Selection based on highest wages may be replaced to H-1B lottery

Oct 29, 2020

The Department of Homeland Security (DHS) declared on 28/10/2020 a proposed rule to amend the H-1B regulations administering the process by which the annual H-1B lottery is directed.

If established as proposed, USCIS would initially choose enlistments (or petitions, if the enrollment cycle is suspended). in view of the highest Occupational Employment Statistics (OES) prevailing wage level that the offered wage approaches or surpasses. This would replace the random H-1B selection way. In this way, offering a Level 4 OES wages would improve the odds of selection.

The reason given for this proposed rule is to help counter the descending tension on the wages of U.S. laborers that is made by a yearly convergence of moderately lower-pay, new cap-subject H-1B specialists (i.e. Level 1 OES compensation).

As per the DHS, the progressions proposed in this rule would give some perspective petitioners the ability to possibly improve their opportunity of selection by agreeing to pay H-1B beneficiaries higher wages that equal or surpass higher prevailing wages levels.

DHS will open a public remark period once the proposed rule is published in the Federal Register. Interested parties will have 30 days to submit remarks pertinent to the proposed rule and 60 days to submit remarks pertinent to the proposed information collection. DHS will survey all appropriately submitted remarks, consider them cautiously, and draft responses prior to issuing a final rule.

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USCIS Modifies H-1B Selection Process to Prioritize Wages

Jan 07, 2021

U.S. Citizenship and Immigration Services has announced a final rule that will modify the H-1B cap selection process, amend current lottery procedures, and prioritize wages to protect the economic interests of U.S. workers and better ensure the most highly skilled foreign workers benefit from the temporary employment program.

Modifying the H-1B cap selection process will incentivize employers to offer higher salaries, and/or petition for higher-skilled positions, and establish a more certain path for businesses to achieve personnel needs and remain globally competitive.

It is important to note that this rule must first be published in the Federal Register and then it will take affect 60 days later.

This makes it possible that the rule may not take effect until after the 2021 H1b quota. Further, this rule is likely to be enjoined by litigation.

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Presidential Proclamations (P.P.) 10014 and 10052 are extended until 31 March 2021

Dec 31, 2020

US President Donald Trump has extended the suspension on the entry of certain immigrants and nonimmigrants into the United States in light of the COVID-19 pandemic. The proclamations have been continued until March 31, 2021.

The limitations also stop many temporary visas used to work in the United States by individuals overseas, including the H-1B program. The proclamation suspends entry of nonimmigrants in the following categories: H-1B, H-2B, J (for aliens participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program) and L, along with their spouses and children. No valid visas will be revoked under the proclamation.

The last proclamation was set to expire on December 31, Trump issued another proclamation on Thursday to extend it until March 31, 2021. The technology companies would now have to wait at least till the end of March before approaching the US diplomatic missions to get stamping.

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Various claims documented against DOL for wage increments

Oct 20, 2020

In the course of recent days, multiple entities have filed suit against the Department of Work (DOL) for the sensational October 8, 2020 wage increments. The plaintiffs range from Universities, including the College of Universities, Cornell, Stanford, Purdue, and Arizona State University, to the National Association of Manufacturers, National Retail Federation, multiple Health Care players, and multiple Information technology and computer servicing companies, including ITServe, which was liable for effectively challenging the Neufeld memo that required staffing organizations to give pages of extra proof of their employer-employee relationship with their H-1B employees (contracts, statements of work, POs, and so forth).

Presently we wait with the expectation that courts charges the new common pay structure while the prosecution continues.

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North and South borders shut until further notice

Oct 19, 2020

On 19/10/2020 it had been reported that the North and South land border closure would be extended until additional notification separated from essential travel.​ This is a similar border closure that has been broadened steadily since March 2020.​ This applies just to the land borders and ferry crossings. People entering the U.S. from Canada or Mexico via plane are not affected by this border closure and won't have to demonstrate that their travel is essential.

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I-129 & I-140 petitions premium processing fees increased

Oct 16, 2020

On 16/10/2020, the USCIS reported that the premium processing fee for I-129 and I-140 petitions will be incremented to $2500 (from $1440) for all petitions stamped on or after 19/10/2020.​

H-1B, L-1, O-1 and TN In-country petitions, among others Form I-129 is utilized.

Form I-140 is utilized for employment-based immigrant petitions (Stage 2 of the positive identification proof process).​

No news yet on the implementation of premium processing for other applications, similar to I-539 and I-765 applications.

***

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Proposed sweeping changes to H-1B programs

Oct 12, 2020

The Administration’s broadly broadcasted and long-anticipated regulatory changes to the H-1B nonimmigrant visa classification were published inside the Federal Register on October 8, 2020, and can get on December 7, 2020, except if enjoined. To submit a comment on the rule at the latest cutoff time of December 7, 2020, go to: http://www.regulations.gov and type in USCIS-2020-0018 in the search field.​

    Speciality
  • The rule amends the meaning of a "specialty occupation" to demonstrate that there must be a direct connection between the necessary degree field(s) and the obligations of the position.
  • General degrees in engineering, human sciences, business, and so on minus any additional specialization or clarification aren't adequate to fulfill claim to speciality occupation.
  • In situations where the petitioner lists degrees in different "disparate" fields of study as the base section entry for a position, the petitioner must build up how each field of study is during a particular speciality giving "a body of highly specialized knowledge" straightforwardly connected with the obligations and responsibilities of the actual position.​
  • Where a position may permit a scope of degrees, and apply numerous bodies of exceptionally specialized knowledge, every one of those passing degree fields must be straightforwardly identified with the proffered position.​
  • Rather than exhibiting that a bachelors’ degree is "regularly," "generally" or "typically" required; petitioners should set up that the bachelor’s degree in a specific speciality or its identical is the least necessity for entry into the occupation inside the us by demonstrating that the predetermined degree might be a lways.
  • The requirement for the occupation as a whole.
  • The occupational requirement within the relevant industry.
  • The petitioner’s particularized requirement or
  • Because the position is so specialized, complex, or unique that it is necessarily required to perform the duties of the specific position.
    Third-Party Worksites
  • The term "worksite" is revised (with the goal that it is similar to the DOL meaning of "place of employment" at 20 CFR 655.715) as "the actual area where the work is really performed by the H-1B nonimmigrant."​
  • The rule characterizes "third-party worksite" as "a worksite, other than the recipient's habitation in the US, that isn't possessed or rented, and not worked, by the petitioner."​
  • The standard sets a 1-year maximum legitimacy period for all H-1B petitions in which the recipient will be working at a third-party worksite. This applies to all H-1B petitions where any recognized worksite is a third-party, not simply the essential worksite​ Employer-Employee Relationship.
  • The definition of “United States Employer” is amended by : ​Striking the word “contractor” from the definition of “United States employer,” although DHS also explains at length that the deletion does not necessarily preclude a contractor from qualifying as a U.S. employer
  • Embeddings "company" in the overall definition; and​ Developing the current necessities by necessitating that a business must draw in the recipient to work inside the US and have a genuine, non-theoretical proposition for employment for the beneficiary.​
  • The solicitor must set up that a genuine proposition for employment exists, and that real work will be accessible as of the mentioned start date.​
  • The rule defines the expression "employer-employee relationship" to be the "conventional master-servant relationship as perceived by custom-based law organization principle." It includes a non-exhaustive list of factors to be considered in the totality of the circumstances, essentially restoring the January 2010 Neufeld Memo on the employer-employee relationship that was recently invalidated. In any case, moreover to taking viable whether a business has "the option to control" the worker's work together of the listed variables, USCIS likewise will look at whether the business really practices that privilege to control. This may require staffing organizations to put a chief at every customer site where they have workers.
  • The rule requires that petitioners filing third-party worksite petitions must submit evidence such as contracts, work orders, or other similar evidence (such as a detailed letter from an authorized official at the third-party worksite) to determine that the beneficiary will perform services during a specialty occupation which the petitioner will have an employer-employee relationship with the beneficiary. Such documentation can also be requested by USCIS for any and every one H-1B petitions during a case-by-case basis.
    Other Provisions
  • The rule requires USCIS to issue a quick explanation when an H-1B nonimmigrant petition is approved but USCIS grants an earlier end validity date than requested by the petitioner.​
  • The rule revises the itinerary requirement at 8 CFR 214.2(h)(2)(i)(B) to specify that this provision will not apply to H-1B petitions.​
  • The rule adds provisions regarding H-1B site visits to codify its authority to conduct site visits and describe the scope of inspections.
  • The regulation indicates that the possible scope of an inspection may include the petitioning organization’s headquarters, satellite locations, or the location where the beneficiary works or will work, including third-party worksites, as applicable.​
  • The rule also specifies that failure or refusal of the petitioner or a third-party to cooperate with a site visit may be grounds for denial or revocation of any H-1B petition for H-1B workers performing services at the situation or locations which are a topic of inspection, including any third-party worksites.

***

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Dramatically increase of prevailing wages

Oct 12, 2020

On October 6, 2020, the U.S. Department of Labor (DOL) updated its regulations for wages paid to certain foreign workers with the named purpose of higher protecting the roles and wages of U.S. workers. The new wages were applicable as of October 7, 2020 at 7:00 pm.​

AILA (American Immigration Lawyers Association) is preparing litigation against the DOL regarding this alteration . If you'd wish to be a named plaintiff during this matter, please read through to the top of this alert for information on the way to join as a plaintiff. Both organizations and individuals could also be included as named plaintiffs.

    Prevailing wages established by the DOL impact the subsequent nonimmigrant and immigrant categories:
  • H-1B
  • H-1B1 (Singapore/Chile trade Agreement)
  • E-3 (Australia trade Agreement)​
  • Employment-based positive identification sponsorships supported a PERM application.

The Department believes these changes to the wage structure supported the Occupational Employment Statistics (OES) wage survey better reflect the particular wages earned by U.S. workers similarly employed to foreign workers. The OES is that the online wage survey administered by the Bureau of Labor Statistics and typically utilized in reference to H-1B petitions. during this regard, please note that the prevailing wage levels appear to possess been increased by about 50% in many cases. Under the new wage structure, A level 1 (entry level) engineer in Wayne/Oakland/Macomb county must be paid $92,830/year ($44.63/hour). this is often up from $67,850/year ($32.62/hour). A level 2 engineer working within the same geographic location must now be paid $114,421/year ($55.01/hour), up from $82,555/year ($39.69/hour).

    The Interim Final Rule will only apply to the following
  • An Application for Prevailing Wage Determination, Form ETA-9141 (typically filed in reference to PERM sponsorship), pending with the National Prevailing Wage Center (NPWC) as of 08/10/2020.
  • An Application for Prevailing Wage Determination, Form ETA-9141, filed with the NPWC on or after 08/10/2020.
  • A Labor Condition Application for Nonimmigrant Workers (LCA), Form ETA-9035/9035E, (filed in reference to H-1B, H-1B1 and E-3 petitions) filed on or after 10/8/2020 where the OES survey data is that the prevailing wage source, and where the employer didn't obtain the prevailing wage determination from the NPWC before the effective date of the regulation.
  • Note: If the legal challenge to the present rule isn't successful, it's going to be worth investing in an independent wage survey that might be acceptable to the DOL. For now, i like to recommend taking a wait and see approach because the new rule might be blocked by the courts.

    The Interim Final Rule won't impact the following
  • Prevailing Wage Determinations (ETA-9141) issued any time before 10/08/2020. Including those issued years ago in reference to a PERM and/or I-140 that has already been approved. This includes EB3 downgrades that are being prepared.
  • Existing H-1B, H-1B1 or E-3 wages. So, there's no impact to the wage levels for workers who have a pending or approved H-1B, H-1B1 or E-3. However, the new wage structure will apply subsequent time the employer files an extension or amendment for the worker.

On October 13, 2020, the NPWC will begin issuing prevailing wage determinations (ETA-9141) using the new OES prevailing wage data. This brief delay in issuing wage determinations is important to finish the specified technical changes to the FLAG system's internal prevailing wage determination module.

The DOL are going to be accepting public comments on the new rule through 11/9/2020. To submit a comment, attend https://beta.regulations.gov, click on the box for “Strengthening wage protections for the temporary and permanent employment of certain aliens,” then click on the “Comment” button within the upper left.

Join the litigation​
AILA is seeking plaintiffs in an action challenging the new interim final rule on prevailing wage levels for H-1B, H-1B1, E-3 and PERM filings. Individuals and organizations curious about potentially joining the litigation as named plaintiffs should complete the shape at this link as soon as possible because the litigation are going to be filed on a really expedited basis.

***

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Expansion through premium processing

Oct 01, 2020

On October 6, 2020, the U.S. Department of Labor (DOL) updated its regulations for wages paid to certain foreign workers with the named purpose of higher protecting the roles and wages of U.S. workers. The new wages were applicable as of October 7, 2020 at 7:00 pm.​

On 30/09/2020, the Continuing Appropriations Act 2021 (HR 8337) was signed into law to continue to fund the Government through 11/12/2020. The Act included language permitting the USCIS to expand premium processing services to other application types. To date, premium processing has only been available for some I-140 petitions and nonimmigrant petitions filed using Form I-129 (H-1B, L-1, O-1, TN, etc.)

The increased fees and expanded availability of premium processing will not take effect until USCIS is able to implement. Timing of implementation is unknown at this time. A public announcement is expected that would provide more details and a timeline for implementation.

    The bill would:
  • Immediately give USCIS access to premium processing funds to pay for operational expenses, which are otherwise reserved for infrastructure improvements.
  • Authorize premium processing services to be available for:
    • Employment-based nonimmigrant petitions and associated applications for dependents
    • Form I-140 petitions (EB1, EB2 & EB3)
    • Form I-539
    • Form I-765 and
    • Any other immigration benefit type deemed appropriate by the USCIS. [We will need to wait for more clarification on what this will include.
  • Increase the premium processing fee for benefit requests that are already eligible for premium processing services from $1,440 to $2,500. ​
  • Require rulemaking to set fees for expanded premium processing services, but it must be consistent with the following:
    • EB-1 petitions for Multinational Managers and Executives or EB-2 NIW petitions - fee is no greater than $2,500 and processing time is no greater than 45 days.
    • Change of status requests for F, J and M - fee is no greater than $1,750 and processing time is no greater than 30 days.
    • Change of status requests for dependents seeking E, H, L, O - fee is no greater than $1,750 and processing time is no greater than 30 days.
    • Form I-765 - fee is no greater than $1,750 and processing time is no greater than 30 days.
  • Allow for a biennial adjustment of premium processing fees based on the Consumer Price Index without rulemaking.
  • Clarify that the processing time clock does not begin until "all prerequisites for adjudication are received" by USCIS.
  • Ensure that providing expanded premium processing services does not result in an increase in processing times for other benefit applications.
  • Require a semi-annual congressional briefing and that within 180 days, USCIS will provide a 5- plan on establishing:
    • Electronic filing procedures for all applications and petitions
    • Acceptance of electronic filing at all locations and
    • Issuance of all correspondence and notices electronically.

***

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Increase of USCIS fee halted

Sep 30, 2020

We previously reported that on August 3, 2020, that USCIS had published a final rule that was to increase certain immigration and naturalization filing fees beginning October 2, 2020.

The Immigrant Legal Resource Center had filed suit against USCIS regarding the fee increases and on 29/09/2020, the U.S. District Court for the Northern District of California ordered that the USCIS filing fee increases be stayed pending final adjudication of the matter. This also means that premium processing time limit will remain 15 calendar days for now, rather than 15 business days as had been proposed in the final rule.

This is particularly important now as the USCIS filing fees for I-485 and associated applications (EADs and Advance Parole application) were set to substantially increase on October 2, just as thousands of people will be filing their I-485 applications due to rapid forward movement in priority dates.

***

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Regulations for forthcoming H-1B & prevailing wages

Sep 30, 2020

On September 3, 2020, U.S. Citizenship and Immigration Services (USCIS) submitted an Interim Final Rule to the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) entitled, "Strengthening the H-1B Nonimmigrant Visa Classification Program." It is anticipated that the administration will publish the regulation as an Interim Final Rule (IFR), rather than as a Notice of Proposed Rulemaking (NPRM), which would normally first require a 60-day comment period. An IFR means that the regulation would take effect possibly upon publication - without the agency first evaluating and responding to public comments.

On September 16, 2020, the U.S. Department of Labor (DOL) submitted an Interim Final Rule to OIRA entitled, "Restructuring of H-1B/H-1B1/E-3 and PERM Wage Levels." It is anticipated that the administration also plans to publish this regulation as an Interim Final Rule and that it could become effective immediately upon publication.

The timing of these regulations is crucial as, with the election coming in November and the possibility of a change of administration coming in January, the clock is ticking on this administration's ability to promulgate new regulations to implement its restrictionist agenda.

The USCIS and DOL Interim Final Rules are expected to combine to substantially modify prevailing wage requirements so as to limit the availability of the H-1B visa program to the most highly paid professionals, regardless of actual wage data for the labor market. These are some highlights of several expected provisions of these regulations, and a preview of potential legal challenges these regulations may face.

    Expected Provisions

    While the specific language of the forthcoming regulations will not be available until they are published in the Federal Register, based on the regulatory agenda and other clues, they are expected to include the following:

  • Revision of the definition of an H-1B specialty occupation to "increase focus on obtaining the best and brightest foreign nationals."
  • Changes to the definitions of H-1B employment and the employer-employee relationship, with a focus on restricting offsite placement of H-1B workers. It is expected that the Interim Final Rule will revise the regulatory definition of "United States Employer" and the interpretation of "employer-employee relationship" so as to exclude or limit the availability of the H-1B visa program where there is third-party placement of H-1B workers.
  • Possible requirement that H-1B employers and their end clients jointly obtain LCAs where H-1B workers will work at client sites. The regulation may include a revision to the Labor Condition Application (LCA) requirement so that when the H-1B worker is assigned to a third-party work site, the end-client would need to join in or be a signatory to the LCA. A joint LCA requirement may create de facto joint employer liability for LCA obligations on wages and working conditions.
  • Additional H-1B wage requirements "to ensure employers pay appropriate wages to H-1B visa holders" as well as a restructuring of the H-1B, H-1B1, E-3 and PERM prevailing wage levels.
    Litigation Challenging the Regulations

    A few grounds for a legal challenge could include:

  • Several of the expected changes appear to be inconsistent with existing statutes on specialty occupation.
  • If issued as an Interim Final Rule, the agency will also need to show the basis for its determination that there exists "good cause" to skip the normal notice and comment process.

Reforming (read: restricting) the H-1B visa program is a priority for Senior Policy Advisory Stephen Miller. However, issuing these regulations as Interim Final Rules presents many risks and makes a successful legal challenge more likely. If a federal court issues an injunction following a legal challenge, it is unlikely that there would be enough time to republish a regulation and consider public comments - unless there is a second term of the Trump Presidency.

***

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EB priority dates for October 2020 changed Significantly

Sep 25, 2020

October 1, 2020 marks the beginning of the federal fiscal year (FY21), and with it, the infusion of a new allocation of immigrant visa numbers. This infusion typically results in some forward movement in Final Action Dates in the month of October. The October Visa Bulletin was published on 24/09/2020 and later in the day the USCIS indicated that EB I-485 applications would be accepted based on Filing Date.

Unique forward movement This October's Visa Bulletin is unique; however, given competing tensions caused by the COVID-19 global pandemic. On the one hand, diminished agency processing capacity is likely to limit advancement in certain preference categories and across the family-based (FB) preference categories. On the other hand, most employment-based (EB) categories have the potential to experience significant forward movement, as explained further below. What remains uncertain is to what extent, if any, diminished agency capacity might curb advancement in the employment-based preference categories.

Infusion of unused Family-Based Numbers from FY20 For FY21, the assignment of employment-based visa numbers is required to be phenomenally high. This is on the grounds that the INA requires unused family-based visa numbers from the prompt earlier monetary year to be added to the business based assignment (and the other way around). There were critical business based numbers utilized in FY20 before the Coronavirus pandemic started, while interestingly there has been negligible FB number utilization due to amazingly restricted consular preparing because of the pandemic and the foreigner visa limitations of PP 10014 that suspended settler visa preparing at U.S. Departments.

It is possible that 250,000 or more unused FB immigrant visa numbers will be added to the EB immigrant visa pool for FY21. This would represent a 63% increase over the highest allocation in recent memory. While this is great news for individuals who have been waiting many years for their priority dates to become current, it will likely also result in a slowdown in processing​ I-485 and related applications.

On the other hand, for FY21, it is expected that the usage of family-based immigrant visas will continue to be significantly low in comparison to prior fiscal years due to the continuing global pandemic and the various travel bans that remain in effect. So, it's possible that EB visa numbers will continue to exhibit substantial forward movement in FY22.

Downsizing to EB3 For certain classes, particularly those brought into the world in India and China, EB3has really pushed forward of EB2 for October 2020. For cases in which a representative has an endorsed I-140 in the EB2 classification, we can simultaneously document another I-140 request with the I-485 recording to downsize the appeal to EB3 and exploit the current EB3 need date.

Our arrangement and your things to do We are currently producing reports to see which people have current need dates dependent on their current arrangement (for example EB2) and which people wouldshould be downsized to EB3 to be current in October. On the off chance that your need date is current dependent on your current classification (for example EB2 India), there is no compelling reason to contact our office. We will start your I-485 as quickly as time permits. On the off chance that you should be minimized to EB3 or if our office didn't set up your I-140 however is as of now speaking to your boss, if you don't mind contact ouroffice to ensure we have you on our rundown in the event that you have not effectively done as such. At that point, we will start starting these I-485 cases and messaging the surveys that should be finished and the rundown of archives we will require. If it's not too much trouble check your garbage/spam envelopes every day to ensure that our introduction messages don't wind up there.

Employment and Travel Authorization documents Starting in October 2020, the USCIS has forced separate documenting charges for work (EAD $550) and travel (advance parole or AP $590) applications. Beforehand, there were no extra USCIS documenting expenses related with these applications on the off chance that they were recorded along with the I-485 (green card) application. Because of this change, we might be getting ready EAD/AP applications on the off chance that you explicitly request that we, besides in some uncommon conditions where the EAD/AP applications will be needed; for instance, in the event that you are in a nonimmigrant status that doesn't allow settler purpose like F-1 or TN. Should you decide to have us get ready EAD/AP applications, there are no extra lawful charges for the underlying applications whenever arranged simultaneously asthe I-485 application. Be that as it may, if the EAD/AP reports should be restored later on, which is likely, you will bring about extra lawful charges and USCIS recording expenses for the restoration applications. In the event that you decide not to apply for EAD/AP records you should keep up your nonimmigrant status and should have a legitimate H or L visa stamp in your identification to go universally and re-visitation of the U.S. while the I-485 is forthcoming.

***

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Remote extended of I-9 & E-Verify procedures through 19/11/2020

Sep 23, 2020

The Department of Homeland Security (DHS) and U.S. Migration and Customs Enforcement (ICE) reported an augmentation of the adaptability in consenting to necessities identified with Form I-9 because of COVID-19 through 19/11/2020.

This arrangement just applies to bosses and working environments that are workingdistantly and licenses them to distantly review and hold duplicates of the character and business qualification reports to finish Section 2 of Form I-9."

This brief direction was set to lapse August 18. Due to progressing precautionary measures identified with COVID-19, DHS has expanded this approach for an extra 30 days.

If you don't mind allude to the movement cautions from 17/06/2020 and 5/4/2020 on our site (www.freijylaw.com/migration alarms/) for more data on brief I-9 and E-Verify methods that have been set up.

E-Verify members who meet the models and pick the distant review choice should keep on after current direction and make cases for their recently recruited employees inside three business days from the date of recruit.

***

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Luke Bowman

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North & South borders to remain shut through 21/10/2020

Sep 23, 2020

The North and South border closure has now been stretched out through 21/10/2020 aside from fundamental travel.

DHS Acting Secretary Chad Wolf prior declared that "Trivial travel won't be allowed until this organization is persuaded that doing so is free from any danger."

This applies just to the border closure and ship intersections. People entering the U.S. from Canada or Mexico via plane are not affected by this outskirt conclusion and won't have to demonstrate that their movement is basic.

***

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Luke Bowman

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Luke Bowman

120 Flint Road, Brighton, Michigan 48116

(810)522-5405

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