vi)(III) unless the solicitor can demonstrate by clear and convincing evidence that he did not know, and should not reasonably have known, that the organization was a terrorist organization; or

212(a)(3)(B)(iv)(VI) to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training–

212(a)(3)(B)(iv)(VI)(aa) for the commission of a terrorist activity;

212(a)(3)(B)(iv)(VI)(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;

212(a)(3)(B)(iv)(VI)(cc) to a terrorist organization described in subclause (I) or (II) of clause (vi) or to any member of such an organization; or

212(a)(3)(B)(iv)(VI)(dd) to a terrorist organization described in clause (vi)(III), or to any member of such an organization, unless the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization.

212(a)(3)(B)(v) Representative defined.–As used in this paragraph, the term “representative” includes an officer, official, or spokesman of an organization, and any person who directs, counsels, commands, or induces an organization or its members to engage in terrorist activity.

212(a)(3)(B)(vi)

See §411(c) of USA PATRIOT Act, P.L. 107-56 (10/26/01) for “Special Rule for Section 219 Organizations and Organizations Designated Under Section 212(a)(3)(B)(vi)(II).”

Terrorist organization defined.–As used in this section, the term ‘terrorist organization’ means an organization–

212(a)(3)(B)(vi)(I) designated under section 219;

212(a)(3)(B)(vi)(II) otherwise designated, upon publication in the Federal Register, by the Secretary of State in consultation with or upon the request of the Attorney General or the Secretary of Homeland Security, as a terrorist organization, after finding that the organization engages in the activities described in subclauses (I) through (VI) of clause (iv); or

212(a)(3)(B)(vi)(III) that is a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in, the activities described in subclauses (I) through (VI) of clause (iv).

212(a)(3)(C) Foreign policy.–

212(a)(3)(C)(i) In general.–An alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible.

212(a)(3)(C)(ii) Exception for officials.–An alien who is an official of a foreign government or a purported government, or who is a candidate for election to a foreign government office during the period immediately preceding the election for that office, shall not be excludable or subject to restrictions or conditions on entry into the United States under clause (i) solely because of the alien’s past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States.

212(a)(3)(C)(iii) Exception for other aliens.–An alien, not described in clause (ii), shall not be excludable or subject to restrictions or conditions on entry into the United States under clause (i) because of the alien’s past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States, unless the Secretary of State personally determines that the alien’s admission would compromise a compelling United States foreign policy interest.

212(a)(3)(C)(iv) Notification of determinations.–If a determination is made under clause (iii) with respect to an alien, the Secretary of State must notify on a timely basis the chairmen of the Committees on the Judiciary and Foreign Affairs of the House of Representatives and of the Committees on the Judiciary and Foreign Relations of the Senate of the identity of the alien and the reasons for the determination.

212(a)(3)(D) Immigrant membership in totalitarian party.–

212(a)(3)(D)(i) In general.–Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible.

212(a)(3)(D)(ii) Exception for involuntary membership.–Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that the membership or affiliation is or was involuntary, or is or was solely when under 16 years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and whether necessary for such purposes.

212(a)(3)(D)(iii) Exception for past membership.–Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that–

212(a)(3)(D)(iii)(I) the membership or affiliation terminated at least–

212(a)(3)(D)(iii)(I)(a) 2 years before the date of such application, or

212(a)(3)(D)(iii)(I)(b) 5 years before the date of such application, in the case of an alien whose membership or affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date, and

212(a)(3)(D)(iii)(II) the alien is not a threat to the security of the United States.

212(a)(3)(D)(iv) Exception for close family members.–The Attorney General may, in the Attorney General’s discretion, waive the application of clause (i) in the case of an immigrant who is the parent, spouse, son, daughter, brother, or sister of a citizen of the United States or a spouse, son, or daughter of an alien lawfully admitted for permanent residence for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest if the immigrant is not a threat to the security of the United States.

212(a)(3)(E)

Changes to INA §212(a)(3)(E) effected by §5501 of P.L. 108-458 (12/17/04) applicable to “offenses committed before, on, or after” 12/17/04.

Participants in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing.–

212(a)(3)(E)(i) Participation in Nazi persecutions.–Any alien who, during the period beginning on March 23, 1933, and ending on May 8, 1945, under the direction of, or in association with–

212(a)(3)(E)(i)(I) the Nazi government of Germany,

212(a)(3)(E)(i)(II) any government in any area occupied by the military forces of the Nazi government of Germany,

212(a)(3)(E)(i)(III) any government established with the assistance or cooperation of the Nazi government of Germany, or

212(a)(3)(E)(i)(IV) any government which was an ally of the Nazi government of Germany, ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion is inadmissible.

212(a)(3)(E)(ii) Participation in genocide.–Any alien who ordered, incited, assisted, or otherwise participated in conduct outside the United States that would, if committed in the United States or by a United States national, be genocide, as defined in section 1091(a) of title 18, United States Code, is inadmissible.

212(a)(3)(E)(iii) Commission of acts of torture or extrajudicial killings.–Any alien who, outside the United States, has committed, ordered, incited, assisted, or otherwise participated in the commission of–

212(a)(3)(E)(iii)(I) any act of torture, as defined in section 2340 of title 18, United States Code; or

212(a)(3)(E)(iii)(II) under color of law of any foreign nation, any extrajudicial killing, as defined in section 3(a) of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350 note),

is inadmissible.

212(a)(3)(F) Association with terrorist organizations.–Any alien who the Secretary of State, after consultation with the Attorney General, or the Attorney General, after consultation with the Secretary of State, determines has been associated with a terrorist organization and intends while in the United States to engage solely, principally, or incidentally in activities that could endanger the welfare, safety, or security of the United States is inadmissible.

212(a)(4)

See §423(d) of the USA PATRIOT Act, P.L. 107-56, for provisions relating to immigration benefits for the victims of terrorism.

Public charge.–

212(a)(4)(A)

Section 308(d)(1)(C) of IIRAIRA changes the term “is excludable” to “is inadmissible”. Section 531 of IIRAIRA rewrites the entire paragraph using the term “is excludable”. The Office of the Law Revision Counsel, which prepares and published the U.S. Code, uses “is inadmissible.”

The amendments made by §531 of IIRAIRA “shall apply to applications submitted on or after such date, not earlier than 30 days and not later than 60 days after the date the Attorney General promulgates under section 551(c)(2) of [IIRAIRA] a standard form for an affidavit of support, as the Attorney General shall specify, but subparagraphs (C) and (D) of section 212(a)(4) of the Immigration and Nationality Act, as so amended, shall not apply to applications with respect to which an official interview with an immigration officer was conducted before such effective date.”

In general.–Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.

212(a)(4)(B) Factors to be taken into account.–

212(a)(4)(B)(i) In determining whether an alien is excludable under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien’s–

212(a)(4)(B)(i)(I) age;

212(a)(4)(B)(i)(II) health;

212(a)(4)(B)(i)(III) family status;

212(a)(4)(B)(i)(IV) assets, resources, and financial status; and

212(a)(4)(B)(i)(V) education and skills.

212(a)(4)(B)(ii) In addition to the factors under clause (i), the consular officer or the Attorney General may also consider any affidavit of support under section 213A for purposes of exclusion under this paragraph.

212(a)(4)(C) Family-sponsored immigrants.–Any alien who seeks admission or adjustment of status under a visa number issued under section 201(b)(2) or 203(a) is excludable under this paragraph unless–

212(a)(4)(C)(i) the alien has obtained–

212(a)(4)(C)(i)(I) status as a spouse or a child of a United States citizen pursuant to clause (ii), (iii), or (iv) of section 204(a)(1)(A), or

212(a)(4)(C)(i)(II) classification pursuant to clause (ii) or (iii) of section 204(a)(1)(B);

212(a)(4)(C)(i)(III) classification or status as a VAWA self-petitioner; or

212(a)(4)(C)(ii) the person petitioning for the alien’s admission (and any additional sponsor required under section 213A(f) or any alternative sponsor permitted under paragraph (5)(B) of such section) has executed an affidavit of support described in section 213A with respect to such alien.

212(a)(4)(D) Certain employment-based immigrants.–Any alien who seeks admission or adjustment of status under a visa number issued under section 203(b) by virtue of a classification petition filed by a relative of the alien (or by an entity in which such relative has a significant ownership interest) is excludable under this paragraph unless such relative has executed an affidavit of support described in section 213A with respect to such alien.

212(a)(5)

For special provisions for citizens of Federated States of Micronesia (FSM) & of the Republic of the Marshall Islands (RMI), notwithstanding INA §212(a)(5), see Compacts between the U.S. and those two governments (Art. IV in each respective Compact), as approved in the Compact of Free Association Amendments Act of 2003, P.L. 108-188 (12/17/03), §§201(a) [FSM] & (b) [RMI]. See also §104(b) of that Act.

Labor certification and qualifications for certain immigrants.–

212(a)(5)(A) Labor certification.–

212(a)(5)(A)(i) In general.–Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that–

212(a)(5)(A)(i)(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and

212(a)(5)(A)(i)(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.

212(a)(5)(A)(ii) Certain aliens subject to special rule.–For purposes of clause (i)(I), an alien described in this clause is an alien who–

212(a)(5)(A)(ii)(I) is a member of the teaching profession, or

212(a)(5)(A)(ii)(II) has exceptional ability in the sciences or the arts.

212(a)(5)(A)(iii) Professional athletes.–

212(a)(5)(A)(iii)(I) In general.–A certification made under clause (i) with respect to a professional athlete shall remain valid with respect to the athlete after the athlete changes employer, if the new employer is a team in the same sport as the team which employed the athlete when the athlete first applied for certification.

212(a)(5)(A)(iii)(II) Definition.–For purposes of subclause (I), the term “professional athlete” means an individual who is employed as an athlete by–

212(a)(5)(A)(iii)(II)(aa) a team that is a member of an association of 6 or more professional sports teams whose total combined revenues exceed $10,000,000 per year, if the association governs the conduct of its members and regulates the contests and exhibitions in which its member teams regularly engage; or

212(a)(5)(A)(iii)(II)(bb) any minor league team that is affiliated with such an association.

212(a)(5)(A)(iv) Long delayed adjustment applicants–A certification made under clause (i) with respect to an individual whose petition is covered by section 204(j) shall remain valid with respect to a new job accepted by the individual after the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the certification was issued.

212(a)(5)(B) Unqualified physicians.–An alien who is a graduate of a medical school not accredited by a body or bodies approved for the purpose by the Secretary of Education (regardless of whether such school of medicine is in the United States) and who is coming to the United States principally to perform services as a member of the medical profession is inadmissible, unless the alien

212(a)(5)(B)(i) has passed parts I and II of the National Board of Medical Examiners Examination (or an equivalent examination as determined by the Secretary of Health and Human Services) and

212(a)(5)(B)(ii) is competent in oral and written English. For purposes of the previous sentence, an alien who is a graduate of a medical school shall be considered to have passed parts I and II of the National Board of Medical Examiners if the alien was fully and permanently licensed to practice medicine in a State on January 9, 1978, and was practicing medicine in a State on that date.

212(a)(5)(C) Uncertified foreign health-care workers.–Subject to subsection (r), any alien who seeks to enter the United States for the purpose of performing labor as a health-care worker, other than a physician, is excludable unless the alien presents to the consular officer, or, in the case of an adjustment of status, the Attorney General, a certificate from the Commission on Graduates of Foreign Nursing Schools, or a certificate from an equivalent independent credentialing organization approved by the Attorney General in consultation with the Secretary of Health and Human Services, verifying that–

212(a)(5)(C)(i) the alien’s education, training, license, and experience–

212(a)(5)(C)(i)(I) meet all applicable statutory and regulatory requirements for entry into the United States under the classification specified in the application;

212(a)(5)(C)(i)(II) are comparable with that required for an American health-care worker of the same type; and

212(a)(5)(C)(i)(III) are authentic and, in the case of a license, unencumbered;

212(a)(5)(C)(ii) the alien has the level of competence in oral and written English considered by the Secretary of Health and Human Services, in consultation with the Secretary of Education, to be appropriate for health care work of the kind in which the alien will be engaged, as shown by an appropriate score on one or more nationally recognized, commercially available, standardized assessments of the applicant’s ability to speak and write; and

212(a)(5)(C)(iii) if a majority of States licensing the profession in which the alien intends to work recognize a test predicting the success on the profession’s licensing or certification examination, the alien has passed such a test, or has passed such an examination.

For purposes of clause (ii), determination of the standardized tests required and of the minimum scores that are appropriate are within the sole discretion of the Secretary of Health and Human Services and are not subject to further administrative or judicial review.

212(a)(5)(D) Application of grounds.–The grounds for inadmissibility of aliens under subparagraphs (A) and (B) shall apply to immigrants seeking admission or adjustment of status under paragraph (2) or (3) of section 203(b).

212(a)(6) Illegal entrants and immigration violators.–

212(a)(6)(A) Eff date

Section 301(c)(2) of IIRAIRA provides: “Transition for battered spouse or child provision.–The requirements of subclauses (II) and (III) of section 212(a)(6)(A)(ii) of the Immigration and Nationality Act, as inserted by paragraph (1), shall not apply to an alien who demonstrates that the alien first arrived in the United States before the title III-A effective date (described in section 309(a)).” See §309 IIRAIRA for “title III-A” effective date provisions.

Aliens present without admission or parole.–

212(a)(6)(A)(i) In general.–An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.

212(a)(6)(A)(ii) Exception for certain battered women and children.–Clause (i) shall not apply to an alien who demonstrates that–

212(a)(6)(A)(ii)(I) the alien is a VAWA self-petitioner;

212(a)(6)(A)(ii)(II)

212(a)(6)(A)(ii)(II)(a) the alien has been battered or subjected to extreme cruelty by a spouse or parent, or by a member of the spouse’s or parent’s family residing in the same household as the alien and the spouse or parent consented or acquiesced to such battery or cruelty, or

212(a)(6)(A)(ii)(II)(b) the alien’s child has been battered or subjected to extreme cruelty by a spouse or parent of the alien (without the active participation of the alien in the battery or cruelty) or by a member of the spouse’s or parent’s family residing in the same household as the alien when the spouse or parent consented to or acquiesced in such battery or cruelty and the alien did not actively participate in such battery or cruelty, and

212(a)(6)(A)(ii)(III) there was a substantial connection between the battery or cruelty described in subclause (I) or (II) and the alien’s unlawful entry into the United States.

212(a)(6)(B) Failure to attend removal proceeding.–Any alien who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability and who seeks admission to the United States within 5 years of such alien’s subsequent departure or removal is inadmissible.

212(a)(6)(C) Misrepresentation.–

212(a)(6)(C)(i) In general.–Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

212(a)(6)(C)(ii) Falsely claiming citizenship.– Ed note

This provision was added by §344(a) of IIRAIRA and applies only to representations made on or after the date of enactment (Sept. 30, 1996). Amended by Sec. 201(b)(2), title II, Child Citizenship Act of 2000, Pub. L. No. 106-395, Act of Oct. 30, 2000, 114 Stat. 1631; effective date: Sec. 201(b)(3) of such title II of such Act provided in pertinent part that “The amendment made by [Sec. 201(b)(2)] shall be effective as if included in the enactment of section 344 of the IIRAIRA of 1996 (Pub. L. No. 104-208).

212(a)(6)(C)(ii)(I) In general.–Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this Act (including section 274A) or any other Federal or State law is inadmissible.

212(a)(6)(C)(ii)(II) Exception–In the case of an alien making a representation described in subclause (I), if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of making such representation that he or she was a citizen, the alien shall not be considered to be inadmissible under any provision of this subsection based on such representation.

212(a)(6)(C)(iii) Waiver authorized.–For provision authorizing waiver of clause (i), see subsection (i).

212(a)(6)(D) Stowaways.–Any alien who is a stowaway is inadmissible.

212(a)(6)(E) Smugglers.–

212(a)(6)(E)(i) In general.–Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.

212(a)(6)(E)(ii) Special rule in the case of family reunification.–Clause (i) shall not apply in the case of alien who is an eligible immigrant (as defined in section 301(b)(1) of the Immigration Act of 1990), was physically present in the United States on May 5, 1988, and is seeking admission as an immediate relative or under section 203(a)(2) (including under section 112 of the Immigration Act of 1990) or benefits under section 301(a) of the Immigration Act of 1990 if the alien, before May 5, 1988, has encouraged, induced, assisted, abetted, or aided only the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.

212(a)(6)(E)(iii) Waiver authorized.–For provision authorizing waiver of clause (i), see subsection (d)(11).

212(a)(6)(F) Subject of civil penalty.–

212(a)(6)(F)(i) In general.–An alien who is the subject of a final order for violation of section 274C is inadmissible.

212(a)(6)(F)(ii) Waiver authorized.–For provision authorizing waiver of clause (i), see subsection (d)(12).

212(a)(6)(G) Eff date

See §346 of IIRAIRA, effective for “aliens who obtain the status of a nonimmigrant under section 101(a)(15)(F) of the [INA] after the end of the 60-day period beginning on the date of enactment of [IIRAIRA], including aliens whose status as such a nonimmigrant is extended after the end of such period.”

Student visa abusers.–An alien who obtains the status of a nonimmigrant under section 101(a)(15)(F)(i) and who violates a term or condition of such status under section 214(l) Reference is most likey to the §214(l) that was redesignated §214(m) by Pub. L. 106-386. is excludable until the alien has been outside the United States for a continuous period of 5 years after the date of the violation.

212(a)(7) Documentation requirements.–

212(a)(7)(A) Immigrants.–

212(a)(7)(A)(i) In general.–Except as otherwise specifically provided in this Act, any immigrant at the time of application for admission–

212(a)(7)(A)(i)(I) who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations issued by the Attorney General under section 211(a), or

212(a)(7)(A)(i)(II) whose visa has been issued without compliance with the provisions of section 203, is inadmissible.

212(a)(7)(A)(ii) Waiver authorized.–For provision authorizing waiver of clause (i), see subsection (k).

212(a)(7)(B) Nonimmigrants.–

212(a)(7)(B)(i) In general.– Any nonimmigrant who–

212(a)(7)(B)(i)(I) is not in possession of a passport valid for a minimum of six months from the date of the expiration of the initial period of the alien’s admission or contemplated initial period of stay authorizing the alien to return to the country from which the alien came or to proceed to and enter some other country during such period, or

212(a)(7)(B)(i)(II) Ed note

For special provisions for citizens of Federated States of Micronesia (FSM) and of the Republic of the Marshall Islands (RMI), notwithstanding INA §212(a)(7)(b)(i)(II), see Compacts between the U.S. and those two governments (Art. IV in each respective Compact), as approved in the Compact of Free Association Amendments Act of 2003, P.L. 108-188 (12/17/03), §§201(a) [FSM] and (b) [RMI]. See also §104(b) of that Act.

is not in possession of a valid nonimmigrant visa or border crossing identification card at the time of application for admission,

is inadmissible.

212(a)(7)(B)(ii) General waiver authorized.–For provision authorizing waiver of clause (i), see subsection (d)(4).

212(a)(7)(B)(iii) Guam visa waiver.–For provision authorizing waiver of clause (i) in the case of visitors to Guam, see subsection (l).

212(a)(7)(B)(iv) Visa waiver program.–For authority to waive the requirement of clause (i) under a program, see section 217.

212(a)(8) Ineligible for citizenship.–

212(a)(8)(A) In general.–Any immigrant who is permanently ineligible to citizenship is inadmissible.

212(a)(8)(B) Draft evaders.–Any person who has departed from or who has remained outside the United States to avoid or evade training or service in the armed forces in time of war or a period declared by the President to be a national emergency is inadmissible, except that this subparagraph shall not apply to an alien who at the time of such departure was a nonimmigrant and who is seeking to reenter the United States as a nonimmigrant.

212(a)(9) Aliens previously removed.–

212(a)(9)(A) Certain aliens previously removed.–

212(a)(9)(A)(i) Arriving aliens.–Any alien who has been ordered removed under section 235(b)(1) or at the end of proceedings under section 240 initiated upon the alien’s arrival in the United States and who again seeks admission within 5 years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

212(a)(9)(A)(ii) Other aliens.–Any alien not described in clause (i) who–

212(a)(9)(A)(ii)(I) has been ordered removed under section 240 or any other provision of law, or

212(a)(9)(A)(ii)(II) departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien’s departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

212(a)(9)(A)(iii) Exception.–Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the alien’s reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the Attorney General has consented to the alien’s reapplying for admission.

212(a)(9)(B)

Section 301(b)(3) of IIRAIRA provides: “In applying section 212(a)(9)(B) of the Immigration and Nationality Act, as inserted by paragraph (1), no period before the title III-A effective date shall be included in a period of unlawful presence in the United States.” See IIRAIRA §309 for title III-A effective date provisions.

Aliens unlawfully present.–

212(a)(9)(B)(i) In general.–Any alien (other than an alien lawfully admitted for permanent residence) who–

212(a)(9)(B)(i)(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e) [sic]

Sic. Probably should be §240B.

) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien’s departure or removal, or

212(a)(9)(B)(i)(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible.

212(a)(9)(B)(ii) Construction of unlawful presence.–For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.

212(a)(9)(B)(iii) Exceptions.–

212(a)(9)(B)(iii)(I) Minors.–No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (i).

212(a)(9)(B)(iii)(II) Asylees.–No period of time in which an alien has a bona fide application for asylum pending under section 208 shall be taken into account in determining the period of unlawful presence in the United States under clause (i) unless the alien during such period was employed without authorization in the United States.

212(a)(9)(B)(iii)(III) Family unity.–No period of time in which the alien is a beneficiary of family unity protection pursuant to section 301 of the Immigration Act of 1990 shall be taken into account in determining the period of unlawful presence in the United States under clause (i).

212(a)(9)(B)(iii)(IV) Battered women and children.–Clause (i) shall not apply to an alien who would be described in paragraph (6)(A)(ii) if “violation of the terms of the alien’s nonimmigrant visa” were substituted for “unlawful entry into the United States” in subclause (III) of that paragraph.

212(a)(9)(B)(iii)(V) Victims of a severe form of trafficking in persons–Clause (i) shall not apply to an alien who demonstrates that the severe form of trafficking (as that term is defined in section 103 of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102)) was at least one central reason for the alien’s unlawful presence in the United States.

212(a)(9)(B)(iv) Tolling for good cause.– In the case of an alien who–

212(a)(9)(B)(iv)(I) has been lawfully admitted or paroled into the United States,

212(a)(9)(B)(iv)(II) has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the Attorney General, and

212(a)(9)(B)(iv)(III) has not been employed without authorization in the United States before or during the pendency of such application, the calculation of the period of time specified in clause (i)(I) shall be tolled during the pendency of such application, but not to exceed 120 days.

212(a)(9)(B)(v) Waiver.–The Attorney General has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause.

212(a)(9)(C) Aliens unlawfully present after previous immigration violations.–

212(a)(9)(C)(i) In general.– Any alien who–

212(a)(9)(C)(i)(I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or

212(a)(9)(C)(i)(II) has been ordered removed under section 235(b)(1), section 240, or any other provision of law, and who enters or attempts to reenter the United States without being admitted is inadmissible.

212(a)(9)(C)(ii) Exception.–Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien’s last departure from the United States if, prior to the alien’s reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Secretary of Homeland Security has consented to the alien’s reapplying for admission.

212(a)(9)(C)(iii) Waiver.–The Secretary of Homeland Security may waive the application of clause (i) in the case of an alien who is a VAWA self-petitioner if there is a connection between–

212(a)(9)(C)(iii)(I) the alien’s battering or subjection to extreme cruelty; and

212(a)(9)(C)(iii)(II) the alien’s removal, departure from the United States, reentry or reentries into the United States; or attempted reentry into the United States.

212(a)(10) Miscellaneous.–

212(a)(10)(A) Practicing polygamists.–Any immigrant who is coming to the United States to practice polygamy is inadmissible.

212(a)(10)(B) Guardian required to accompany helpless alien.–Any alien–

212(a)(10)(B)(i) who is accompanying another alien who is inadmissible and who is certified to be helpless from sickness, mental or physical disability, or infancy pursuant to section 232(c), and

212(a)(10)(B)(ii) whose protection or guardianship is determined to be required by the alien described in clause (i),

is inadmissible.

212(a)(10)(C) International child abduction.–

212(a)(10)(C)(i) In general.–Except as provided in clause (ii), any alien who, after entry of an order by a court in the United States granting custody to a person of a United States citizen child who detains or retains the child, or withholds custody of the child, outside the United States from the person granted custody by that order, is inadmissible until the child is surrendered to the person granted custody by that order.

212(a)(10)(C)(ii) Aliens supporting abductors and relatives of abductors. –Any alien who–

212(a)(10)(C)(ii)(I) is known by the Secretary of State to have intentionally assisted an alien in the conduct described in clause (i),

212(a)(10)(C)(ii)(II) is known by the Secretary of State to be intentionally providing material support or safe haven to an alien described in clause (i), or

212(a)(10)(C)(ii)(III) Ed note

Subclause 212(a)(10)(C)(ii)(III), reprinted here as in the original legislation (P.L. 105-277, §2226), most probably should be read as if it ended after the comma after the words “unreviewable discretion,” with the remaining text (beginning with “is inadmissible”) outdented and applicable to all of clause (10)(C)(ii). Note that the subclause could also be read (albeit less plausibly) as if it ended after the first reference to “clause (i),” making the phrase referring to the Secretary’s unreviewable discretion also applicable to all of clause (10)(C)(ii)

is a spouse (other than the spouse who is the parent of the abducted child), child (other than the abducted child), parent, sibling, or agent of an alien described in clause (i), if such person has been designated by the Secretary of State at the Secretary’s sole and unreviewable discretion, is inadmissible until the child described in clause (i) is surrendered to the person granted custody by the order described in that clause, and such person and child are permitted to return to the United States or such person’s place of residence.

212(a)(10)(C)(iii) Exceptions.–Clauses (i) and (ii) shall not apply–

212(a)(10)(C)(iii)(I) to a government official of the United States who is acting within the scope of his or her official duties;

212(a)(10)(C)(iii)(II) to a government official of any foreign government if the official has been designated by the Secretary of State at the Secretary’s sole and unreviewable discretion; or

212(a)(10)(C)(iii)(III) so long as the child is located in a foreign state that is a party to the Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980.

212(a)(10)(D) Unlawful voters.–

212(a)(10)(D)(i) In General.–Any alien who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation is inadmissible.

212(a)(10)(D)(ii) Exception.–In the case of an alien who voted in a Federal, State, or local election (including an initiative, recall, or referendum) in violation of a lawful restriction of voting to citizens, if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such violation that he or she was a citizen, the alien shall not be considered to be inadmissible under any provision of this subsection based on such violation.

212(a)(10)(E)

Added by §352 of HR 2202, effective for “individuals who renounce United States citizenship on and after the date of the enactment of [HR 2202].

Former citizens who renounced citizenship to avoid taxation.–Any alien who is a former citizen of the United States who officially renounces United States citizenship and who is determined by the Attorney General to have renounced United States citizenship for the purpose of avoiding taxation by the United States is excludable.

Minnesota Immigration Lawyers

www.cundyandmartin.com



By: Minneapolis Immigration Lawyer

About the Author:

I have learned a great deal from many older mentors over the course of the years. My father died the day after my 17th birthday so naturally I have had many other father figures since that time. One of my closest and dearest friends, an excellent trial attorney in Pennsylvania, named E.J. Carreiro taught me to always begin with the end in mind. As a lawyer that means begin your case by looking at what needs to be proven. For a negligence case that means: duty, breach of duty, proximate cause (relationship between duty and the breach), and damages.

For New York DWI cases the government has the burden of going forward, the government has to prove their case beyond a reasonable doubt, and the government has to overcome the presumption of innocence.

Looking at the New York DWI Jury Instructions (the Judge instructs the jury with specific directions) for the per se charge (.08BAC or higher) VTL 1192 (2) states: Under our law, evidence that the defendant operated a motor vehicle, and that thereafter the defendant had .08 of one per centum or more by weight of alcohol in his or her blood permits, but does not require, the inference that, at the time of operation of the motor vehicle, the defendant had .08 of one per centum or more by weight of alcohol in his or her blood.

In deciding whether to draw that inference (a likely conclusion drawn from the facts) you may consider the results of any test given to determine the alcohol content of the defendant’s blood. In this case, the device (it is a machine) used to measure blood alcohol content was a Datamaster DMT (usually). That device is generally accepted instrument (machine) for determining blood alcohol content. Thus, the People are not required to offer expert scientific testimony to establish the validity of the principles upon which the device (machine) is based.

NOW COMES THE GOOD PART: In considering the results of any test given to determine the alcohol content of defendant’s blood you MUST consider:

1. the qualifications and reliability of the person who gave the test;

2. the lapse of time between the operation of the motor vehicle and the giving of the test;

3. Whether the device (machine) was in good working order at the time the test was administered;

4. Whether the test was properly given.

Note: We can always argue all the problems inherent with breath testing (an indirect measurement of blood alcohol), and all the problems with the machine. …

Nevertheless, in evaluating the evidence offered to prove that the defendant did operate a motor vehicle while having a blood alcohol content of .08 or higher,

the jury MAY also consider, in addition to evidence of the results of the chemical test and the circumstances under it was administered,

ANY evidence that, at times relevant to this charge, the defendant exhibited, or did not exhibit, signs of alcohol consumption. Thus you MAY consider evidence of:

1. the defendant’s physical condition and appearance,

2. balance and coordination,

3. manner of speech,

4. the presence or absence of an odor of alcohol,

5. the manner in which the defendant operated the motor vehicle (driving),

6. opinion testimony regarding defendant’s sobriety,

7. the circumstances surrounding any accident.

The key of course with attacking the per se 1192 charge is going after the machine, it is not an instrument, not a device, it it “La Machina” and as such needs to be treated as such. It is not forensically reliable or accurate by any scientific standards or measure.

Bringing this information (in simple terms) to the eyes and minds of the jury takes it off it’s pedestal. It is no more reliable than my vista software, my microwave, my vacuum cleaner, or my car on any given day. Accept those machines do not threaten me with jail, fines, probation, and alcohol treatment. –



By: DWI Defense Lawyer Larry Newman

About the Author:

Question #1: How much experience do you have specifically in the field of criminal law?

Some lawyers accept just about any case that comes their way, and then they find another attorney to handle it in return for some of the money recovered. You’ll get better results with an attorney whose only focus is on criminal law.

A criminal lawyer with extensive experience will understand how to aggressively represent you in and out of state and federal court rooms. In addition, you’ll likely get an accurate estimate for the length of your case and its strong and weak points.

Question #2: What are your qualifications?

You’ll want to find a criminal law lawyer who is licensed to practice before state and federal courts within your state, as well as the United States Court of Appeals and the U.S. Supreme Court.

Question #3: What professional associations do you belong to?

Involvement with professional associations helps demonstrate a lawyer’s commitment to the legal system. Some favorable associations include the National Association of Criminal Defense Lawyers, American Bar Association and Association of Trial Lawyers of America. Also, look for attorneys who are members of the trial lawyers and bar associations from your state.

You may also want to seek out lawyers who are members of the Million Dollar Advocate Forum, an organization whose membership is limited to attorneys who have obtained settlements or judgments of $1 million or more.

Question #4: Will you handle my case or will you assign the case to an assistant?

Some law firms use senior lawyers to bring in cases and then assign the cases to assistants. You want an experienced criminal law lawyer handling your case.

Question #5: What are the fees for using your services?

Your attorney should be upfront about the merits of your case and fee. During your initial consultation, you should find out what your case will cost. A flat fee agreement will ensure there are no hidden charges.

Question #6: (Ask yourself this final question.): Do you trust the lawyer?

Find out what reputation your lawyer has with clients and the legal community. In addition, make sure your lawyer takes significant time to listen to you carefully, take notes and read your file thoroughly. Let your lawyer show you that he truly cares about the outcome of your case.

Resource Box

 

Frederick D. Paoletti, Jr. is the founding principal of Paoletti & Gusmano Attorneys at Law, a criminal defense and personal injury firm located in Bridgeport, Connecticut. For more articles related to protecting yourself during personal injury and criminal situations, please visit http://www.paolettilaw.net.

 



By: Frederick D. Paoletti, Jr.

About the Author:

How shameful it feels to be convicted of drinking under the influence of alcohol! However, an online DUI lawyer can save your face! You need not get dejected on being caught with a few ounces more alcohol than permissible on the machine test results. There are many tactics available with a DUI lawyer that can bring you out of court in no time.

Only Experienced; No Other

But before you say “yes” to an online DUI lawyer, it’s important that you meet him or her first to see whether he or she is the right person for your case. Go for an experienced lawyer. You already are suffering due to your mistake; now you wouldn’t want to suffer more due to someone else’s mistake, probably an amateur’s. So, hire a DUI defense lawyer who knows what to do and how.

Don’t ever think you can get away with this charge and live life forgetting it later on. This charge is gonna stick to you till the last breath you take. The only way to get rid of it is to hire an online DUI lawyer. He will use some of the defenses such as certain medical conditions in which the machine for breath tests gives wrong results.

If you are suffering from teeth problems or a heartburn condition, you have obvious chances of escaping from this life-long taint. The only thing you need to do is make a few efforts of getting the best DUI lawyer for you. Such a lawyer knows every aspect of DUI law and can help you in every step of court proceeding.

It’s already wrong to mix drinking and driving. And the other wrong that people do is to not hire online DUI lawyer. Don’t be one of those people. If you want a successful career and a happy family, it’s best to cast away this charge from you.

Hire an online DUI lawyer and watch how he or she turns your fault into the fault of the machine!



By: Apurva Shree

About the Author:

“For the lawyer marketing, Internet is a key instrument for competent perspective that enlightens the services of the organization and then transfers them to clients. For users, the network easier to make the formal study and the procedure for locate a lawyer.

Lawyer marketing helps organizations the right to use the Internet to connect with customers rather experienced. Lawyer marketing make websites and on online advertising policies that unite scientific knowledge with the deep awareness of official business. Law firm advertising consultants and local consultants offer Web service and modern explanations for each organization to create a right to be visible in the crowd, the change of the Internet in effective and successful client team of growth for lawyers.

High Bar For the full list of options for solutions based on Web advertising Lawyer marketing includes knowledge of search engine optimization, site plan, and customized material. In addition to the belt until the influence of Lawyers Max-base the most beloved of online legal information – to force Internet traffic to our clients’ Web sites and personal pages.

It is very important for you to have a certified site, possibly with a blog attached to it. Then you have to work on your search engine optimization to ensure that crops of the website’s Internet explorations of related phrases or keywords. Above that, you have to make an online print program through editorials and press releases for their wider dissemination and coverage.

Here are some key factors that suggest time and time again for clients:

* A well-designed website with lots of content loaded with keywords

* Search Engine Optimization for add ranking in Google, Yahoo, and the rest.

* A production plan leads to the transfer of the client’s website to customers.

* A blog officially allowed to show their knowledge and improve their web presence in the fullness of time

* Some kind of public relations program online, through the ad and the piece from the writings of

* The strength, determination and a strong desire to achieve something

This way to overlap of web advertising is the means to successful outcomes. A number of lawyers and law firms that until now was aware of this, and are achieving new levels of efficiency of production as a direct result. Lawyer marketing ensure that you meet all the demands of customers. Lawyer marketing ensure that the website design, sale or lease is done correctly and there is room for improvement left. Lawyer marketing have a group of web designers and specialized professionals and consultants who will ensure that whatever you are doing is simply excellent and satisfactory. Lawyer marketing will definitely help you climb the ladder of success in this competitive business. “



By: Attorney

About the Author:

Injuries happen to almost all of us – daily, weekly or once in a blue moon. The cause of the injury might be our own negligence or somebody else’s action. If it results from somebody else’s action, it is but natural to seek compensation for the injury – either from the person or from his/her insurance company. But this rarely happens and most of the time, you need to engage the services of a personal injury lawyer and go to court to get your rightful compensation.

Most of the time people avoid taking responsibility for their action that caused the injury. Their insurance company too will look to profit by not giving full compensation through a myriad of legal maneuvers. Only an experienced personal injury attorney or lawyer can help you navigate through that personal injury laws and litigation. He/she would know how to build your case, negotiate with the insurance company and if necessary, take the case to trial.

A personal injury lawyer can invariable help you get a settlement that is favorable and substantial enough to significantly exceed what you can get on your own – even after the attorney fee deduction. Most personal injury lawyers accept cases on a contingent fee (or “contingency fee”) basis, so that if you win the case, you pay a percentage of the settlement to the lawyer (usually one third to 40%) and if you lose, the lawyer gets nothing. Of course, certain costs involved with the case have to be paid apart from the fees.

Personal injury lawyers can be sourced from a variety of sources ranging from advice from friends to your doctor or your family. Even the Yellow Pages can come in handy. Some of the best resources for finding personal injury lawyers are available online. All you have to do is performing a search and you’ll get list of lawyers to choose among. But the best method of deciding upon a personal injury lawyer is invariably the reference of one from an attorney you trust.

Another point to be kept in mind while hiring a personal injury lawyer is that the final choice is entirely yours. Just meeting a lawyer does not bind you to hire him or her. You might have to pay an initial consultation fee, but there is no obligation. And even if there is not initial fee, you have every right to talk with more than a single lawyer before reaching your decision on whom to hire. Hiring a personal injury lawyer is a big step, and there is nothing wrong with consulting several lawyers to find one who makes you comfortable.

Finally, always make sure you sign a written retainer agreement with the lawyer listing out all the details. This is the best way to ensure that you don’t get cheated by the very lawyer whom you hired for helping you fight against getting cheated. Whether the agreement is short or long, read through it end to end before signing and make sure to ask for clarifications for any doubts.



By: Ian Koch

About the Author:

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