MID-JUNE 2016 – IMMIGRATION UPDATE

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USCIS, DOS Launch e-Approval for H-2A Petitions

U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) recently announced the launch of e-Approval for Form I-129, Petition for a Nonimmigrant Worker, for the H-2A (temporary agricultural worker) classification. This new electronic process, begun on May 16, 2016, allows USCIS to send approval information for H-2A petitions to DOS by the end of the next business day. DOS will accept this electronic information in place of a Form I-797 approval notice and allow its consular posts to proceed with processing an H-2A nonimmigrant visa application, including conducting any required interview.

USCIS will continue the current practice of updating My Case Status online upon approving a case and mailing approval notices to petitioners. Employers will not be charged any additional fees for the USCIS/DOS e-Approval process.

USCIS said the goals of the USCIS/DOS e-Approval process are to:

  • Reduce delays for U.S. employers that wish to employ H-2A agricultural workers;
  • Reduce the amount of paperwork between USCIS and DOS;
  • Replace the current paper-based USCIS/DOS notification process with an electronic process that will make the visa process more efficient for applicants; and
  • Provide greater efficiency and consistency in transmitting information to DOS consular posts.

The USCIS announcement is HERE. My Case Status is at egov.uscis.gov/casestatus/landing.do.

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USCIS Will Now Use Pre-Paid Mailers To Send H-2A Receipt Notices

Coinciding with the launch of e-Approval, U.S. Citizenship and Immigration Services (USCIS) has begun using pre-paid mailers provided by petitioners to send out receipt notices for H-2A (temporary agricultural worker) petitions. USCIS said this is a change from standard processing at USCIS service centers, which normally use pre-paid mailers only for final decision notices.

Under this change, H-2A petitioners may now submit two pre-paid mailers if they want to expedite delivery of both the receipt notice and the final decision notice. Any submitted pre-paid mailers for H-2A petitions must still meet the same requirements for their use with other forms and classifications.

Until further notice, USCIS will:

  • Use any pre-paid mailer provided by an H-2A petitioner primarily to send the receipt notice.
    Send the final decision notice (such as a Notice of Approval or Notice of Denial) in a pre-paid mailer only if the H-2A petitioner provided a second pre-paid mailer.
  • Continue to send all other notices regarding an H-2A petition, including any Requests for Evidence, by regular U.S. mail.

USCIS said it revised how it processes pre-paid mailers for H-2A petitions “in recognition of stakeholder interest in expediting the delivery of receipt notices for this very time-sensitive classification.” This change is limited to H-2A petitions.

The USCIS announcement is HERE.

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Employers May Submit Inquiries If Extension of Status/Change of Employer Petitions Have Been Pending for 210 Days or More

U.S. Citizenship and Immigration Services (USCIS) recently began allowing petitioners who filed Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of status or change of employer to submit an inquiry after their petition has been pending for 210 days or more. This inquiry may be based on the petition being outside of normal processing times.

Employers whose I-129 petitions have been pending for at least 210 days may submit inquiries by calling the National Customer Service Center at 1-800-375-5283 (TDD for hearing-impaired: 1-800-767-1833). Those asking about case status should provide the original receipt number and specify that the case has been pending for 210 days or more.

The announcement is HERE.

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DHS Extends TPS for Nicaragua and Honduras

The Department of Homeland Security has extended temporary protected status (TPS) for eligible nationals of Nicaragua and Honduras (and those without nationality who last habitually resided in one of those two countries) for an additional 18 months, effective July 6, 2016, through January 5, 2018.

Current Nicaraguan and Honduran TPS beneficiaries who want to extend their TPS must re-register during the 60-day re-registration period that began May 16, 2016, and runs through July 15, 2016. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible.

The 18-month extension allows TPS re-registrants to apply for a new Employment Authorization Document (EAD). Those who re-register during the 60-day period and request a new EAD will receive one with an expiration date of January 5, 2018. USCIS said it recognizes that some re-registrants may not receive their new EADs until after their current work permits expire.

Therefore, USCIS is automatically extending current TPS Nicaragua EADs with a July 5, 2016, expiration date for six months. These existing EADs are now valid through January 5, 2017.

To re-register, current TPS beneficiaries must submit:

  • Form I-821, Application for Temporary Protected Status (re-registrants do not need to pay the Form I-821 application fee);
  • Form I-765, Application for Employment Authorization, regardless of whether they want an EAD;
  • The Form I-765 application fee (or a fee-waiver request) only if they want an EAD. If the re-registrant does not want an EAD, no application fee is required; and
  • The biometric services fee (or a fee-waiver request) if they are age 14 or older.

USCIS noted that it is transitioning to process Nicaraguan TPS applications electronically (the announcements do not mention electronic processing with respect to Honduran TPS applications). However, applicants must continue to complete the paper forms and submit them by mail. Once USCIS receives the documents, the agency will scan them in for processing. Nicaraguan applicants with properly filed submissions will receive a USCIS Account Acceptance Notice in the mail with instructions on how to create a USCIS online account. USCIS will still process TPS Nicaragua applications even if applicants choose not to access their online account. The agency will also send copies of case notifications via the U.S. Postal Service.

The TPS announcements are HERE (Nicaragua) and HERE (Honduras). The related Federal Register notices are HERE (Nicaragua) and HERE (Honduras).

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USCIS Proposes Fee Increases, New Fee for Annual Certification of EB-5 Regional Centers

U.S. Citizenship and Immigration Services (USCIS) issued a proposed rule on May 4, 2016, to increase USCIS fees by a “weighted average” of 21 percent and add one new fee for EB-5 Regional Centers. In addition, among other things, USCIS proposes to clarify that persons filing a benefit request may be required to appear for biometrics services or an interview and pay the biometrics services fee. The weighted average increase is the percentage difference between the current and proposed fees by immigration benefit type. USCIS further explains its calculations in the notice.

Generally, USCIS said it anticipates that if it continues to operate at current fee levels, it will experience an average annual shortfall of $560 million between Immigration Examinations Fee Account (IEFA) revenues and costs. This projected shortfall “poses a risk of degrading USCIS operations funded by IEFA revenue,” USCIS said. The agency believes the proposed rule “would eliminate this risk by ensuring full cost recovery.”

In addition to raising fees for existing petitions, USCIS proposes a new fee of $3,035 to recover the full cost of processing the Employment Based Immigrant Visa, Fifth Preference (EB-5) Annual Certification of Regional Center, Form I-924A. USCIS explained that approved EB-5 Regional Centers must file Form I-924A annually, but there is currently no filing fee. As a result, USCIS does not fully recover the processing costs associated with such filings.

Also, the James Zadroga 9/11 Victim Compensation Fund Reauthorization Act increased fees for certain H-1B and L-1 visa petitioners. Under this new law, USCIS explained, these petitioners must submit an additional fee of $4,000 for certain H-1B petitions and $4,500 for certain L-1A and L-1B petitions postmarked on or after December 18, 2015. The additional fees apply to petitioners who employ 50 or more employees in the United States, with more than 50 percent of those employees in H-1B or L-1 (including L-1A and L-1B) nonimmigrant status.

USCIS began rejecting petitions after February 11, 2016, that do not include the additional fee, when applicable. This fee is in addition to the Petition for a Nonimmigrant Worker (Form I-129) fee, the Fraud Prevention and Detection Fee, and the American Competitiveness and Workforce Improvement Act of 1998 fee (when required), as well as the premium processing fee (if applicable). The agency noted that these fees, when applicable, may not be waived. The fees under the new law will remain effective through September 30, 2025. USCIS said it is revising the instructions for the Petition for a Nonimmigrant Worker, Form I-129, and the Nonimmigrant Petition Based on Blanket L Petition, Form I-129S, to include these fees. USCIS said it is proposing to publish these new statutory fees “in the interest of transparency, information and clarity.”

USCIS noted that it collects this revenue, but does not spend it. One half of the revenue collected from such fees under the new law goes to the General Fund of the Treasury. The other half is deposited by DHS into the 9-11 Response and Biometric Exit Account to fund a biometric entry-exit data system to track the lawful entrance and departure of all noncitizens at U.S. airports and land border crossings.

Through this rule, USCIS also said it expects to collect sufficient fee revenue to fully support the USCIS Refugee, Asylum, and International Operations Directorate (RAIO); Systematic Alien Verification for Entitlements (SAVE); and the Office of Citizenship. This would allow USCIS to discontinue diverting fee revenue to fund these programs, thereby increasing resources to fund the personnel needed to improve case processing, reduce backlogs, and achieve processing times that are in line with the commitments in the FY 2007 Fee Rule, which USCIS is still committed to achieving.

In addition, USCIS is evaluating the feasibility of calculating processing times using data generated directly from case management systems, rather than with self-reported performance data provided by Service Centers and Field Offices. USCIS said preliminary findings suggest that USCIS will be able to publish processing times sooner and with greater transparency by showing different processing times for each office and form type. USCIS is also considering publishing processing times using a range rather than using one number or date. This approach would show that, for example, half of cases are decided between X and Y number of months.

USCIS also proposes to establish a three-level fee for the Application for Naturalization (Form N-400). First, the agency would increase the standard fee for Form N-400 from $595 to $640. Second, the agency would continue to charge no fee to an applicant who meets the requirements of Immigration and Nationality Act §§ 328 or 329 with respect to military service and applicants with approved fee waivers. Third, the agency would charge a reduced fee of $320 for naturalization applicants with family income greater than 150% and not more than 200% of the Federal Poverty Guidelines.

Written comments must be submitted by July 5, 2016. The proposed rule is HERE. A related announcement is HERE.

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USCIS Completes Data Entry of FY 2017 H-1B Cap-Subject Petitions, Begins Rejections

U.S. Citizenship and Immigration Services (USCIS) announced on May 2, 2016, that it has completed data entry of all fiscal year 2017 H-1B cap-subject petitions selected randomly. USCIS has begun returning all H-1B cap-subject petitions that were not selected. USCIS said that due to the high volume of filings, the agency is unable to provide a definite time frame for returning these petitions.

USCIS asked petitioners not to ask about the status of submitted cap-subject petitions until they receive a receipt notice or a returned unselected petition. USCIS will issue an announcement once all the unselected petitions have been returned.

Additionally, USCIS said it is transferring some Form I-129 H-1B cap-subject petitions from the Vermont Service Center to the California Service Center to balance the distribution of cap cases. Those whose cases are transferred will receive notification in the mail. After receiving the notification, petitioners should send all future correspondence to the center processing the petition. Those who are filing Form I-907, Request for Premium Processing, should send the completed I-907 with the appropriate fee to the center processing the petition.

The announcement is HERE.

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Employment-Based Final Action Dates Retrogress for June

The Department of State’s Visa Bulletin for the month of June reports that during the past two months, there have been extremely high levels of employment-based demand for adjustment of status cases filed with U.S. Citizenship and Immigration Services. This has necessitated retrogression of final action dates in several categories in an effort to hold visa number use within the FY 2016 annual limit.

For India, the second preference final action date has retrogressed. This date is expected to advance slowly during the last three months of the fiscal year, at a pace consistent with that of the India employment-based third preference date.

For China, both the second and third preference final action dates have retrogressed. Neither of these dates is expected to advance before the end of the fiscal year.

The bulletin states, “Every effort will be made to return the retrogressed dates to those listed in the May 2016 Visa Bulletin as quickly as possible, once the FY-2017 annual limits take effect October 1, 2016. Speculation on how quickly, or when, a full recovery might occur might not be possible until late summer.”

The Visa Bulletin for June 2016 is HERE.

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SEC Announces Fraud Charges, Asset Freeze Against Vermont Ski Resort

On April 14, 2016, the Securities and Exchange Commission (SEC) announced fraud charges and an asset freeze against a Vermont-based ski resort and related businesses allegedly misusing millions of dollars raised through investments solicited under the EB-5 Immigrant Investor Program.

The SEC alleges that Ariel Quiros of Miami, William Stenger of Newport, Vermont, and their companies made false statements and omitted key information while raising more than $350 million from investors to construct ski resort facilities and a biomedical research facility in Vermont. Investors were told they were investing in one of several projects connected to Jay Peak, Inc., a ski resort operated by Quiros and Stenger, and that their money would only be used to finance that specific project. Instead, “in Ponzi-like fashion, money from investors in later projects was misappropriated to fund deficits in earlier projects,” the SEC said. More than $200 million was allegedly used for other-than-stated purposes, including $50 million spent on Quiros’s personal expenses and in other ways never disclosed to investors.

According to the SEC’s complaint, Quiros improperly tapped investor funds for such things as the purchase of a luxury condominium, payment of his income taxes and other taxes unrelated to the investments, and acquisition of an unrelated ski resort.

Andrew Ceresney, Director of the SEC’s Division of Enforcement, said the defendants “diverted millions of EB-5 investor dollars to their own pockets, leaving little money for construction of the research facility investors were told would be built and thereby putting the investors’ funds and their immigration petitions in jeopardy.”

The SEC’s complaint charges Quiros, Stenger, Jay Peak, and a company owned by Quiros called Q Resorts Inc. as well as seven limited partnerships and their general partner companies with violating the antifraud provisions of § 17(a) of the Securities Act of 1933 and § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. Four other companies are named as relief defendants in the SEC’s complaint for the purpose of recovering investor funds transferred into their accounts. The SEC seeks preliminary and permanent injunctions, financial penalties, and disgorgement of ill-gotten gains plus interest. The agency also seeks conduct-based injunctive relief against Quiros and Stenger along with an officer-and-director bar against Quiros.

The SEC’s announcement is HERE. The complaint is HERE.

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ICE Releases Quarterly International Student Data: F, M Students Up 6.2%

U.S. Immigration and Customs Enforcement (ICE) recently released the latest “SEVIS By the Numbers,” a quarterly report on international student trends prepared by the Student and Exchange Visitor Program (SEVP). The report notes that nearly 1.2 million international students with F (academic) or M (vocational) status are studying in the United States.

Based on data extracted from SEVIS March 7, international student enrollment at U.S. schools increased 6.2 percent compared to March 2015. In March, there were 8,687 U.S. schools with SEVP certification to enroll international students, a three percent decrease from the previous year.

Forty percent of international students studying in the United States, equaling almost 479,000 individuals, were enrolled in science, technology, engineering, and mathematics (STEM) coursework. Approximately 417,000 international students from Asia pursued STEM studies, an increase of 17 percent since March 2015.

The report includes a section on M vocational students in the United States. In March, more than 75 percent of the M-1 student population was male. Canada was the only country of the top ten countries of origin where most M-1 students, at 51 percent, were female. Male students from China comprised 23 percent of the total M-1 student population. Sixty-four percent of M-1 students majored in transportation and materials-moving, with a focus on air, ground, or marine transportation.

Among U.S. schools, New York University, the University of Southern California, Northeastern University, Columbia University, and the University of Illinois ranked one through five for schools with the highest international student populations. More than 10,000 international students were enrolled at each school in March.

The report also notes that 77 percent of all international students were from Asia. The top 10 countries of citizenship for international students were China, India, South Korea, Saudi Arabia, Canada, Vietnam, Japan, Taiwan, Brazil, and Mexico.

The announcement is HERE. The full report is HERE.

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USCIS Reaches H-2B Cap for FY 2016

U.S. Citizenship and Immigration Services (USCIS) recently announced that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for fiscal year (FY) 2016. May 12, 2016, was the final receipt date for new H-2B worker petitions requesting an employment start date before October 1, 2016.

USCIS said that except as noted below, the agency will reject new H-2B petitions received after May 12, 2016, that request an employment start date before October 1, 2016.

The agency will continue to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes the following types of petitions:

  • For FY 2016 only, workers certified and confirmed as “returning workers” who were previously counted against the annual H-2B cap during FYs 2013, 2014, or 2015;
  • Current H-2B workers in the U.S. petitioning to extend their stay and, if applicable, change the terms of their employment or change their employers;
  • Fish roe processors, fish roe technicians, and supervisors of fish roe processing; and
  • Workers performing labor or services from November 28, 2009, until December 31, 2019, in the Commonwealth of the Northern Mariana Islands or Guam.

USCIS said it will consider H-2B petitions requesting an employment start date on or after October 1, 2016, toward the FY 2017 H-2B cap. These petitions will be subject to all eligibility requirements for FY 2017 H-2B cap filings.

To avoid processing delays, petitioners who are including H-2B returning workers on their petitions must complete and include the H-2B Returning Worker Certification (HERE) and are encouraged to write “H-2B Returning Workers” prominently on the envelope and any cover page. More information is HERE. Additional H-2B cap information is HERE.

The USCIS announcement is HERE. For more information about the H-2B work program, see uscis.gov/h-2b.

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USCIS Reaches CW-1 Cap for FY 2016

U.S. Citizenship and Immigration Services (USCIS) announced on May 19, 2016, that it has received a sufficient number of petitions to reach the numerical limit, or cap, of 12,999 workers who may be issued CW-1 visas or otherwise provided with CW-1 status for fiscal year (FY) 2016. May 5, 2016 was the final receipt date for CW-1 worker petitions requesting an employment start date before October 1, 2016.

The CNMI-Only Transitional Worker (CW) visa classification allows employers in the Commonwealth of the Northern Mariana Islands (CNMI) to apply for temporary permission to employ foreign nonimmigrant workers who are otherwise ineligible to work under other nonimmigrant worker categories. The CW classification provides a method for transition from the former CNMI foreign worker permit system to the U.S. immigration system.

USCIS said it will reject CW-1 petitions that were received after May 5, 2016, and that request an employment start date before October 1, 2016. This includes CW-1 petitions for extensions of stay that are subject to the CW-1 cap. The filing fees will be returned with any rejected CW-1 petition.

If an extension petition is rejected, the beneficiaries listed on that petition are not permitted to work beyond the validity period of the previously approved petition. Therefore, affected beneficiaries, including any CW-2 derivative family members of a CW-1 nonimmigrant, must depart the CNMI within 10 days after the CW-1 validity period has expired, unless they have some other authorization to remain under U.S. immigration law.

Form I-129CW petitions that are generally subject to the CW-1 cap include new employment petitions and extension of stay petitions. All CW-1 workers are subject to the cap unless the worker has already been counted toward the cap in the same fiscal year. The CW-1 cap does not apply to CW-2 dependents.

USCIS said it encourages CW-1 employers to file a petition for a CW-1 nonimmigrant worker up to 6 months in advance of the requested employment start date, and to file as early as possible within that time frame. However, USCIS will reject a petition if it is filed more than 6 months in advance.

USCIS is currently accepting CW-1 petitions requesting employment start dates on or after October 1, 2016 (which apply to the FY 2017 CW-1 cap).

The USCIS announcement is HERE. For more information about the CW-1 work program, see www.uscis.gov/cw-1.

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USCIS Launches Optional Forms Checklist Pilot for Employment Authorization Application

U.S. Citizenship and Immigration Services (USCIS) has launched a pilot study to offer an optional checklist for the submission of Form I-765, Application for Employment Authorization. The checklist identifies what documents need to be included in the initial filing and the important items needed to complete the form, such as a signature.

The pilot study is specific to applicants who have filed for adjustment of status. USCIS said it will use the results of the study to determine whether the agency will expand the availability of optional checklists for other USCIS forms where a checklist is not currently available. USCIS notes that the checklist does not replace or change the form instructions and statutory or regulatory requirements.

USCIS is conducting a similar pilot study with Form I-129F, Petition for Alien Fiancé(e). The USCIS announcement is HERE.

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OSC Launches Submission of Charge Forms Online

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently announced that members of the public can now complete and submit charge forms online through OSC’s website, in addition to the methods currently available (mail, fax, or email).

Anyone who alleges that he or she is a victim of discrimination or an authorized person on behalf of the victim can submit a charge form within 180 days of the alleged date of discrimination. Grounds under U.S. immigration law may include discrimination on the basis of citizenship status, national origin, document abuse, or retaliation.

The online form is HERE (English) and HERE (Spanish). OSC said it will add more languages “in the near future.”

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ABIL Global: Belgium

Below is a summary of details on some work permit exemptions, related to technical work, for foreign employees in Belgium.

In principle, any employment in Belgium of a foreign employee requires a work permit, unless an exemption applies.

Several activities are considered business visitors’ activities, which do not trigger a work permit requirement, such as technical activities like initial assembly or first installation of a product. Such a service is defined as: (i) an essential part of a sales/supply agreement; (ii) necessary for the use of the product; and (iii) provided by qualified and/or specialized employees of the supplier. Work in the construction/building industry is excluded.

Official comments from the authorities refer to the following example:

An American company sells a highly technological printing press to a Belgian printing company. The company sends two technicians. They have to install the printing press, adjust it, and provide the Belgian client’s personnel with a training course. All of this takes 5 days. This American company and its employees are exempt.

The work permit exemption only applies to employees who are posted/assigned to Belgium, and the work cannot take longer than 8 days. There is no salary requirement.

Another business visitor activity is urgent maintenance of and repair work on a product. The scope of this work by specialized technical workers is the performing of urgent maintenance of and repair work on goods supplied by the foreign employer to a Belgian customer. The regulations explicitly confirm that IT work falls under the scope of this work permit exemption.

Official comments from the authorities refer to the following example:

The air-conditioning in a Belgian company is defective. The company contacts the supplier in…, who sends out a technician. After half a day the technical problem is solved. The … employer/supplier is exempt from the declaration.

This exemption only applies to employees who are posted/assigned to Belgium, and the employee cannot work more than 5 days per month in Belgium. The remuneration of the employee must be at least equal to the Belgian minimum wage.

The employer who invokes a work permit exemption must be able to prove that the conditions for the exemption are met (such as in the event of audit by social inspection services). There are specific rules regarding the minimum initial documentation required:

  • For initial assembly and/or first installation of a product: a sworn statement by the employer and a copy of the supply contract;
  • For urgent maintenance of and repair work on a product: a sworn statement by the employer and a statement by the client regarding the urgency of the work.

In the event of an audit, the social inspection services can “overrule” the employer’s sworn statement: they can opine on the basis of the facts that the work permit exemption does not apply. This could result in civil or criminal proceedings.
As a general requirement, to be able to invoke a work permit exemption, the employees must be legally residing in Belgium. Unless the employees reside in a hotel, they must make a declaration of arrival with the municipal authorities of the town where they will reside within three working days of arrival.

Legal residence in Belgium for visa waiver citizens implies that the employees have not yet resided in the Schengen area more than 90 days in any 180-day period. Furthermore, these employees must hold a travel document that (i) is valid “at least 3 months after the intended date of departure from the territory of the Member States” (this requirement may be waived in “a justified case of emergency”), and (ii) has “been issued within the previous 10 years.”

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New Publications and Items of Interest

A new Web page on the H-1B and L-1 fee increases required by the Consolidated Appropriations Act, 2016, provides information about the fees and who must pay them. The new law requires certain petitioners to submit an additional fee of $4,000 for certain H-1B petitions and an additional $4,500 for certain L-1A and L-1B petitions. USCIS said this posting is in response to stakeholder comments and questions about a previously issued Web alert (HERE). The new Web page is HERE.

The latest E-Verify webinar schedule from USCIS is available at www.uscis.gov/e-verify/e-verify-webinars/take-free-webinar.

 

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: egov.uscis.gov/cris/processTimesDisplay.do

Department of Labor processing times and information on backlogs: www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: travel.state.gov/visa/bulletin/bulletin_1360.html

Visa application wait times for any post: travel.state.gov/visa/temp/wait/wait_4638.html

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