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News from the Alliance of Business Immigration Lawyers Vol. 11, No. 4B • April 15, 2015

April 15, 2015/in Immigration Insider /by ABIL

Headlines:

1. USCIS Reaches H-1B Cap for FY 2016; Premium Processing Starts Soon -USCIS received almost 233,000 H-1B petitions in the first week of April.

2. Senators Seek Multi-Agency H-1B Program Investigation -The senators expressed concerns about U.S. workers being displaced by H-1B workers following allegations that Southern California Edison replaced approximately 400 information technology workers with H-1B workers.

3. Senate Committee Holds Hearing on H-1B Program and Skilled U.S. Worker Displacement -The Senate Judiciary Committee held a hearing on March 17, 2015, “Immigration Reforms Needed to Protect Skilled American Workers.”

4. USCIS Reaches H-2B Temporary Nonagricultural Worker Cap for FY 2015 -March 26, 2015, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before October 1, 2015.

5. AAO Decides Two Cases—Definition of ‘Doing Business’ and Material Change in Place of Employment -The AAO recently decided two cases of interest.

6. AAO Seeks Friend-of-Court Briefs on Legal Rights of I-140 Beneficiaries in Adjudications and Appeals -AAO is seeking amicus curiae (friend of the court) briefs from stakeholders concerning whether beneficiaries of certain immigrant visa petitions have a legal right to participate in the adjudication process, including appealing to the AAO.

7. New Publications and Items of Interest -New Publications and Items of Interest

8. ABIL Member/Firm News -ABIL Member/Firm News

9. Government Agency Links -Government Agency Links


Details:

1. USCIS Reaches H-1B Cap for FY 2016; Premium Processing Starts Soon

U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2015, that it had reached the congressionally mandated H-1B nonimmigrant visa cap of 65,000 for fiscal year (FY) 2016. USCIS also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced-degree exemption. USCIS announced on April 13, 2015, that nearly 233,000 employers filed H-1B petitions in the first week of April. This means that employers have about a 30% chance of winning the H-1B lottery this year.

U.S. businesses use the H-1B program to employ foreign workers in occupations that require at least a bachelor’s degree or equivalent.

Process for FY 2016. USCIS said that it will use a computer-generated “lottery” to randomly select the petitions needed to meet the caps. Before running the lottery, USCIS will complete initial intake for all filings received during the filing period. Due to the high number of petitions, USCIS is not yet able to announce the date on which it will conduct the random selection process. USCIS said it will first randomly select petitions for the advanced degree exemption. All unselected advanced degree petitions will become part of the random selection process for the 65,000 general limit. The agency will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted toward the FY 2016 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.

Premium processing. USCIS also announced that it will begin premium processing for cap-subject H-1B petitions by May 11, 2015. USCIS provides premium processing service for certain employment-based petitions and guarantees a 15-calendar-day processing time.

For H-1B petitions not subject to the cap and for any other visa classification, the 15-day processing period for premium processing service begins on the date USCIS receives the request. However, for cap-subject H-1B petitions, including advanced degree exemption petitions, the 15-day processing period will begin on May 11, 2015, regardless of the date on the I-797 receipt notice, which indicates the date on which the premium processing fee was received.

USCIS ANNOUNCEMENT about the H-1B cap being reached is available

MORE INFORMATION

USCIS ANNOUNCEMENT about premium processing

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2. Senators Seek Multi-Agency H-1B Program Investigation

A group of senators sent a letter on April 9, 2015, to Attorney General Eric Holder, Homeland Security Secretary Jeh Johnson, and Labor Secretary Thomas Perez seeking an investigation of the H-1B program. The group, led by Sens. Richard Durbin (D-Ill.) and Jeff Sessions (R-Ala.), expressed concerns about U.S. workers being displaced by H-1B workers following allegations that Southern California Edison replaced approximately 400 information technology workers with H-1B workers.

The letter asks:

In many cases it appears that the H-1B workers are not employees of the U.S. company laying off American workers, but instead are contractors employed by foreign-owned IT consulting companies. This increasingly popular business practice by U.S. companies and foreign-owned IT outsourcing firms raises several questions. For example, have the U.S. companies that have laid off American workers and replaced them with H-1B workers and/or the IT consulting contractors the companies retained engaged in prohibited citizenship status discrimination against U.S. citizens? Did the Labor Condition Applications certified by the Department of Labor’s Employment and Training Administration and the petitions approved by U.S. Citizenship and Immigration Services for each H-1B visa holder who replaced a U.S. worker at these companies accurately reflect the scope and location of their work? Did such labor condition applications or visa petitions show any evidence of misrepresentation or fraud by the employer-petitioners? Did the employer-petitioners maintain a true employer-employee relationship with the H-1B workers after they were placed at the U.S. client company? While media reports indicate that the H-1B visa program is the principal visa program at issue in the layoffs, were other visa programs, such as the L-1B or the B-1, also used to displace American workers at U.S. companies?

LETTER

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3. Senate Committee Holds Hearing on H-1B Program and Skilled U.S. Worker Displacement

The Senate Judiciary Committee held a hearing on March 17, 2015, entitled “Immigration Reforms Needed to Protect Skilled American Workers.” The hearing focused on the effects of the H-1B visa program and other temporary worker programs on skilled U.S. workers. Sen. Charles Grassley (R-Iowa), chairman of the committee, charged that the H-1B program is “highly susceptible to fraud and abuse.” He noted that he and Sen. Dick Durbin (D-Ill.) have introduced legislation to require, among other things, employers seeking to hire an H-1B worker to first make a good faith effort to recruit a U.S. worker.

Sen. Patrick Leahy (D-Vt.) also released a statement. He noted the “meaningful contribution that immigrant workers make to the U.S. economy, and the ways in which a healthy immigration system can grow the country’s economic base and create jobs that benefit all Americans.” He said that hearing witness Bjorn Billhardt came to the United States as a high school exchange student, later earned degrees from the University of Texas and Harvard Business School, and subsequently stayed in the United States to start a successful education business that now employs over 40 people. “Mr. Billhardt’s experience illustrates the value of an immigration system that welcomes diverse backgrounds and keeps promising graduates of our universities here in the United States, where they can contribute to our culture and our economy,” Sen. Leahy said.

Witnesses at the hearing included Richard Trumka, President, AFL-CIO; Prof. Ron Hira, Howard University; Bjorn Billhardt, Founder and President, Enspire; Jay Palmer, an American worker from Alabama; Benjamin E. Johnson, Executive Director, American Immigration Council; John Miano, Washington Alliance of Technology Workers; and Prof. Hal Salzman, E.J. Bloustein School of Planning and Public Policy, J.J. Heldrich Center for Workforce Development, Rutgers University.

SENATOR GRASSLEY’S STATEMENT

HEARING TESTIMONY

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4. USCIS Reaches H-2B Temporary Nonagricultural Worker Cap for FY 2015

U.S. Citizenship and Immigration Services (USCIS) announced on April 2, 2015, that it had reached the congressionally mandated H-2B temporary nonagricultural worker cap of 66,000 visas for fiscal year (FY) 2015. March 26, 2015, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before October 1, 2015.

USCIS noted that employers may file petitions up to 120 days before the employment start date. USCIS therefore will reject new H-2B petitions filed more than 120 days before the employment start date.

USCIS will continue to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes petitions filed on behalf of the following beneficiaries:

  • H-2B workers in the United States or abroad who have been previously counted toward the cap in the same fiscal year;
  • Current H-2B workers seeking an extension of stay;
  • Current H-2B workers seeking a change of employer or terms of employment;
  • Fish roe processors, fish roe technicians and/or supervisors of fish roe processing; and
  • H-2B workers performing labor or services from November 28, 2009, until December 31, 2019, in the Commonwealth of the Northern Mariana Islands and/or Guam.

ANNOUNCEMENT

ADDITIONAL INFORMATION ON THE H-2B PROGRAM

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5. AAO Decides Two Cases—Definition of ‘Doing Business’ and Material Change in Place of Employment

U.S. Citizenship and Immigration Services’ (USCIS) Administrative Appeals Office (AAO) recently decided two cases of interest.

  • In Matter of Leaching International, Inc., 26 I&N Dec. 532 (AAO 2015), in which the petitioner’s appeal was sustained, the AAO noted that the petitioner is a U.S. subsidiary of a Chinese clothing manufacturing company that filed an Immigrant Petition for Alien Worker (Form I-140) to classify the beneficiary as a multinational manager or executive. The petitioner sought to employ the beneficiary in the position of deputy general manager. The Texas USCIS Service Center Director denied the petition, finding that the petitioner failed to establish that it had been doing business for at least one year as of the date the petition was filed.

Established in New York in 2008, the petitioner imports and sells the Chinese parent company’s products to United States customers, primarily major clothing retailers. The petitioner directly performed these sales activities through 2011. However, beginning on or about January 2012, it provided marketing, sales, and shipping services in the United States pursuant to a service agreement with its Hong Kong affiliate, which previously employed the beneficiary and was owned by the Chinese parent company.

The Service Center Director concluded that the petitioner was not doing business as required by the regulations, reasoning that the petitioner’s evidence “do[es] not indicate ‘doing business’ with independent corporations or entities” for a full year preceding the filing of the petition, but rather “only demonstrate[s] the shipment of goods from the foreign company to the U.S. company.” Specifically, the Director found that the petitioner, as a clothing importer, should have provided invoices or evidence of payment of invoices from the customers who purchased the clothing for the year preceding the filing of the petition.

On appeal, the petitioner asserted that the Director erred and that existing case law and regulatory history supported a conclusion that the petitioner is doing business in a regular, systematic, and continuous fashion despite the fact that it is not a named party to contracts with buyers in the United States. The petitioner states that the evidence establishes it acts as an intermediary between its Hong Kong affiliate and the U.S. buyers and suppliers by locating customers and finalizing the details of sales contracts for the benefit of the affiliate.

The AAO noted that the Director’s finding that the petitioner did not submit evidence of doing business with “independent corporations or entities” implies a requirement that a petitioner must transact directly with an unaffiliated third party. In sustaining the petitioner’s appeal, the AAO noted, however, that:

(1) The definition of “doing business” at 8 CFR § 204.5(j)(2) (2014) contains no requirement that a petitioner for a multinational manager or executive must provide goods and or services to an unaffiliated third party; and

(2) A petitioner may establish that it is “doing business” by demonstrating that it is providing goods and/or services in a regular, systematic, and continuous manner to related companies within its multinational organization.

Matter of Leaching

  • In Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), the AAO affirmed the Service Center Director’s decision to revoke an petition’s approval. Among other things, the Director had concluded that changes in the beneficiary’s places of employment constituted a material change to the terms and conditions of employment as specified in the original petition. The changes included different metropolitan statistical areas from the original place of employment, which USCIS agents were unable to find. The Director held that the petitioner therefore should have filed an amended Form I-129 H-1B petition corresponding to a new labor condition application (LCA) that reflected these changes, but the petitioner failed to do so.

In affirming the Director’s decision, the AAO held:

(1) A change in the place of employment of a beneficiary to a geographical area requiring a corresponding LCA be certified to USCIS with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change for purposes of 8 CFR §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).

(2) When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA.

The AAO noted that petitioners must immediately notify USCIS of any changes in the terms and conditions of employment of a beneficiary that may affect eligibility for H-1B status. Matter of Simeio Solutions, LLC

Commentary. In the past, employers relied on informal guidance indicating that as long as a new LCA was obtained before placing an H-1B worker at a new worksite, an amended H-1B petition was not required. See Letter from Efren Hernandez III, Dir., Bus. And Trade Branch, USCIS, to Lynn Shotwell, Am. Council on int’l Pers., Inc. (October 23, 2003). The AAO now has explicitly stated in Simeio Solutions that the Hernandez guidance has been superseded. Even before the guidance was formally superseded, employers were filing amended H-1B petitions, as consular officers were recommending to USCIS that the H-1B petition be revoked if a new LCA was obtained without an amendment of the H-1B petition. According to the AAO, “[i]f an employer does not submit the LCA to USCIS in support of a new or amended H-1B petition, the process is incomplete and the LCA is not certified to the Secretary of Homeland Security.” The AAO cited INA § 101(a)(15)(H)(i)(b), 8 CFR § 214.2(h)(4)(i)B)(1), and 20 CFR § 655.700(b) to support its position, but none of these provisions seems to suggest that an LCA obtained after an H-1B petition has already been submitted is not valid if it is “not certified to the Secretary of Homeland Security.” The Department of Labor (DOL) certifies the LCA. There is no separate process where the DOL also has to certify the LCA to the Secretary of Homeland Security.

It is not so much the cost that troubles employers with respect to filing an amended H-1B petition. The USCIS has made it extremely onerous for employers to obtain H-1B petitions especially when an H-1B worker will be assigned to third party client sites. This is a legitimate business model that American companies across the board rely on to meet their IT needs, but USCIS is now requiring an onerous demonstration that the petitioning company will still have a right to control the H-1B worker’s employment. Each time the employer files an amendment, USCIS will again make the employer demonstrate the employer-employee relationship through the issuance of a request for evidence (RFE). The employer will thus risk a denial upon seeking an amendment, even though it received an H-1B approval initially on virtually the same facts.

H-1B workers in other industries such as healthcare also get reassigned to different locations, such as physicians, nurses, and physical therapists. They too will be burdened by the need to file amended H-1B petitions each time they move to a new work location.

Arguably, if an H-1B worker is being moved to a new job location within the same area of intended employment, a new LCA is not required, nor will an H-1B amendment be required. The original LCA should still be posted in the new work location within the same area of intended employment.

20 CFR § 655.17 defines “area of intended employment”:

Area of intended employment means the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., normal commuting distances might be 20, 30, or 50 miles). If the place of employment is within a Metropolitan Statistical Area (MSA) or a Primary Metropolitan Statistical Area (PMSA), any place within the MSA or PMSA is deemed to be within normal commuting distance of the place of employment; however, all locations within a Consolidated Metropolitan Statistical Area (CMSA) will not automatically be deemed to be within normal commuting distance. The borders of MSAs and PMSAs are not controlling with regard to the identification of the normal commuting area; a location outside of an MSA or PMSA (or a CMSA) may be within normal commuting distance of a location that is inside (e.g., near the border of) the MSA or PMSA (or CMSA).

So a move to a new job location within New York City (NYC) would not trigger a new LCA, although the previously obtained LCA would need to be posted at the new work location. This could happen if an entire office moved from one location to another within NYC, or even if the H-1B worker moved from one client site to another within NYC.

The DOL Wage and Hour Division Fact Sheet # 62J also confirms this:

If the employer requires the H-1B worker to move from one worksite to another worksite within a geographic area of intended employment, must the employer obtain an LCA for each worksite within that area of intended employment?

No. The employer need not obtain a new LCA for another worksite within the geographic area of intended employment where the employer already has an existing LCA for that area. However, while the prevailing wage on the existing LCA applies to any worksite within the geographic area of intended employment, the notice to workers must be posted at each individual worksite, and the strike/lockout prohibition also applies to each individual worksite.

The AAO decision in Simeio Solutions further overregulates the H-1B visa. This in turn will deprive U.S. companies of an efficient business model that has provided reliability to companies in the United States and throughout the industrialized world to obtain top talent quickly with flexibility and at affordable prices and scale that benefit consumers and promote diversity of product development. This is what the oft-criticized “job shop” readily provides. By making possible a source of expertise that can be modified and redirected in response to changing demand, uncertain budgets, shifting corporate priorities, and unpredictable fluctuations in the business cycle itself, the pejorative “job shop” is, in reality, the engine of technological ingenuity on which progress in the global information age largely depends. Such a business model is also consistent with free trade, which the United States promotes to other countries but seems to restrict when applied to service industries located in countries such as India that desire to do business in the United States through their skilled personnel.

The Hernandez guidance provided flexibility to employers whose H-1B workers frequently moved among client locations, while ensuring the integrity of the H-1B visa program. Employers were still required to obtain new LCAs based on the prevailing wage in the new area of employment, and also notify U.S. workers. However, they were not required to file onerous
H-1B amendments each time there was a move, and risk further arbitrary and capricious scrutiny. The AAO has removed this flexibility, and has further regulated the H-1B to such an extent that the LCA must now always firmly and securely tether an H-1B worker through an amended petition just like a dog to his leash.

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6. AAO Seeks Friend-of-Court Briefs on Legal Rights of I-140 Beneficiaries in Adjudications and Appeals

U.S. Citizenship and Immigration Services’ Administrative Appeals Office (AAO) is seeking amicus curiae (friend of the court) briefs from stakeholders concerning whether beneficiaries of certain immigrant visa petitions have a legal right to participate in the adjudication process, including appealing to the AAO (and if so, when, and under what circumstances). Specifically, the AAO seeks briefs on how this issue applies to beneficiaries of Form I-140, Immigrant Petition for Alien Worker, and the effect, if any, of the American Competitiveness in the Twenty-First Century Act on denied or revoked I-140 petitions.

The deadline for the AAO to receive briefs is May 22, 2015.

AAO’S REQUEST, which includes additional details.

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7. New Publications and Items of Interest

Webinar on E-Verify. USCIS will present a webinar, “E-Verify for Executives,” on April 29, 2015, at 2 p.m. ET. The webinar will clarify common misconceptions, discuss the facts and the benefits of using E-Verify, explain employer responsibilities and the enrollment process, and demonstrate the latest enhancements.

MORE INFORMATION

USCIS’s WEBINAR PAGE

The latest edition of the Global Business Immigration Practice Guide has been released by LexisNexis. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

The latest edition adds a chapter on Singapore. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is designed for:

  • Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
  • Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
  • Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

  • An overview of the immigration law requirements and procedures for over 20 countries;
  • Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
  • A general overview of the appropriate options for a particular employee; and
  • Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

The list price is $299, but discounts are available. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584; or go to the Lexis/Nexis Website.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available at http://www.abilblog.com/.

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8. ABIL Member/Firm News

Fredrikson & Byron will hold a seminar, “Navigating the Immigration Landscape: A Guide for Employers,” on Tuesday, May 5, 2015, from 7:30 am to 2 pm in Minneapolis, Minnesota. MORE INFORMATION OR TO REGISTER

Klasko Immigration Law Partners will hold its 11th annual Spring Seminar, “Immigration 2015: Hope Springs Eternal,” on Wednesday, April 22, 2015, from 9:30 am to 2 pm in Philadelphia, Pennsylvania. MORE INFORMATION OR TO REGISTER

Robert F. Loughran testified before the Texas Senate Subcommittee on Border Security against a proposed repeal of the DREAM Tuition Act in Texas. The legislation, originally passed in 2001 and subsequently copied by 16 other progressive states, allows students who are residents for three years in the state of Texas to pay in-state tuition at public universities in Texas without regard to their immigration status. Video of his testimony is available at https://www.youtube.com/watch?v=AeTF3vcZC1w.

Cyrus Mehta has authored or co-authored several new blog entries. “AAO Firmly Tethers H-1B Workers to an LCA Like a Dog Is To A Leash” “New L-1B Visa Guidance: Will There Be Fewer Denials Or More Of The Same?”

Mr. Mehta and Sharon Mehlman were extensively quoted in “ACA Far From Fully Meshed With Immigration Law,” published on April 14, 2015, by Law360.com and avilable by registering..

Angelo Paparelli will speak on “What’s New in EB-5 Practice” at the 2015 AILA Rome District Chapter Spring Conference in Rome, Italy, on April 29, 2015. MORE INFORMATION OR TO REGISTER

Mr. Paparelli has published a new blog post. “Immigration Howling, Hope, Hype and Hodgepodge: USCIS’s New L-1B Memo” is available at http://www.nationofimmigrators.com/uscis/immigration-howling-hope-hype-and-hodgepodge-usciss-new-l-1b-memo/.

Mr. Paparelli was quoted by the Wall Street Journal on April 1, 2015, in “Visa Demand for High-Skilled Foreigners Is Likely To Prompt Lottery.” He noted that “[t]he chances of being selected [in the H-1B lottery] are reduced further because demand has so increased.”

Stephen Yale-Loehr was quoted by McClatchy Washington Bureau in “Asylum for Homeschooling Enters Immigration Debate,” published on April 8, 2015. Mr. Yale-Loehr questioned whether homeschooling bans rise to the level of persecution required by asylum law. “Most courts have defined persecution as being something pretty significant. Generally, it’s hard to win asylum and they don’t want any decisions to make it seem easier to get asylum,” he noted.

Mr. Yale-Loehr spoke at a symposium, “Pluralism in Progress: Immigration Reform in the 21st Century,” presented on April 10, 2015, by the Spectemur Agendo Foundation, the Beta Charge of Theta Delta Chi, and the Cornell University International Student Union. MORE INFORMATION

Mr. Yale-Loehr was interviewed by Law360 on April 3, 2015, in “Q&A With Cornell Law School’s Stephen Yale-Loehr.” The article is available via registration.

Mr. Yale-Loehr was quoted in Politico.com on April 2, 2015, in “Touting Connections, Hillary Clinton’s Brother Takes on Philly Project.” The article discusses the EB-5 program. “From a marketing perspective, people think because a politician is involved, at least in China they think somehow it’s a better project or it’s got more name recognition,” he noted.

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9. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2015-04-15 00:00:262019-09-05 05:57:31News from the Alliance of Business Immigration Lawyers Vol. 11, No. 4B • April 15, 2015

News from the Alliance of Business Immigration Lawyers Vol. 11, No. 4A • April 01, 2015

April 01, 2015/in Immigration Insider /by ABIL

Headlines:

1. Reminder: File H-1B Petitions Early! -USCIS said it expects to receive more petitions than the H-1B cap during the first five business days of this year’s program, which began on April 1.

2. USCIS Updates L-1B ‘Specialized Knowledge’ Guidance -The memo provides guidance on how L-1B petitioners may demonstrate that an employee has specialized knowledge.

3. USCIS Provides Guidance on Adjudication of H-1B Petitions for Nursing Occupations -The memorandum assists USCIS officers in determining whether a nursing position meets the definition of a specialty occupation.

4. NLRB Updates Procedures on Addressing Immigration Issues During Unfair Labor Practice Proceedings -The National Labor Relations Board’s (NLRB) Office of the General Counsel recently updated its procedures for addressing immigration status issues arising during unfair labor practice (ULP) proceedings.

5. Obama Announces Enforcement Push on April 1, GOP Objects, As Per Usual -President Barack Obama announced on April Fool’s Day that the U.S. borders and ports of entry (POEs) will henceforth be closed to all newcomers, and that this new executive action will be strictly enforced. Republicans objected.

6. ABIL Global: Turkey -There have been recent changes in Assembly, Maintenance and Service visas in Turkey.

7. New Publications and Items of Interest -New Publications and Items of Interest

8. ABIL Member/Firm News -ABIL Member/Firm News

9. Government Agency Links –Government Agency Links


Details:

1. Reminder: File H-1B Petitions Early!

On April 1, 2015, U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B petitions subject to the fiscal year (FY) 2016 cap. USCIS said it expects to receive more petitions than the H-1B cap during the first five business days of this year’s program. The Alliance of Business Immigration Lawyers (ABIL) recommends filing during the first five business days in April.

If USCIS receives an excess of petitions during the first five business days, the agency will use a lottery system to randomly select the number of petitions required to meet the cap. USCIS will reject all unselected petitions that are subject to the cap as well as any petitions received after the cap has closed.

Contact your ABIL member for help with H-1B applications.

USCIS ANNOUNCEMENT

USCIS has released an optional checklist for I-129 H-1B filings.

USCIS encourages H-1B applicants to subscribe to the H-1B Cap Season email updates.

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2. USCIS Updates L-1B ‘Specialized Knowledge’ Guidance

U.S. Citizenship and Immigration Services (USCIS) has issued interim policy guidance on L-1B “specialized knowledge” adjudications that supersedes and rescinds certain prior L-1B memoranda. USCIS said it is issuing this memorandum now for public review and feedback. . USCIS will finalize the guidance effective August 31, 2015. The memo provides guidance on how L-1B petitioners may demonstrate that an employee has specialized knowledge. In the case of off-site employment, it also clarifies how to comply with the requirements of the L-1 Visa (Intracompany Transferee) Reform Act of 2004.

Among other things, the memo notes that a beneficiary must possess either special or advanced knowledge, or both. Determining whether a beneficiary has “special knowledge” requires review of the beneficiary’s knowledge of how the company manufactures, produces, or develops its products, services, research, equipment, techniques, management, or other interests. Determinations concerning “advanced knowledge,” on the other hand, require review of the beneficiary’s knowledge of the specific employing company’s processes and procedures, the memo states. While the beneficiary may have general knowledge of processes and procedures common to the industry, USCIS’s focus is primarily on the processes and procedures used specifically by the beneficiary’s employer. With respect to either special or advanced knowledge, the petitioner ordinarily must demonstrate that the beneficiary’s knowledge is not commonly held throughout the particular industry or within the petitioning employer. As discussed in detail in the memo, however, such knowledge need not be proprietary in nature or narrowly held within the employer’s organization.

The memo notes the following non-exhaustive list of factors USCIS may consider when determining whether a beneficiary’s knowledge is specialized:

  • The beneficiary is qualified to contribute to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in the industry or the petitioning organization’s U.S. operations.
  • The beneficiary possesses knowledge that is particularly beneficial to the employer’s competitiveness in the marketplace.
  • The beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the employer’s productivity, competitiveness, image, or financial position.
  • The beneficiary’s claimed specialized knowledge normally can be gained only through prior experience with that employer.
  • The beneficiary possesses knowledge of a product or process that cannot be easily transferred or taught to another individual without significant economic cost or inconvenience (because, for example, such knowledge may require substantial training, work experience, or education).
  • The beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily unique to the firm.

The memo notes that specialized knowledge cannot be easily imparted to other individuals.

Commentary. The Alliance of Business Immigration Lawyers notes that some language on page 14 of the memo could still snare L-1Bs working at third-party clients, and this will continue to plague Indian-heritage IT companies.

Workers at third-party sites must be implementing the specialized knowledge of the petitioner’s unique products or services. Specialized knowledge derived from customized products or services rendered to the client may complement but cannot substitute for specialized knowledge of the petitioner’s products, services, or methodologies. Sometimes the specialized knowledge is intertwined. For example, the petitioner customized the product or application for the client, and the L-1B is being sent to the United States to upgrade it. Even though the product or application was rendered to the client, the beneficiary possesses specialized knowledge of the product that was customized for the client. This fact pattern could potentially cause problems.

The memo, which includes details on types of evidence to present and information on off-site employment. Comments are due to USCIS by May 8.

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3. USCIS Provides Guidance on Adjudication of H-1B Petitions for Nursing Occupations

U.S. Citizenship and Immigration Services (USCIS) recently released guidance on the adjudication of H-1B petitions for nursing position. The memorandum assists USCIS officers in determining whether a nursing position meets the definition of a specialty occupation. The memo supersedes any previous guidance on the subject.

The memo notes that the private sector is increasingly showing a preference for more highly educated nurses. Registered nurses’ (RN) duties and titles often depend on where they work and the patients with whom they work. Nursing work can focus on specific areas, such as addiction, cardiovascular, critical care, emergency room, genetics, neonatology, nephrology, oncology, pediatric, operating room, and rehabilitation. The memo states that depending on the facts of the case, some of these RN positions may qualify as specialty occupations.

An advanced practice registered nurse (APRN) defines a level of nursing practice that uses extended and expanded skills, experience, and knowledge in assessment, planning, implementation, diagnosis, and evaluation of the care required. Positions that require certified APRNs “will generally be specialty occupations due to the advanced level of education and training required for certification.” Having a degree is not by itself sufficient to qualify a position as an H-1B, the memo notes. The burden is on the petitioner to establish eligibility, but the memo provided a non-exhaustive list of APRN occupations that may satisfy the requirements for a specialty occupation, including Certified Nurse-Midwife, Certified Clinical Nurse Specialist, Certified Nurse Practitioner, and Certified Registered Nurse Anesthetist.

Evidence submitted by a petitioner may include the nature of the petitioner’s business; a description of industry practices; a detailed description of the duties to be performed within the petitioner’s business operations; advanced certification requirements; American Nurses Credentialing Center Magnet Recognized status (explained in the memo); clinical experience requirements; training in the specialty requirements; and wage rate relative to others within the occupation.

MEMO, which includes additional details

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4. NLRB Updates Procedures on Addressing Immigration Issues During Unfair Labor Practice Proceedings

The National Labor Relations Board’s (NLRB) Office of the General Counsel recently updated its procedures for addressing immigration status issues arising during unfair labor practice (ULP) proceedings. In a memorandum released February 27, 2015, to the field, Richard F. Griffin, Jr., NLRB General Counsel, noted that although the National Labor Relations Act (NLRA) protects all covered employees regardless of immigration status, related issues may affect remedies and present obstacles to enforcing the NLRA.

The new memo provides updated procedures that apply when immigration status issues are raised during NLRB investigations and proceedings. The new procedures require that regions immediately contact the assigned representative(s) in the Division of Operations-Management as soon as they become aware that immigration status issues may affect the ability to remedy or litigate a potential ULP violation. Operations-Management will: (1) provide technical assistance; (2) determine whether interagency engagement could assist in effectuating the NLRA; (3) discuss with the region and/or ask the region to submit to advice on whether it may be appropriate to seek certain additional remedies; and (4) coordinate the agency’s response to these issues.

The memo states that in cases where immigration status issues may affect the NLRB’s ability to remedy or litigate a potential ULP violation, Operations-Management will work with the region to determine whether:

  • potential discriminatee(s) and/or witness(es) could be eligible for a U or T visa, or for deferred action, and whether the NLRB should certify and/or facilitate this process;
  • it is appropriate to refer the case to the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices pursuant to the NLRB-OSC’s Memorandum of Understanding;
  • it is appropriate to engage with the Department of Homeland Security regarding their enforcement operations.

In meritorious cases, Operations-Management and, where appropriate, the Division of Advice will consider whether additional remedies should be sought to address potential limitations on back pay and reinstatement that may arise. The memo states that in this regard, the region should also explore and bring to the attention of Operations-Management any alternative remedies the region seeks and/or that a charging party advances as necessary or appropriate.

MEMO (scroll down to GC 15-03, “Updated Procedures in Addressing Immigration Status Issues That Arise During ULP Proceedings,” February 27, 2015).

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5. Obama Announces Enforcement Push on April 1, GOP Objects, As Per Usual

President Barack Obama announced on April 1, 2015, that the U.S. borders and ports of entry (POEs) will henceforth be closed to all newcomers, and that this new executive action will be strictly enforced. He explained that this was to enhance enforcement and counterterrorism efforts, to keep the country safe from the “wrong element,” and to protect American jobs. He added that he finally “gets” that it’s simply the manly man thing to do and he wants to appear more forceful. “I get it,” he said. “We can’t be weak, just letting people in willy-nilly.”

Among other things, in an emergency budget allocation, Obama reallocated $852 billion to erect a very large (huge, actually) fence along the southern border and send border patrol agents with scowls on their faces and big, impressive weapons still smoking from other operations to defend the border 24-7, taking potshots at anything that moves. “My final gift to America,” he said. He sat back and waited for Republicans to congratulate him. “Now I’ve got ’em. They can’t possibly object to this!” he reportedly whispered gleefully to Vice President Joe Biden while the mic was still on.

Immediately after the press conference announcing the new executive actions, however, Republicans in Congress objected, stating that this was just a gimmick and we should be more welcoming. “President Obama seems to have forgotten that this is a nation of immigrants,” new presidential candidate Sen. Ted Cruz announced. “I myself was born to a Cuban father. Mitt Romney was born in Mexico, and John McCain was born in Panama. President Obama and the Democrats need to get their heads out of the heartland. He needs to stop being a cowboy, and a weak tyrant, or something. He just doesn’t get it. Imagine a country where people can flourish, regardless of where they come from.” President Obama pleaded, “But I thought enforcement is what you wanted all along. That’s what you all kept saying. ‘Enforcement this, enforcement that,’ right?? I’m just trying to meet you halfway. Okay, 200 percent of the way. Whatever.” Retorted House Speaker John Boehner, “That was yesterday. This is today, and this means war!”

Republicans shortly afterward filed a lawsuit challenging the new actions, stating that President Obama is simply too American and just doesn’t get it. Radio personality Rush Limbaugh huffed and puffed and said we should blow that fence down. Donald Trump, remarking that it had suddenly gotten very windy across America, held onto his toupee. The WTOP Radio meteorologist issued a toupee and comb-over alert. Sarah Palin noted that Obama has gone all “forcy-forcy. Actually, I kinda like it! Got it? You betcha,” she said.

Happy April Fool’s Day!

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6. ABIL Global: Turkey

There have been recent changes in Assembly, Maintenance and Service visas in Turkey.

Turkey amended its work permit regulations in January 2015 with respect to Assembly, Maintenance and Service (AMS) visas. An AMS visa is a short-term (90-day) technical work visa for foreign employees, under certain conditions, to engage in assembly, maintenance, service, or technical training work for the benefit of a Turkish company without the need for a work permit. This visa is a very practical category for many companies in the technology, construction, and energy sectors because it generally has a very low documentary burden and is adjudicated solely at the consular post, most often within a few days.

Historically, the problem with this visa category was twofold: (1) the 90-day period was calculated consecutively within a year and (2) the visas were generally issued as single entry. Therefore, unless an assignee remained in Turkey for the entire 90-day period uninterrupted, the full 90 days per year could not be used.

On January 22, 2015, the work permit regulations were changed to now state that AMS visa holders can remain for up to three months in total within a year. And the regulations now allow foreigners with an AMS visa to enter Turkey on multiple occasions provided that they do not remain in Turkey more than three months in total within a year.

The change in the wording of the regulation appears to convey that the 90-day period will now be calculated cumulatively over the period of a year, not consecutively. It also states that these visa holders should be granted multiple entries, which is welcome news regardless of the calculation of the 90 days, particularly since the vast majority of consular posts issue single-entry AMS visas.

In the meantime, it is best practice to provide a copy of the legal changes to the consular post when applying for an AMS visa in order to insist that consular posts follow this regulatory change and grant one-year multiple-entry AMS visas. However, the calculation of the 90-day period (cumulative vs. consecutive), is in the hands of the passport officers at entry points to confer later entries for AMS visa holders whose period is beyond 90 days consecutively (yet have not been present in Turkey for 90 days cumulatively). AMS visa holders should anticipate that some consular officers and passport officers will not have full awareness or knowledge of this legal change for some time.

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7. New Publications and Items of Interest

The latest edition of the Global Business Immigration Practice Guide has been released by LexisNexis. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

The latest edition adds a chapter on Singapore. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is designed for:

  • Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
  • Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
  • Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

  • An overview of the immigration law requirements and procedures for over 20 countries;
  • Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
  • A general overview of the appropriate options for a particular employee; and
  • Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

The list price is $299, but discounts are available. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584; or go to the Lexis/Nexis Website.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available at http://www.abilblog.com/.

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8. ABIL Member/Firm News

Various ABIL members were named to Human Resource Executive‘s “Most Powerful Employment Attorneys” list in the immigration field for 2015. The list will be featured in the June 16, 2015, issue. The magazine states that only those who earn “glowing marks from clients, peers, colleagues and judges are awarded the distinction.”

Mark Ivener has co-authored an e-book, EB-5 Visas: International Investors & U.S. Taxes, available from Amazon.

Klasko Immigration Law Partners will hold its 11th annual Spring Seminar, “Immigration 2015: Hope Springs Eternal,” on Wednesday, April 22, 2015, from 9:30 am to 2 pm. For more information or to register.

Charles Kuck is the attorney for 39 plaintiffs in a case seeking in-state tuition for young immigrants in Georgia without legal status. The Georgia Court of Appeals rejected an appeal on March 19, 2015. Mr. Kuck said he would appeal to the Georgia Supreme Court. In a statement, he said, “The day that residents of Georgia cannot seek redress in court for the state’s action against them is a sad day for all Georgians. We will appeal this decision and continue our fight for tuition equity on all available fronts.” The article was published in the Atlanta Journal-Constitution.

Mr. Kuck was quoted in an article in Quartz on March 25, 2015, noting that U.S. Immigration and Customs Enforcement has raised bond prices and instituted no-bond policies at some detention centers. “What we’re missing here is the little bit of mercy that always must come with justice to make the laws just.” The article, “U.S. Promised To Deport Felons, Not Families—But That’s Not What’s Happening.”

Vincent Lau has several upcoming speaking engagements:

  • May 15-16, 2015, Federal Bar Association’s 2015 Immigration Law Conference, Panel 1: “Hot Topics in PERM”; Panel 2: “Advanced Employment-Based Permanent Residency”
  • June 17-19, 2015, 2015 AILA Annual Conference, “Fundamentals of PERM”

Robert F. Loughran presented on the effects of President Obama’s executive actions on Forms I-9 and E-Verify, at the Foster Spring 2015 Immigration Update Seminars in San Antonio and Austin, Texas. His panel also discussed details of the Deferred Action for Parental Accountability (DAPA) program and the newly expanded Deferred Action for Childhood Arrivals (DACA) program, as well as Former Texas Governor Rick Perry’s RP80 executive order mandating E-Verify for certain state agencies and their contractors.

Mr. Loughran provided expert testimony before the Texas Senate against potential anti-immigration bills in the current legislative session. Mr. Loughran’s appearance came at the request of the Immigration Task Force of the Greater Houston Partnership.

Mr. Loughran appeared on Austin’s KEYE ABC affiliate to speak about the impact of “Sanctuary City” legislation.

Mr. Loughran presented Executive Actions on Immigration on February 4, 2015, as part of the Greater Houston Partnership’s Continuing Education Series. For more information.

Cyrus Mehta has authored or co-authored several new blog entries. “America Cannot Be Open for Business Through an H-1B Visa Lottery” “The Reason for L-1B Denial Rates Being Higher for Indian Nationals”

Mr. Mehta spoke at the following events:

  • Panelist, “Ethical and Practical Issues in Representing Children in Immigration Cases,” American Immigration Lawyers Association (AILA) Philadelphia Chapter’s 2015 CLE Conference, Philadelphia, Pennsylvania, March 27, 2015
  • Program Chair, “Basic Immigration Law 2015,” Practising Law Institute, New York City and live webcast, March 12, 2015
  • Panelist, “Alternatives to H-1B,” 2015 Midwest Regional Conference, AILA, Chicago, Illinois, March 9, 2015

Cora-Ann V. Pestaina, an associate attorney in Mr. Mehta’s office, has authored a new blog entry. “BALCA Says Economic Benefits Should Be Listed in PERM Recruitment”

Angelo Paparelli will speak on “What’s New in EB-5 Practice” at the 2015 AILA Rome District Chapter Spring Conference in Rome, Italy, on April 29, 2015. For more information or to register.

Mr. Paparelli was quoted in a Law360.com article, “DHS Deputy Accused of Playing Favorites in EB-5 Program,” published on March 24, 2015. In reference to the Office of Inspector General’s investigation into allegations that Deputy Secretary of Homeland Security Alejandro Mayorkas had exerted improper influence on EB-5 application processing, Mr. Paparelli said he believed that Mr. Mayorkas’ character was being “unfairly impugned” and that Mr. Mayorkas is of “the highest integrity.” Mr. Paparelli noted that during Mr. Mayorkas’ tenure at USCIS, he made “significant strides in many, many different program areas.” Mr. Paparelli said that “grousers” are “trying to make something where I believe nothing exists,” and that there were political motivations at play. The article is available by registering HERE.

Mr. Paparelli was quoted in “Immigration Executive Actions An Ethical Minefield for Attys,” published on March 16, 2015, in Law360. He noted that determining whether a consultation before enactment of an executive action is advisable includes a judgment about the individual client’s capabilities and needs. “If I’m dealing with a high-net-worth individual that can afford to spend a lot of time gazing into the immigration crystal ball, I don’t think there should be limitations. Then again, if you’re spending someone’s entire life savings and now they can’t afford the benefit, you’re going to be looked at with a jaundiced eye.” He also noted the potential Catch-22 if an attorney represents both an employer and an individual when there may be conflicts. “I endeavor to represent only one party, because the potential for harm if a lawyer is caught in the crossfire of a major dispute is great.” In the employment context, Mr. Paparelli says he lets the individual worker know that he only represents the company, “which has agreed to pay my fees and provide immigration support as a fringe benefit, but not a legal service.”

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9. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2015-04-01 00:00:532019-09-05 06:02:02News from the Alliance of Business Immigration Lawyers Vol. 11, No. 4A • April 01, 2015

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News

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  • News from the Alliance of Business Immigration Lawyers Vol. 15, No. 9D • September 22, 2019
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