1. Immigration Bills Fail in Senate, Including DACA; House Bill’s Prospects Appear Dim; Second Court Enjoins DACA Rescission –
Four immigration bills failed in the U.S. Senate, and a House bill appears doomed. Also, a second court enjoined DACA rescission, with a nationwide preliminary injunction while lawsuits proceed. The decision included certain limitations.
2. President Trump Calls for Establishment of National Vetting Center -President Donald Trump signed a National Security Presidential Memorandum to establish a National Vetting Center “to coordinate the efforts of departments and agencies to better identify individuals seeking to enter the country who present a threat to national security, border security, homeland security, or public safety.”
3. Coalition of Business Leaders Tells Trump: We Support International Entrepreneur Rule -A coalition of business leaders, investors, and organizations sent a letter on February 8, 2018, to President Donald Trump in support of the International Entrepreneur Rule (IER), which is in effect following a court order. The Trump administration has signaled that the IER is likely on the chopping block. The letter says that killing the IER “would upend the ability of talented immigrant entrepreneurs to launch new enterprises and employ American workers in communities across the United States.”
4. Surge in H-2B Petitions Possible for Second Half of FY 2018, USCIS Announces -Following the Department of Labor’s recent announcement that it will not begin releasing H-2B temporary labor certifications until February 20, 2018, due to an unprecedented number of applications, USCIS announced that it may receive more H-2B nonimmigrant petitions than there are H-2B visas available in the second half of fiscal year 2018, and will take a “flexible” approach.
5. Alleged P-3 Entertainer Visa Fraud Scheme Busted -The P-3 visa allows entertainers to visit the United States to perform in culturally unique events and deepen U.S. understanding of different cultures. An indictment alleged that defendants choreographed a widespread P-3 visa fraud scheme by dressing visa applicants in traditional dance costumes and creating fake concert flyers.
6. USCIS To Process Recently Filed Asylum Applications Over Older Ones -USCIS will schedule asylum interviews for recent applications ahead of older filings, in an attempt to stem the growth of the agency’s asylum backlog.
7. USCIS, DOS Tighten Screening Procedures for Refugees and Family Members -USCIS and DOS implemented new procedures “to ensure that all individuals admitted as refugees receive similar, thorough vetting—whether they are principal refugees, accompanying family members, or following-tojoin refugees.”
8. New Publications and Items of Interest -New Publications and Items of Interest
9. ABIL Member / Firm News -ABIL Member / Firm News
10. Government Agency Links -Government Agency Links
1. Immigration Bills Fail in Senate, Including DACA; House Bill’s Prospects Appear Dim; Second Court Enjoins DACA Rescission
A bipartisan deal on immigration, the so-called “Common Sense Plan,” failed on February 15, 2018, in the U.S. Senate, 54-45. The legislation would have provided a pathway to legalization for Deferred Action for Childhood Arrivals (DACA) “Dreamers” and provided $25 billion for border security measures, among other things. Reportedly, the Trump administration opposed the deal and had threatened to veto it despite substantial bipartisan support. A White House-supported bill also failed in the Senate, 39-60. The latter bill would have cut family immigration, ended the diversity visa (DV) program, and increased federal removal powers. Two other immigration proposals also failed on February 15.
Sen. John Thune was quoted as saying, “Well, we’ll go back to the drawing board.” Sen. Susan Collins (R-Maine) said she was “very disappointed” and added that “we’ve got real problems that we need to solve.”
Meanwhile, the U.S. House of Representatives is hard at work on a tough bill—the “Securing America’s Future Act,” also dubbed the “Goodlatte bill” after its main author, Rep. Bob Goodlatte (R-Va.), the chairman of the House Judiciary Committee—that appears not to have sufficient support in either the House or the Senate. Among other things, the bill would provide temporary, renewable legal status to DACA recipients rather than citizenship. It would authorize border wall funding, end family-based immigration, end the DV program, and require employers to use the E-Verify program, among other measures.
Also, on February 13, 2018, the U.S. District Court for the Eastern District of New York became the second court to enjoin DACA rescission, with a nationwide preliminary injunction while lawsuits proceed. The court ordered the Trump administration to maintain the DACA program on the same terms and conditions that existed before promulgation of the DACA Rescission Memo, subject to several limitations: the administration need not consider new applications by individuals who have never before obtained DACA benefits; need not continue granting advance parole to DACA beneficiaries; and may adjudicate DACA renewal requests on a case-by-case basis.
DEPARTMENT OF HOMELAND SECURITY PRESS RELEASE issued before the Senate voted on the “Common Sense Plan”
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2. President Trump Calls for Establishment of National Vetting Center
On February 6, 2018, President Donald Trump signed a National Security Presidential Memorandum to establish a National Vetting Center (NVC) “to coordinate the efforts of departments and agencies to better identify individuals seeking to enter the country who present a threat to national security, border security, homeland security, or public safety.”
A statement issued by the White House said the NVC, to be led by the Department of Homeland Security, “will help fulfill the President’s requirement that departments and agencies improve their coordination and use of intelligence and other information in the vetting process.”
The statement says:
The Federal Government’s current vetting efforts are ad hoc, which impedes our ability to keep up with today’s threats. The NVC will better coordinate these activities in a central location, enabling officials to further leverage critical intelligence and law enforcement information to identify terrorists, criminals, and other nefarious actors trying to enter and remain within our country. The NVC’s operations will adhere to America’s strong protections for individuals’ privacy, civil rights, and civil liberties. The Administration’s top priority is the safety and security of the public, and the NVC will empower our frontline defenders to better fulfil that obligation.
The statement may be viewed here.
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3. Coalition of Business Leaders Tells Trump: We Support International Entrepreneur Rule
A coalition of business leaders, investors, and organizations sent a letter on February 8, 2018, to President Donald Trump in support of the International Entrepreneur Rule (IER), which is in effect following a court order. The Trump administration has signaled that the IER is likely on the chopping block. The letter says that killing the IER “would upend the ability of talented immigrant entrepreneurs to launch new enterprises and employ American workers in communities across the United States.”
Among other things, the letter notes that “Rescission of the International Entrepreneur Rule” has been pending review with the Office of Management and Budget since November 17, 2017. “This potential new rule places a dark cloud over IER, as immigrant entrepreneurs are uncertain of how long IER will be in place,” the letter notes:
The rescission rule stifles investment into new companies with foreign-born founders, which ultimately costs the U.S. economy. It also exacerbates an alarming trend of elite entrepreneurs launching successful startups outside the United States. Twenty years ago our country’s share of global venture investment was 90%, but that number has dropped precipitously to 81% in 2006 and to 53% in 2017. In 2016, China was home to six of the ten largest venture capital investments in the world. If we continue to push entrepreneurs overseas, our share of global investment will continue to decrease.
As background, on January 17, 2017, the Department of Homeland Security (DHS) published the International Entrepreneur final rule with an original effective date of July 17, 2017. On July 11, 2017, DHS published a final rule delaying the effective date until March 14, 2018, to allow for a full review of the rule. The Trump administration proposed in late 2017 to rescind the final rule. In December 2017, a federal court ruled in National Venture Capital Association v. Duke that the rule should go into effect because the government had not provided sufficient notice-and-comment for the delay rule under the Administrative Procedure Act.
The full text of the coalition letter may be viewed HERE.
TechNet, with 77 member companies, sent a similar letter to U.S. Citizenship and Immigration Services, available HERE.
The court’s decision is available HERE.
View the USCIS statement following the court order HERE.
Information on how to submit an international entrepreneur application is HERE.
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4. Surge in H-2B Petitions Possible for Second Half of FY 2018, USCIS Announces
Following the Department of Labor’s recent announcement that it will not begin releasing H-2B temporary labor certifications until February 20, 2018, due to an unprecedented number of applications, U.S. Citizenship and Immigration Services (USCIS) announced that it may receive more H-2B nonimmigrant petitions than there are H-2B visas available in the second half of fiscal year 2018.
USCIS said it is “maintaining a flexible approach to this issue,” which may include randomly selecting petitions received on the final receipt date “to ensure that we allocate H-2B visas fairly and do not exceed the cap.” USCIS said more information would be forthcoming.
View the USCIS announcement is HERE.
Information on the cap count for H-2B nonimmigrants is HERE.
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5. Alleged P-3 Entertainer Visa Fraud Scheme Busted
A 15-count indictment was unsealed on February 8, 2018, in federal court in Brooklyn, New York, charging Stella Boyadjian, Hrachya Atoyan, and Diana Grigoryan, also known as “Dina Akopovna,” for their roles in a multi-year visa fraud scheme that brought Armenian citizens into the United States for profit. The defendants are charged with multiple counts of visa fraud and with conspiring to defraud the United States, commit visa fraud, and illegally bring undocumented persons into the United States. Boyadjian and Grigoryan are also charged with related money laundering, and Boyadjian is charged with aggravated identity theft.
As alleged in the indictment, the defendants choreographed their widespread visa fraud scheme by dressing visa applicants in traditional dance costumes and creating fake concert flyers to deceive a government program that allows foreign nationals to temporarily enter the United States as artistic performers in the P-3 visa category. That category allows entertainers to visit the U.S. to perform in culturally unique events and to deepen U.S. understanding of different cultures.
Boyadjian allegedly ran a nonprofit organization called Big Apple Music Awards Foundation Inc. (BAMA), based in Rego Park, New York, which she and her co-conspirators used to further their visa fraud scheme. As part of the alleged scheme, the defendants and their co-conspirators solicited undocumented persons and charged them fees ranging from $3,000 to $15,000 per applicant to fraudulently obtain P-3 visas by submitting false Forms I-129 and supporting documents to U.S. Citizenship and Immigration Services. Upon approval of the I-129 petitions, the defendants and their co-conspirators acquired fraudulent dance certificates and organized staged photo sessions where foreign nationals wore Armenian dance costumes to make it appear as though they were traditional Armenian musicians, singers, and performers. After being trained how to falsely answer questions during visa interviews, the P-3 visa applicants presented these fake certificates and photos during their P-3 visa interviews. Once in the United States, some beneficiaries of the P-3 visas paid the defendants an additional fee to be included in applications for extensions of their fraudulently obtained visas. The defendants furthered their visa fraud scheme by creating flyers and other documents purporting to hold BAMA-sponsored concerts and events in the United States.
USCIS’ announcement is HERE.
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6. USCIS To Process Recently Filed Asylum Applications Over Older Ones
U.S. Citizenship and Immigration Services (USCIS) announced recently that the agency will schedule asylum interviews for recent applications ahead of older filings, in an attempt to stem the growth of the agency’s asylum backlog. The agency said it faces a “crisis-level backlog” of 311,000 pending asylum cases as of January 21, 2018, making the asylum system “increasingly vulnerable to fraud and abuse. This backlog has grown by more than 1750 percent over the last five years, and the rate of new asylum applications has more than tripled.”
To address this issue, USCIS said it will follow these priorities when scheduling affirmative asylum interviews:
Applications that were scheduled for an interview but the interview had to be rescheduled at the applicant’s request or the needs of USCIS;
Applications pending 21 days or fewer since filing; and
All other pending applications, starting with newer filings and working back toward older filings.
Additionally, the Affirmative Asylum Bulletin issued by USCIS has been discontinued.
USCIS said this priority approach was used for 20 years until 2014, and “seeks to deter those who might try to use the existing backlog as a means to obtain employment authorization.” Returning to a “last in, first out” interview schedule will allow USCIS “to identify frivolous, fraudulent or otherwise non-meritorious asylum claims earlier and place those individuals into removal proceedings,” USCIS said.
The USCIS announcement is HERE.
Information on affirmative asylum interview scheduling is HERE.
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7. USCIS, DOS Tighten Screening Procedures for Refugees and Family Members
On February 1, 2018, U.S. Citizenship and Immigration Services (USCIS) and the Department of State implemented new procedures “to ensure that all individuals admitted as refugees receive similar, thorough vetting—whether they are principal refugees, accompanying family members, or following-to-join refugees.” A following-to-join refugee is the spouse or child of a principal refugee who lives abroad and wishes to join the principal refugee in the United States.
These measures were implemented following a 120-day review mandated by Executive Order 13780, which directed the Department of Homeland Security to determine what additional procedures should be implemented to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United States.
According to USCIS, new measures that apply to following-to-join refugees processed overseas include:
Ensuring that following-to-join refugees receive the full baseline interagency screening and vetting checks that other refugees receive.
Requesting that the following-to-join refugee submit his or her Form I-590, Registration for Classification as Refugee, in support of the principal refugee’s Form I-730, Refugee/Asylee Relative Petition, earlier in the adjudication process. USCIS or the Department of State will contact petitioners directly to request this information.
Vetting certain nationals or stateless persons against classified databases.
The USCIS notice is HERE.
A related Department of State memorandum is HERE.
A report required by Executive Order 13780 is HERE.
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8. New Publications and Items of Interest
Trump’s first year. The Migration Policy Institute has released a new report, “Trump’s First Year on Immigration Policy: Rhetoric vs. Reality.”
E-Verify free webinar listings are HERE.
Advisories and tips:
- Community Advisory: Social Media, Criminalization, and Immigration has been published by the National Lawyers Guild’s National Immigration Project. This advisory summarizes ways in which immigration agents may use social media against those in removal proceedings or involved in criminal cases.
- How to safeguard your data from searches at the border is the topic of several recent articles and blogs. See, for example, NYTimes and ACLU.
- Listings and links to cases challenging executive orders, and related available pleadings, are available HERE.
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 30 immigration hotspots around the world.
The latest edition adds chapters on Malta and Romania. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Ghana, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Peru, Russia, Singapore, 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 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.
An excerpt of the book is on the ABIL website.
Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584.
ABIL on Twitter. The Alliance of Business Immigration Lawyers is on Twitter: @ABILImmigration. Recent ABIL member blogs are HERE.
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9. ABIL Member / Firm News
Dagmar Butte spoke on “I-140 Adjudications Post Kazarian and Matter of Dhanasar” at the American Immigration Lawyers Association’s Mid-Year Conference in Cancun, Mexico, on February 2, 2018, and on “Challenging RFE Issues” at the New York Chapter Symposium on December 15, 2017.
H. Ronald Klasko recently presented at the 11th Global Residence and Citizenship Conference in Hong Kong. He presented on the E-2 (Treaty Investor) visa. When paired with the Grenada Citizenship by Investment program, the E-2 visa could be a solution for Chinese investors to avoid the 10-year EB-5 backlog. The conference was hosted by Henley & Partners. The event has become the world’s largest and most significant investment migration conference, with nearly 500 international delegates from more than 40 countries. Attendees included presidents, prime ministers, senior government officials, leading academics, industry professionals, and financial and business media. More information HERE.
Mr. Klasko and Daniel B. Lundy have been named to the list of the top 25 EB-5 lawyers in the country by EB5 Investors Magazine. According to the magazine, “Candidates were evaluated based on their experience in the EB-5 industry, their track record and their reputation within the field.”
Vincent Lau will speak on various topics at the following upcoming conferences:
Advanced PERM Issues, American Immigration Lawyers Association Midwinter CLE Conference, February 2018, Cancun, Mexico
Sangre y Arena: The BAHA Effect Across Agencies, American Immigration Lawyers Association Rome District Chapter Conference, February 2018, Madrid, Spain
PERM Under the Trump Administration, American Immigration Lawyers Association New England Immigration Law Conference, March 2018, Boston, Massachusetts
2018 Top PERM and LCA Issues, American Immigration Lawyers Association Midwest Regional Conference, March 2018, Chicago, Illinois
Inside the Beltway with the DOL Liaison Committee, American Immigration Lawyers Association 2018 Spring CLE Conference, April 2018, Washington, DC
PERM BALCA and FAQ Review, American Immigration Lawyers Association Annual Conference on Immigration Law, June 2018, San Francisco, California
U.S. Department of Labor Open Forum, American Immigration Lawyers Association Annual Conference on Immigration Law, June 2018, San Francisco, California
Mr. Lau spoke at Permanent Labor Certification Program (PERM)—Current Adjudication Trends and Anticipated Changes, Practising Law Institute, December 2017, New York City.
Robert Loughran, in his role as a member of the Texas State Bar Committee on Laws Relating to Immigration and Nationality, met with consular supervisors at the largest visa issuing post in the world in Ciudad Juarez, Mexico, on February 8, 2018, to review the latest procedures.
Cyrus Mehta has authored or co-authored several new blog entries. “The Evolving Rights of Deportable Immigrants As Seen in the Case of Ravi Ragbir” is HERE. “The AAO Finds That Entry-Level Wages Do Not Automatically Preclude H-1B Visa Classification” is HERE.
Mr. Mehta moderated “Lessons Across Borders: What the U.S. and Canada Can Teach One Another About Establishing a Successful Immigration and Asylum Policy” at the American Bar Association’s (ABA) 2018 Midyear Meeting in Vancouver, Canada, on February 3, 2018. More information is HERE. Video highlights are HERE. A related ABA article is HERE.
Mr. Mehta announced the following recent speaking engagements:
Program Chair and Speaker, “Basic Immigration Law 2018,” Practising Law Institute, New York City and via webcast, February 8, 2018
Program Chair, “Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Related Relief,” Practising Law Institute, New York City and via webcast, February 9, 2018
Moderator, “Lessons Across Borders: What the U.S. and Canada Can Teach One Another About Establishing a Successful Immigration and Asylum Policy,” American Bar Association 2018 Midyear Meeting, Vancouver, Canada, February 3, 2018
Guest Speaker, “How To Help Clients Even While President Trump Is Restricting Immigration,” AILA Philadelphia Chapter Meeting, Philadelphia, Pennsylvania, January 18, 2018
Wolfsdorf Rosenthal LLP has published several new blog entries. “10 Things Every Departing Alien Needs to Know About IRS ‘Sailing’ Permits” is HERE. “Ten Things To Know About Communist Party Membership Inadmissibility” is HERE. “New Streamlined E-1 & E-2 Investor Visa Processing at the U.S. Consulate in Toronto, Canada” is HERE.
Stephen Yale-Loehr co-authored “Trump and Obama Immigration Enforcement: A Tale of the Tape So Far,” published by New York Daily News on February 5, 2018. The article is HERE.
Mr. Yale-Loehr moderated a panel discussion in Palo Alto, California, on how the Trump administration’s immigration changes are affecting the tech industry. The panelists included Julie Pearl. The discussion is available as a podcast edited by Cornell Law School HERE (scroll down to “Faculty Podcasts: Immigration and the Tech Sector: What’s Changed, What Hasn’t, and What Might in the Trump Administration.”
Mr. Yale-Loehr will speak at the 16th Washington International Education Conference, an event offering independent objective information to the international education community, to be held at the University of California, Washington DC Center, on February 14-15, 2018. For further information, see HERE.
Mr. Yale-Loehr will give three talks in Sarasota and Venice, Florida, on March 6 and 7, 2018. On March 6, he will speak at 10:30 am at the First United Methodist Church, 104 S. Pineapple Ave., Sarasota, and at 2:30 pm at the Venice Community Center, 326 Nokomis Ave. South, Venice, about Green Card Stories. This book, featuring many ABIL members’ clients, puts a human face on immigration, moving the debate beyond divisive politics and into the landscape of everyday America. The individuals profiled in the book illustrate how immigrants are contributing to our nation today. On March 7, Mr. Yale-Loehr will talk about our broken immigration system and how to fix it at 10:30 am at the First United Methodist Church, 104 S. Pineapple Ave., Sarasota. All three talks are through the Sarasota Institute of Lifetime Learning. Details are HERE.
Mr. Yale-Loehr was quoted in Inside Higher Education in “A Year of Travel Bans,” about a decline in student and B visas issued in certain countries. He said the percentage changes were “higher than I would have anticipated. For example, a 53 percent decline in the number of F visas issued to people from Iraq, that’s very significant. Even if the numbers are small, the percentage change is very significant, and it shows that the State Department is implementing the travel ban more aggressively than many people may have thought.” He added, “The fact that despite the exception that theoretically allows students from Iran to come to the United States we still see a 24 percent decrease in the number of F-1 visas granted from Iran, shows that there is a de facto travel ban in place for many students from Iran even though legally they are allowed to apply to come under the same conditions as before.” The article is HERE.
Mr. Yale-Loehr was quoted in PolitiFact in “Donald Trump’s Misleading Claim About Chain Migration, Unlimited Sponsorship of Distant Relatives,” rebutting President Trump’s false claim that “a single immigrant can bring in unlimited numbers of distant relatives.” Mr. Yale-Loehr noted, “As a practical matter, because of these long backlogs there is not as much chain migration as President Trump claims.” The article is HERE.
Mr. Yale-Loehr was quoted in Deutsche Welle News Service in “Why Donald Trump’s Immigration Deal is a Hard Sell.” Responding to President Trump’s false claim that countries send their “worst people” under the diversity visa program, Mr. Yale-Loehr cited a 2011 Congressional Research Service report, noting that “a higher percentage of immigrants who entered the United States through the diversity visa program had managerial and professional occupations than green card holders overall.” With respect to “chain migration,” Mr. Yale-Loehr noted, “Chain migration is President Trump’s derogatory way of labeling family reunification immigration.” He also said, “President Trump is wrong to claim that distant relatives can easily and quickly immigrate to the United States,” pointing out that U.S. citizens can only petition for close relatives like siblings, children, and parents—not aunts, uncles, or other, more distant relatives. Mr. Yale-Loehr noted that even under the current system, for a U.S. citizen to try to bring a relative to the country is no small feat and takes a long time: “If I am a U.S. citizen and petition for my brother, the wait would be almost 14 years for most countries. And if my brother is from the Philippines, the wait would be over 23 years.” With respect to a recent immigration deal proposed by President Trump, Mr. Yale-Loehr said the chances of passage in Congress were not good. The article is HERE.
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10. Government Agency Links
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