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Archive for the ‘Employment’ Category
Tuesday, March 9th, 2010
We have been securing H-1B visas for our clients for more than 10 years. If you are interested in securing an H-1B visa, please contact our office to discuss the legal requirements and time frames. Please note that the January 8, 2010 Neufeld Memo has changed USCIS’s view on what the employer-employee relationship test is. Also please note that the Department of Homeland Security has been performing administrative site vistits at the worksite.
Please contact my office for more information at 513/793-6555 or immigration@geygan.com
WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) announced today that it will begin accepting H-1B petitions subject to the fiscal year (FY) 2011 cap on April 1, 2010. Cases will be considered accepted on the date that USCIS takes possession of a properly filed petition with the correct fee; not the date that the petition is postmarked.
The fiscal year cap (numerical limitation on H-1B petitions) for FY 2011 is 65,000. Additionally, the first 20,000 H-1B petitions filed on behalf of individuals who have earned a U.S. master’s degree or higher are exempt from the H-1B cap.
USCIS will monitor the number of petitions received and will notify the public of the date on which USCIS received the necessary number of petitions to meet the H-1B cap. If needed, USCIS will randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. USCIS will reject cap-subject petitions that are not selected, as well as those received after the final receipt date.
Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations. Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Marianas Islands are exempt from the cap until Dec. 31, 2014. Employers may continue to file petitions for these cap-exempt H-1B categories seeking work dates starting in FY 2010 or 2011.
Petitions filed on behalf of current H-1B workers who have been counted previously against the cap also do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:
extend the amount of time a current H-1B worker may remain in the United States;
change the terms of employment for current H-1B workers;
allow current H-1B workers to change employers; or
allow current H-1B workers to work concurrently in a second H-1B position.
Posted in Employment, Employment Visas, Immigration | No Comments »
Friday, February 26th, 2010
USCIS has once again changed filing locations for some of it’s most popular applications and petitions. Please double check before you file.
Beginning February 25, 2010, most applicants must submit Form I-485 to a USCIS Lockbox
facility, depending on the eligibility category under which they are filing, as provided in the form
instructions. USCIS Service Centers will forward all Form I-485 applications to the appropriate
Lockbox facility until March 29, 2010. USCIS will accept previous versions of Form I-485 until
March 29, 2010. After March 29, 2010, USCIS will only accept the Form I-485 dated “12/03/09.”Any
previous versions of the the form that are submitted will be rejected. After the transitional period,
the Service Centers will return any incorrectly filed Form I-485 with instructions to send the
application to the correct location.
At this time, applicants should not concurrently file Form I-485 with an Immigrant Petition for Alien
Worker (Form I-140) at a USCIS Lockbox facility. Refer to the Form I-140 filing Instructions for
information on how to file forms concurrently.
When filing Form I-485 at a Lockbox facility, you may elect to receive an email and/or text message
notifying you that USCIS has accepted your application. To receive notification, you must complete
an E-Notification of Application/Petition Acceptance (Form G-1145), and attach it to the first page of
your application.
Revised Form I-360, Petition for Amerasian, Widow(er), or
Special Immigrant, and Revised Filing Locations
WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) today announced that it has
posted a revised Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). The new
form is dated “12/30/09,” and due to the changes, no previous versions of the form will be
accepted 30 days after publication. In addition to the revised form, there are changes to filing
locations. The changes are part of an overall effort to transition the intake of benefit request forms
from USCIS Service Centers to Lockbox facilities. Centralizing form and fee intake allows USCIS
to provide more efficient and effective initial processing of applications and fees.
Beginning February 25, 2010, applicants must file a Form I-360 with either the Vermont Service
Center, the Nebraska Service Center, or at a USCIS Lockbox facility. Where applicable, USCIS
Service Centers will forward Form I-360 petitions to the appropriate Lockbox facility until March 29,
2010. After the transitional period, the Service Centers may return incorrectly filed Form I-360 with
instructions to send the petition to the correct location. USCIS will accept previous versions of
Form I-360 until March 29, 2010. After March 29, 2010, USCIS will reject previous versions of the
form submitted.
When filing Form I-360 at a Lockbox facility, you may elect to receive an email and/or text message
notifying you that USCIS has accepted your petition. To receive notification, you must complete an
E-Notification of Application/Petition Acceptance (Form G-1145), and attach it to the first page of
your petition.
Posted in Employment, Family based Immigration, Green Card, Green Card, Immigration, Reform/New Laws | No Comments »
Friday, February 26th, 2010
All expedite requests are reviewed on a case-by-case basis, and are granted at the discretion of the Director. The burden is on the applicant or petitioner to demonstrate that one or more of the expedite criteria have been met. The criteria are as follows:
- Severe financial loss to company or individual
- Extreme emergent situation
- Humanitarian situation
- Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United States
- Department of Defense or National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government)
- USCIS error
- Compelling interest of USCIS
If you are filing your application or petition:
You must provide a written explanation as to why the application or petition needs to be expedited. You may include supporting evidence with the request. Write “EXPEDITE REQUEST” at the top of your letter. When you file your application or petition, place your expedite request letter on the top of your documents.
If you have already filed your application or petition:
You can contact the National Customer Service Center (NCSC) at 1-800-375-5283. The NCSC will take a “service request” and forward your expedite request to the office with jurisdiction over the application or petition. You also have the options of 1). visiting your local office by scheduling an InfoPass appointment or 2). writing a letter to the local office or service center.
If you have an attorney, it is always best to have the attorney handle this and all other communications with USCIS for you.
Posted in Adoption, Citizenship, Employment, Employment Visas, Family Member, Family Visas, Family based Immigration, Green Card, Green Card, Green Card, Immigration, Investor Visas, Naturalization, Treaty Investors | No Comments »
Thursday, February 18th, 2010
DOL Notice on 2010 Adverse Effect Wage Rates, Allowable Charges for Agricultural Workers’ Meals, and Maximum Travel Subsistence Reimbursement
[Federal Register: February 18, 2010 (Volume 75, Number 32)]
[Notices]
[Page 7293-7294]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18fe10-59]
—————————————
DEPARTMENT OF LABOR
Employment and Training Administration
Temporary Agricultural Employment of H-2A Workers in the United States: 2010 Adverse Effect Wage Rates, Allowable Charges for Agricultural Workers’ Meals, and Maximum Travel Subsistence Reimbursement
AGENCY: Employment and Training Administration.
ACTION: Notice.
—————————————
SUMMARY: The Department of Labor (Department) is issuing this Notice to announce the new 2010 Adverse Effect Wage Rates (AEWRs) and the 2010 maximum allowable meal and travel subsistence charges applicable to employers seeking to employ H-2A nonimmigrant workers to perform agricultural labor in the United States (U.S.) on a temporary or seasonal basis.
DATES: Effective Date: March 15, 2010.
FOR FURTHER INFORMATION CONTACT: William L. Carlson, PhD, Administrator, Office of Foreign Labor Certification, U.S. Department of Labor, Room C-4312, 200 Constitution Avenue, NW., Washington, DC 20210. Telephone: 202-693-3010 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION:
A. Background
The U.S. Citizenship and Immigration Services of the Department of Homeland Security may not approve an employer’s petition for the admission of H-2A nonimmigrant temporary agricultural workers in the U.S. unless the petitioner has received from the Department, an H-2A temporary labor certification. Approved labor certifications attest that: (1) There are not sufficient U.S. workers who are able, willing, and qualified and who will be available at the time and place needed to perform the labor or services involved in the petition; and (2) the employment of the foreign worker in such labor or services will not adversely affect the wages and working conditions of workers in the U.S. similarly employed. 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c)(1), and 1188(a); 8 CFR 214.2(h)(5).
To ensure that the two preconditions to certification are met, the Department’s H-2A regulations require, among other things, that employers offer and pay their H-2A and U.S. workers the highest of the AEWR, the prevailing hourly wage rate, the prevailing piece rate, the agreed-upon collective bargaining rate, or the Federal or State minimum wage rate, in effect at the time work is performed, whichever is highest. 20 CFR 655.122(l).
B. Adverse Effect Wage Rates for 2010
The AEWR serves as the floor for the agricultural wage rates in the H-2A program and is designed to prevent the potential wage-depressive impact the agricultural employment of nonimmigrant foreign workers may have on the domestic agricultural workforce.
Since 1953, the Department has computed and published AEWRs for the temporary employment of nonimmigrant foreign workers for agricultural employment under various admission programs. Between 1963 and 1987, the Department applied a variety of methodologies to determine how AEWR should be set. In 1989, the Department promulgated an Interim Final Rule (IFR) reaffirming the AEWR calculation methodology it initially established in the 1987 IFR that promulgated the first H-2A program regulations. 54 FR 28037, Jul. 5, 1989 and 52 FR 20496, Jun. 1, 1987. In the 1989 IFR, the Department retained the methodology that based the AEWRs on the level of actual average hourly agricultural wages for each State, as surveyed by the U.S. Department of Agriculture (USDA). This methodology set the AEWRs in each year for the H-2A program at a level equal to the previous year’s annual regional average hourly wage rates for field and livestock workers (combined), as computed by USDA quarterly wage surveys. 54 FR 28037-28039, Jul. 5, 1989. The USDA-based methodology for calculating the AEWRs remained in place until January 17, 2009, the effective date of the Department’s Final Rule on the Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement, in which the Department adopted a different methodology that set the AEWRs at prevailing wage rates by relying on the Bureau of Labor Statistics Occupational Employment Statistics survey. 73 FR 77110, 77167, Dec. 18, 2008.
However, the Department has now published a Final Rule addressing the Temporary Agricultural Employment of H-2A Aliens in the United States, 75 FR 6884, February 12, 2010 (2010 Final Rule). In the 2010 Final Rule, the Department announced that the H-2A AEWR will once again be based on the USDA data compiled through its Farm Labor Survey (FLS) Reports.
Therefore, unless otherwise provided in 20 CFR part 655, subpart B, the AEWRs applicable to all agricultural employment subject to the 2010 Final Rule (except those occupations for
[[Page 7294]]
which special procedures for wages have been established pursuant to 8 U.S.C. 1188 and 20 CFR 655.102) for which temporary H-2A certifications are being sought will be the annual average of combined crop and livestock workers’ wages applicable for each State as reported by the USDA FLS reports.
The Department’s regulations at 20 CFR 655.120(c) require the Office of Foreign Labor Certification (OFLC) to publish at least once in each calendar year the AEWR for each State as a Notice in the Federal Register. Accordingly, the 2010 AEWRs for agricultural work performed by U.S. and H-2A workers hired pursuant to an H-2A application subject to the 2010 Rule on and/or after the effective date of this Notice are set forth in the table below:
Table–2010 Adverse Effect Wage Rates
(SEE PDF VERSION FOR TABLE)
C. Allowable Meal Charges
The Department’s regulations at 20 CFR 655.122(g) require the employer to provide each worker with three meals a day (for which it is permitted to charge the workers) or free and convenient cooking and kitchen facilities. When the employer provides meals to its workers, it must state in the job offer the meal charge, if any, the employer will impose on the workers for the meals provided. The amount of the meal charges, if any, is governed by 20 CFR 655.173.
The 2010 Final Rule at 20 CFR 655.173 sets the maximum allowable amount that an H-2A agricultural employer may charge its U.S. and foreign workers for providing three meals per day. This section of the 2010 Final Rule also provides for annual adjustments of the previous year’s allowable charges based upon the 12-month percentage change for the Consumer Price Index for Urban Consumers for Food (CPI-U for Food) between December of the year just concluded and December of the year prior to that.
Under 20 CFR 655.173(a) an H-2A employer may charge workers no more than the maximum amount set forth in that paragraph, unless the employer petitions the Certifying Officer and receives a favorable decision under 20 CFR 655.173(b) to charge a higher amount. The Department’s H-2A regulations require the OFLC Administrator to publish a Notice in the Federal Register each calendar year, announcing annual adjustments in allowable meal charges applicable to H-2A employers who provide three meals per day to their U.S. and nonimmigrant foreign workers. The 2009 rates were published in the Federal Register at 74 FR 26016, May 29, 2009.
The Department has determined the percentage change between December of 2008 and December of 2009 for the CPI-U for Food was 1.8 percent. Accordingly, the maximum allowable charge under 20 CFR 655.173 was adjusted using this percentage change, and the new permissible charge for 2010 will be no more than $10.64 per day.
D. Maximum Travel Subsistence Expense
The regulations at 20 CFR 655.122(h) establish that the minimum daily travel subsistence expense, for which a worker is entitled to reimbursement, is equivalent to the employer’s daily charge for three meals or, if the employer makes no charge, the amount permitted under 20 CFR 655.173. The regulation is silent about the maximum amount to which a qualifying worker is entitled.
The Department based the maximum meals component on the standard Continental United States (CONUS) per diem rate established by the General Services Administration (GSA) and published at 41 CFR part 301, Appendix A. The CONUS meal component is now $46.00 per day.
Workers who qualify for travel reimbursement are entitled to reimbursement up to the CONUS meal rate for related subsistence when they provide receipts. In determining the appropriate amount of subsistence reimbursement, the employer may use the GSA system under which a traveler qualifies for meal expense reimbursement at 75 percent of the subsistence for the first partial day of travel and 75 percent of the subsistence for the last partial day.
If a worker has no receipts, the employer is not obligated to reimburse above the minimum stated at 20 CFR 655.173(a) as specified above.
Signed in Washington, DC, this 12th day of February 2010.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
[FR Doc. 2010-3078 Filed 2-17-10; 8:45 am]
BILLING CODE 4510-FP-P
Posted in Employment, Employment Visas, Immigration | No Comments »
Tuesday, February 16th, 2010
On December 19, 2009, the President signed the Department of Defense Appropriations Act, 2010 (Pub. L. 111-118), which included a provision affecting the poverty guidelines. Section 1012 of the law states that:
Notwithstanding any other provision of law, the Secretary of Health and Human Services shall not publish updated poverty guidelines for 2010 under section 673(2) of the Omnibus Budget Reconciliation Act of 1981 (42 U.S.C. 9902(2)) before March 1, 2010, and the poverty guidelines published under such section on January 23, 2009, shall remain in effect until updated poverty guidelines are published.
The Congressional Record (House) (December 16, 2009, p. H15370) provides the following explanation of Congressional action:
Section 1012 includes a provision to freeze the Department of Health and Human Services poverty guidelines at 2009 levels in order to prevent a reduction in eligibility for certain means-tested programs, including Medicaid, Supplemental Nutrition Assistance Program (SNAP), and child nutrition, through March 1, 2010.
For the first time since the poverty guidelines began to be issued in 1965, the annual average Consumer Price Index (CPI-U) has decreased from the figure for the previous year. In the absence of this legislative change, the decrease in the annual average CPI-U for 2009 announced on January 15, 2010 (see http://www.bls.gov/news.release/pdf/cpi.pdf [PDF - 25 pages], Table 1A) would have required HHS to issue 2010 poverty guidelines that were lower than the 2009 poverty guidelines, which would have led to the “reduction in eligibility” referred to in the Congressional explanatory language.
A Federal Register notice about this extension of the 2009 poverty guidelines was published on January 22, 2010. (See Federal Register, Vol. 75, No. 14, January 22, 2010, pp. 3734-3735.) We will provide updated information about the post-March 1 period when it becomes available.
The immigration effect of this is that the amount of money required for the affidavit of support would be lower than in 2009, but as the new figures are not released the figures are artificially higher to support other political/economic objectives.
Posted in Family based Immigration, Green Card, Green Card, Immigration | No Comments »
Tuesday, December 22nd, 2009
As of 1/1/10, requestors must submit PWD requests using the Application for Prevailing Wage Determination, Form ETA-9141. OFLC NPWHC will receive and process PWD requests for H-1B, H-1B1, H-1C, H-2B, E-3, and permanent labor certification.
Posted in Employment, Green Card, Immigration | No Comments »
Friday, December 11th, 2009
December 11, 2009
Washington D.C. - As the public debate over healthcare reform continues to rage, mention is seldom made of the vital role that immigrants play in the healthcare workforce of the United States. If immigrants are mentioned at all, it is usually in the context of heated discussions about whether or not unauthorized immigrants will, or should, be included in any of the healthcare bills now circulating in Congress. Lost in this debate is the simple demographic fact that immigrants are a critical component of the healthcare workforce at both the high-skilled and less-skilled ends of the occupational spectrum. Most notably, immigrants comprise more than one-quarter of all Physicians and Surgeons in the United States, and roughly one-fifth of all Nursing, Psychiatric, and Home Health Aides.
Today, the Immigration Policy Center releases Critical Care: The Role of Immigrant Workers in U.S. Healthcare. The research finds:
- Immigrants are a critical component of the workforce at all skill levels in the nation’s largest healthcare occupations.
- The Bureau of Labor Statistics (BLS) predicts significant numbers of job openings in the healthcare occupations where most foreign-born healthcare workers are employed.
- Shortages of healthcare workers are expected to increase in the years to come, and immigrants will help fill the gap.
To read the report in its entirety see:
Posted in Employment, Immigration | No Comments »
Thursday, December 10th, 2009
WASHINGTON – The Justice Department announced today the release of a new video aimed at educating employers about worker rights and employer responsibilities under the anti-discrimination provision of the Immigration and Nationality Act. The anti-discrimination provision forbids citizenship status and national origin discrimination in the workplace.
The half-hour video, available online and in DVD format, describes the types of discrimination prohibited and how employers can avoid discriminatory practices. The Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) of the Justice Department’s Civil Rights Division is distributing the DVD. OSC enforces the anti-discrimination provision. It also staffs telephone hotlines to help employers and workers quickly resolve immigration-related workplace problems.
“We want to ensure that workers know their rights and that employers know their responsibilities under our nation’s civil rights laws, which protect documented workers against employment discrimination because of their citizenship status, their accent, their appearance or their national origin,” said Thomas E. Perez, Assistant Attorney General for Civil Rights.
“While OSC vigorously pursues violators of this law, it also conducts an extensive public education program to train employers about fair employment practices and how to avoid discrimination against authorized workers,” adds Perez.
The video is available on the OSC Web site at www.justice.gov/crt/osc/. In addition, single copies in DVD format can be ordered by calling OSC.
Those interested in ordering the video or seeking assistance from OSC may call its toll-free employer hotline at 800-255-8155 (voice) or 800-237 -2515 (TTY) or its worker hotline at 800-235-7 688 (voice) or 800-237 -2515 (TTY).
Posted in Employment, Employment Visas, Green Card, Immigration | No Comments »
Tuesday, November 24th, 2009
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) advises its customers that the
Department of Homeland Security (DHS) Appropriations Act of 2010, signed by the President on Oct.
28, 2009, extends the following USCIS programs until Sept. 30, 2012:
E-Verify, an Internet-based system operated by DHS in partnership with the Social Security
Administration (SSA), allows participating employers to electronically verify the employment eligibility
of their newly hired employees. More than 168,000 participating employers at nearly 640,000
worksites nationwide currently use the program. Since Oct. 1, 2009, more than 1.3 million
employment verification queries have been run through the system and approximately 96.9 percent
of all queries are now automatically confirmed without any need for employee action.
Under the Immigrant Investor Pilot Program, USCIS will continue to receive, process, and adjudicate
all Regional Center Proposals and Forms I-526, Immigrant Petitions by Alien Entrepreneur, and Form
I-485, Applications to Register Permanent Residence or Adjust Status, affiliated with Regional
Centers relying on “indirect” job creation analysis. Currently, there are more than 70 regional centers
throughout the United States.
The special immigrant visa category for non-minister religious workers covers those within a religious
vocation or occupation and also applies to accompanying or ‘following-to-join’ spouses and children
of non-ministers. USCIS will continue to receive and process Form 1-360, Petition for Amerasian,
Widow(er), or Special Immigrant and Form I-485, Application to Register Permanent Residence or
Adjust Status, based on Form I-360 petitions.
Finally, USCIS will continue to adjudicate immigration benefits covered by the “Conrad 30” program.
The “Conrad 30” program allows each state health department to submit a request directly to the
Department of State to initiate the waiver process for a foreign medical graduate who obtained J-1
status to change or adjust to another status without the required two-year foreign residence. The
law previously required the foreign medical graduate to have acquired J-1 status before Sept. 30,
2009; the law now extends the program to cover J-1 admissions before Sept. 30, 2012.
Posted in Employment, Employment Visas, Green Card, Immigration, Investor Visas | No Comments »
Monday, November 23rd, 2009
WASHINGTON-U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton today announced the issuance of Notices of Inspection (NOIs) to 1,000 employers across the country associated with critical infrastructure-alerting business owners that ICE will audit their hiring records to determine compliance with employment eligibility verification laws.
“ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces,” said Assistant Secretary Morton. “We are increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules.”
The 1,000 businesses served with audit notices this week were selected for inspection as a result of investigative leads and intelligence and because of the business’ connection to public safety and national security-for example, privately owned critical infrastructure and key resources. The names and locations of the businesses will not be released at this time due to the ongoing, law enforcement sensitive nature of these audits.
Audits involve a comprehensive review of Form I-9s, which employers are required to complete and retain for each individual hired in the United States. I-9 forms require employers to review and record each individual’s identity and work eligibility document(s) and determine whether the document(s) reasonably appear to be genuine and related to that specific individual.
Protecting employment opportunities for the nation’s lawful workforce and targeting employers who knowingly employ an illegal workforce are major ICE priorities, for which ICE employs all available civil and administrative tools, including audits. Audits may result in civil penalties and lay the groundwork for criminal prosecution of employers who knowingly violate the law.
In April, DHS issued updated worksite enforcement guidance emphasizing ICE’s major enforcement priorities-specifically focusing on dangerous criminal aliens and employers who cultivate illegal workplaces by breaking the country’s laws and knowingly hiring illegal workers. In this strategy, ICE identified form I-9 audits as the most important administrative tool in building criminal cases and bringing employers into compliance with the law.
Statistics since implementation of new ICE worksite enforcement strategy on April 30:
• 45 businesses and 47 individuals debarred;
o 0 businesses and 1 individual were debarred during same period in FY 2008.
• 142 Notices of Intent to Fine (NIF) totaling $15,865,181;
o ICE issued 32 NIFs totaling $2,355,330 in all of FY 2008.
• 45 Final Orders totaling $798,179;
o ICE issued eight Final Orders totaling $196,523 during the same period in FY 2008.
• 1,897 cases initiated;
o ICE initiated 605 cases during the same period in FY 2008.
• 1,069 Form I-9 Inspections;
o ICE initiated 503 Form I-9 Inspections in all of FY 2008.
In July, ICE issued 654 NOIs to businesses nationwide in the largest operation of its kind before today – part of ICE’s effort to audit businesses suspected of using illegal labor.
Statistics resulting from the 654 audits announced in July:
• ICE agents reviewed more than 85,000 Form I-9s and identified more than 14,000 suspect documents – approximately 16 percent of the total number reviewed.
• To date, 61 NIFs have been issued, resulting in $2,310,255 in fines. In addition, 267 cases are currently being considered for Notices of Intent to Fine (NIFs).
• ICE closed 326 cases after businesses were found to be in compliance with employment laws or after businesses were served with a Warning Notice in expectation of future compliance.
Source: http://www.ice.gov/pi/nr/0911/091119washingtondc2.htm
Posted in Employment, Immigration | No Comments »
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