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  1. There Is Still Time To Prepare H-1B Cap Cases For April 1 Filing. By Roger Algase


    With the April 1, 2015 filing date for H-1B cap subject petitions rapidly approaching, many employers who are making last minute decisions to sponsor someone for H-1B may be wondering if there is still enough time to prepare the case in time to meet the deadline.

    The answer is - yes, as long as one moves quickly. What action does an employer need to take in order, not only to file the petition in time to make it into this year's virtually inevitable "random selection" lottery, but to make sure that the petition is supported by everything necessary in order to give it the best chance of being approved if it is picked for processing?

    Nothing could be more frustrating than to have the petition picked in the H-1B lottery, only to run up against an RFE or denial later on. Here is a checklist which can help to avoid unnecessary complications after an H-1B case is chosen for filing.

    First and foremost, the case must be carefully planned. Is the H-1B beneficiary (employee) qualified for H-1B? Does he have a US or foreign bachelor degree in a particular field in or related to what USCIS will consider to be a "specialty occupation" If the degree is a foreign one, is it equivalent to a US four year degree, and does he/she have an equivalency evaluation from a US evaluator?

    If the employee does not have a bachelor degree, does he/she have enough progressive work experience in or related to the H-1B position to meet the requirements for bachelor degree equivalency? Has this work experience been properly documented by letter(s) from the previous employer(s)?

    Second, equally important, if not even more so, does the offered position meet the USCIS requirements for a "specialty occupation". In many cases, answering this question is like trying to hit a moving target, because whether a specialty bachelor degree is normally required for entry into the particular field is something that can fluctuate over time, depending on the often mysterious pronouncements of the US Department of Labor's Occupational Outlook Handbook ("OOH").

    As I have noted previously, the OOH, which most USCIS H-1B examiners follow blindly, often reads with all the clarity of the ancient Delphic or Sibylline oracles, or Shang Dynasty oracle bones. No matter how well prepared the ship of the H-1B petition may otherwise be to venture out on the high seas of USCIS adjudication, if there are any leaks in the specialty occupation planning and job description, the H-1B ship may run aground or even sink.

    In addition to making sure that the H-1B position is a specialty occupation as defined by USCIS, it is also important to justify the employer's need to hire someone working in that position, based on its own business activities. This is especially true if the H-1B employer is a new or small company.

    Another important issue is the LCA, which depends in turn on choosing the appropriate prevailing wage. I have seen some cases where the employer (or its attorney) purposely chose a job title below the level of the actual offered position in order to come up with a lower prevailing wage for LCA purposes.

    There may have been a time when USCIS did not pay much attention to what was in the LCA. That time, if there was one, is now long past, and if the LCA is for a lower job title or salary than is appropriate for a specialty occupation, there is a high risk that the H-1B petition will be denied, no matter how much other evidence there may be that the offered position is indeed a specialty occupation.

    To turn to the mechanics of filing an H-1B petition, the first step is to file an LCA (Labor Condition Application) with the US Department of Labor's Office of Foreign Labor Certification (OFLC). This is done online through the OFLC's icert system.

    It normally takes at least seven calendar days (though the OFLC's guidance says seven business days) for the LCA to be certified, which is a prerequisite to filing the actual H-1B petition with USCIS.

    It is important for an employer, large or small, which has never filed an LCA before to make sure that its Federal Employer Tax ID number (FEIN) is properly registered with the OFLC before filing the LCA; otherwise, the LCA will not be certified.

    The way to do this is to email a copy of the IRS notice assigning the FEIN to the employer on the basis of its Form SS-4, together with a request to the OFLC to verify the FEIN to LCA.Chicago@dol.gov

    The message should reference: Attn: LCA Business Verification Team. Normally, an email will come back within a few days from the OFLC confirming that the FEIN has been verified and that the employer may now file an LCA.

    With only a short time remaining before the April 1, 2015 filing date for H-1B cap petitions, it is important for employers which have never filed LCA's before to take this time period into account.


    ________________________________
    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing employment-based and family-based immigration law for more that 30 years, concentrating in H-1B and other specialty and professional work visas and green cards. His email address is algaselex@gmail.com


    Updated 02-27-2015 at 01:00 PM by ImmigrationLawBlogs

  2. Judge Hanen's Anti-immigrant Executive Action Ruling Was No Surprise. By Roger Algase


    The Obama administration's hesitant and confused reaction to Texas Federal District Judge Andrew Hanen's February 16 ruling which put a hold on the president's executive action program to grant work permission and temporary relief from deportation to up to 4 million mainly Latino immigrants indicates that the decision may have been totally unexpected and that there was no Plan B in place to deal with it.

    Oh, yes, the administration is going to appeal. But when? And how?

    How long will it take for the appeals documents and briefs to be ready to file with the Fifth Circuit Court of Appeals (reputed to be the most conservative federal court of appeals in the country, with Republican-appointed judges outnumbering Democratic-appointed ones by a 2 to one margin)?

    If the injunction against DAPA and expansion of DACA is not promptly vacated by the Fifth Circuit, is the administration ready to go to the Supreme Court without delay, so that no more people who present no danger to America will have their families broken up and otherwise suffer the irrevocable harm of deportation while the lawsuit is pending?

    Is a Plan B being prepared to salvage at least some of the DAPA program within the limits of Judge Hanen's decision? If not, why not?

    As America's Voice shows in a January, 2015 report and in a statement released on February 17, right after the decision came down, the decision should not have come as a surprise to anyone.

    See America's Voice: A Coordinated Attack: Judge Hanen and the Nativist Lawsuit Against DACA and DACA

    http://americasvoice.org/research/ne...ecutive-action

    See also:

    http://americasvoice.org/blog/3-reas...ely-political/

    This comment will look at some of Judge Hanen's previous immigration-related decisions to see why his court was cherry-picked for this lawsuit in an egregious example of forum shopping by the some of the most extreme immigration opponents in America, including - no surprise - Kris Kobach, the notorious Kansas Secretary of State whose main activity is preparing anti-immigrant laws and lawsuits nationwide.

    A forthcoming comment will take a closer look at Judge Hanen's DAPA and DACA expansion injunction decision itself, pointing out parts of it that make his anti-immigrant bias and lack of qualifications for rendering a fair decision clear beyond any possible doubt. My forthcoming comment will also suggest ways in which the administration might be able to shield at least some of the intended DAPA and expanded DACA beneficiaries from deportation without violating Judge Hanen's injunction.

    First, let us look at Judge Hanen's immigration decision-making history. According to the above America's Voice report, this history includes the following (see the report for the case citations - they will not be repeated here):

    1) In one case, he criticized the federal government for not bringing criminal charges against an undocumented immigrant mother whom DHS allowed to be reunited with her child by following a law allowing such reunification that was passed under the administration of George W. Bush (the same president who appointed Judge Hanen to his current position on the federal bench).

    2) After a defendant pled guilty and the outcome of the case was no longer in doubt, Hanen wrote a 4-page opinion criticizing federal immigration policy, even though this had nothing to do with the defendant.

    3) The judge accused the DHS of engaging in criminal conduct as an agency by allegedly hindering law enforcement officers from doing their job.

    4) In another case, the judge accused DHS of "completing the criminal mission" of human traffickers "who are violating the border security of the United States".

    5) In other cases, Judge Hanen criticized DHS for following procedures which benefit certain immigrants and are permitted or mandated by duly enacted laws of this country, including the 2008 TVPRA amendments, and the Convention Against Torture, which the judge called "incredible" and "bordering on the absurd".

    In another case (again, according to America's Voice), Judge Hanen wrote that this

    "Court is happy to envision Main Street America as a melting pot of races, religions, creeds and ethnic backgrounds...That picture of diversity, however, [will be] much different...if the government's current brush strokes continue to color the canvas...[T]he picture being painted will include a diverse variety of felons and violent criminals."

    The above are only a few of Judge Hanen's anti-immigrant comments which go beyond extremism, as reported by America's Voice. One commentator has reportedly stated that bringing an immigration case before Judge Hanen would be like bringing it before Senator Ted Cruz himself.

    My reaction would be that even Senator Cruz might be less extreme in his language concerning immigration than Judge Hanen has shown himself to be.
    _______________________________
    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing employment-based and family-based immigration law for more than 30 years. His email address is algaselex@gmail.com

    Updated 02-18-2015 at 10:50 AM by ImmigrationLawBlogs

  3. Anti-Immigrant Judge Blocks Obama's Executive Action on Deportation. By Roger Algase


    In a 123-page memorandum decision, Judge Andrew S. Hanen of the US District Court for the Southern District of Texas, Brownsville Division, who has a history of issuing anti-immigrant decisions, according to a report by America's Voice referred to below, has issued a temporary injunction against implementation of President Obama's announced executive action directing DHS to grant temporary relief from deportation, along with work permission to an estimated 4 million unauthorized immigrants now in the United States.

    The preliminary injunction was issued late in the day on February 15, 2015. See Texas v. US, Case number 1:14 civ-00254

    In his ruling, Judge Hanen made three main findings. First, he found that the 26 states which are plaintiffs in the lawsuit have standing to bring the lawsuit because of economic harm that they would suffer if the president's program, known as DAPA, were allowed to go into effect. This harm, as described by the Court, would consist of increased costs in providing drivers licenses and educational benefits to the immigrants affected, among other things.

    Judge Hanen, however, rejected some of the states' more speculative claims of possible harm from DAPA, such as "encouraging illegal immigration" or creating a "humanitarian crisis on the US border".

    The judge also determined that the projected harm to the states would be irrevocable, even if they were ultimately to win their case. It would, he ruled, be impractical or impossible for the states to revoke or undo the effects of licenses granted or other benefits which they would be required to issue to the affected immigrants under the DAPA program.

    Most important of all, Judge Hanen ruled that the states had a high likelihood of success of prevailing on the merits of the case after a full hearing. This was not because of their claim that the executive branch exceeded its Constitutional authority in promulgating DAPA, which the Court said it was not necessary to rule on at this stage.

    Thus, this decision does not give any support to one of the most often repeated claims by immigration opponents, namely that the president is "trashing" the Constitution by granting relief from deportation without Congressional approval. Judge Hanen specifically left this issue open.

    In contrast, his ruling was based entirely on statutory grounds, namely that DAPA was "rule-making" within the meaning of the Administrative Procedure Act (APA) and was therefore issued in violation of the procedural requirements of that statute, as well as being contrary to the Immigration and Nationality Act (INA).

    Judge Hanen stated (Memorandum, p. 111):

    "The DAPA program clearly represents a substantive change in immigration policy. It is a program instituted to give a certain newly-adopted class of 4.3 million illegal immigrants not only legal presence in the United States, but also the right to work legally and the right to receive a myriad of government benefits to which they would otherwise not be entitled. It does more than supplement the statute; if anything, it contradicts the INA. It is, in effect, a new law." (Citations omitted, emphasis added).

    The full decision is available at

    http://www.scribd.com/doc/255994067/...-United-States

    The decision made clear that the existing DACA program, which was not made part of the lawsuit and was therefore not before the Court, is not affected by the preliminary injunction. However, expanding the DACA program is affected by this ruling.

    The decision also states that it is not intended to affect the executive branch's existing authority to use prosecutorial discretion in connection with deportation.

    The White House has announced that the grant of a preliminary injunction will be appealed to the Fifth Circuit Court of Appeals.

    It is also worth noting that Judge Hanen's record of previous decisions is not exactly consistent with that of a judge who is free from anti-immigrant bias, at least according to a January, 2015 report by America's Voice entitled: A Coordinated Attack: Judge Hanen and the Nativist Lawsuit against DAPA and DACA.

    This report may tell us a good deal more about the judge's motives for granting the injunction than the decision itself does.

    My colleague Nolan Rappaport has kindly provided me with a different link to the decision: Thank you, Nolan!

    http://pdfserver.amlaw.com/nlj/texas...n_20150216.pdf

    Here is a link to the America's Voice report:

    http://americas.voice.org/research/n...cutive-action/
    _______________________________
    Roger Algase is a New YorK lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing employment-based and family-based immigration law for more than 30 years.

    Roger's practice is concentrated in H-1B specialty occupation and O-1 extraordinary ability work permits, J-1 training visas, and green cards through labor certification (PERM), extraordinary ability (EB-1) and opposite sex or same sex marriage. His email address is algaselex@gmail.com

    Updated 02-18-2015 at 08:19 AM by ImmigrationLawBlogs

  4. Law, Justice and Immigration: An Ancient Roman Example for Our Time? By Roger Algase


    The following comment has been revised and expanded as of 11:00 am on February 15:

    One of the most famous stories in all of Western literature is the legend of Dido, queen of Carthage, and Aeneas, the founder of Rome, as told by Virgil, one of the greatest, if not the greatest, of all the classical Roman poets. For the past 2,000 years, this story has been known throughout the world as a tragic love tale.

    Their romance ends when Aeneas (who is also one of literature's best known political refugees) leaves Dido in order to carry out his duty of arriving in Italy in order to establish the city and the people of Rome (one way, no doubt, to obtain political asylum, though not one that is available to a great many people.) Overwhelmed by grief, Dido ultimately dies.

    However, while this may not be the main focus of Virgil's Dido and Aeneas story, the great poet expresses some remarkable views about immigration, namely by implying that liberal immigration policies go hand in hand with the idea of justice and fair legislation in general.

    In addition, when Virgil speaks about immigration, as when he speaks about any other topic, it is safe to assume that he is not only speaking for himself, but also for the first, and one of the greatest, of all Roman emperors, Augustus Caesar.

    Virgil's masterwork, the Aeneid, is considered to have been written in order to justify Augustus' rule and to describe what were considered to be the Roman ideals of virtue under his leadership (ideals which, according to historians, Augustus did not always adhere to himself in his personal life, but that is a different story which does not concern us here).

    Virgil was held in high esteem by Augustus, and was actually together on a voyage with the emperor at the time of Virgil's death in 19 B.C. Indeed, the only reason that we have his magnificent epic poem today is because Augustus countermanded Virgil's instructions that the Aeneid should be burned after his death. (Evidently Virgil was dissatisfied with some of his lines in the poem and thought that he should have improved on them.)

    (It may also worth noting that Augustus was not always so friendly to every poet. Another great Roman poet, Ovid, whose whose work was less to Augustus' liking, was exiled to and spent the rest of his life in a lonely outpost, far away from Rome, after many unsuccessful efforts to have his "deportation" rescinded.)

    With the above by way of introduction, I will turn to Virgil's views about immigration, as expressed through the character of Dido.

    As soon as Dido is introduced in Book 1, it is clear that she is meant to represent a feminine ideal in every aspect of her personality, just as Aeneas represents the Augustan male ideal of loyalty, piety and bravery. Dido is even described as not only being the most beautiful, but also the tallest, of all women in her entourage, (possibly a connection with Maat, the Egyptian goddess of Justice, who was said to be tall).

    See:

    http://www.crystalinks/maat.html
    ).

    One of Dido's outstanding attributes, as Virgil describes them, is her function of law giving:

    iura dabat legesque viris, operumque laborem / partebas aequat iustis aut sorte trahebat: ("She gave laws and rules to her people, dividing the work to be done in equal parts or allocating it by lot." Aeneid - 1, 507, 508)

    This passage clearly equates justice with fairness and equality, even to the point of resorting to what USCIS now chooses to call "random selection". (Did Virgil anticipate the H-1B lottery by any chance?)

    The theme of justice as one of Dido's chief attributes is expanded when one of Aeneas' men addresses her as follows:

    justitiaque dedit gentis frenare superbas ("He [Jupiter] allowed you to govern proud peoples with your justice.")

    It is fine for Virgil to talk about Dido's devotion to justice, but does he give any actual examples of her putting this devotion into practice? This is where immigration comes into the picture.

    Addressing one of Aeneas's men, (long believed by Aeneas himself to have been lost in a shipwreck) Dido offers to refurbish his ships so that he and his companions can go anywhere they wish.

    But then Dido also has another suggestion:

    vultis et his mecum pariter considere regnis? / urbem quam statuo, vestra est; subducite navis ("Or do you wish to settle with me on an equal footing, even here in this kingdom? This city which I am founding is yours. Draw up your ships.")

    And she concludes her offer with the remarkable line, far more enlightened in its openness than the immigration policies of any so-called "advanced" countries today:

    Tros Tyriusque mihi nullo discrimine agetur.
    ("Trojan and Tyrian shall be as one in my eyes.")

    In other words, Dido is in effect offering permanent residence (or even citizenship) to Aeneas and his entire fleet, for no other reason than that they might wish to remain there, without requiring them to show qualifications for immigrant status or citizenship under any set of predetermined rules.

    It is true that Dido is destined later on to fall in love with Aeneas, so that one might argue that his fleet members could fall into the category of his "dependents", or even "immediate relatives" in a rather extended sense of that term - but that is all for the future.

    At the time she makes her immigration proposal (which can certainly qualify as a classical example of executive action) Dido's generous offer of residence or citizenship in Carthage to these complete strangers with no pre-conditions whatsoever (not even a fine or payment of back taxes) appears to be based on profound humanitarian considerations which Virgil clearly identifies with justice in the highest and truest sense of the word.

    How ironic that, within the past few days, 2,000 years later, in the latest of many recent Mediterranean refugee disasters, 29 would-be immigrants died and more than 70 others spent 18 hours in freezing temperatures without food or water after trying to reach Italy from the same Lybian shores and by crossing the same passage of water as the one which Virgil describes as separating Carthage from Rome:

    Urbs antiqua fuit (Tyrii tenuere coloni) /
    Karthago, Italiam contra Tiberinaque longe / ostia,
    ("There was an ancient city, Carthage, held by colonists from Tyre, opposite Italy and the distant mouth of the River Tiber.")

    See:

    http://www.huffingtonpost.com/2015/0...n_6646078.html

    One is also inevitably reminded of President Bill Clinton's sending the Coast Guard to stop impoverished Haitians from fleeing their country by boat to seek refuge in the US in the 1990's.

    When one contrasts the humanity and exalted ideal of generous immigration policy as the servant of justice in Virgil's Aeneid with the battles going on in Europe and America today over whether to admit immigrants from different parts of the world or different ethnic backgrounds from the intended host countries' majority populations, one has to wonder how much, if at all, humanity has progressed in the time since Virgil wrote his immortal poem.

    *******

    As a postscript, one might argue, from a more cynical viewpoint, that Dido's offer of permanent residence or citizenship to all the crew members of Aeneas' entire fleet of ships was not made through any desire on her part to adopt humanistic, ultra-liberal immigration policies. Nor (one could argue) was her offer based on some ancient version of TPS status (though there was nothing temporary about the destruction of Troy).

    Certainly, one could also contend, Dido's offer of permanent residence or citizenship to the men did not involve any considerations resembling modern political asylum, since Virgil does not mention her raising any questions about which "particular social group" the men belonged to. Virgil also makes clear that the men did not even ask for asylum, but only for help in going on to their next destination.

    Instead, if one wanted to regard Dido as someone with a mentality more in keeping with a modern day USCIS Service Center adjudicator than that of a generous, open-minded ancient legendary queen, one could argue that Dido offered to admit Aeneas' men to her country only because the sheer fact of their having survived the Trojan war - if they did in fact survive, which Virgil never makes clear - showed that they had all met a highly restrictive standard of "extraordinary ability", equivalent to that required for beneficiaries of O-1 or even EB-1 petitions.

    However, it is probably less likely that Dido might have been willing to consider these men for a national interest waiver, since Virgil does not mention any shortage of able seamen or shipbuilders in Carthage at the time.

    Alternatively, one might have a stronger argument to the effect that Dido could have determined that these crew members had met the P-1 standard of "international recognition" for athletes. After all, Virgil writes that the jealous and vindictive goddess Juno, with regard to these men:

    arcebant longe Latio, multosque per annos / errabant acti fatis maria omnia circum ("She kept them far away from Latium, driven by the Fates to wander for many years around all the seas".)

    And as Dido says herself:

    quis genus Aeneadum, quis Troiae nesciat urbem / virtutes virosque aut tanta incendia belli? / non obtunsa adeo gestamus pectore Peoni, ("But who could fail to know about the people of Aeneas and his ancestry, about the city of Troy, the valor of its men and the flames of war that engulfed it? We are not so dull in mind as that.")

    If the above does not qualify as "international recognition", it is hard to imagine what would.

    Of course, a cynic might also ask what kind of treatment Dido would have afforded to an entirely different set of shipwrecked men with a different leader whom she had not been fated to fall in love with, as Venus, the mother of Aeneas, had craftily (and with help from Juno) arranged for Dido to do in the case of Venus' son. Would Dido have ordered the men detained, since she had no shortage of border guards available? As she states:

    res dura et regni novitas me talia cogunt /
    moliri et late finis custode tueri.
    ("This is a new kingdom, and it is harsh necessity that forces me to take these precautions and post guards on all our frontiers.")

    If they had not had any connection with Aeneas, would Dido have put the men into removal proceedings? Virgil does not give us any clear answer to this question.

    ********

    Note: All the above quotations are from Book 1 of the Aeneid. The English translations above are all taken from, or based in large part on, those of David West in Virgil: The Aeneid, Penguin Books, translation and introduction copyright (C) David West, 1990, 2003.
    _____________________________
    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing employment-based and family-based immigration law for more than 30 years and has helped immigrants from many parts of the world fulfill their dream of living and working in America.

    Roger studied Latin as a high school student, where he was first introduced to the Aeneid. While he makes no claim to have expertise in Latin, he maintains an active and lively interest in ancient Roman history, culture and literature. His email address is algaselex@gmail.com


    Updated 02-15-2015 at 11:00 AM by ImmigrationLawBlogs

  5. Former Adviser to Japan's PM Urges "Apartheid" Immigration. By Roger Algase


    It is always instructive to see how other advanced countries are dealing with their own immigration law and policy issues. In this spirit, I refer to a February 13 Reuters report concerning a newspaper article written by Ayako Sono, a former advisor to Japanese Prime Minister Shinzo Abe entitled Let Them In - But Keep a Distance.

    According to Reuters, Ms. Sono's article in the conservative Sankei newspaper recommends that Japan should admit more foreign workers, especially to care for its growing number of elderly citizens, but should make the immigrants live separately from the Japanese population. She also reportedly praised the former South African policy of apartheid as allegedly having been good for whites, Asians and Africans.

    See: Japan PM ex-adviser praises apartheid in embarrassment for Abe

    http://www.reuters.com/assets/print?...0LH0M420150213

    Reuters also reports that Abe's chief cabinet secretary, Yoshihide Suga, while not commenting on Ms. Sono's article directly, was clear in pointing out that Japan's immigration policy is based on equality, which is guaranteed in Japan. It is also a safe assumption that Sono's views are rejected by the overwhelming majority of the Japanese people, especially younger people.

    Of course, no US legislator or public figure would ever openly advocate apartheid as an immigration legislative or policy proposal. But, as it will be remembered, the essence of apartheid involves requiring members of different ethnic groups to live separately from each other.

    As Ms. Sono puts it in her article:

    "People can carry out business and research together, and socialize together, but they should live apart."

    While it would be impossible on Constitutional grounds for apartheid to be included in an American immigration legislative or policy proposal as a matter of law, there has been no shortage of recent attempts to impose de facto apartheid, or separation from the majority, on minority immigrant communities.

    One example was in Arizona's S.B. 1070 law before most of it was struck down by the Supreme Court in 2012, and similar laws in other states. Another example is in the ongoing attempt by some anti-immigrant advocates to overturn the US Supreme Court's 1898 Wong Kim Ark decision guaranteeing US citizenship to virtually all children born in America, regardless of their parents' citizenship or immigration status.

    Setting up a two tier system under which some American-born children would have all the rights and privileges of citizenship, while others would be illegal and deportable from the moment of birth, depending on who their parents were, would certainly qualify as a form of apartheid.

    A third instance is in the current attempt by immigration opponents to undo President Obama's executive action temporarily protecting an estimated 4 million mainly Hispanic immigrants from deportation and providing them with work permits.

    If 4 million minority group immigrants were expelled en masse from the United States, that would be the ultimate example of forced separation from the rest of America's population, something that goes far beyond even Ayako Sono's immigration apartheid vision for Japan.
    ______________________________
    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing employment-based and family-based immigration law for more than 30 years and has helped clients from many parts of the world achieve their dream of living and working in America.

    Updated 02-13-2015 at 10:49 AM by ImmigrationLawBlogs

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