Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for October, 2011

Visa Bulletin Predictions and Updates from Charles Oppenheim (October 26, 2011)

Our office just came back from a discussion session here in Washington, DC with Charles Oppenheim.  Mr. Oppenheim is the Chief of the Visa Control and Reporting Division at the U.S. Department of State.  For many, he is simply known as the person responsible for the monthly and annual visa number allocations for family- and employment-based green cards.  He is also the person who prepares and publishes the monthly visa bulletin which is highly anticipated every month.

We are asked on a daily basis by our clients to provide visa bulletin predictions and when a particular priority date may become current.   As a result, on behalf of our clients, we appreciate the opportunity Mr. Oppenheim has afforded us to get some advance sense of the movement of the priority dates and also on short- and long-term immigrant visa trends.

Summary of Mr. Oppenheim’s Key Points

EB-2 China and India will advance significantly over the next few visa bulletins.  A possible slowdown (or retrogression) may come in the summer of 2012.   EB-3 China and, specifically, India, will move very slowly and this category is “ridiculously” oversubscribed — very long times to be expected.   Family-based dates will advance gradually.

General Visa Number Trends

Mr. Oppenheim reiterated the fact that in the employment-based context, each green card application case is “larger” than previously expected and instead of one visa number, if often includes two or three (because many primary beneficiaries have married and have children).  As a result, and in recognition of the fact that many EB-3 India and China candidates are now eligible for and applying under the EB-2 category, Mr. Oppenheim noted that the EB-3 visa numbers are expected to remain oversubscribed and to move slowly forward.

However, Mr. Oppenheim indicated that he expects to be able to advance EB-2 China and India significantly over the next few months.

With respect to family-based cases, Mr. Oppenheim noted that the demand, especially in the FB2 category has exceeded his expectations after the sharp forward movement at the end of 2010.   This sharp forward movement has generated a significant demand for FB2 preference category visas and he has had to retrogress significantly in order to control demand.   He indicated that slow forward movement is expected.

On a more general level, Mr. Oppenheim shared that his goal is to advance the cutoff dates more at the beginning of the fiscal year (October, November and December visa bulletins) and then, as he is able to gauge demand for a particular preference category, adjust accordingly by either slowing down or retrogressing (if demand is high) or advancing even more (is demand turns out to be low).

Visa Bulletin Predictions – Employment-Based

Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months.   Please note that these are short-term predictions and depending on the number of applications as a result of the next few months’ visa numbers, the rate of cutoff date movement may change.

EB-2 Rest of World (ROW).  This category is expected to remain current throughout the fiscal year.

EB-2 China and EB-2 India.  These two categories are where the most action is going to be over the next few months.  Mr. Oppenheim indicated that he expects to be able to advance EB-2 China and India significantly over the next few visa bulletins.  It is possible that the December 2011 Visa Bulletin would advance EB-2 India and China to at least March 1, 2008 or even further.   Similar forward movement may be expected in the January 2012 and February 2012 Visa Bulletins.     Mr. Oppenheim cautioned, however, that if there is high demand (number of filings) in the EB-2 category, he may hold or even retrogress towards the summer of 2012.   He noted that there is usually a 4-6 month gap between filing of an I-485 adjustment application and when a visa number is actually requested and allocated — this means that EB-2 India and China I-485 applications filed in the fall will be need visa numbers in spring/summer of 2012 and this is when retrogression may happen.

EB-3 Rest of World (ROW).  This category is expected to move gradually slightly forward for the next few visa bulletins — anticipated forward movement of 3 to 4 weeks per month.

EB-3 China.  This category is expected to move slowly forward – by 1-3 weeks per month for the next few months.

EB-3 India.  Unfortunately, this category is, according to Mr. Oppenheim, “ridiculously oversubscribed” and forward movement, if any, will be very slow.    This category is expected to remain unchanged or to move very slowly forward (by a 1-2 weeks or so).   This is mainly caused by the fact that there are simply too many EB-3 India applicants waiting for a visa number to become available.   Mr. Oppenheim suggested that since the summer of 2007, no new EB-3 India cases have been filed and there is a significant number of EB-3 India candidates waiting for the priority dates to move forward.

EB-3 India and China – 70 Years Wait for Green Card?

There have been a number of recent articles and comments on the possibility that Indian and Chinese applicants who are in the EB-3 category may be facing a 70-year wait to obtain a visa number.   Mr. Oppenheim’s reaction:  that this is “plausible”.

As a background, according to a recent report, since the majority of employment-based green card filings are from India and China, the current per-country limit (which restricts the number of green cards awarded to any country to 7% of the total) places a ceiling on how many EB-3 green cards can be approved every year.   For Indians, the limit of EB-3 green cards that can be issued every year is fewer than 3,000.    The estimate (generally confirmed by Mr. Oppenheim) of the pending EB-3 cases is somewhere around 210,000 (primary EB-3 candidates plus family members).   As a result, a simple calculation shows that it may take around 70 years for an EB-3 India candidate to obtain a green card.

Unfortunately, the estimates were generally confirmed by Mr. Oppenheim who, while not specifically endorsing the 70-year wait period, confirmed that EB-3 India will be very slow going forward due to very heavy demand.  EB-3 China is in a very similar situation, even though the demand numbers are proportionally lower.

Visa Bulletin Predictions – Family-Based

Mr. Oppenheim was also able to provide some predictions and expectations for movement of the family-based visa numbers over the next few months.  Unlike the employment-based visa numbers, Mr. Oppenheim indicated that the family-based visa numbers are likely to be fairly predictable.

FB 2A.  According to Mr. Oppenheim, this family-based category has shown a high demand as a result of the sudden forward movement at the end of 2010 and, as a result, had to be retrogressed.   Now that the demand is fairly predictable, a gradual forward movement of 3-6 weeks per month is to be expected.

FB 2B and FB3.  Forward movement in the 2B category is expected to be 1-2 weeks per month.

FB4.   Forward movement of about one month per month is to be expected.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.  Overall, Mr. Oppenheim’s comments are likely to create some mixed feelings among our employment-based clients.   Although EB-2 is likely to move forward significantly over the next few months, the long term prospects of EB-3 China and India are not good.

Our office is prepared to handle the anticipated significant forward movement in the EB-2 China and India categories.    Please do not hesitate to contact us if we can review your case or answer any questions.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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USCIS to Issue Redesigned Employment Authorization Document (EAD) Cards

USCIS has announced that effective October 30, 2011, it would issue redesigned Employment Authorization Document Cards (also known as “EAD” or “work permit” cards )   The redesign is mainly driven to incorporate new security features to deter counterfeiting, tempering and document fraud, generally.

Design

Samples of the front and back are shown below:

No Changes to Application Procedures

Even though the design is changing, the procedures for applying for and obtaining an EAD card remain the same.   We have written extensively in the past on the delays associated with obtaining EADs of  more than 90 days and we hope that the new design would, at least, not make these EAD production delays even worse.  As a result, we continue to urge our readers and clients to apply for their EADs 90-120 days in advance of either current EAD expiration or in advance of anticipated employment start date.

Our office can help you with the EAD filing application – please contact us.

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FY2012 H-1B Numbers Update – 46,200 Regular Cap Visas Used; Master’s Cap Reached (October 21, 2011)

USCIS just released the information on the numbers of cap-subject FY2012 H-1Bs filed since April 1.   As of October 21, 2011, USCIS has received approximately46,200 H-1B petitions counting toward the 65,000 cap (an increase of 2,900 over the previous week).  Similarly, as of October 21, there were 20,000 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit.

H-1B Quota Trends – Rate of Regular Cap H-1B Filings Increases; H-1B Masters Cap Reached;  Regular H-1B Cap Likely to Remain Open for 2 More Months

The numbers, as just reported for the past week, confirm that the rate of filing of new cap-subject H-1B filings is increasing slightly.  Now that the H-1B U.S. Master’s cap has been reached, all H-1B filings (regardless of level of education) will be counted under the regular H-1B cap.   As a result, we expect the average weekly rate of filings to be around 3,000-3,500, compared to 1,000-1,500 previously.   Given an estimated rate of H-1B filings of 3,500 for the next few weeks, it is likely that the H-1B cap for FY2012 will be reached towards the end of the year — likely in late December 2011 or early January 2012.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2012 quota, please contact us.

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Does Change in H-1B Work Location Require an H-1B Amendment, in Addition to a New LCA?

Our office handles a substantial number of H-1B work visa petitions for a variety of U.S. employers and we often share our direct experiences with the H-1B work visa program.   This article is intended to share our experience with H-1B work visa petitions where there is a change of the job location once the H-1B work visa petition has been approved and during its validity.

The Problem – H-1B Workers Changing Job Locations

Many consulting companies who hire H-1B holders place their workers at third-party client sites.   It is very common for these H-1B workers to change projects, end clients or simply to relocate to a different client site during their H-1B validity period.   In such cases, the question arises, What should be done to ensure that the H-1B employer and employee remain in compliance with the relevant H-1B regulations?

There is fair amount of confusion among H-1B employers and workers with respect to their obligations when there is a change in the work location.   Below we discuss what has been currently the recommended approach and also what USCIS has recently announced.

Currently:  Change in H-1B Job Location Requires a New LCA

Pursuant to previous USCIS guidance, our office often advises that when there is a change in the job location, but all of the other terms of an H-1B petition remain valid — title, duties, salary — then all the petitioning employer must do is file a new LCA for the new job location(s) and ensure that the proper posting and compliance for each new LCA has been done.

This approach is supported by the Adjudicator’s Field Manual 31.2(e) which states that “[t]he mere transfer of the beneficiary to another work site, in the same occupation, does not require the filing of an amended petition provided the initial petitioner remains the alien’s employer and, provided further, the supporting labor condition application remains valid.”

The relevant regulations, in 8 CFR 214.2 specify that  “[t]he petitioner shall file an amended or new petition, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or training or the alien’s eligibility as specified in the original approved petition.”   (emphasis added).   As a result, the question becomes what is “material change.”   In light of previous guidance, a change in location only was not considered a material change.

Possible Changes in Interpretation in “Material Change” – California Service Center and Upcoming USCIS Guidance

In recent discussions with the California Service Center, some of which is prompted by a number of “Notice of Intent to Revoke” notices, it becomes apparent that the California Service Center is starting to consider a change in the job location a “material change” and, as a result, requiring an H-1B amendment to be filed.   According to the California Service Center, as of August 10, 2011, “it is the position of [California Service Center] Counsel that an amended H-1B petition should be filed if an LCA is filed after approval of an H-1B petition.”

It is worth noting that no such guidance has been issued by the other service center processing H-1B petitions – the Vermont Service Center.   As a result, an apparent conflict arises between both Service Centers — because the Vermont Service Center has not provided any guidance on the issue, it may be inferred that H-1B petitions filed with the Vermont Service Center do not require amendment when there is change in the job location.

Conclusion

We are aware that USCIS is working on official guidance on this topic which would, hopefully, provide clear guidance applicable to both service centers.  Unfortunately, there is no known or anticipated release date.   In the meantime, in abundance of caution, we are starting to recommend that H-1B amendment petitions be filed when there is a change of job location, at a minimum, for petitions with the California Service Center, but also for petitions filed with the Vermont Service Center.   If you are not sure whether a petition has been filed with the Vermont or California Service Centers, please see this guide to service centers and receipt numbers.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with analyzing or filing H-1B petitions, including amendments.

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ICE Deportations for FY2011 Hit Record Number

The Immigration and Customs Enforcement (ICE) announced yesterday that for the fiscal year 2011 (FY2011) which ended September 30, 2011, ICE has deported a record number of individuals.

In FY 2011 ICE’s Office of Enforcement and Removal Operations removed 396,906 individuals — the largest number in the agency’s history. Of these, nearly 55 percent or 216,698 of the people removed were convicted of felonies or misdemeanors — an 89 percent increase in the removal of criminals since FY 2008. This includes 1,119 aliens convicted of homicide; 5,848 aliens convicted of sexual offenses; 44,653 aliens convicted of drug related crimes; and 35,927 aliens convicted of driving under the influence. ICE achieved similar results with regard to other categories prioritized for removal. Ninety percent of all ICE’s removals fell into a priority category and more than two-thirds of the other removals in 2011 were either recent border crossers or repeat immigration violators.

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FY2012 H-1B Numbers Update – 43,300 Regular and 19,500 Masters Cap Visas Used (October 14, 2011)

USCIS just released the information on the numbers of cap-subject FY2012 H-1Bs filed since April 1.   As of October 14, 2011, USCIS has received approximately43,300 H-1B petitions counting toward the 65,000 cap (an increase of 2,300 over the previous week).  Similarly, as of October 14, there were 19,500 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 400 over the previous week).

H-1B Quota Trends – Rate of Regular Cap H-1B Filings Increases; H-1B Masters Cap Effectively Reached;  Regular H-1B Cap Likely to Remain Open for 2-3 More Months

The numbers, as just reported for the past week, confirm that the rate of filing of new cap-subject H-1B filings is increasing slightly.  We have been noticing a slightly higher than average weekly rate of filings of over 2,000, compared to 1,000-1,500 previously, for the regular H-1B cap.   The rate for the U.S. Masters H-1B cap has remained steady – at 500-700 per week, although as of the time of this article, the Master’s Cap has probably been reached.   More than six months into this H-1B cap filing season, we can draw some (fairly) reliable conclusions on how long the cap would remain open: given the rate of filings for the past several weeks and since the H-1B cap opened, and considering that the H-1B Masters Cap to is reached, it is likely that the H-1B regular cap would remain open for another two to three months.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2012 quota, please contact us.

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FY2012 H-1B Numbers Update – 41,000 Regular and 19,100 Masters Cap Visas Used (October 7, 2011)

USCIS just released the information on the numbers of cap-subject FY2012 H-1Bs filed since April 1.   As of October 7, 2011, USCIS has received approximately41,000 H-1B petitions counting toward the 65,000 cap (an increase of 4,700 over the previous two weeks).  Similarly, as of October 7, there were 19,100 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 1,400 over the previous two weeks).

H-1B Quota Trends – Slow Rate of Filings; Regular Cap H-1B Filings Slightly Up; H-1B Masters Cap to Close Soon; Regular H-1B Cap Likely to Remain Open for Several Months

The numbers, as just reported for the past two weeks, confirm that the rate of filing of new cap-subject H1B filings is fairly slow, and remaining steady.  We have been noticing a slightly higher than average weekly rate of filing of 2,000, compared to 1,000-1,500 previously, for the regular H-1B cap.   The rate for the U.S. Masters H-1B cap has remained steady – at 500-700 per week.   More than six months into this H-1B cap filing season, we can draw some (fairly) reliable conclusions on how long the cap would remain open: given the rate of filings for the past several weeks and since the H-1B cap opened, while we expect the H-1B Masters Cap to close soon, it is likely that the H-1B regular cap would remain open well into 2012.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2012 quota, please contact us.

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AAO Processing Times (October 1, 2011)

Our office has established a reputation as one of the leading practices for handling appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only  about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.    The AAO processing times are published monthly, at the beginning of the month, and we are providing monthly updates and analysis for the benefit of our clients and readers.

About the AAO

The AAO is an appeals office which handles appeals of certain decisions made by USCIS field offices and regional processing centers.  The Freedom of Information Act (FOIA) requires that all AAO decisions be made available to the public.  As a result, AAO decisions are accessible in reading rooms at USCIS headquarters here in Washington, DC and at field offices.  Also, some (but not all) AAO decisions are available online.

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of October 1, 2011.  Read the full AAO Processing Times report.

Among the most notable AAO processing times:

  • H-1B appeal takes 22 months (two months increase compared to our last report as of July 1, 2011);
  • L-1 appeal takes 23 months (no change);
  • I-140 EB1 Extraordinary Ability takes 16 months (increase of one month), Multinational Manager or Executive takes 20 months (increase of two months) while EB1 Outstanding Professor or Researcher category takes 9 months (increase of over three months);
  • I-140 EB2 (Advanced Degree) takes 29 months (decrease by three months) while EB2 (NIW) takes 13 months (no change); and
  • I-140 EB3 Skilled Worker takes 34 months (no change) while EB3 Other Worker takes 4 months on appeal (no change).
Conclusion
The AAO processing times have been going up slightly over the past few months.   We notice increased delays in AAO processing times across almost all types of cases.     The only exception is EB-2 appeals where the processing times have decreased slightly.   Unfortunately, increasing filings and lack of adequate increase in staffing has led to very long AAO appeal wait times.

If our office can be of any assistance regarding AAO representation or consultation, please contact us.  Also, please feel free to subscribe to our free weekly newsletter to receive updates and immigration news.

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November 2011 Visa Bulletin – EB-2 India and China Advance by Three and a Half Months; Slow Movement in EB-3; FB1 Advances Again; Moderate Movement in FB2A

The U.S. State Department just released the November 2011 Visa Bulletin which is the second Visa Bulletin for the FY2012 fiscal year.    The major headline in the upcoming month’s bulletin is the significant forward movement in EB-2 India and China and the forward movement in FB1.

Summary of the November 2011 Visa Bulletin – Employment-Based (EB)

Below is a summary of the November 2011 Visa Bulletin with respect to employment-based petitions:

  • EB-1 remains current across the board.
  • EB-2 remains current for EB-2 ROW, Mexico and Philippines.   EB-2 India and EB-2 China both move forward by three and a half (3.5) months to November 1, 2007.
  • EB-3 ROW, EB-3 Mexico and EB-3 Philippines move forward by only two (2) weeks to December 22, 2005, EB-3 China  moves forward by two (2) weeks to August 22, 2004, while EB-3 India  moves forward by only one (1) week to July 22, 2002.
  • The “other worker” category remains unchanged (again) at  April 22, 2003 for China.  It moves forward by two (2) months for ROW, Mexico and Philippines to November 15, 2005.  It also moves forward by one (1) week for India to June 15, 2002.

Summary of the November 2011 Visa Bulletin – Family-Based (FB)

Below is a summary of the November 2011 Visa Bulletin with respect to family-based petitions:

  • FB1 moves forward (again, for second month).  FB1 ROW, China and India all move forward by five (5) weeks to July 22, 2004.   FB1 Mexico moves forward by one (1) week to April 1, 1993 and FB1 Philippines moves forward by one (1) month to February 8, 1997.
  • FB2A moves forward by five (5) weeks to February 15, 2009 for ROW, China, India, and Philippines.  FB2A Mexico moves forward by six (6) weeks to December 1, 2008.
  • FB2B ROW, China and India move forward by two (2) weeks to August 1, 2003.  FB2B Mexico remains unchanged at November 22, 1992.  FB2B Philippines moves forward by ten (10) weeks to July 15, 2001.

Substantial Movement in EB-2 India and China Continues;  Slow Movement  for EB-3; Finally (for Second Month) Forward Movement in FB1

One of the major headlines this month, in the second Visa Bulletin for the Fiscal Year 2012 is the continued substantial forward movement in EB-2 India and China.    The slow movement across EB-3 continues, unfortunately.

We see continued forward movement in the FB1 category which, for several months, had not changed.   Although the movement is only of five weeks, it is still a notable movement, especially when added to the five week movement in the October 2011 Visa Bulletin.   We continue to see the FB2A category move forward, although by not as much as we saw for the last few months and after the significant retrogression during the months before.

EB-2 China and India Predictions

The November 2011 Visa Bulletin provides some general observations on the expected forward movement in the EB-2 China and EB-2 India categories.   While the significant advancement in these two categories over the past few months is expected to generate significant demand, the expectation, as of now, is that there may be more significant cutoff date movements in the future.   According to the State Department, such movements may not be on a monthly basis and should not be expected to last throughout the next fiscal year.  If the number of filings indicates high demand for EB-2 China and India, a retrogression is possible.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the November 2011 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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Update on DOL Prevailing Wage Determinations

Many of our clients and readers are asking us on updates regarding the Department of Labor’s (DOL) prevailing wage determination process.  We are happy to report that according to DOL reports and according to our first-hand experience, prevailing wage determinations are issued and they are (slowly) starting to return to normal.

Background on the DOL Prevailing Wage Suspension

As a reminder, in August, DOL announced that they are temporarily suspending the issuance of non-H-2B prevailing wage determinations in an attempt to focus 100% of their resources towards completing the re-issuance of few thousand H-2B prevailing wage determinations under a court order.  Please see our August 2011 article on the prevailing wage suspension for more details.

Current Prevailing Wage Processing Times

As a result of the backlog of prevailing wage determinations, our expectations that prevailing wage determinations would take a significant period of time are confirmed.   Currently, we see prevailing wage determinations issued 10-12 weeks after filing of the request.   This is substantially higher than the 4-5 week average we used to see before DOL was ordered to redo previous H-2B prevailing wage determinations.   Our hope is that prevailing wage determination processing times would continue to go down as DOL is working through the backlog of requests.

Some PERM and H-1B Filings Continue to be Affected

Despite the fact that prevailing wage determinations are being issued, the delays of at least a couple of months for a prevailing wage determination remains a major concern for certain PERM/H-1B applicants who need to file their PERM/H-1B urgently.  Our office (along with many other immigration stakeholders) have voiced our concerns that many foreign workers who must file their PERM and/or H-1B in order to be able to fit within AC21 guidelines, expiring recruitment of other urgent reasons may be negatively affected by the slow processing of prevailing wages.   A proposal to DOL to create a procedure to accommodate expedited processing of prevailing wage requests has been submitted, but without any result (as of the time of this article).

Additionally, as a higher number of prevailing wage determinations are issued over the past and coming weeks, it is likely that a higher number of PERM cases will be filed over the upcoming few months — resulting in an increase in the PERM processing times over the next 6-9 months.

Conclusion

We welcome the fact that DOL has started processing and issuing prevailing wage determinations, and while we remain hopeful that DOL will continue allocating resources to bring prevailing wage processing times down to a month, we remain concerned that a number of foreign workers may lose PERM/H-1B benefits due to these delays.   Please do not hesitate to contact us if we can be of any assistance or if we can provide case analysis as part of our free initial consultation.

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