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Matthew Kolken on Deportation And Removal

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  1. Mexico is suing Arizona over Immigration Law

    by , 09-13-2010 at 07:10 AM (Matthew Kolken on Deportation And Removal)
  2. ICE Press Release: Owner of 3 Virginia restaurants arrested for harboring undocumented aliens

    by , 09-10-2010 at 11:42 AM (Matthew Kolken on Deportation And Removal)
    The following is an ICE press release:Fairfax, Va. - Kiet Boc Bui, a resident of Centerville, Va. and the
    owner of three Viet House restaurants in Virginia, was arrested
    yesterday on charges of knowingly employing and harboring illegal aliens
    after an investigation by U.S. Immigration and Customs Enforcement
    (ICE).

    "ICE aggressively targets employers who violate immigration laws by
    knowingly employing an illegal alien workforce," said John P. Torres,
    special agent in charge of the ICE Office of Homeland Security
    Investigations (HSI) in Washington, D.C. "No industry is immune to
    following the law. Businesses that use illegal alien workers must
    understand that they will be held accountable for those unlawful
    practices."

    According to court documents, between approximately April 5, 2005,
    and April 20, 2010, Bui allegedly knowingly employed and harbored
    illegal aliens not authorized to work in the United States. He allegedly
    employed at least seven illegal aliens and paid the workers in cash. In
    addition, he is alleged to have not kept payroll records for those
    employees and allegedly did not report the workers to the Virginia
    Employment Commission.

    According to court documents, Bui allegedly had not filed an I-9 form
    for any of the employees who were paid in cash. Employers are required
    to complete this employment eligibility verification form within three
    business days after an employee is hired.

    The case is being prosecuted by Special Assistant U. S. Attorney
    Joseph V. Moreno and Assistant U. S. Attorney Gordon Kromberg. ICE has
    developed a comprehensive worksite enforcement strategy that promotes
    national security, protects critical infrastructure and ensures fair
    labor standards. ICE's worksite enforcement investigations focus on
    egregious employers involved in criminal activity or worker
    exploitation.



    -- ICE --
  3. October 2010 Visa Bulletin Released

    by , 09-10-2010 at 10:29 AM (Matthew Kolken on Deportation And Removal)

    Number 25

    Volume IX

    Washington, D.C.

    A. STATUTORY NUMBERS
    1. This bulletin summarizes the availability of immigrant numbers during October.
    Consular officers are required to report to the Department of State
    documentarily qualified applicants for numerically limited
    visas; the Bureau of Citizenship and Immigration
    Services in the Department of Homeland Security reports applicants for
    adjustment
    of status.  Allocations were made, to the extent
    possible under the numerical limitations, for the demand received by
    September
    9th in the chronological order
    of the reported priority dates. If the demand could not be satisfied
    within the statutory or regulatory
    limits, the category or foreign state in which
    demand was excessive was deemed oversubscribed.  The cut-off date for an
    oversubscribed
    category is the priority date of the first
    applicant who could not be reached within the numerical limits.  Only
    applicants
    who have a priority date earlier than
    the cut-off date may be allotted a number.  Immediately that it becomes
    necessary during the monthly allocation process to
    retrogress a cut-off date, supplemental requests
    for numbers will be honored only if the priority date falls within the
    new
    cut-off date which has been announced in this
    bulletin.
    2. Section 201 of the Immigration and Nationality Act (INA) sets an annual
    minimum
    family-sponsored preference limit of 226,000.  The worldwide level for
    annual employment-based preference immigrants
    is at least 140,000.  Section 202 prescribes
    that the per-country limit for preference immigrants is set at 7% of the
    total
    annual family-sponsored and employment-based
    preference limits, i.e., 25,620.  The dependent area limit is set at 2%,
    or 7,320.

    3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:
    FAMILY-SPONSORED PREFERENCES
    First: Unmarried Sons and Daughters of Citizens:  23,400 plus any numbers not required for fourth preference.

    Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent
    Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused
    first preference numbers:

    A. Spouses and Children:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
    B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.
    Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.

    Fourth: Brothers and Sisters of Adult Citizens:  65,000, plus any numbers not required by first three preferences.

    EMPLOYMENT-BASED PREFERENCES
    First: Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and
    fifth preferences.

    Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based
    preference level, plus any numbers not required by first preference.

    Third: Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first
    and second preferences, not more than 10,000 of which to "Other Workers".

    Fourth: Certain Special Immigrants:  7.1% of the worldwide level.

    Fifth: Employment
    Creation:  7.1% of the worldwide level, not less than 3,000 of which
    reserved for investors in a targeted rural
    or high-unemployment area, and 3,000 set aside
    for investors in regional centers by Sec. 610 of P.L. 102-395.

    4. INA
    Section 203(e) provides that family-sponsored and employment-based
    preference visas be issued to eligible immigrants
    in the order in which a petition in behalf of
    each has been filed.  Section 203(d) provides that spouses and children
    of preference
    immigrants are entitled to the same status, and
    the same order of consideration, if accompanying or following to join
    the
    principal.  The visa prorating provisions of
    Section 202(e)apply to allocations for a foreign state or dependent area
    when
    visa demand exceeds the per-country limit. 
    These provisions apply at present to the following oversubscribed
    chargeability
    areas:  CHINA-mainland born, INDIA, MEXICO, and
    PHILIPPINES.

    5. On
    the chart below, the listing of a date for any class indicates that the
    class is oversubscribed (see paragraph 1); "C"
    means current, i.e., numbers are available for
    all qualified applicants; and "U" means unavailable, i.e., no numbers
    are available. 
    (NOTE:  Numbers are available only for
    applicants whose priority date is earlier than the cut-off date listed below.)




    Family
    All Chargeability Areas Except Those Listed
    CHINA-mainland born
    INDIA
    MEXICO
    PHILIPPINES


    1st
    15FEB06
    15FEB06
    15FEB06
    15DEC92
    01MAR97


    2A
    01APR10
    01APR10
    01APR10
    01JAN10
    01APR10


    2B
    01APR05
    01APR05
    01APR05
    22JUN92
    01SEP02


    3rd
    01MAY02
    01MAY02
    01MAY02
    22OCT92
    01MAR95


    4th
    01DEC01
    01DEC01
    01DEC01
    08DEC95
    01APR91



    *NOTE: For October, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01JAN10.  2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT the MEXICO with priority dates beginning 01JAN10 and earlier than 01APR10.  (All 2A numbers provided for the MEXICO are exempt from
    the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)




    Employment- Based

    All Chargeability Areas Except Those Listed

    CHINA- mainland born
    INDIA
    MEXICO
    PHILIPPINES


    1st
    C
    C
    C
    C
    C


    2nd
    C
    22MAY06
    08MAY06
    C
    C


    3rd
    08JAN05
    08NOV03
    15JAN02
    22APR01
    08JAN05


    Other Workers
    22MAR03
    22MAR03
    15JAN02
    22APR01
    22MAR03


    4th
    C
    C
    C
    C
    C


    Certain Religious Workers
    C
    C
    C
    C
    C


    5th
    C
    C
    C
    C
    C


    Targeted Employment Areas/ Regional Centers
    C
    C
    C
    C
    C


    5th Pilot Programs
    C
    C
    C
    C
    C



    The
    Department of State has available a recorded message with visa
    availability information which can be heard at:  (area
    code 202) 663-1541.  This recording will be
    updated in the middle of each month with information on cut-off dates
    for the
    following month.

    Employment
    Third Preference Other Workers Category:  Section 203(e) of the NACARA,
    as amended by Section 1(e) of Pub. L. 105-139,
    provides that once the Employment Third
    Preference Other Worker (EW) cut-off date has reached the priority date
    of the latest
    EW petition approved prior to November 19, 1997,
    the 10,000 EW numbers available for a fiscal year are to be reduced by
    up
    to 5,000 annually beginning in the following
    fiscal year.  This reduction is to be made for as long as necessary to
    offset
    adjustments under the NACARA program.  Since the
    EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the
    reduction
    in the EW annual limit to 5,000 began in Fiscal
    Year 2002.

    B. DIVERSITY IMMIGRANT (DV) CATEGORY
    Section
    203(c) of the Immigration and Nationality Act provides a maximum of up
    to 55,000 immigrant visas each fiscal year
    to permit immigration opportunities for persons
    from countries other than the principal sources of current immigration
    to
    the United States.  The Nicaraguan and Central
    American Relief Act (NACARA) passed by Congress in November 1997
    stipulates
    that beginning with DV-99, and for as long as
    necessary, up to 5,000 of the 55,000 annually-allocated diversity visas
    will
    be made available for use under the NACARA
    program.  This reduction has resulted in the DV-2011 annual limit being reduced to 50,000.  DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available
    diversity visas in any one year.

    For October,
    immigrant numbers in the DV category are available to qualified DV-2011
    applicants chargeable to all regions/eligible countries
    as follows. When an allocation cut-off number is
    shown, visas are available only for applicants with DV regional lottery
    rank
    numbers BELOW the specified allocation cut-off number:




    Region
    All DV Chargeability Areas Except Those Listed Separately
     



    AFRICA

    9,000
    Except: Egypt  5,550
    Ethiopia  7,450
    Nigeria 7,450



    ASIA

    9,000
     


    EUROPE

    9,600
     


    NORTH AMERICA (BAHAMAS)

    1
     


    OCEANIA

    350
     


    SOUTH AMERICA, and the CARIBBEAN

    450
     



    Entitlement
    to immigrant status in the DV category lasts only through the end of
    the fiscal (visa) year for which the applicant
    is selected in the lottery.  The year of
    entitlement for all applicants registered for the DV-2011 program ends
    as of September
    30, 2011.  DV visas may not be issued to DV-2011
    applicants after that date.  Similarly, spouses and children
    accompanying
    or following to join DV-2011 principals are only
    entitled to derivative DV status until September 30, 2011.  DV visa
    availability
    through the very end of FY-2011 cannot be taken
    for granted.  Numbers could be exhausted prior to September 30.

    C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN OCTOBER
    For November,
    immigrant numbers in the DV category are available to qualified DV-2011
    applicants chargeable to all regions/eligible countries
    as follows. When an allocation cut-off number is
    shown, visas are available only for applicants with DV regional lottery
    rank
    numbers BELOW the specified allocation cut-off number:




    Region
    All DV Chargeability Areas Except Those Listed Separately
     



    AFRICA

    12,000
    Except: Egypt  9,300
    Ethiopia  11,000
    Nigeria 10,000



    ASIA

    10,750
     


    EUROPE

    12,500
     


    NORTH AMERICA (BAHAMAS)

    2
     


    OCEANIA

    650
     


    SOUTH AMERICA, and the CARIBBEAN

    675
     



    D. OBTAINING THE MONTHLY VISA BULLETIN
    The Department of State's Bureau of Consular Affairs offers the monthly "Visa Bulletin" on the INTERNET'S WORLDWIDE WEB. 
    The INTERNET Web address to access the Bulletin is: 

    http://travel.state.gov
    From the home page, select the VISA section which contains the Visa Bulletin.
    To be placed on the Department of State's E-mail subscription list for the "Visa Bulletin", please send an E-mail to the following E-mail
    address:

    listserv@calist.state.gov
    and in the message body type:
    Subscribe Visa-Bulletin First name/Last name
    (example:  Subscribe Visa-Bulletin  Sally Doe)
    To be removed from the Department of State's E-mail subscription list for the  "Visa Bulletin", send an e-mail message to the following E-mail address:

    listserv@calist.state.gov
    and in the message body type: Signoff Visa-Bulletin
    The
    Department of State also has available a recorded message with visa
    cut-off dates which can be heard at:  (area code 202)
    663-1541.  The recording is normally updated by
    the middle of each month with information on cut-off dates for the
    following
    month.

    Readers may submit questions regarding Visa Bulletin related items by
    E-mail at the following address:

    VISABULLETIN@STATE.GOV
    (This address cannot be used to subscribe to the Visa Bulletin.) 
    Department of State Publication 9514
    CA/VO:September 9, 2010


  4. Board of Immigration Appeals Decision: 245(i) "Grandfather" Eligibility

    by , 09-03-2010 at 07:45 AM (Matthew Kolken on Deportation And Removal)
    An alien is not independently "grandfathered" for purposes of adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. 1255(i) (2006), simply by virtue of marriage to another alien who is "grandfathered" under section 245(i) as the result of having been a derivative beneficiary of a visa petition. Matter of LEGASPI, 25 I&N Dec. 328 (BIA 2010).
  5. Immigration Court Victory after Third Trial

    by , 09-01-2010 at 06:04 AM (Matthew Kolken on Deportation And Removal)
    My firm just had an interesting immigration court victory that I thought I would share.  The case was handled by my Partner, and father, Robert D. Kolken.Our client is a Canadian businessman. Twenty-five years ago
    when he was 18, he was convicted of a minor crime in Canada,
    notwithstanding the fact that the crime was actually committed by his
    friend and was reported to the police by our client. His sentence was a
    small fine.

    U.S. Customs and Border Protection claimed that the conviction was a
    crime involving moral turpitude which barred him from the United States.
    At this point we were hired to represent the client.
    U.S. Customs and Border Protection would not change their position,
    despite our attempts to convince them otherwise. We then had an
    Immigration Court proceeding instituted in order to have an Immigration
    Judge decide whether the client was admissible. We tried the case and
    won. However, the Government appealed.



    The Board of Immigration Appeals sustained the Government's appeal and
    remanded the case with specific instructions. We tried the case a
    second time. Because of the instructions of the Board of Immigration
    Appeals, the Immigration Judge was required to rule in favor of the
    Government. This time we appealed.


    On appeal, the Board of Immigration Appeals reconsidered their
    earlier decision and remanded the case for a third trial without the
    instructions. The third time around we were again successful and the
    proceeding was terminated in our client's favor. We are hopeful that
    the Government will not appeal a second time.
    The moral of the story is that if you are right and the Government is
    wrong, you are able to obtain an appropriate disposition under our
    system of justice.
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