|1. USCIS Launches Online Immigration System - Individuals can establish a USCIS ELIS account and apply online to extend or change their nonimmigrant status for certain visa types.|
|2. USCIS Issues Precedent Decision on P-3 Performing Artist/Entertainer Nonimmigrant Visa Petition - The decision addresses the term "culturally unique" and its significance in adjudicating petitions for performing artists and entertainers.|
|3. USCIS EB-5 Stakeholders Meeting Provides Little New Information - An EB-5 stakeholder meeting on May 1 provided few new details on how the agency plans to improve processing times.|
|4. Senators Urge Mayorkas Not To 'Undermine' L Visa Program - The senators said they were concerned that the L-1B visa program, which allows companies to transfer employees with specialized knowledge from their foreign facilities to their U.S. offices, "is harming American workers."|
|5. USCIS Centralizes Filing, Adjudication of Certain Waivers of Inadmissibility - Beginning June 4, 2012, individuals abroad who have applied for certain visas and have been found ineligible by a U.S. consular officer will be able to mail requests to waive certain grounds of inadmissibility directly to a USCIS lockbox facility.a|
|6. DHS Extends, Redesignates Somalia for TPS - Somali nationals with TPS who are seeking to re-register for TPS must file their application packages during the 60-day re-registration period that runs from May 1, 2012, through July 2, 2012.|
|7. Department of Labor Advises on H-2B Final Rule Injunction, Procedures for H-2B Labor Certifications - The Department of Labor published a Federal Register notice on May 16, 2012, advising on the injunction the U.S. District Court for the Northern District of Florida placed on implementation of the H-2B 2012 final rule.|
|8. ABIL Sends Comments on I-9 Proposed Revisions - ABIL formally objected to the failure of USCIS to submit for full regulatory review, with opportunity for public comment, the proposed three-page instructions to the I-9 and another set of 64 pages of instructions in the "Handbook for Employers."|
|9. ABIL Global: Canada - As of March 1, 2012, certain individuals, previously ineligible for entry to Canada due to past criminality, may be eligible for a fee-exempt "on the spot" temporary resident permit for one visit to Canada.|
|10. New Publications and Items of Interest - New Publications and Items of Interest|
|11. Member News - Member News|
|12. Government Agency Links - Government Agency Links|
|1. USCIS Launches Online Immigration System|
On May 22, 2012, U.S. Citizenship and Immigration Services (USCIS) launched the first phase of its electronic immigration benefits system, USCIS ELIS.
Individuals can establish a USCIS ELIS account and apply online to extend or change their nonimmigrant status for certain visa types. Eligible individuals include foreign citizens who travel to the United States temporarily to study, conduct business, receive medical treatment, or visit on vacation. USCIS ELIS will also enable USCIS officers to review and adjudicate online filings from multiple agency locations.
Following this first release, USCIS anticipates making adjustments and improvements in response to user feedback. Future releases will add form types and functions to the system, gradually expanding to cover filing and adjudication for all USCIS immigration benefits.
USCIS said the benefits of using USCIS ELIS include filing applications and paying fees online, shorter processing times, and the ability to update user profiles, receive notices, and respond to requests electronically. The system also includes tools to combat fraud and identify national security concerns.
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|2. USCIS Issues Precedent Decision on P-3 Performing Artist/Entertainer Nonimmigrant Visa Petition|
U.S. Citizenship and Immigration Services' (USCIS) Administrative Appeals Office (AAO) issued a binding precedent decision on May 15, 2012, addressing the term "culturally unique" and its significance in adjudicating petitions for performing artists and entertainers.
The Skirball Cultural Center filed a P-3 nonimmigrant petition with USCIS' California Service Center (CSC) on behalf of a musical group from Argentina. The CSC denied the petition, holding that the cultural center failed to establish that the group's performance was "culturally unique." "[D]ue to the unusually complex and novel issue and the likelihood that the same issue could arise in future decisions," the CSC asked the AAO to review its denial.
The AAO reversed the CSC and approved the petition after its review of the entire record, which included expert written testimony and corroborating evidence on behalf of the musical group. The AAO noted that the regulatory definition of "culturally unique" requires the agency to make a case-by-case factual determination. The decision clarified that a "culturally unique" style of art or entertainment is not limited to traditional art forms, but may include artistic expression that is deemed to be a hybrid or fusion of more than one culture or region.
The petitioner had sought classification of the beneficiaries as P-3 entertainers for a period of approximately six weeks. The beneficiaries were musicians in the group known as Orquesta Kef. The ensemble of seven musicians from Argentina had been performing together for between four and eight years, according to a letter dated September 2009, and performed music that blended klezmer (Jewish music of Eastern Europe) with Latin and South American influences. The group's biography stated that the band had developed "its own and unique musical style" based on "the millenary force of tradition and the powerful emotion of the Jewish culture, mixed in with Latin American sounds." The petitioner also provided a letter from an associate professor at the University of Southern California's Annenberg School for Communication supporting the band's claim to cultural uniqueness, among other submitted expert opinion letters and published materials.
The decision noted that Congress did not define the term "culturally unique" and the former Immigration and Naturalization Service (now USCIS) defined it in regulations as "a style of artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons."
The CSC decision denying the petition claimed that a hybrid or fusion style of music "cannot be considered culturally unique to one particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons."
The AAO said that the CSC's reasoning was not supported by the record, noting:
[T]he fact that the regulatory definition allows its application to an unspecified "group of persons" makes allowances for beneficiaries whose unique artistic expression crosses regional, ethnic, or other boundaries. While a style of artistic expression must be exclusive to an identifiable people or territory to qualify under the regulations, the idea of "culture" is not static and must allow for adaptation or transformation over time and across geographic boundaries. The term “group of persons” gives the regulatory definition a great deal of flexibility and allows for the emergence of distinct subcultures. Furthermore, the nature of the regulatory definition of “culturally unique” requires USCIS to make a case-by-case factual determination based on the agency’s expertise and discretion. Of course, the petitioner bears the burden of establishing by a preponderance of the evidence that the beneficiaries’ artistic expression, while drawing from diverse influences, is unique to an identifiable group of persons with a distinct culture. To determine whether the beneficiaries’ artistic expression is unique, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the entire record.
The AAO pointed out that the CSC's decision failed to note that the beneficiary group was a klezmer band and "seemed to struggle to identify the nature of the group's musical performance, focusing instead on the group's musical influences. "Here, the evidence establishes that the beneficiaries' music is, first and foremost, Jewish klezmer music that has been uniquely fused with traditional Argentine musical styles." The AAO said it found particularly persuasive an expert opinion explaining that klezmer music, while often associated with ethnically Jewish people, is an artistic form that has migrated and is continually mixed with and influenced by other cultures." The AAO also noted the fact that the beneficiaries were South Americans born to Eastern European immigrants and therefore were influenced by both cultures to create something new and unique to their experience. All the opinion letters submitted also recognized the existence of a distinct Jewish Argentine culture and identity that was expressed in the beneficiary group's music. Furthermore, the AAO noted, the published articles submitted recognized a musical movement in Argentina that fuses Argentine styles with influences from Jewish music and other Eastern European styles, and the articles and opinion letters placed the beneficiary group at the forefront of this trend.
Accordingly, the AAO found that the petitioner had established by a preponderance of the evidence that the modern South American klezmer music performed by the beneficiary group was representative of the Jewish culture of the beneficiaries' home country of Argentina and that the group's musical performance therefore fell within the regulatory definition of "culturally unique." The AAO added that the petitioner had submitted an itinerary showing that the beneficiary group would be performing at Jewish cultural centers and temples during its U.S. tour, which provided further evidence that the performances would be culturally unique events.
This is the AAO's third precedent decision issued since late 2010. As with all precedent decisions, it was selected and designated as precedent by the Secretary of the Department of Homeland Security with the Attorney General's concurrence.
USCIS ANNOUNCEMENT 1
USCIS ANNOUNCEMENT 2
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|3. USCIS EB-5 Stakeholders Meeting Provides Little New Information|
|U.S. Citizenship and Immigration Services (USCIS) held a quarterly EB-5 stakeholders meeting on May 1, 2012. Over 250 people attended in person, and over 300 listened by phone. Despite the interest in the meeting, USCIS did not provide much information. For example:|
- USCIS did not allow questions about and did not comment on the "tenant-occupancy" methodology issue, stating that the issue is under review. See the prior article. USCIS confirmed that applicants who were issued a "tenant-occupancy" RFE will be contacted with a notice that their deadline for response will be extended. However, there were no promises of forthcoming guidance related to the RFE.
- USCIS did not answer stakeholder questions that had been submitted before the meeting.
- USCIS expressed no specific plan or goals to improve processing times, which have slowed in recent months.
- USCIS expressed no specific plan or goals to improve communication through the public engagement mailbox or through the I-924 applicant e-mail lines.
- USCIS expressed no specific plan or goals to communicate expectations and standards in a more open manner.
- USCIS suggested that a new draft of its “foundational” EB-5 policy memo would be emerging "in a few weeks," and that the agency is not currently deferring to the draft memo or implementing the "material change" guidance included in the current draft.
- USCIS refused to say how it would handle pending EB-5 petitions if Congress fails to extend the EB-5 pilot program after September 30, 2012. USCIS said it would address this issue at its July EB-5 stakeholders meeting.
According to the latest EB-5 program statistics based on preliminary data for the second quarter of fiscal year (FY) 2012, USCIS received 2,771 I-526 (Immigrant Petition by Alien Entrepreneur) petitions and had approved 2,101 and denied 384 so far. This was an 85 percent approval rating, compared to an 81 percent approval rating for all of FY 2011 and an 89 percent approval rating for all of FY 2010. As of the second quarter of FY 2012, USCIS had received 375 I-829 (Petition by Entrepreneur to Remove Conditions) petitions and had approved 522 and denied 24 so far. This was a 96 percent approval rating, matching a 96 percent approval rating for all of FY 2011 and exceeding an 83 percent approval rating for FY 2010.
USCIS also noted that as of March 31, 2012, processing times were reaching 6 months for an I-924 initial application (target is 4 months), and were reaching 8 months for an I-924 amendment application (target is 4 months). USCIS recently approved four new regional centers: the California Regional Center, LLC; Las Vegas EB-5 Immigration, LLC; New York City Real Estate Regional Center, LLC; and Lone Star Regional Center, LLC. The full list of RCs by state is available HERE.
The next USCIS stakeholder engagement meetings are scheduled for July 26, 2012 (regional center discussion) and October 23, 2012 (general EB-5 discussion).
Additional details on the engagement meetings and the latest statistics.
Recording of the stakeholder engagement.
Latest statistics. are available HERE.
Latest EB-5 regional center statistics and information page.
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|4. Senators Urge Mayorkas Not To 'Undermine' L Visa Program|
Sens. Charles Grassley (R-Iowa) and Richard Durbin (D-Ill.) recently urged Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services, not to propose changes that "would undermine the L visa program" when USCIS issues new guidance on the L-1B "specialized knowledge" standard, expected in the near future. The senators shared their thoughts in a letter sent to Director Mayorkas on March 7, 2012.
The senators said they were concerned that the L-1B visa program, which allows companies to transfer employees with specialized knowledge from their foreign facilities to their U.S. offices, "is harming American workers" because some employers, especially foreign outsourcing companies, "use L-1B visas to evade restrictions on the H-1B visa program." For example, the senators noted, the L-1 program does not have an annual cap and does not include the labor protections of the H-1B program.
In January 2011, the Department of State issued new guidance to consular officers on adjudicating visas under the specialized knowledge category, outlining criteria including (1) the proprietary nature of the knowledge possessed by the visa applicant, (2) whether the visa applicant is "key" or normal personnel, and (3) whether the applicant possesses more skills or knowledge than an "ordinary" employee. The senators also noted that in July 2008, USCIS's Administrative Appeals Office (AAO) considered the definition of "specialized knowledge" and concluded that such employees are "an elevated class of workers within a company and not an ordinary or average employee." The senators advocated adoption of the standards and reasoning articulated in the January 2011 Department of State guidance and the July 2008 AAO decision. "We are concerned that any weakening of the standard would create additional incentives for some employers to use the L-1B visa program in order to circumvent even the minimal wage and other protections for American workers in the H-1B visa program."
A USCIS spokesperson said, "USCIS is currently reviewing its L-1B policy guidance, which is comprised of a series of memoranda dating back to 1994, to assess whether that guidance assists adjudicators in applying the law in new business settings that companies face today."
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|5. USCIS Centralizes Filing, Adjudication of Certain Waivers of Inadmissibility|
Beginning June 4, 2012, individuals abroad who have applied for certain visas and have been found ineligible by a U.S. consular officer will be able to mail requests to waive certain grounds of inadmissibility directly to a U.S. Citizenship and Immigration Services (USCIS) lockbox facility. This change affects where individuals abroad, who have been found inadmissible for an immigrant visa or a nonimmigrant K or V visa, must send their waiver applications.
Those filing waiver applications with a USCIS lockbox will now be able to track the status of their cases online. The change affects filings for:
Applicants who mail their waiver request forms should use the address provided in the revised form instructions on the USCIS website. Applicants who wish to receive an e-mail or text message when USCIS has received their waiver request may attach Form G-1145, E-Notification of Application/Petition Acceptance, to their application.
During a limited six-month transition period, immigrant visa waiver applicants in Ciudad Juarez, Mexico, may either mail their waiver applications to the USCIS lockbox in the United States or file in person at the USCIS office in Ciudad Juarez. USCIS said it is aware of the pending caseload for applicants in Ciudad Juarez and "is taking proactive steps to work through these cases." USCIS plans to increase significantly the number of officers assigned to adjudicate the residual cases filed before June 4 and those filed during the interim six-month transition period. USCIS has already begun testing this process and has transferred applications from Ciudad Juarez to other USCIS offices in the United States.
This change is separate and distinct from the provisional waiver proposal published in the Federal Register on March 30, 2012.
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|6. DHS Extends, Redesignates Somalia for TPS|
The Department of Homeland Security has redesignated Somalia for temporary protected status (TPS) and extended the existing TPS designation from September 18, 2012, through March 17, 2014. Somali nationals with TPS who are seeking to re-register for TPS must file their application packages during the 60-day re-registration period that runs from May 1, 2012, through July 2, 2012. Somalis (or persons without nationality who last habitually resided in Somalia) in the United States who do not currently have TPS may apply under the re-designation during the six-month period that runs from May 1, 2012 through October 29, 2012. U.S. Citizenship and Immigration Services (USCIS) encourages eligible individuals to register as soon as possible.
A Somali national may be eligible under the redesignation if she or he has continuously resided in the United States since May 1, 2012, and has been continuously physically present in the United States since Sept. 18, 2012.
DHS anticipates that there are approximately 250 individuals who will be eligible to re-register for TPS under the existing designation of Somalia and estimates that fewer than 1,000 additional individuals will be eligible for TPS under the redesignation.
DHS said the extension of the current Somalia TPS designation is due to the continued disruption of living conditions in the country based upon extraordinary and temporary conditions that prompted the Attorney General's redesignation of Somalia for TPS on September 4, 2001. The latest redesignation is based on "ongoing armed conflict and the worsening of the extraordinary and temporary conditions, including the effects of the recent severe drought in Somalia."
Federal Register Notice
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|7. Department of Labor Advises on H-2B Final Rule Injunction, Procedures for H-2B Labor Certifications|
The Department of Labor published a Federal Register notice on May 16, 2012, advising on the injunction the U.S. District Court for the Northern District of Florida placed on implementation of the H-2B 2012 final rule, published in February, and outlining procedures to be followed in seeking labor certification to file H-2B petitions. The notice states that employers must file H-2B labor certification applications under the 2008 H-2B rule, using those procedures and forms associated with the 2008 H-2B rule for which the Department has received an emergency extension.
The notice states that "this preliminary injunction necessarily calls into doubt the underlying authority of the Department to fulfill its responsibilities under the Immigration and Nationality Act and [Department of Homeland Security] regulations to issue the labor certifications that are a necessary predicate for the admission of H-2B workers." The Office of Foreign Labor Certification plans to post additional filing guidance on its website.
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|8. ABIL Sends Comments on I-9 Proposed Revisions|
The Alliance of Business Immigration Lawyers (ABIL) sent comments on the revised Form I-9 (Employment Eligibility Verification) on May 23, 2012, to U.S. Citizenship and Immigration Services (USCIS). ABIL formally objected to the failure of USCIS to submit for full regulatory review, with opportunity for public comment, the proposed three-page instructions to the I-9 and another set of 64 pages of instructions in the "Handbook for Employers," accessible at http://www.uscis.gov/files/form/m-274.pdf. These instructions are to be treated as incorporated amendments of USCIS regulations, and ABIL noted that the I-9 instructions impose substantive legal requirements.
The agency "has not complied with several federal statutes and presidential directives including the Administrative Procedure Act [APA], the [Paperwork Reduction Act (PRA)], the Regulatory Flexibility Act, Executive Orders 12866 and 13563 and OMB Circular A-4," ABIL said. Moreover, the PRA public burden and cost estimate of $414,375,200 is "woefully inadequate." The time estimate for completion of the form is three minutes, which, according to the three-page I-9 instructions, includes reading the instructions. This could not conceivably include a reading of the M-274’s 64 pages of instructions, ABIL noted. Moreover, given the number of respondents (projected by USCIS to be 78 million), the cost burden estimate "must inevitably be many multiples of $414,375,200." For the foregoing reasons, ABIL urged the Office of Management and Budget (OMB) to remand the information collection review to USCIS as unapproved and to direct the agency to comply in full with the applicable laws and regulations.
ABIL included detailed comments on the revised draft I-9. The comments will be posted shortly on the ABIL website.
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|9. ABIL Global: Canada|
As of March 1, 2012, certain individuals previously ineligible for entry to Canada due to past criminality may be eligible for a fee-exempt "on the spot" temporary resident permit for one visit to Canada.
To qualify for the exemption, the port of entry applicant must:
- have served no jail time, and
- have committed no other acts that would prevent him or her from entering Canada.
Applicants may be eligible for the fee waiver if they:
- have been convicted of an eligible offense (or its equivalent in foreign law);
- have served no jail time;
- have committed no other acts that would prevent them from entering Canada; and
- are not inadmissible for any other reason.
Eligible convictions include those equivalent to criminal offenses under the Immigration and Refugee Protection Act (IRPA), Section 36(2).
The equivalent convictions vary from country to country. Among others, they include:
- driving under the influence of alcohol;
- public mischief; or
All serious criminal offenses, defined under Section 36(1) of IRPA, are not eligible. Among others, they include:
- fraud over C$5000; or
- assault causing bodily harm.
Applicants may become admissible again if they:
Legal representation for these various applications and processes is strongly recommended because refusal rates are high.
- apply for a temporary resident permit and are approved;
- demonstrate through appropriate documentation that they meet the legal requirements to be deemed rehabilitated;
- apply for rehabilitation and are approved; or
- obtain a pardon.
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|10. New Publications and Items of Interest|
Resources for immigrating to Canada. The Globe and Mail has published "Essential Resources for Immigrating to Canada," a list of links with descriptions of groups and organizations dealing with immigration in Canada. Included are Citizenship and Immigration Canada, the Maytree foundation, Metropolis Canada, among others; and links to resources in the provinces.
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. 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.email@example.com.
Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book's profilees share a common trait, it's a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America's success. It tells the true story of our nation: E pluribus unum--out of many, one.
For more information or to order, visit Green Card Stories.
ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available HERE.
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|11. Member News|
The following Alliance of Business Immigration Lawyers members will be speaking or leading discussions at the upcoming American Immigration Lawyers Association conference to be held June 13-16, 2012, in Nashville, Tennessee:
- Maria Celebi and Bernard Wolfsdorf will speak on "How to Effectively Communicate with Consular Posts"
- Francis Chin will speak on " 'Who Pays the Piper?': Immigration Expenses and Corporate Immigration Policies"
- Kehrela Hodkinson will be discussion leader for a panel on "How to Build a Practice Full of Great Clients"
- H. Ronald Klasko will speak on "Creating and Representing Regional Centers"
- Charles Kuck will speak on "Protecting Our Clients: How to Combat Anti-Immigrant Legislation"
- Sharon Mehlman will speak on "Attracting the Best Employees and Letting the Worst Go"
- Cyrus Mehta will speak on "Third Party Placement"
- Angelo Paparelli will speak on "Please Make the Music Stop!: Anticipating, Avoiding, and Attacking NIV RFEs"
Eugene Chow was recently interviewed on The Wall Street Journal's digital edition. He discussed Americans living overseas who give up U.S. citizenship to avoid paying taxes, and the effect of the exit tax.
Robert Loughran moderated, and Sharon Mehlman spoke, on "Tips on Electronic Verification Systems, Including Form I-9 Software and E-Verify Best Practices," on May 24, 2012, in Part 2 of the ILW E-Verify and Form I-9 Compliance seminar. For more information, see HERE.
Mr. Loughran was named one of Texas' Best Lawyers in Immigration Law for 2012, by Best Lawyers – Texas edition. FosterQuan was recognized as receiving more selections than any other immigration law firm.
Cyrus Mehta has written several new blog entries. "Halt America's Decline By Welcoming Skilled and Entrepreneurial Immigrants." "Assault on Battered Immigrants: HR 4970 Undoes VAWA Protections and Risks Lives."
Angelo Paparelli has published several new blog entries. "With Hope Springing Eternally, ACUS Is Working on Immigration Again". "Rendering Unto the Immigration Caesars".
Bernard Wolfsdorf has been named Corporate Immigration Lawyer of the Year in the 2012 Who's Who Legal Awards.
Stephen Yale-Loehr was interviewed on WSKG, a National Public Radio station in New York on the episode, "Immigration in the Finger Lakes."
Mr. Yale-Loehr was quoted in USA Today on May 26, 2012, in "Illegal Immigrants Find Paths to College, Careers." He noted that the law does not require those who hire independent contractors to ask for proof of immigration status. A client who pays for such services is not necessarily breaking the law if the contractor isn't authorized to work, he said, noting that self-employed undocumented contractors are violating immigration law but may avoid additional grounds for removal if they don't present counterfeit documents.
Mr. Yale-Loehr co-authored an article about EB-5 I-829 requests for evidence that was published in the June 1, 2012, issue of Bender's Immigration Bulletin.
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|12. 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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