LitwinLaw Newsletter 9/1/11

Archived Newsletters

September 1, 2011

Headlines:

DOL Suspends Prevailing Wage Determinations Processing of prevailing wage determinations (PWDs), redeterminations, and Center Director Reviews have been suspended temporarily; prevailing wage requests filed since early June 2011 are still pending.

DHS, USCIS Announce Initiative To Promote Startups and Spur Job Creation Agencies announce efforts to attract foreign entrepreneurial talent to the U.S.

Ombudsman Recommends That USCIS Improve EAD Process The Ombudsman noted that many problem areas remain unaddressed.

USCIS Issues Policy Memo on B-2 Extensions for Cohabiting Partners and Other Household Members of Principal Nonimmigrants The new policy memorandum on B-2 extensions for cohabiting partners and other household members of principal nonimmigrants clarifies, among other things, that one or more extensions are appropriate in the exercise of discretion for household members, including the cohabitating partner of a principal nonimmigrant visa holder, when other eligibility requirements are met.

Obama Administration Announces Focus on High-Risk Cases in Removal Proceedings Secretary of Homeland Security Janet Napolitano announced that the Obama administration plans to focus removal efforts on high-priority cases such as convicted felons and others posing a threat to public safety, and to initiate a related interagency case-by-case review.

ABIL Preparing Amicus Curiae Brief on Extraordinary Ability Case This decision will critically affect the adjudication of immigrant petitions for persons of extraordinary ability, outstanding professors or researchers, and exceptional ability immigrants.

USCIS Announces Extension of Deferred Enforced Departure for Liberians Employment authorization is extended automatically for eligible Liberian nationals covered under deferred enforced departure (DED) through March 31, 2012.

USCIS Redesigns Customer Service Center 1-800 Options USCIS shortened and reorganized the menu options.

ICE Declares 'Secure Communities' Mandatory, Not Optional ICE announced that a memorandum of agreement between ICE and a state is not required to operate Secure Communities in that state.

ICE Announces Intention To Withdraw University of Northern Virginia's SEVP Certification and SEVIS Access for Its Foreign Students UNVA students must immediately depart the U.S. if they are unable to continue to attend classes and maintain their active status or if they are unable or do not wish to transfer to another SEVP-certified institution.

Also in this issue:

New Publications and Items of Interest

Government Agency Links

DOL Suspends Prevailing Wage Determinations

The Department of Labor (DOL) recently announced that the Office of Foreign Labor Certification's (OFLC) National Prevailing Wage Center (NPWC) has suspended temporarily processing of prevailing wage determinations (PWDs), redeterminations, and Center Director Reviews. The NPWC handles PWDs for the PERM labor certification, H-1B, H-1B1 (Chile/Singapore), H-2B, and E-3 programs. As a result of the suspension, prevailing wage requests filed since early June 2011 are still pending. Previously, such requests were routinely processed in three to four weeks.

DOL also published a final rule on wage methodology for the H-2B (temporary nonagricultural employment) program, effective September 30, 2011

In response to practitioners' inquiries concerning pending requests, the NPWC has been issuing the following e-mail:
The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule will be published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC. If you have further questions concerning your PWD, please contact 202-693-3010.

The American Immigration Lawyers Association (AILA) published notes on a stakeholder call with the Department of Labor (DOL) about this topic. Among other things, Dr. Bill Carlson, a representative from the Office of Foreign Labor Certification, said that DOL was very aware of the impact of the prevailing wage hold and that the agency has been reviewing all appropriate suggestions from stakeholders. However, in considering possible suggestions, he stated that DOL was not considering any proposal that would require waiving regulatory requirements. DOL must issue all of the H-2B wage redeterminations before September 30 to comply with the court order. The stakeholder notes say that after DOL has cleared the H-2B wage redeterminations, it will then move resources to H-2B processing and must process those cases within 30 days. As those are processed, DOL will begin working on PERM and H-1B wage requests.

The Department of Labor's final rule, published at 76 Fed. Reg. 45667 (Aug. 1, 2011), is available at http://www.gpo.gov/fdsys/pkg/FR-2011-08-01/pdf/2011-19319.pdf. AILA's notes are available at http://xa.yimg.com/kq/groups/15854395/1728587735/name/AILA-DOL%20stakeholder%20call%208-18-11.pdf.

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DHS, USCIS Announce Initiative To 'Promote Startups and Spur Job Creation'

On August 2, 2011, Secretary of Homeland Security Janet Napolitano and U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas announced a series of "policy, operational, and outreach efforts" to fuel the U.S. economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability or those who can create jobs, form startup companies, and invest capital in areas of high unemployment.

The DHS/USCIS announcement noted the following:

  • USCIS will conduct internal training on the unique characteristics of entrepreneurial enterprises and startup companies and incorporate input from a new series of stakeholder engagements.
  • The employment-based second preference (EB-2 visa) classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Generally, an EB-2 visa petition requires a job offer and a Department of Labor certification. These requirements may be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the U.S. USCIS noted that entrepreneurs may obtain an EB-2 immigrant visa if they satisfy the existing requirements, and also may qualify for a national interest waiver under that visa category if they can demonstrate that their business endeavors will be in the interest of the U.S.
  • In response to previous stakeholder feedback, USCIS has updated its existing FAQs to clarify that an H-1B beneficiary who is the sole owner of the petitioning company may establish a valid employer-employee relationship for the purposes of qualifying for an H-1B nonimmigrant visa.
  • USCIS is "transforming" the EB-5 immigrant investor intake and review process. In May, USCIS proposed extending the availability of premium processing for certain EB-5 applications and petitions, implementing direct lines of communication between applicants and USCIS, and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application. After reviewing stakeholder feedback on this proposal, USCIS is developing a "phased plan to roll out these enhancements and is poised to begin implementing the first of these enhancements within 30 days" of August 2, 2011.
    As of June 30, 2011, USCIS estimated that the EB-5 program has resulted in more than $1.5 billion in capital investments and created at least 34,000 U.S. jobs.
  • Premium processing service is being expanded for immigrant petitions for multinational executives and managers.
  • Finally, USCIS is launching a new series of engagement meetings for entrepreneurs and startup companies. These meetings will focus on soliciting input from stakeholders on how USCIS can address the unique circumstances of entrepreneurs, new businesses, and startup companies through its employment-based policies and regulations. USCIS also seeks feedback on examples of the business lifecycle for entrepreneurial ventures, small businesses, and startups, to include initial funding available, typical organizational structure, ownership structure, and payment of salaries; and examples of typical business plans for entrepreneurs and startups.

The DHS/USCIS announcement is at http://www.dhs.gov/ynews/releases/20110802-napolitano-startup-job-creation-initiatives.shtm.

A USCIS FAQ on entrepreneurs and the EB-2 category is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=93da6b814ba81310VgnVCM100000082ca60aRCRD&vgnextchannel=6abe6d26d17df110VgnVCM1000004718190aRCRD.

For more information on USCIS's public meetings, see http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=ea015fc544007210VgnVCM100000082ca60aRCRD&vgnextchannel=ea015fc544007210VgnVCM100000082ca60aRCRD.

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Ombudsman Recommends That USCIS Improve EAD Process

The Ombudsman for U.S. Citizenship and Immigration Services (USCIS) recently made recommendations focused on delays due to processing and adjudications issues of employment authorization document (EAD) applications. The Ombudsman noted that although USCIS has implemented procedures to resolve certain issues, many problem areas have not been addressed. When processing is delayed, the Ombudsman noted, "individuals and employers experience significant adverse consequences such as job loss and disruption in business operations." The Ombudsman recommended specific actions that USCIS can take to improve the EAD process, including:

  • Establishing methods at local offices to facilitate immediate resolution;
  • Establishing a uniform processing time goal of 45 days for adjudication and 60 days for issuance of an EAD;
  • Improving monitoring and ensuring real-time visibility through an automated system for tracking processing times;
  • Following established internal procedures for issuing interim EADs in cases where background checks are pending; and
  • Issuing replacement EADs with validity dates beginning on the date the old EAD expires.

The Ombudsman identified several ways to implement these recommendations that build upon existing USCIS processes.

The Ombudsman's recommendations are available at http://www.dhs.gov/xlibrary/assets/cisomb-employment-authorization-documents-07182011.pdf.

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USCIS Issues Policy Memo on B-2 Extensions for Cohabiting Partners and Other Household Members of Principal Nonimmigrants

U.S. Citizenship and Immigration Services' new policy memorandum on B-2 extensions for cohabiting partners and other household members of principal nonimmigrants does not change eligibility requirements for change of status to B-2, or extension of B-2 status. Rather, it clarifies that such a change and/or one or more extensions are appropriate in the exercise of discretion for household members, including the cohabitating partner of a principal nonimmigrant visa holder, when other eligibility requirements are met.

When evaluating an application for change to or extension of B-2 status based on cohabitation, the memo states, the cohabitating partner's relationship to the principal nonimmigrant in another status will be considered a favorable factor in allowing the household member to obtain or remain eligible for B-2 classification. When considering a change of status and/or multiple extensions for the cohabitating partner or other household member, the finite nature of the stay, rather than the duration of the stay or number of extensions sought, is controlling with respect to nonimmigrant intent. For example, the visit should be considered temporary even if the status may be extended several times over several years to match an extended course of study undertaken by the principal. However, while the I-539 (B-2) application must be adjudicated on its own merits, the memo notes, a finding that the principal nonimmigrant lacks nonimmigrant intent is a negative factor in the exercise of discretion.

The policy memorandum is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2011/August/Cohabitating_Partners_PM_081711.pdf.

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Obama Administration Announces Focus on High-Risk Cases in Removal Proceedings

On August 18, 2011, Secretary of Homeland Security Janet Napolitano announced that the Obama administration plans to focus removal efforts on high-priority cases such as convicted felons and others posing a threat to public safety, and to initiate an interagency case-by-case review to ensure that both those currently in removal proceedings and new cases placed in removal proceedings meet those priorities. Secretary Napolitano cautioned that this process "will not provide categorical relief for any group."

A related memorandum from U.S. Immigration and Customs Enforcement (ICE) issued in June on prosecutorial discretion notes:

The following positive factors should prompt particular care and consideration:

  • veterans and members of the U.S. armed forces;
  • long-time lawful permanent residents;
  • minors and elderly individuals;
  • individuals present in the United States since childhood;
  • pregnant or nursing women;
  • victims of domestic violence; trafficking, or other serious crimes;
  • individuals who suffer from a serious mental or physical disability; and
  • individuals with serious health conditions.

In exercising prosecutorial discretion in furtherance of ICE's enforcement priorities, the following negative factors should also prompt particular care and consideration by ICE officers, agents, and attorneys:

  • individuals who pose a clear risk to national security;
  • serious felons, repeat offenders, or individuals with a lengthy criminal record of any kind;
  • known gang members or other individuals who pose a clear danger to public safety; and
  • individuals with an egregious record of immigration violations, including those with a record of illegal re-entry and those who have engaged in immigration fraud.

The new focus on only deporting high-priority cases, such as criminals, does not amount to an amnesty program for others, as Secretary Napolitano noted. Nor does the new policy necessarily mean that people whose removal cases are stayed can obtain work permits. They will remain in immigration limbo: not in removal proceedings but not legal either. A consumer advisory warning immigrants about the limited nature of the administration's new policy is at http://www.aila.org/content/default.aspx?docid=36705

Secretary Napolitano's letter is available at http://www.abil.com/newsletter/ABIL%20Immigration%20Insider%20-%20September%202011%20-%2011.pdf. The ICE memo is available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf. An ICE FAQ about the new policy is at http://www.ice.gov/doclib/about/offices/ero/pdf/immigration-enforcement-facts.pdf.

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ABIL Preparing Amicus Curiae Brief on Extraordinary Ability Case

The Alliance of Business Immigration Lawyers (ABIL) is preparing an amicus curiae ("friend of the court") brief to the Administrative Appeals Office (AAO) in response to U.S. Citizenship and Immigration Services' (USCIS) recent request concerning the appeal of a denied immigrant petition for a foreign national seeking to be classified as an alien of extraordinary ability. This decision will critically affect the adjudication of immigrant petitions for persons of extraordinary ability, outstanding professors or researchers, and exceptional ability immigrants. In ABIL's view, USCIS misread the U.S. Court of Appeals for the Ninth Circuit when it reviewed an AAO decision dismissing the appeal of an extraordinary ability petition. Kazarian v. USCIS, 596 F.3d 1115 (9 th Cir. 2010).

Among other things, the Kazarian court firmly reminded both the USCIS and the AAO that they must carefully apply the statutory and regulatory requirements when performing their duties. Although the "extraordinary ability" visa requirements are restrictive, the AAO cannot impose arbitrary requirements on applicants. By forcing the USCIS and the AAO to make their determinations based on the regulations exactly as written, the Ninth Circuit has assured that the burden placed on future "extraordinary ability" visa applicants will not be higher than what the immigration regulations require. The Kazarian court scolded USCIS for making up and applying extra-regulatory evidentiary requirements, yet USCIS has responded by requiring a "final merits determination" analysis.

The amicus brief will be prepared by ABIL members Bernard Wolfsdorf, Cyrus Mehta, Robert Loughran, Charles Kuck, and Angelo Paparelli. Sadly, the implementation of USCIS's erroneous policy has resulted in almost one-third of the 12,000 first preference immigrant visa numbers going "unused" last year as the top foreign nationals in the sciences, arts, education, business, or athletics have been turned away in droves, only to make other countries more competitive.

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USCIS Announces Extension of Deferred Enforced Departure for Liberians

U.S. Citizenship and Immigration Services (USCIS) announced on August 16, 2011, its intention to extend employment authorization automatically for Liberian nationals covered under deferred enforced departure (DED) through March 31, 2012. USCIS's announcement follows President Obama's announcement of his decision to extend DED through March 31, 2013, for qualified Liberians and those persons without nationality who last habitually resided in Liberia. The six-month automatic extension of existing employment authorization documents (EADs) for eligible Liberians will permit them to continue working while they file their applications for new EADs. The new EADs will be effective for the full 18 months of the DED extension.

Although DED was scheduled to end for Liberian nationals on September 30, 2011, the administration decided that there are compelling foreign policy reasons to continue deferring enforced departure.

Liberians not eligible for DED include:

  • Those who did not have temporary protected status (TPS) on September 30, 2007, and are therefore not covered under current DED;
  • Certain criminals (e.g., aggravated felons and persons convicted of two misdemeanors);
  • Persons subject to the mandatory bars to TPS; and
  • Other ineligible persons as described in the President's related memorandum.

In addition to automatically extending the validity of EADs for Liberian nationals covered under DED, USCIS published a notice in the Federal Register with instructions for these individuals on how to obtain employment authorization for the remainder of the DED extension. Liberian nationals covered under DED also must include the Application for Employment Authorization (Form I-765) and a filing fee of $380 or a fee waiver request.

The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=db50a859e04d1310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The President's memorandum is available at http://www.whitehouse.gov/the-press-office/2011/08/16/memorandum-president-regarding-deferred-enforced-departure-liberians. The Federal Register notice is available at http://www.gpo.gov/fdsys/pkg/FR-2011-08-25/html/2011-21842.htm.

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USCIS Redesigns Customer Service Center 1-800 Options

U.S. Citizenship and Immigration Services (USCIS) recently redesigned its Interactive Voice Response System (IVR), accessible via the National Customer Service Center. Among other things, USCIS shortened and reorganized the menu options. The new IVR has three main menu options, a decrease from the 10 options previously in place. The three new options are Immigration Services, Immigration Information, and Special Programs and Other Resources.

The NCSC main number is 1-800-375-5283. Those who are outside the United States and have filed an application or petition with a USCIS Service Center may call 785-330-1048 to check the status of their case via an automated system.

For more information, see http://www.aila.org/content/default.aspx?docid=36776 and http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=943696981298d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=ddce0b89284a3210VgnVCM100000b92ca60aRCRD.

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ICE Declares 'Secure Communities' Mandatory, Not Optional

U.S. Immigration and Customs Enforcement (ICE) Director John Morton sent a letter on August 5, 2011, to governors terminating all existing Secure Communities memoranda of agreement "to clarify an issue that has been the subject of substantial confusion," which is that "[a memorandum of agreement (MOA)] between ICE and a state is not required to operate" Secure Communities in that state. In recent months, several state and local jurisdictions had signed MOAs before participating, and some states subsequently attempted to rescind their MOAs.

Noting that participation in the program is not optional, ICE said that "once a state or local law enforcement agency voluntarily submits fingerprint data to the federal government, no agreement with the state is legally necessary for one part of the federal government to share it with another part." ICE said it plans to continue expanding the program and hopes to achieve nationwide activation by 2013.

Secure Communities uses an already existing federal information-sharing partnership between ICE and the Federal Bureau of Investigation (FBI). For decades, local jurisdictions have shared the fingerprints of individuals who are booked into jails with the FBI to see if they have a criminal record. Under Secure Communities, the FBI automatically sends the fingerprints to ICE to check against its immigration databases. If these checks reveal that an individual is unlawfully present in the U.S. or otherwise removable due to a criminal conviction, ICE takes enforcement action, prioritizing the removal of individuals who present the most significant threats to public safety as determined by the severity of their crime, their criminal history, and other factors, as well as those who have repeatedly violated immigration laws.

ICE noted that "Secure Communities imposes no new or additional requirements on state and local law enforcement," and that "the federal government, not the state or local law enforcement agency, determines what immigration enforcement action, if any, is appropriate."

An example of the letter sent to governors is available at http://www.ice.gov/secure_communities/.

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ICE Announces Intention To Withdraw University of Northern Virginia's SEVP Certification and SEVIS Access for Its Foreign Students

On July 28, 2011, following a review of the University of Northern Virginia's (UNVA) certification, a Student and Exchange Visitor Program (SEVP) representative served school officials at UNVA with a notice of the agency's intent to withdraw the school's SEVP-certification and Student and Exchange Visitor Information System (SEVIS) access. Foreign students at UNVA must immediately depart the U.S. if they are unable to continue to attend classes and maintain their active status under the regulations or if they are unable or do not wish to seek transfer to another SEVP-certified institution.

School officials at UNVA no longer have access to SEVIS and will not be able to manage nonimmigrant students' records in SEVIS. U.S. Immigration and Customs Enforcement (ICE) said that UNVA nonimmigrant students should contact SEVP, as they would their designated school official, to report any changes, so their SEVIS record and Form I-20 (Certificate of Eligibility for Nonimmigrant (F-1) Student Status) can be updated accordingly.

ICE noted that SEVP-certified schools "are subject to a review of their certification at any time based on regulations." According to news reports, ICE agents came to the UNVA campus on July 28 and confiscated records and computers. Most of UNVA's students are foreign and the school is reportedly accredited only by the American University Accreditation Council, an entity that the U.S. Department of Education does not recognize. ICE did not explain why it raided the school or its decision to withdraw foreign student certification.

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New Publications and Items of Interest

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.

Green Card Stories will be released on November 8. For more information or to order, visit http://www.abil.com/green_card.cfm.

Reforming employment-based immigration. The National Foundation for American Policy recently published "Reforming America's Regulations and Policies on Employment-Based Immigration," a policy brief that makes recommendations and advocates making changes to the U.S. immigration system to attract and keep highly skilled foreign-born workers in the U.S. The report is available at http://www.nfap.com/pdf/ReformingEmploymentBasedImmigration.NFAPPolicyBrief.Aug2011.pdf.

E-Verify "Self Check" available in Spanish, additional states. U.S. Citizenship and Immigration Services (USCIS) recently announced that "Self Check," a free online E-Verify service that allows workers to check their own employment eligibility status, is now available in Spanish and accessible to residents in 16 additional states: California, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New York, Ohio, South Carolina, Texas, Utah, and Washington. Self Check initially was launched in March 2011 for residents of Arizona, Colorado, Idaho, Mississippi, Virginia, and the District of Columbia. The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=080477c3bddc1310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The Spanish-language version of E-Verify Self Check is available at http://www.uscis.gov/portal/site/uscis-es/menuitem.e693c9cf3c2f7d18d52fae1074a191a0/?vgnextoid=3ad29bacc22e0310VgnVCM100000082ca60aRCRD&vgnextchannel=3ad29bacc22e0310VgnVCM100000082ca60aRCRD.

E-Verify Webinars.U.S. Citizenship and Immigration Services is offering a series of free webinars on the employment verification process and E-Verify. Several are scheduled for late August. See http://www.uscis.gov/USCIS/Verification/E-Verify/E-Verify_Native_Documents/E-Verify%20Webinar%20Flyer.pdf for details.

USCIS Ombudsman on change-of-address procedures.USCIS's Ombudsman recently noted that USCIS, the Department of State, the Executive Office for Immigration Review, and the Department of Labor have separate procedures, filing locations, and timeframes for submitting an address change. A change of address should be reported for each application type, petition, case, and family member with each government agency from which an immigration benefit is being sought. Applicants should use the most permanent address available. The Ombudsman's Office recommends keeping copies of all correspondence sent to USCIS, using certified, registered, or return receipt mail to ensure documentation of the mailing. See http://www.dhs.gov/files/publications/cisomb-federal-change-of-address-procedures.shtm. The Ombudsman posted filing tips on changes-of-address at https://www.dhs.gov/.

Immigrant innovators. Harvard Business School has published "Immigrant Innovators: Job Stealers or Job Creators?" The article looks at recent research on whether the H-1B program helps or hurts U.S. workers. The article found that the H-1B program does not hurt U.S. workers and helps U.S. innovation. The article is available, with reader comments, at http://hbswk.hbs.edu/item/6765.html.

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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: https://egov.uscis.gov/cris/processTimesDisplayInit.do

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

Department of State Visa Bulletin: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html

Visa application wait times for any post: https://travel.state.gov/content/visas/en/general/wait-times.html/

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