June 2011 Newsletter
The law firm of Klasko, Rulon, Stock & Seltzer, LLP is pleased to present our June 2011 newsletter covering immigration topics that are of interest to our clients.
- Senator Asks for Investigation of B-1 Visa Program – Sen. Grassley questioned the "B-1 in lieu of H-1B" policy currently in place, and referenced a formal complaint against Infosys by a U.S. employee.
- DOS Reports on Employment-Based Visa Demand; First Preference 'Extremely Low' – Demand in the employment first preference is extremely low; it also appears unlikely that a second preference cut-off date will be imposed for any countries other than China and India, where demand is extremely high.
- USCIS Reviews Policy on H-1B Cap Exemptions Based on Higher Ed Relation or Affiliation – Until further guidance is issued, USCIS is applying interim procedures to H-1B nonprofit entity petitions filed with the agency seeking an exemption from the statutory cap based on an affiliation with or relation to an institution of higher education.
- USCIS Continues to Accept FY 2012 H-1B Petitions – The agency has received approximately 5,900 H-1B petitions counting toward the 65,000 cap, and approximately 4,500 petitions toward the 20,000 cap exemption for individuals with advanced degrees.
- USCIS Issues Q&A on Extension of Post-Completion OPT and F-1 Status for Eligible Students Under H-1B Cap-Gap Regs – Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for the cap-gap extension, USCIS said.
- USCIS Issues Guidance on Concurrent Advance Parole, EAD – USCIS released a guidance memorandum on issuance of employment authorization documents with advance parole endorsements.
- Foreign Affairs Manual Guidance Revised on License Requirements for H-1Bs – The manual was revised to better reflect actual USCIS practice.
- USCIS Issues Memo on Procedures for Revocation of a U.S. Passport – The memo provides background and outlines statutes under which U.S. passports may be revoked by the Department of State for reasons such as fraud, nonpayment of child support, drug trafficking, non-repayment of a repatriation loan, or conviction for sex tourism.
- Government Agency Links
- New Publications and Items of Interest
- Klasko News – Noteworthy news, upcoming and recent speaking engagements and recent publications.
1. Senator Asks for Investigation of B-1 Visa Program
Sen. Charles Grassley (R-Iowa) has asked the Departments of State and Homeland Security to investigate the B-1 visa program and its use by employers "to recruit foreign workers who are then not subject to the cap and the prevailing wage requirements of the H-1B program." In a letter to Secretary of State Hillary Clinton and Secretary of Homeland Security Janet Napolitano, Grassley questioned the "B-1 in lieu of H-1B" policy currently in place. He wrote, "Under this low threshold [for the B-1 visa], a company could import workers via the B-1 business visitor visa and evade the H-1B visa cap and prevailing wage requirements that would otherwise apply to such workers so long as the workers could show that their paychecks were still coming from the foreign company."
Sen. Grassley also referenced a formal complaint against Infosys by a U.S. employee that alleges Infosys management in India used the B-1 business visitor visa program to get around H-1B program restrictions. He said the complaint alleges that Infosys was importing foreign workers as B-1 business visitors under the guise of attending meetings rather than working for wages as employees of a U.S. company, which is forbidden under the statute and regulations governing the B-1 visa program.
Sen. Grassley has introduced legislation in previous Congresses on the H-1B and L visa programs and plans to introduce a bill again in the 112th Congress.
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2. DOS Reports on Employment-Based Visa Demand; First Preference "Extremely Low"
The Department of State's Visa Bulletin for May 2011 noted that demand in the employment first preference is extremely low compared with that of recent years. Absent an immediate and dramatic increase in demand, this category is expected to remain "Current" for all countries. It also appears unlikely, the Bulletin stated, that a second preference cut-off date will be imposed for any countries other than China and India, where demand is extremely high. Based on current indications of demand, the best-case scenarios for cut-off date movement each month during the coming months are as follows:
Employment Second: Demand by applicants who are "upgrading" their status from employment third to employment second preference is very high, but the exact amount is not known. Such upgrades are in addition to the known demand already reported. The Bulletin said this makes it difficult to predict ultimate demand based on forward movement of the China and India cut-off dates. Although thousands of "otherwise unused" numbers will be available for potential use without regard to the China and India employment second preference per-country annual limits, it is not known how the upgrades will ultimately affect the cut-offs for those two countries.
The June 2011 Visa Bulletin moved forward for Eb-2 China from August 1, 2006 to October 15, 2006. Likewise, the visa numbers moved forward for Eb-2 India from July 1, 2006 to October 15, 2006. Whether this acceleration in priority dates will be sustained in the coming months remains to be seen. The State Department explains that there is an increased demand by applicants "upgrading" their category from EB-3 to EB-2, which could potentially stymie the advancement of EB-2 priority dates. Nonetheless, the impact of this increased EB-2 demand has so far been minimal. The State Department cautions that priority date cut-offs for upcoming months cannot be guaranteed and therefore no assumptions should be made. At this time, we make no changes to our prediction that decreased EB-1 applications and approval rates should advance Chinese and Indian EB-2 priority dates to late 2006, and perhaps to January 2007, by September of 2011.
Worldwide: An advance in the priority date of three to six weeks may occur.
China: An advance in the priority date of one to three weeks may occur.
India: An advance in the priority date of zero to two weeks is likely.
Mexico: Continued forward movement is expected; no specific projections at this time.
Philippines: An advance in the priority date of three to six weeks is likely.
The Bulletin notes that the above ranges are estimates based on current demand patterns, and are subject to fluctuations during the coming months. "The cut-off dates for upcoming months cannot be guaranteed, and no assumptions should be made until the formal dates are announced," the Bulletin warned.
Allocation of "Otherwise Unused" Numbers:
INA § 202(a)(5) provides that if total demand in a calendar quarter will be insufficient to use all available numbers in an employment preference, the unused numbers may be made available without regard to the annual per-country limits. Based on current levels of demand, the Bulletin for May 2011 states that there will be otherwise unused numbers in the employment first and second preferences. Such numbers may be allocated without regard to per-country limits, once a country has reached its preference annual limit. Since under INA § 203(e) such numbers must be provided strictly in priority date order regardless of chargeability, greater number use by one country would indicate greater demand by applicants from that country with earlier priority dates. Based on the amount and priority dates of pending demand and year-to-date number use, a different cut-off date could be applied to each oversubscribed country for the purpose of assuring that the maximum amount of available numbers will be used. The Bulletin noted that a cut-off date imposed to control the use of "otherwise unused" numbers could be earlier than the cut-off date established to control number use under a quarterly or per-country annual limit. For example, at present the India employment second preference cut-off date governs the use of numbers under § 202(a)(5) because India has reached its employment second annual limit. The China employment second preference cut-off date governs number use under the quarterly limit because China has not yet reached its employment second annual limit.
The rate of number use under § 202(a)(5) is continually monitored to determine whether subsequent adjustments are needed in visa availability for the oversubscribed countries. The Bulletin said that this helps assure that all available employment preference numbers will be used and that numbers also remain available for applicants from all other countries that have not yet reached their per-country limits.
As noted above, the number of applicants who may be upgrading their status from employment third to employment second preference is unknown. As a result, the cut-off date that governs use of § 202(a)(5) numbers has been advanced more rapidly than normal, in an attempt to ascertain the amount of upgrade demand in the pipeline while at the same time administering the available numbers. "This action risks a surge in demand that could adversely impact the cut-off date later in the fiscal year," the Bulletin warned, adding that it also limits the possibility that potential demand would not materialize and the annual limit would not be reached due to lack of cut-off date movement.
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3. USCIS Reviews Policy on H-1B Cap Exemptions Based on Higher Ed Relation or Affiliation
U.S. Citizenship and Immigration Services (USCIS) announced that it is reviewing its policy on H-1B cap exemptions for nonprofit entities that are related to or affiliated with an institution of higher education. Until further guidance is issued, USCIS is applying interim procedures to H-1B nonprofit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education.
Effective as of March 18 and during the interim period, USCIS will defer to prior determinations made since June 6, 2006, that a nonprofit entity is related to or affiliated with an institution of higher education (absent any significant change in circumstances or clear error in the prior adjudication) and, therefore, exempt from the H-1B statutory cap. USCIS noted, however, that the burden remains on the petitioner to show that its organization previously received approvals of its request for an H-1B cap exemption on this basis.
Petitioners may satisfy this burden by providing USCIS with evidence, such as a copy of the previously approved cap-exempt petition (i.e., a Petition for a Nonimmigrant Worker (Form I-129) and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, along with any documentation that was submitted in support of the claimed cap exemption. USCIS suggests that petitioners also include a statement attesting that their organization was approved as cap-exempt since June 6, 2006.
USCIS emphasized that these measures will only remain in place on an interim basis.
Evidence of previous determinations of cap exemption will be considered on a case-by-case basis only when submitted with an I-129 petition for H-1B status requesting exemption from the numerical cap, or in response to a Request for Evidence or Notice of Intent to Deny for H-1B petitions currently pending with USCIS claiming exemption from the cap. USCIS accordingly advised petitioners not to send separate correspondence containing their cap-exemption evidence on this issue.
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4. USCIS Continues to Accept H-1B Petitions for FY 2012
U.S. Citizenship and Immigration Services (USCIS) announced that it continues to accept H-1B nonimmigrant petitions that are subject to the fiscal year (FY) 2012 cap. The agency began accepting these petitions on April 1.
USCIS is monitoring the number of petitions received that count toward the congressionally mandated annual H-1B cap of 65,000 and the 20,000 U.S. master's degree or higher cap exemption. The agency reported that it has received approximately 5,900 H-1B petitions counting toward the 65,000 cap, and approximately 4,500 petitions toward the 20,000 cap exemption for individuals with advanced degrees.
At the same time last year (April 8, 2010), USCIS had received more than double that number of cap-subject petitions, or approximately 13,500, and about 5,600 petitions for individuals with advanced degrees. The previous year, on April 20, 2009, USCIS announced that it had received approximately 44,000 cap-subject H-1B petitions and 20,000 petitions for those with advanced degrees. (USCIS did not announce the number of petitions received on April 8 in 2009, unlike other years.)
Speculation about the causes of the slowdown ranges from the continued sluggishness of the U.S. economy to skilled workers seeking work in their home countries and increases in visa fees. Some potential H-1B workers have noted that the cost of living is significantly lower in their home countries and they can be close to family and parents, who often cannot be brought to the U.S. because of difficulties in obtaining visas for them. Critics of the program in Congress and elsewhere have also contributed to an overall negative climate for hiring H-1Bs.
Cases for premium processing of H-1B petitions filed during an initial five-day filing window are undergoing a 15-day processing period that began April 7. For all other H-1B petitions filed for premium processing, the processing period begins on the date that the petition is physically received at the correct USCIS Service Center.
Meanwhile, petitions filed by employers who are exempt from the cap, as well as petitions filed on behalf of current H-1B workers who have been counted previously against the cap within the past six years, will not count toward the cap.
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5. USCIS Issues Q&A on Extension of Post-Completion OPT and F-1 Status for Eligible Students under H-1B Cap Gap Regulations
U.S. Citizenship and Immigration Services (USCIS) released a Q&A document, addressing the automatic extension of F-1 student status in the U.S. for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2011, under the fiscal year (FY) 2012 H-1B cap. Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for the cap-gap extension, USCIS said.
Once a timely filing has been made requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed, USCIS explained. If the student's H-1B petition is selected and approved, the student's extension will continue through September 30 unless the petition is denied, withdrawn, or revoked. If the student's H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the U.S.
To obtain proof of continuing status, a student covered under the cap-gap extension should go to his or her designated school official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student's DSO will issue a preliminary cap-gap I-20 showing an extension until June 1.
If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer's Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The student's DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status, USCIS said. USCIS strongly encourages students "to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing."
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6. USCIS Issues Guidance on Concurrent Advance Parole, EAD
U.S. Citizenship and Immigration Services (USCIS) released a guidance memorandum on issuance of employment authorization documents (EADs) with advance parole endorsements. Traditionally, USCIS has issued two separate documents, an EAD (Form I-766) and an Authorization for Parole of an Alien into the United States (Form I-512). Although adjudication of an Application for Travel Document (Form I-131) and an Application for Employment Authorization (Form I-765) requires two separate determinations by USCIS adjudicators, USCIS noted that the information required from the applicant and the processes followed by the adjudicator are similar.
USCIS noted that approximately 15% of applicants filing an I-765 based on a pending I-485 also file an I-131 concurrently with, or shortly after filing, the I-485. USCIS said it approves approximately 93% of those applications for ancillary benefits.
The agency therefore determined that it was more cost-effective for the government and more convenient for the applicants to adjudicate the I-765 and I-131 simultaneously and, if both forms are approved, to issue a single document indicating that both ancillary benefits have been granted.
Whenever possible, USCIS said its adjudicators will simultaneously adjudicate concurrently filed applications for employment authorization and applications for advance parole authorization filed by applicants for adjustment of status under 8 CFR § 245 or to register status under 8 CFR § 249. If USCIS approves both applications, it will issue a single document, Advance Parole EAD (Form I-766). USCIS is also reviewing whether it is feasible to expand eligibility for an EAD with advance parole endorsement to other EAD recipients who are eligible for advance parole.
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7. Foreign Affairs Manual Guidance Revised on License Requirements for H-1Bs
The Foreign Affairs Manual (FAM) has been revised to better reflect actual practice by U.S. Citizenship and Immigration Services for approving H-1Bs in occupations that require licenses:
The requirements for classification as an H-1B nonimmigrant professional may or may not include a license because States have different rules in this area. If a State permits aliens to enter the United States as a visitor to take a licensing exam, then USCIS will generally require a license before they will approve the H-1B petition. However, some States do not permit aliens to take licensing exams until they enter the United States in H-1B status and obtain a social security number. Therefore, a visa should not be denied based solely on the fact that the applicant does not already hold a license to practice in the United States. [9 FAM 41.53 N4.1]
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8. USCIS Issues Memo on Procedures for Revocation of a U.S. Passport
U.S. Citizenship and Immigration Services (USCIS) released a memorandum on procedures for recommending revocation of a U.S. passport to the Department of State (DOS). The memo provides background information and outlines statutes under which U.S. passports may be revoked for reasons such as fraud, nonpayment of child support, drug trafficking, non-repayment of a repatriation loan, or conviction for sex tourism.
The memo notes that in recent months, USCIS employees have on occasion informed people that their U.S. passports were invalid and should be surrendered to DOS. Upon review, however, DOS determined that the passports were valid. DOS then asked that USCIS direct any concerns regarding the validity of a passport to DOS and not to the bearer of the passport.
USCIS lacks the authority to revoke or confiscate a U.S. passport, the memo states. The memo instructs USCIS employees who doubt the validity of a passport not to seize the passport, tell the bearer that there are issues with it, or instruct the bearer to return it to DOS. Instead, USCIS employees are to follow the procedures outlined in the memo to request revocation of the passport from DOS.
It is unclear from the memo whether DOS notifies the passport-bearer directly when a passport is revoked. The memo notes that:
"After reviewing the revocation request and reaching a determination, DOS will notify the referring contact person of the decision. DOS (Passport Office of Legal Affairs) generally processes revocation requests within 30-60 days of receipt.
In the case of revocation, DOS will transmit a copy of the revocation letter to the referring contact person. The DOS revocation letter must be placed in the individual's USCIS record. If DOS revokes the passport, the passport is then marked revoked in the Passport Information Electronic Records System (PIERS) and the information is transmitted to TECS."
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9. 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:
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10. New Publications of Interest
Q&A on I-129 export controls requirements: On March 24, 2011, U.S. Citizenship and Immigration Services' Ombudsman's Office hosted a public teleconference regarding new export controls data collection requirements in Part 6 of the Petition for a Nonimmigrant Worker (Form I-129) and interviewed two U.S. Department of Commerce Bureau of Industry and Security officials, Bernie Kritzer, Director of Exporter Services, and Steve Hall, Senior Policy Analyst in the Office of Exporter Services. A summary of questions and answers from the teleconference includes where to go for additional information, how to determine whether a company needs a deemed export controls license, how to apply for such a license, what are best practices while waiting to obtain a license, and to which employees the requirements apply, among other things.
The Commerce Department has published one set of FAQs on its website at http://www.bis.doc.gov. USCIS is developing a set of FAQs regarding the new Form I-129 Part 6.
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11. Klasko News
News and Noteworthy
We are proud to announce that Suzanne Seltzer (Suzanne) was appointed to the Sex Workers Project (SWP) Advisory Council of Sex Workers Rights. SWP provides guidance, advice, and connections to support SWP's mission of providing legal and social services, human rights documentation, and policy advocacy to people involved in sex work whether by choice, circumstances, or coercion. To learn more about this, please email Suzanne at email@example.com.
Elise Fialkowski (Elise) has been appointed to the AILA USCIS Texas Service Center Liaison Committee for 2011-2012. The USCIS Texas Service Center is responsible for adjudicating petitions for permanent residence including, for example, Outstanding Researcher Petitions, Extraordinary Ability Alien Petitions, National Interest Waiver Petitions and immigrant petitions based on approved labor certifications.
Upcoming Speaking Engagements
H. Ronald Klasko (Ron) and Suzanne will be speaking at the AILA National Conference from June 15–18, 2011 in San Diego, California. Ron will be presenting on the panels "Recent Developments and Strategic Considerations in Dealing with Lawful Status and Unlawful Presence" and "Dealing with Difficult RFEs: Appellate Remedies and Litigation." Suzanne will be moderating the USCIS Open Forum with USCIS representatives in her role as the AILA-USCIS Headquarters Liaison.
Elise will be a guest speaker at Lehigh University on July 14, 2011 for a program hosted by the Global Village for Future Leaders of Business and Industry. The Global Village is a cross cultural program bringing together future leaders from over forty different countries. In her presentation, Elise will discuss immigration laws and regulations affecting students, scholars, employees, business people, and investors.
On July 22, Elise will be presenting on worksite enforcement and employer compliance at a Pennsylvania Bar Institute seminar Immigration Law for the General Practitioner in Philadelphia. The presentation will also be broadcast live throughout Pennsylvania. Her presentation will focus on increased enforcement by government agencies including Immigration Customs and Enforcement, the Department of Justice Office of Special Counsel and the Department of Labor. She will highlight recent trends and provide guidance and strategies for employers to minimize potential liability. For more information, write to Elise at firstname.lastname@example.org.
Recent Speaking Engagements
Ron and William A. Stock (Bill) participated at the NAFSA 2011 Annual Conference in Vancouver, British Columbia from May 29–June 3, 2011. Ron spoke on "Solutions for Violations of Status" for foreign students, including the sections of the law that can assist students rectify previous violations of status. Ron, as Chair of the Healthcare Institution Interest Group, also conducted meetings at the conference for this interest group. Bill, in his capacity as a Regulatory Ombudsman, participated in the "RegBud Roundtables" and met with students and scholars and answered questions. He also manned the RegBud booth and met with NAFSA members. For more information on the Annual Conference, visit the conference webpage.
On May 24, 2011, Ron gave a presentation to real estate developers at the Montgomery County Economic Development Corporation on how to obtain foreign investment capital for local real estate projects. Ron discussed the EB-5 immigrant investor program, how to become an EB-5 regional center, and answered questions on how developers can utilize foreign investment to realize projects in Montgomery County, PA.
On May 19, 2011, Ron discussed "Due Diligence and Care" at a seminar hosted by Immigration Daily. Ron talked about the role of the immigration attorney and care for client, due diligence lists, how relevant are they, what factors should be considered, scope of presentation, liability, disclaimers and waivers, the role of the immigration attorney as advisor, professional insurance and the roles of other professionals to assist the investor client. For more information on these topics, write to Ron at email@example.com.
On May 18, 2011, Kate Kalmykov (Kate) discussed "Avoiding Securities Pitfalls When Advising EB-5 Clients" at the American Bar Association (ABA), Section of Litigation Lunch and Learn Teleconference Series. Kate led a discussion on securities issues related to EB-5 immigrant investor petitions organized by the ABA, Section of Litigation, Immigration Litigation Committee. For more on this topic, please email Kate at firstname.lastname@example.org.
On May 12, 2011, Ron served as discussion leader for the web seminar "Representing Investors – Regional Centers and Alternatives" sponsored by AILA. The panel discussed the various avenues for use of EB-5 capital, including the creation of a regional center, assembling projects for existing regional centers, and establishing individual projects outside of regional centers. Both the regional center designation process and the "pre-approval" or exemplar I-526 procedure was also discussed. If you would like to learn more about the EB-5 Program, please check our website at www.eb5immigration.com or contact Ron at email@example.com.
Elise and Bill, along with guest speaker Christin Connolly of Comcast, discussed "Employers Under Siege: I-9 Audits, FDNS Investigations and Increased Discrimination Claims – Strategies to Protect Your Company" at the DELVACCA Chapter of the Association of Corporate Counsel on May 12, 2011 at the Union League of Philadelphia. Topics to be discussed include increased I-9 enforcement and penalties, criminal enforcement by ICE, DOL audits and investigations, E-verify and data mining, immigration compliance and international transfers and practical strategies and best practices to protect your company. For more information on this program, please contact Bill at firstname.lastname@example.org or Elise at email@example.com.
On May 10, 2011, Jennifer Hermansky (Jen) visited Drexel University and gave a presentation entitled, "Immigration Options for Students and Scholars." Some of the topics covered included H-1B visas and quotas, strategies to enhance the chances of getting H-1Bs, Travel and status issues for H-1B visa holders, E-visas, H-3 visas, J-1 visas and waivers, L-1 visas and permanent residence status. If you would like to learn more about these topics, please contact Jen at firstname.lastname@example.org.
Elise Fialkowski's latest article "Discrimination Actions Increase as ICE Pursues I-9 Audit Program" was published on May 31, 2011 in The Legal Intelligencer. E-mail Elise at email@example.com to request a copy of this article.
The Facts About 'Investment Green Card' authored by H. Ronald Klasko, provides information on the program called the Regional Center EB-5 Program. This artitle was published in the April issue of Realor Magazine. If you would like to learn more about the EB-5 Program, please check our website at www.eb5immigration.com or contact Ron at firstname.lastname@example.org.
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Disclaimer/Reminder: This newsletter does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed. Copyright © 2011 Alliance of Business Immigration Lawyers and Klasko, Rulon, Stock & Seltzer, LLP. All rights reserved.
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