Category Archives: immigrant petition

COVID-19 Update: Certain USCIS Field Offices Plan to Reopen to the Public

As of June 4, some USCIS Field Offices are planning to reopen for in-person services to the public. The Application Support Centers plan to reopen later. The Field Offices and Application Support Centers have been closed to the public since March 18, in response to the COVID-19 pandemic.

The reopening of certain USCIS Field Offices will allow the scheduling and rescheduling of interviews for green cards, naturalization, and other U.S. immigration benefits. Biometrics appointment scheduling and rescheduling will also resume when the Application Support Centers reopen.

USCIS is following the Centers of Disease Control and Prevention’s guidelines to protects its employees and the public. USCIS intends to limit the number of appointments and interviews per day, regularly clean and sanitize its facilities, and restrict the number of persons in waiting rooms.

USCIS’ Health & Safety Guidelines

USCIS provided the following guidelines when visiting their offices.

  • You may not enter a USCIS facility if you:
    • Have any symptoms of COVID-19, including cough, fever or difficulty breathing;
    • Have been in close contact with anyone known or suspected to have COVID-19 in the last 14 days; or
    • Have been individually directed to self-quarantine or self-isolate by a health care provider or public health official within the last 14 days.
  • You may not enter the facility more than 15 minutes prior to your appointment (30 minutes for naturalization ceremonies).
  • You are encouraged to use hand sanitizer provided at entry points. 
  • You must wear facial covering (face mask) that covers both the mouth and nose when entering facilities. If you do not have one, USCIS may provide one or you will be asked to reschedule your appointment.
  • You should pay close attention to markings and physical barriers in the facility and follow social distancing guidelines.
  • You may have to answer health screening questions before entering a facility. 
  • You are encouraged to bring your own black or blue ink pens.
  • Individuals are encouraged to bring their own black or blue ink pens.

USCIS will send you an appointment notice when your interview or biometrics appointment is scheduled or rescheduled. The notice will provide more details for visiting USCIS offices. If you feel sick, you are urged to request a cancellation or rescheduling of your appointment.

While USCIS is readying certain offices to reopen on or after June 4, its employees are continuing to perform mission-critical services that do not involve face-to-face contact with the public. Most likely, the earliest date for reopening of some offices will be in July.

The reopening will not only provide relief to applicants, but may help bring much-needed revenue to USCIS. In Mid-May, the agency announced it will run out of money by the summer because the coronavirus pandemic led to a steep drop in applications and filing fees since March. Unlike most federal agencies, USCIS operates almost entirely on revenue from application fees. It requested $1.2 billion from Congress to help it stay afloat, and proposed a 10% surcharge to application fees in the coming months.

Not every application or petition for a U.S. immigration benefit requires a face-to-face interview with a USCIS officer. The USCIS Service Centers are also continuing to accept applications and petitions and issue Receipt Notices and other correspondences, even while Field Offices remain closed to the public.

For the latest information on individual offices, check the USCIS Office Closing page.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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COVID-19 Update: Impact of Executive Order Temporarily Suspending Some U.S. Immigration for 60 Days, As of April 23

On April 22, President Donald Trump signed an Executive Order titled Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak. The Order becomes effective on April 23 at 11:59 p.m. eastern daylight time and is set to expire within 60 days, with a possibility of an extension.

[UPDATE, June 22, 2020: The Trump Administration issued a new Executive Order extending the suspension up to December 31, 2020. See COVID-19 Update: Executive Order Extends Suspension of Entry of Certain Immigrants AND Suspends Entry of H-1B, H-2B, J and L Visa Applicants and Derivative Beneficiaries, Up to December 31.]

Who Does the Executive Order Affect?

For a 60-day period, the Executive Order suspends and limits the entry of persons as intended immigrants (Immigrant Visa applicants) who are:

(a) outside the United States on the effective date;

(b) do not have an immigrant visa that is valid on the effective date; and

(c) do not have an official travel document other than a visa (such as a transportation letter, a boarding foil, or an advance parole document) that is valid on the effective date or any date thereafter that permits a request for admission at a U.S. port of entry.

If you have an Immigrant Visa dated April 23, 2020 or later — and need to land in the United States to become a permanent resident — you will not be admitted into the country during the 60-day period (i.e. up to June 22, 2020). The exception is if you fall into one of the categories that are exempted from the Order.

Who is Exempted from the Executive Order?

The Order does not prevent the entry of lawful permanent residents who already hold green cards for admission to the United States.

The Order also exempts certain intended immigrants, such as:

(1) Physicians, nurses and other health care professionals seeking to perform medical research or other research intended to combat the spread of COVID-19, or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak – as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designess – plus their accompanying or following to join spouse and unmarried minor children

(2) Immigrant Investors in the EB5 immigrant visa category

(3) Spouses of U.S. citizens

(4) Minor children (under age 21) of U.S. citizens, or prospective adoptees seeking to enter the United States with an IR-4 or IH-4 visa

(5) Persons whose entry would further U.S. law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees, based on a recommendation of the Attorney General or his designee

(6) Members of the U.S. Armed Forces and their spouses and children

(7) Special Immigrant Visas in the SI or SQ classification (i.e. Iraqi and Afghan Translators/Interpreters and their spouses and unmarried minor children)

(8) Persons whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees

What is the Stated Purpose of the Executive Order?

Trump said the Executive Order was necessary to protect American workers in an economy severely affected by the COVID-19 outbreak.

Between March 1 and April 11, more than that 22 million Americans have filed for unemployment as a result of the global pandemic and related restrictions with behavioral shifts, including closures of “non-essential” businesses and “social distancing” (physical distancing).

The Executive Order states, “We must be mindful of the impact of foreign workers on the United States labor market, particularly in an environment of high domestic unemployment and depressed demand for labor.  We must also conserve critical State Department resources so that consular officers may continue to provide services to United States citizens abroad.”

The Order adds, “lawful permanent residents, once admitted, are granted ‘open-market’ employment authorization documents, allowing them immediate eligibility to compete for almost any job, in any sector of the economy.  There is no way to protect already disadvantaged and unemployed Americans from the threat of competition for scarce jobs from new lawful permanent residents by directing those new residents to particular economic sectors with a demonstrated need not met by the existing labor supply. ” 

What is the Impact of the Executive Order?

While the Executive Order temporarily suspends the entry of some persons who seek to enter the U.S. as immigrants, it exempts certain immigrant visa categories. It does not apply to the K-1 fiancee(e) category, which is a quasi-immigrant or nonimmigrant visa. It also does not prevent the filing of I-130 and I-140 petitions or the processing of such immigrant petitions by USCIS.

Furthermore, delays are already occurring due to global travel restrictions as well as cancellations and unavailability of visa interviews at U.S. Embassies and Consulates related to COVID-19.

The Executive Order will have little immediate impact on intended immigrants — unless U.S. Embassies and Consulates were to restart normal operations, such as scheduling visa interviews and issuing visas, within the next 60 days, or the Order is extended even further or indefinitely.

The text of the Order states: “Whenever appropriate, but no later than 50 days from the effective date of this proclamation, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend whether I should continue or modify this proclamation.”

The Order also notes that additional measures may be taken. It reads, “Within 30 days of the effective date of this proclamation, the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, shall review nonimmigrant programs and shall recommend to me other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”

If the suspension is extended beyond the 60-day period or widened to include nonimmigrant visa categories, this could slow down the restarting of routine in-person services at U.S. Embassies and Consulates. In the meantime, Trump has issued guidelines for Opening Up America Again to state and local officials when “reopening their economies, getting people back to work, and continuing to protect American lives.”

The situation remains fluid. Whether the Trump Administration will extend the suspension on U.S. immigration or begin a suspension in nonimmigrant visa cases is uncertain at this point.

Persons who are eligible for adjustment to permanent residence (green card) within the United States are not affected by the Executive Order. USCIS is performing mission critical duties that do not involve contact with the public.

For example, it continues to issue receipt notices, requests for evidence, decisions and other notices for petitions and applications. Although USCIS has suspended in-person services through at least May 3, it is still accepting petitions (e.g. I-130 and I-140 petitions) and applications for processing. The scheduling of interviews and biometrics appointments with applicants will restart after normal operations resume.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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U.S. Embassy Vacates INA 212(a)(6)(C)(i) Charge and Issues Immigrant Visa: A True Success Story

After initially refusing our request to vacate the INA 212(a)(6)(C)(i) charge against our client, the U.S. Embassy reconsidered its decision and issued the Immigrant Visa. Persistent follow-ups led to the applicant being cleared of the inadmissibility bar and receiving the visa for admission as a permanent resident. No Form I-601 waiver was needed because the Embassy dislodged the INA 212(a)(6)(C)(i) finding it made in error.

Two years before attending his Immigrant Visa interview, the applicant had sought a K-1 fiance visa at the U.S. Embassy, based on his then-engagement to a U.S. citizen. At the K-1 visa interview, the U.S. consular officer determined his relationship with the K-1 petitioner was not genuine, but entered into solely for U.S. immigration benefits.

The Embassy returned the approved Form I-129F petition to USCIS for further review and revocation. Instead of issuing a Notice of Intent to Revoke, USCIS issued a termination notice almost 6 months later stating the 4-month validity period on the Form I-129F approval notice had expired, but the U.S. citizen fiance may file a new petition for the applicant. By that point, they had ended their relationship and called off the engagement. No further evidence was submitted to prove the bona fide nature of the relationship.

Prior to the K-1 visa application, our client’s mother had filed a Form I-130 immigrant petition for him. USCIS approved the petition within five months, but he had to wait several years for the priority date to become current so he could apply for an Immigrant Visa.

At his Immigrant Visa Interview, he received a refusal worksheet charging him with INA 212(a)(6)(C)(i), as an applicant who sought to procure a visa by fraud or willful misrepresentation of a material fact. The Embassy noted that in adjudicating his K-1 fiance visa application, the relationship was found to not be credible.

Following the Immigrant Visa refusal due to fraud/willful misrepresentation, a close relative of the applicant contacted me for a consultation. After confirming the relationship with the K-1 petitioner was genuine but just did not work out, I agreed to represent the applicant and his mother (the Form I-130 petitioner).

I explained the applicant had the option to file a Form I-601 waiver application, as instructed by the U.S. Embassy. To get this waiver, he needed to prove to USCIS that his mother would suffer extreme hardships if he were denied admission to the United States. The long processing time and the high evidentiary standards made this a challenging path to take. The I-601 filing fee of $930 was also a factor to consider.

Because the applicant had proof of a bona fide relationship with the K-1 petitioner that was not previously submitted to USCIS or to the U.S. Consulate — and USCIS never revoked the Form I-129F approval but instead issued a termination notice — I counseled the applicant on another option, i.e. file a Motion to Reconsider and Rescind Inadmissibility Finding Under INA 212(a)(6)(C)(i) with Request for Immigrant Visa directly with the U.S. Embassy. The applicant and his family decided to go with the Motion instead of the I-601 application.

It took several months for the applicant and his family to gather all the written testimonies and documents I had recommended they provide to support the Motion to Reconsider. With this evidence and my legal memorandum arguing how the INA 212(a)(6)(C)(i) charge was made in error, I filed a request with the U.S. Embassy to reconsider the inadmissibility finding and grant the Immigrant Visa.

Upon its first review of our Motion to Reconsider and Rescind Inadmissibility Finding, the Embassy sent a reply within a week, in which it stated the applicant made a material misrepresentation in a prior K-1 visa application and was permanently ineligible to receive a visa. It added it would not accept any further evidence or appeal regarding the visa application and instructed the applicant to file for an I-601 waiver of inadmissibility.

Two weeks later, with the applicant’s consent, I submitted a Request for Supervisory Review to the U.S. Embassy, asking it to confirm whether the Motion to Reconsider was duly reviewed and highlighting the errors in the inadmissibility finding. The Embassy replied it was reviewing my inquiry and there was no guarantee on how long it would take to get a response. It again instructed the applicant to file for an I-601 waiver.

After months of waiting and sending follow-up inquiries, we finally received a response from the U.S. Embassy stating it had completed a supervisory review to reconsider this case and there has been no change to the original officer’s adjudication. It noted the applicant may file for a waiver.

A few weeks later, I filed a Request for Advisory Opinion with the Visa Office (U.S.Department of State’s Office of Legal Affairs in the Directorate of Visa Services). In particular, I asked them to review the legal question regarding whether the U.S. Embassy properly applied INA 212(a)(6)(C)(i) when it denied the Immigrant Visa in this case. I provided them with a copy of the Motion to Reconsider, including the legal memorandum and supporting evidence. The Visa Office responded it had followed up on my inquiry and the case was under review.

Several months later, the Visa Office sent an update that the U.S. Embassy provided instructions to the applicant to proceed with his Immigrant Visa application. The Embassy instructed him to submit an updated Form I-864, Affidavit of Support, and financial support documents. It further requested he complete a DNA test to verify the biological relationship with his mother (the Form I-130 petitioner).

After complying with the U.S. Embassy’s instructions, the applicant finally received his Immigrant Visa. He was admitted to the United States as a lawful permanent resident to join his mother and other close relatives who were eagerly waiting for this reunion.

This is a true success story.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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U.S. Consulate Lifts INA 212(a)(6)(C)(i) Bar and Grants Immigrant Visa: A True Success Story

Within 21 days of receiving our Request for Supervisory Review of Immigrant Visa Refusal and Renewed Motion to Reconsider and Rescind Inadmissibility Finding under INA 212(a)(6)(C)(i), the U.S. Consulate removed the lifetime bar and instructed our client to continue the immigrant visa process. Ultimately, he received his Immigrant Visa after the new police certificate and updated proof of his U.S. citizen petitioner’s U.S. domicile and financial support were provided. Because the U.S. Consulate agreed to lift the fraud charge, no Form I-601, Application for Waiver of Inadmissibility, was required.

Born stateless, the applicant used to hold a refugee travel document that contained a visitor visa when he was a child. After he acquired citizenship in a country where he was not born, the applicant used the new passport to obtain a second visitor visa and traveled to the United States for a temporary recreational stay.

Despite being married to a U.S. citizen, he complied with the terms of his visitor visa and did not overstay the authorized period or apply for a marriage-based green card within the United States. Based on the approved Form I-130 immigrant petition filed by his U.S. citizen wife, he sought to become a permanent resident through an Immigrant Visa application at the U.S. Consulate overseas.

At the initial Immigrant Visa interview, the applicant presented his passport for visa stamping. About two months later, the U.S. Consulate conducted a re-interview in which it asked about the process he used to acquire the citizenship and obtain the passport. He explained the legal channels he used to get both. Nonetheless, the U.S. Consulate charged him with section 212(a)(6)(C)(i)(fraud/willful misrepresentation of material fact to gain a U.S. immigration benefit), upon noting it was unable to verify his acquired citizenship or the authenticity of the passport when it contacted the government authorities.

The U.S. Consulate instructed him to file a Form I-601, Application for Waiver of Inadmissibility, to be excused from the inadmissibility charge. A section 212(a)(6)(C)(i) finding prohibits applicants from receiving an Immigrant Visa without first getting an I-601 approval from USCIS.

Two months after the visa refusal, the applicant contacted me for the first time to discuss his options. In our Skype (video) consultation, I explained that one solution was to file a Form I-601 application, as the U.S. Consulate instructed. To receive the waiver, he would need to prove the extreme hardships his U.S. citizen wife would suffer if he is denied entry to the United States as a permanent resident. I noted there is never any guarantee the waiver will be granted due to the high standard of proof and the discretion involved in the decision-making.

I further pointed out that if he did not commit fraud or willfully misrepresent material facts to gain the prior B1/B2 visitor visa, the Immigrant Visa, or any other U.S. immigration benefit, he could file a Motion to Reconsider and Rescind Inadmissibility Finding with the U.S. Consulate. If such a motion is granted and the section 212(a)(6)(C)(i) bar is lifted, the I-601 waiver is not required for the visa to be issued.

The client opted to go with the request to reconsider the inadmissibility charge. After we entered into a representation agreement, I counseled him on the information and documents he needed to present to show he did not engage in fraud or willfully misrepresent material facts to receive any U.S. immigration benefit.

To support the Motion to Reconsider, I prepared a legal memorandum describing how the applicant used proper channels to obtain the passport and why the submission of this passport to the U.S. Consulate was actually immaterial to his eligibility for the Immigrant Visa, as well as the prior visitor visas he received.

Five days after receiving the Motion to Reconsider, the U.S. Consulate issued a response stating the section 212(a)(6)(C)(i) bar would remain and the applicant needed to file for an I-601 waiver. The Consulate noted the applicant had no concrete evidence to support his explanation on how he acquired the citizenship. The Consulate added that during its checks with the government authorities, it was determined beyond reasonable doubt the applicant misrepresented his case and deliberately provided false information and documents to receive an immigration benefit. They added he did not rescind his false statements when given the opportunity to do so.

In the Request for Supervisory Review and Renewed Motion to Reconsider and Rescind Inadmissibility Finding, I stressed the important points the U.S. Consulate missed when it issued the response affirming the section 212(a)(6)(C)(i) charge.

In reply to this Request and Renewed Motion, the U.S. Consulate sent a response 21 days later stating the section 212(a)(6)(C)(i) charge had been lifted. Five months later — following the completion of administrative processing — my client received the Immigrant Visa to join his wife in the United States, without needing to file for and obtain an I-601 waiver.

This is a true success story.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Timely Response to Request for Evidence + In-Depth Preparation for I-751 Interview = A True Success Story

The USCIS Field Office in Minneapolis approved our clients’ joint Form I-751 petition to remove conditions on residence, even though they lived apart in different states during the marriage and had just moved in together at the time of the interview. A timely response to the Request for Evidence and in-depth preparation for the I-751 interview were essential to getting the approval.

When the U.S. citizen’s I-130 petition and the beneficiary’s I-485 green card application were approved years earlier, the couple resided together. But the beneficiary later moved to another state where job opportunities were better and the living expenses were lower. The couple lived apart for about three years following their marriage. The U.S. citizen delayed relocating with his spouse to fulfill family obligations in his home state. In the meantime, they made a few trips to visit each other and kept up long-distance communication through telephone calls and text messages.

Explanatory Response to Request for Evidence

On their own, the couple filed the joint Form I-751 petition with their tax returns and a few affidavits as supporting evidence. The conditional resident contacted me, for the first time, when she received a Request for Evidence from USCIS instructing her to submit more evidence to show she and her spouse entered the marriage in good faith and continue to share a life together.

USCIS noted the evidence should include proof of children as a result of the marriage, evidence of joint residence, documents showing combined financial resources, and affidavits from third parties who have direct knowledge of the relationship.

In the consultation, I described the documentary evidence to submit in lieu of a joint residential lease, joint bills and other proof of a shared residence. I also noted that detailed affidavits from the couple were necessary to explain the compelling reasons for living separately in different states and their concrete plans to move in together where the conditional resident lives.

The Service may waive the interview requirement only when the documentary evidence is enough to support an approval without question. Because the conditional resident and her U.S. citizen spouse would continue to live in separate states at the time the RFE response was due, I explained that an interview with USCIS was likely.

Maintaining separate residences is a serious negative factor to consider when evaluating the bona fide nature of a marriage. USCIS will not approve an I-751 without an interview when there is no proof of a joint residence.

Falsely claiming to live together is a foolish and risky action to take. This makes the conditional resident subject to being charged with INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain U.S. immigration benefits), which is a lifetime inadmissibility bar to receiving permanent residence. In addition, USCIS may conduct an investigation – such as search open source records and make unannounced visits to the claimed residence – to verify whether the couple really lives together. Such investigations may occur at any time while the petition is pending.

Thorough Preparation for I-751 Interview

Eight months after the RFE was issued, USCIS sent the conditional resident an interview notice to complete the Form I-751 processing. At that point, the U.S. citizen had recently relocated and entered into a new lease agreement with his spouse for their shared residence.

The couple contacted me for representation at the I-751 interview. Before agreeing to attend the interview as counsel, we had a telephone consultation in which we discussed the status of their relationship, the re-establishment of their joint residence, and the potential concerns and questions the USCIS officer would likely have at the interview.

I also counseled them on the additional documentary evidence to submit at the interview. This included their joint residential lease, joint bank account statement, joint utility bill, and home property insurance.

After thoroughly preparing them for what to expect, I attended the interview with them a few days later. The USCIS officer interviewed them separately and asked a variety of questions on the premarital courtship, marital history, living arrangements, medical conditions, family dynamics, reasons for the separate residences, the U.S. citizen’s relocation, and current home they share. Their testimonies were credible and overall consistent with each other.

Removal of Conditions on Permanent Residence Following Completion of I-751 Interview

At the end of the interview, the USCIS officer issued a notice stating the petition has been recommended for approval and an approval notice would be mailed if final approval is granted.

A week later, the couple received the official Form I-797, Approval Notice removing the conditions on residence. The 10-year green card was also mailed in a separate correspondence. Because the applicant had received her conditional residence four years ago and remains married to the U.S. citizen petitioner, she already meets the continuous residence requirement for naturalization (U.S. citizenship).

Separate Residences During Marriage Creates an Obstacle to Receiving I-751 Approval

The years of maintaining separate residences made it harder for this otherwise bona fide married couple to receive an I-751 approval. Without evidence of their trips to visit each other and long-distance communications, as well as their own affidavits and third-party affidavits describing their marriage, the interview would have been tougher.

Further preparation on the testimonies and documentary evidence to present at the I-751 interview was also critical to getting the conditions on permanent residence removed. It was important for them to tell the truth about the separate residences instead of offer fabricated information about their living arrangements. Falsifying evidence is one of the quickest ways to end up with inconsistencies and a denial.

With guidance from counsel, the conditional resident received an I-751 approval despite living separately from her U.S. citizen spouse for several years during the marriage.

This is a true success story.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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