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1. AUSTRALIA - Caution should be exercised when dismissing 457 visa holders; tax benefits will soon be lost for expatriates; and reforms are coming in the employer-nominated permanent entry programs.
2. CANADA - Expedited processing for IT workers ends.
3. CHINA - A new entry and exit draft law has been introduced in China's National People's Congress; it is the first major overhaul of China's immigration law since 1985.
4. FRANCE - More on new restrictions; France implements the EU Blue Card.
5. ITALY - Italy implements the Integration Agreement.
6. JAPAN - A new Resident Card will be issued under the new Residency Management System effective July 9, 2012.
7. NETHERLANDS - The Highly Educated Foreigners Scheme is being expanded to include more universities; family reunification rules are being tightened; and the EU Blue Card salary threshold has been announced for 2012.
8. RUSSIA - The work permit numerical limit for 2012 is 1,745,584; employers wishing to sponsor foreign workers in Russia in 2013 must submit their forecasts before May 1, 2012; the Federal Migration Service of Russia has penalized performers.
9. SOUTH AFRICA - Significant amendments to the Refugees Act and the Immigration Act, 2002, are expected; among other things, applying to change a visitor permit to a work or medical permit will be prohibited. Also, those wishing to work in South Africa for longer than three months must obtain an appropriate permit.
10. UNITED KINGDOM - Plan early to attend the London 2012 Olympic Games; UK announces new border agency.
11. Member News - Member News


Caution should be exercised when dismissing 457 visa holders; tax benefits will soon be lost for expatriates; and reforms are coming in the employer-nominated permanent entry programs.

Caution When Dismissing Sponsored Employees

Sponsors should be cautious when considering dismissal of 457 visa holders. As with their Australian counterparts, 457 visa holders have access to employment remedies under the Fair Work Act. Even where a sponsored employee's employment is terminated under an employment agreement, the dismissal may still be held to be harsh, unjust, or unreasonable. Under Australian immigration law, when a sponsored employee's employment is terminated, he or she has just 28 days to regularize visa status or leave Australia.

If sponsors fail to comply with relevant workplace law, Fair Work Australia may order one of two sanctions: compensation or reinstatement. This could also affect the sponsor's continued ability to sponsor expatriates.

When determining whether a dismissal is harsh, unjust, or unreasonable, Fair Work Australia takes into account, among other factors, whether:

  • there was a valid reason for the dismissal;
  • the person was notified of the reason;
  • the person was given an opportunity to respond to any reason related to his or her capacity or conduct; and
  • the person received a warning about unsatisfactory performance before the dismissal.

In Webster v Mercury Colleges Pty. Ltd., Fair Work Australia held that termination of a sponsored teacher was unfair because of the serious financial consequences to the teacher and the social dislocation that was inevitable as a result of his summary dismissal.

In Richard Patemella v Electroboard Solutions Pty. Ltd., the tribunal held that the dismissal was harsh because the employee was not given any warning that his employment was at risk, limiting his opportunity to mitigate his job loss and, as a result, his ability to remain in Australia.

The Fair Work Act requires employees in Australia, including sponsored visa holders, to lodge an unfair dismissal claim with Fair Work Australia within 14 days of their dismissal unless the tribunal is satisfied that there are exceptional circumstances for the delay. The recent decision in Usman Ali v Industries Services Training Pty. Ltd. held that the potentially severe impact on a 457 visa holder of losing his job constituted exceptional circumstances justifying a one-day delay in lodging an unfair dismissal claim.

Impending Changes to Living Away From Home Allowance Rules

Currently, employees living away from home to perform their employment duties in Australia may be eligible for tax-free benefits for reasonable housing and food costs under the Living Away From Home Allowance (LAFHA) rules. Changes have been proposed to start on July 1, 2011, to address the perceived abuse of these LAFHA tax concessions.

As a result of the proposed changes, employers of foreign workers in Australia will need to consider their recruitment and retention strategies, current contracts of employment, and whether to facilitate transition of current sponsored temporary residence employees to permanent residence.

Essentially, employers have three key options to consider:

  1. increasing the foreign worker's remuneration so that his or her take-home pay is not affected;
  2. continuing to pay the LAFHA, which means the foreign worker will pay tax under the income tax regime; or
  3. renegotiating contracts of employment so that the foreign worker is reimbursed for reasonable accommodation and food expenses. In this case, the employer incurs a fringe benefit tax liability.

Reforms to Permanent Entry Employer-Nominated Program

The Australian government has announced reforms to the permanent entry employer-nominated visa program to be introduced on July 1, 2012.

Key reforms include:

  • removing the existing distinction between applications with respect to whether they are made by applicants who are in or out of Australia
  • replacing the current requirement of paying nominated permanent resident applicants at least the Minimum Salary Level (MSL) of $67,556 for IT-related occupations and $49,330 for other occupations with the need to pay the market salary
  • raising the upper age limit to less than 50 years; exceptions will apply for certain occupations and persons working in Australia for more than four years who were paid more than A$118,100 as of July 1, 2011
  • increasing the English-language IELTS test result to 6 for all applicants except those already in Australia and working for their nominating employer for the last two years; exceptions will apply for certain occupations, and nationals of five English-speaking countries (United Kingdom, United States, Canada, Ireland, and New Zealand)
  • introducing a single consolidated nominated occupation list (NOL) to replace the current sponsored employee 457 occupation list, the Employer Nomination Skilled Occupation List, and the State and Territory Sponsored Occupation List
  • integrating the permanent employer nominated visas with the skilled independent migrant selection model SkillSelect to be launched on July 1, 2012. Intending migrants who complete an Expression of Interest in migrating to Australia in SkillSelect can also indicate whether they are prepared to be sponsored for temporary residence or nominated for permanent residence by an employer.
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Expedited processing for IT workers ends.

Following the termination of the facilitated process for information technology (IT) workers (labor market exemption) in British Columbia in December 2011 and in all other provinces in September 2010, Québec has also announced the end of the program for the seven different types of IT occupations. The program expedited the admission of foreign workers in certain IT occupations, mainly those in software development.

As a result, Citizenship and Immigration Canada will require Labor Market Opinions (LMOs) for those temporary foreign IT workers who previously qualified for the exemption. The process will be much lengthier and will require a job posting of at least 14 days, followed by an application for the LMO work permit.

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A new entry and exit draft law has been introduced in China's National People's Congress; it is the first major overhaul of China's immigration law since 1985.

At the end of 2011, a new draft law on entry and exit administration was introduced in China's National People's Congress for initial review. The draft law was subsequently published for public comments, and is under continuing review and discussion. Once passed, this law would be the first major overhaul of China's immigration law since 1985.

The current Law on Entry and Exit Administration of Foreigners and the Law on Entry and Exit Administration of Chinese citizens were enacted in 1985, and regulations to enforce the two laws were promulgated in 1986. Due to economic growth and globalization, China has been experiencing an increased flow of both Chinese citizens and foreigners across its borders. As a result, new issues have arisen for the Chinese government regarding entry and exit administration. According to the government, the draft law aims to provide unified clarity in the administration of the entry and exit of Chinese citizens and foreigners, foreigners' temporary and long-term residence in China, and border control.

The draft law authorizes the collection of biometric data, such as fingerprints, from individuals seeking entry and exit. It requires that foreigners who stay in China for more than 180 days apply for residence permits with 30 days of their date of entry at local police departments, where applicants' fingerprints will be taken. The draft law also requires foreigners to carry valid identification and register their location of stay at their hotel, or with the local police department if the foreigner does not stay at a hotel.

The draft law signals the Chinese government’s intent to crack down on illegal employment and illegal presence in China. It defines illegal employment as providing services for compensation without a work permit and residence permit; providing services outside of the authorized scope; and foreign students working beyond the authorized scope or hour limit. Under the draft law, both employers and foreigners engaging in illegal employment will be subject to monetary penalties. Employees may also be subject to detention.

The draft law also provides guidance regarding applications for permanent residence. Similar provisions are currently included in the regulations but not in the law.

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More on new restrictions; France implements the EU Blue Card.

More on New Restrictions

The electoral campaign started this year and immigration is a hot issue in France, as it is in most other European countries. With its new anti-business immigration stance, the current government is trying to recapture the voters it may have antagonized by its pro-business conduct in preceding years. Business should be back to normal by the middle of this year, after the presidential and parliamentary elections.

A government circular of May 31, 2011, instructed labor authorities to apply greater scrutiny in adjudicating work permits and to interpret the regulations restrictively, with the aim of reducing the number of foreign nationals being admitted to France for professional purposes. Among other things, labor authorities must evaluate if a foreign worker is under- or overqualified for the employment offered. If he or she is underqualified, the application must be denied. If overqualified, the advertisement must be modified and published again.

Authorities also must verify that: (1) the compensation meets appropriate thresholds as determined by collective bargaining agreements, the market, and minimum salary laws; (2) the candidate has an adequate knowledge of French; and (3) the candidate is provided adequate housing.

The restrictive measures, which have increased processing times for work permits generally, do not apply to work permit categories that receive preferential processing, such as intra-company transfers, secondments, and seasonal workers.

With respect to change-of-status applications, which mainly apply to foreign students, the government circular states that foreign students are to return to their home countries after the end of schooling. These instructions resulted in a massive protest by universities and students, and there were even protests from within the government. The government issued a new circular on January 13, 2012, providing guidelines to adjudicating officers. The goal is to avoid tarnishing the attractiveness of French schools for foreign students and undermining French business in need of foreign talent.

For more on the new restrictions, see the January 2012 issue of the ABIL Global Immigration Update.

France Implements EU Blue Card

On a more positive note, France has created a new immigration category by implementing the European Union (EU) Blue Card directive to attract skilled workers from third countries and facilitate the mobility and permanent residence of such workers within the EU.

Law no. 2011-672 of June 16, 2011, and decree no. 2011-1049 of September 6, 2011, provide the legal framework for the transposition of the EU Blue Card directive into French law. The qualifying criteria are in accordance with the criteria stated in the EU directive:

  1. an employment contract with a duration of one year or more;
  2. a minimum annual salary threshold of 1.5 times the average salary of reference, which is determined by the Minister of Interior on an annual basis. According to the current reference salary (€ 34,296), this annual salary threshold is € 51,444; and
  3. A three-year higher education diploma or equivalent knowledge through five years of experience.

A qualifying third-country national will be issued a joint residence and work permit for the length of employment, with maximum validity of three years. This permit is renewable. An accompanying spouse will be issued a Private and Family Life category work permit, which may be renewed annually for as long as the main applicant has a valid Blue Card permit.

The Blue Card may also be issued to a third-country national who already holds a Blue Card issued by another member state and wants to accept employment in France after 18 months of residence under the initial Blue Card. The application is made within one month of arrival in France. The applicant need not present a long-stay French visa.

The Blue Card permit is issued without labor market testing. Its beneficiary and his or her spouse wou-ld qualify for the EU long-term resident permit after five years of residence under the Blue Card in the EU, of which only the last two years must be in France.

French authorities have up to 90 days to adjudicate the Blue Card application and up to six months to adjudicate the accompanying spouse's residence permit.

The advantages of the Blue Card over other categories are:

  • Intra-company prior employment is not required.
  • Mobility within the EU is facilitated.
  • Acquisition of long-term resident status is facilitated.
  • The qualifying criteria are very precise (leaving less room for the discretion of the government).
The Blue Card is very good news, especially for skilled third-country nationals who are unable to qualify under other categories.
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Italy implements the Integration Agreement.

Beginning on March 10, 2012, all foreigners over 16 years of age who enter Italy for the first time and apply for a residence permit with a validity of at least one year must sign an "Integration Agreement" (Accordo di Integrazione) at the immigration office (Sportello unico per l’immigrazione) or at the police headquarters (Questura). The new measures do not apply to those already present in Italy.

The agreement regulates the new point system for the permit of stay. Foreigners are accredited with points or credits based on their level of integration into Italian society.

The agreement, where possible, is translated into the native language of the person. Upon signing the agreement, each foreigner is automatically assigned 16 points, which corresponds to a sufficient knowledge of the Italian language (A1) and of the basic principles of Italian culture and public life.

The main points of the agreement include:

  • Achievement of an "A2" level of knowledge of the Italian language (slightly higher than the basic level);
  • Sufficient knowledge of the fundamental principles of Italian law and public administration;
  • Basic knowledge of Italian public life (e.g., social service, health care);
  • Compliance with work and tax obligations;
  • A guarantee that children of school age attend compulsory education.

From the date of signing the agreement, the foreigner has two years to obtain the required minimum points. This can be extended up to three years if necessary.

Within six months of signing the agreement, the foreigner must attend a free cultural education course (five to 10 hours). The course can be taken in one of several languages: English, French, Spanish, Arabic, Chinese, Albanian, Russian, or Filipino.

The foreigner is awarded points based on considerations such as demonstrating knowledge of the Italian language, courses taken, and educational qualifications. Those who obtain at least 30 points are considered to have fulfilled the requirements of the integration agreement, while those who obtain between one and 29 points are given one year to complete everything and obtain the necessary minimum 30 points. Those who have all their points deducted are no longer eligible for a permit of stay or renewal and will be expelled from Italy.

Points may also be deducted for reasons such as a criminal sentence, even if not a definitive sentence (a judgment by a lower court that can be appealed); being a threat to public security; or committing administrative or tax offenses.

One month before its expiration date, the immigration office will review all the documents submitted by the foreigner (e.g., certificates of courses attended, educational certificates). Those who fail to submit the certificates must undertake a test if the authorities deem it necessary.

The Ministry of Home Affairs maintains an official register of all foreigners who have signed the integration agreement. The register indicates points obtained by each foreigner. Any changes to the points will be communicated to the relevant person, who will also have access to the register to check status.

The law also provides the possibility to suspend or postpone the agreement for cause of force majeure or for justified reasons that prove it is impossible to fulfill terms of the agreement such as serious illness, work, study and training obligations.

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A new Resident Card will be issued under the new Residency Management System effective July 9, 2012.

Effective July 9, 2012, there will be a new Residency Management System for all foreign nationals residing in Japan. Consequently, the existing Alien Registration Card (ARC) will be replaced by a new Resident Card, which will serve as a form of identification for foreigners working and living in Japan for more than 90 days. The Resident Card will be issued upon arrival at any of the four major international airports in Japan: Chubu, Haneda, Kansai, and Narita. Travelers entering through other airports will receive their Resident Card in the mail after they arrive in Japan.

The new program will reduce the minimum period of stay from one year to three months and extend the maximum period of stay from three years to five years. Resident Card holders travelling abroad while in Japan will no longer need to obtain a re-entry permit as long as they return within one year. Currently, a re-entry permit is required for any travel outside of Japan.

Foreign nationals currently holding valid ARCs that expire on or after July 8, 2015, must obtain the new Resident Card, but may do so anytime before that date. All others may continue using their current ARCs until expiration and obtain the Resident Card at the time of renewal.

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The Highly Educated Foreigners Scheme is being expanded to include more universities; family reunification rules are being tightened; and the EU Blue Card salary threshold has been announced for 2012.

Highly Educated Foreigners Scheme Expanded

The Highly Educated Foreigners Scheme for foreign students will be expanded. Currently, foreign students who have graduated with a master's degree or Ph.D. from one of the universities ranked in the top 150 list from the Times Higher Education Supplement, or from one of the top 150 on the Jiao Tong Shanghai University list, may apply for a residence permit under this scheme. The scheme will be expanded to include the top 200 universities on both lists.

Family Reunification Restricted

The Netherlands will restrict family reunification to spouses, registered partners, and minor children. Unmarried partners and children who are not minors will no longer be eligible for family reunification.

A same-sex partner who is not allowed to marry by law in his or her country of origin may be eligible for a temporary residence permit in the Netherlands for a period of six months. During these six months, the same-sex partners must marry in the Netherlands or form a registered partnership.

The Dutch cabinet has agreed with these changes, proposed by the Minister for Immigration and Asylum. They will be introduced in the Dutch parliament soon.

EU Blue Card: Salary Threshold 2012

The salary threshold to be eligible for the EU Blue Card in 2012 is EUR 60,000 (gross) per year (including 8% holiday allowance). This is the same salary threshold as in 2011.

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The work permit numerical limit for 2012 is 1,745,584; employers wishing to sponsor foreign workers in Russia in 2013 must submit their forecasts before May 1, 2012; the Federal Migration Service of Russia has penalized performers.

The Russian government has announced that the work permit numerical limit (quota) for 2012 is 1,745,584. The quota has not changed significantly since last year and permits will continue to be distributed among the various regions in the country. Companies wishing to sponsor foreign workers in Russia in 2013 must submit their forecasts to the local labor authorities before May 1, 2012.

 There is also a list of 41 positions that are quota-exempt. Several new positions have been added to the quota-exempt position list since last year, including design engineers, electrical engineers, and technicians, among others. Also included on the list are circus performers, sound engineers, engineer-welders, ringmasters, and drilling technicians. Work permits for highly skilled professionals continue to be quota-exempt but such positions must meet strict salary requirements.

In other news, the Federal Migration Service of Russia has penalized bands that performed on March 9, 2012, at the "Disco of the 90s" show. Among others were bands such as Snap, East-17, La Bouche, and Culture Beat. Artists and signers did not have work permits, only tourist visas. Penalties ranged from US$80 to US$160. Organizers were assessed penalties of US$25,000.

This precedent makes clear that the Federal Migration Service sees the main criteria as the type of activity that will be conducted in Russia and not the period of stay. Before this action, no such penalties were imposed. Russian immigration legislation does not stipulate a special visa for foreign artists and signers, so they will have to obtain either a standard work permit for one year, which takes three months to receive and is subject to numerical limits, or a "Highly Qualified Specialist" work permit for three years. This also raises tax issues.

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Significant amendments to the Refugees Act and the Immigration Act, 2002, are expected; among other things, applying to change a visitor permit to a work or medical permit will be prohibited. Also, those wishing to work in South Africa for longer than three months must obtain an appropriate permit.

Pending Changes to the Work Permit Regime

Outside of refugee movements (which are regulated by the Refugees Act), immigration in South Africa is regulated by the Immigration Act, 2002, and the regulations to that Act. Two significant amendments to each of these Acts are expected. The Department of Home Affairs is revising the regulatory regime underpinning these Acts. These amendments may come into operation in the second quarter of 2012 or possibly as soon as the end of April 2012.

While the provisions of the Amendment Acts are obviously known, the Department tends not to reveal in advance what is coming in the regulations and is not required to engage stakeholders on their content. In some critical ways, it is impossible to understand the Amendment Acts before we have seen the new regulations.

One issue that will affect the deployment of staff to South Africa is, however, quite clear. Under the current Act (and even its predecessor), it is entirely lawful for an expatriate employee to travel to South Africa immediately to take up a post, particularly if he or she is the holder of a visa-exempt passport. The employee would enter the country as a visitor and then apply from inside the country for the appropriate work or transfer permit. Even if his or her visitor permit had expired before the main application had been adjudicated and approved, in practice the Department's receipt for the application would serve as a de facto permit to remain in the country. It would not be a de facto "interim" work permit, however.

The new Act expressly provides that, from whenever it comes into operation, a person cannot travel into the Republic as a "visitor" and then, within a week or several, apply for a work permit. Travelling with one's family and seeking study permits, or similar activities, would be a dead giveaway as to intent. The new Act reasons that to say that one is entering the country on the basis of being a visitor when he or she knows that the real purpose is to take up a position constitutes misleading the Department and entering on the basis of misrepresentation. So applying to change a visitor permit to a work permit (or medical permit) will be strictly prohibited. The visitor must instead return to his or her country of ordinary residence (with the family) and apply through the appropriate Embassy for the correct permit.

The new Act provides that "internal" changes of purpose will only be allowed in exceptional circumstances to be defined by the Minister in the new regulations.

Employers should be alert to these changes because a mistake could be a very expensive miscalculation.

Short-Term Deployments to South Africa: No 'Back Door' Work Permits

The South African Department of Home Affairs issued a confidential directive in December 2011 that seeks to regulate the issue of short-term work authorizations. It has supplemented that directive in recent weeks with policy guidelines on the same subject. The holders of visa-exempt passports (for example, U.S., Canadian, and European Union (EU) passports) are most affected.

Generally speaking, persons traveling on visa-exempt passports receive a visitor permit that is valid for three months upon arriving at a South African port of entry, unless they already hold some other residence status. It was often not realized that this visitor permit allowed the holder only to visit, not work.

Immigration legislation did, however, allow for persons needing to enter the Republic to work, so long as the work was for no longer than three months. This special category of visitor permit could be obtained upon arrival at a port of entry, so long as the passport was visa-exempt. This type of permit was intended principally for film crews, performing artists, models and support staff, counsel needing to consult with clients, and other such legitimate short-term deployments.

Until recently, the practice had been that upon presentation of a letter from the offshore employer asking for such short-term work authorization, this subcategory of visitor permit would be issued at the port of entry for a period of three months. However, the ease with which this could be done led to considerable abuse. There were instances of people actually working in the Republic on these visitor permits for years by "commuting" home every three months. This, it was thought, allowed the employer to bypass the requirements for an ordinary work permit. The Department of Home Affairs views such practice as immigration fraud.

The new regime has a number of key features. A well-motivated representation must be submitted in writing to the Director General of Home Affairs at least 10 days before the person is scheduled to arrive in South Africa. The Director General must approve the request in writing, and the employee must submit that approval to the port of entry upon arrival. This permit may only be obtained at a port of entry or at an embassy. The permit will not be extended; anyone needing to stay and work for longer than 90 days must instead apply for an appropriate work permit.

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Plan early to attend the London 2012 Olympic Games; UK announces new border agency.

The government of the United Kingdom (UK) is urging all those who plan to come to the UK during the Olympic Games to plan ahead and begin making travel arrangements, including securing any necessary visas. The London 2012 Games will be the biggest event that the UK has hosted and the government expects many extra visitors during the already busy summer season.

The UK has also announced the creation of a new agency, the UK Border Force, which is now responsible for border control and inspection procedures at UK ports of entry. The UK Home Secretary said that after it was revealed that thousands of people were allowed into the country without proper immigration checks, it was decided that the UK Border Agency (UKBA) would be split into two separate bodies. The Border Force will "become a separate operational command, with its own ethos of law enforcement, led by its own Director General, and accountable directly to ministers." UKBA will continue to manage immigration administrative functions such as processing work and residence permit applications.

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11. Member News

Marco Mazzeschi will speak at the "Citizenship in the Global Era" conference in Rome on May 25, 2012. The conference is organized by the Federal Bar Association's Immigration Law Section, the John Felice Rome Center, Loyola University Chicago School of Law, and Stanford University's Arthur and Toni Rembe Rock Center for Corporate Governance. The conference program is available here, and the registration form is available here.

Several ABIL members co-authored and edited the new publication, Global Business Immigration Practice Guide, to be released on May 31, 2012, by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

This comprehensive guide is designed to be used by:

  • 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 book will be discounted 20% for pre-orders through May 31. You can order here. The discount code is ABIL20 (enter this code at checkout). International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or Nicole.hahn@lexisnexis.com.

The Wolfsdorf Immigration Law Group will present several free webinars. Upcoming topics include Extraordinary Scientists (E-11), Outstanding Professors and Researchers (E-12), and National Interest Waivers (EB-2), to be held on Thursday, April 12, 2012; International Student Work Visa Options, to be held on Thursday, April 26, 2012; Investors/Traders (E Visas) and Company Transferee (L Visas) and Green Cards (E-13), to be held Thursday, May 10, 2012; Religious Worker Visas – Ordained and Non-Ordained, to be held Thursday, May 17, 2012; Artist and Entertainer Work Visas (O and P) and Green Cards (E-11), to be held June 7, 2012; Work Visas and Green Cards for Athletes (O/P and E-11), to be held Thursday, June 21, 2012; and Visa Options for International Scholars, Faculty and Staff, to be held Thursday, July 12, 2012. For more information or to register, click here.

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