Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for November, 2011

FY2012 H-1B Work Visa Cap Reached — Alternatives to H-1B

Many of our readers are aware that as of November 22, 2011, USCIS has received a sufficient number of H-1B cap-subject petitions to fill the annual H-1B quota.  All cap-subject new H-1B petitions received by USCIS on or after November 23rd will be rejected.   Throughout the entire H-1B cap season, our office was providing weekly updates to our readers and clients on the status of the H-1B cap and our predictions (based on analyzing the H-1B demand over time) that the H-1B cap would be reached by late November 2011 turned out to be pretty accurate.

Comparison of FY2011 and FY2012 H-1B Cap Seasons

This H-1B cap season lasted approximately two months shorter than last year’s.  Last year’s (fiscal year 2011, FY2011) H-1B cap season lasted until January 26, 2011, when the H-1B quota was reached.  This year, FY2012, the H-1B cap season was two months shorter.  This can be explained in a number of ways, most notably due to the gradual improvement in the U.S. economy and increase in the rate of hiring for the next 6-12 months.  As we saw the rate of H-1B filings over the past few weeks of this H-1B cap season to increase, we expect that as the economy continues to improves over the next couple of quarters, the H-1B demand should pick up and we expect that the new H-1B cap season, to open on April 2, 2012, to be busier than the last one.

Alternatives to H-1B Cap

Now that the H-1B quota has been reached, we are receiving an increasing number of inquiries by both cap-subject employers and prospective employees about the alternatives for work authorization between now and October 1, 2012, when the new fiscal year’s H-1B quota would begin (as a reminder, April 2, 2012 is the earliest a cap-subject H-1B application can be filed).  We describe some of the most common H-1B visa alternatives.  Note that the list is not intended to exhaust all possible visa types and scenarios pursuant to which an employee may be legally employed.  Our goal is to list some of the common options for the benefit of our clients and readers.  We are happy to discuss individual cases as part of our FREE initial consultation.

Cap-Exempt H-1B

A number of employers may qualify to be cap-exempt and are allowed to file for H-1B petition at any time.   A cap-exempt employer is (1) an institution of higher education, (2) related or affiliated to a higher education institution nonprofit entity, or  (3) nonprofit research organization or a governmental research organization.  Please see our cap-exempt H-1B employer guide.   As a result, many educational institutions, non-profit and research organizations may qualify to file cap-exempt H-1Bs.   We are happy to help evaluate whether an employer can qualify to be cap-exempt.

O-1 or P-1 Extraordinary Ability Visas

O-1 and P-1 visas are generally reserved for individuals who have extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics.  By definition, not many individuals qualify for one or both of these visa types, but where possible, an application for O-1 and/or P-1 should be prepared in lieu of H-1B.   In addition to being able to obtain work authorization pursuant to these visa types, an O-1 and/or P-1 approval may establish the basis for the subsequent application for an EB-1 category permanent residency.  Please contact us if you would like our help in evaluating your O-1 and/or P-1 visa case.

L-1 Intracompany Transferree

The L-1 visa type allows multinational companies who have presence abroad to transfer their employees from their overseas offices to their U.S. office (or to establish a new U.S. office).  This visa type is a good option for foreign employers seeking to establish or boost their U.S. presence and for foreign nationals currently employed abroad.   Foreign nationals who are currently in the U.S. generally will not qualify for L-1 visa.  An added benefit to the L-1 visa is that family members are entitled to a work authorization pursuant to L-2 status.

E-1/E-2 Treaty Trader or Investor

The E-1/E-2 visas allow nationals of countries with which the U.S. has trade treaties to invest an amount in the U.S. and receive an E-1 (treaty trader) or E-2 (treaty investor) visa.  See a list of treaty countries.

The E-1 treaty trader visa is suitable if the foreign national has a multinational employer who is willing to transfer them, and the company has significant trade between the foreign country and the U.S.  The employee must also have skills which are essential to the operation of the company trade.   Dependents of E-1 visa holder are eligible for work in the U.S.

The E-2 treaty investor allows foreign nationals to invest (preferably) a substantial amount in the U.S. and obtain an E-2 visa to be able to manage and direct their investment.  The amount required for investment generally varies depending on the industry (the so called, proportionality test) with more capital-intensive industries requiring more significant investment for E-2 application.   Dependents of E-2 visa holders are eligible to apply for work authorization.

H-1B Program Changes by Congress Unlikely

While we do not expect Congress to raise the H-1B cap for FY2013, it is nonetheless possible.  There are a number of proposals currently circulating in Congress, some of which aim to increase the H-1B cap.  While none of these proposals have gained momentum at this time, we will be providing updates as soon as there is a likelihood that there will be development on this front.

Wait and File on April 2, 2012 for the FY2013 Cap

For some of our clients, waiting until April 2, 2012 to file a new cap-subject H-1B petition may be the best option.  The H-1B visa type, although subject to some requirements, is a fairly common visa type for which many qualified employees are eligible.    As of now, the FY2013 H-1B cap is expected to be the same as it was for the FY2012 fiscal year – 65,000 H-1B visas (plus 20,000 for holders of U.S. master’s degrees).  However, as the economy starts to improve and employers increase hiring, we do not expect that next year’s H-1B numbers will remain available for as much as 8-9 months, as they did this year.   Accordingly, we urge employees and employers to prepare and file most or all of their H-1B petitions on or about April 2, 2012, to ensure that their petition has the greatest chance to be included in the quota.  Please contact us to start preparing for your FY2013 H-1B cap filing.

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U.S. Department of State: Consulates to Issue F-1 Visas Within 15 Days

The U.S. Department of State has announced that all U.S. embassies and consulates will expedite the processing of F-1 student visa stamp applications to ensure that qualified foreign students are able to begin their studies on time.   According to the Department of State, the maximum wait for a student visa appointment (for all posts) is fewer than 15 days.  Foreign students can apply for their visas up to 120 days before their academic programs begin.

F-1 Stamping Remains Good (and Fast) Alternative to Change of Status from Within the U.S.

We welcome the Department of State’s commitment to issue F-1 student visas on an expedited basis within 15 days.   Our office often counsels foreign nationals who are in the U.S. and seek to commence study by switching their current valid status (H-1, H-4, L-1, among others) to F-1 student status by filing an application to change status, I-539, from within the U.S.     We routinely file a number of such applications; however, this approach is not always perfect for everybody.

Many (prospective) students must begin their F-1 status as soon as possible in order to take advantage of a number of F-1 benefits (such as work authorization) or to comply with requirements imposed by the universities (for example, grants or other funding requiring F-1 status).   Considering the I-539 application may take 3 to 4 months (sometimes even more) to be reviewed and approved, many prospective students face difficult choices — remain in the U.S. and wait for 3-4 months for an application to change status to F-1 to be approved or leave the U.S. and take the chance that an F-1 visa stamp would be promptly adjudicated by the U.S. consulate abroad.

By making sure that F-1 student visa applications at U.S. consulates are reviewed within 15 days, the Department of State makes the F-1 stamping alternative a very feasible option for those who seek to obtain F-1 status in the U.S. on a short term or for those first-time foreign students who may be aiming to commence school on a short notice.

Conclusion

As we counsel a number of current and prospective F-1 foreign students, we welcome the Department of State’s announcement of expedited processing of F-1 student visa stamps at consulates abroad.    This announcement not only confirms the U.S. commitment to allowing foreign students to come and study into the U.S. but also provides a (relatively) fast option for those foreign nationals in the U.S. who need F-1 status but are not able to wait for the 3-4 month required to change status from within the U.S.

Please do not hesitate to contact us if we can provide any consultation or if we can be of any assistance.

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FY2012 H-1B Cap Limit Approaching — What Happens When the Cap is Reached?

Throughout the H-1B cap filing season (which opened back in April), we have been providing updates on the available H-1B cap numbers.   Over the past few weeks, we have been also issuing alerts (on our website, via our newsletter and through our twitter and facebook pages) on the upcoming H-1B cap limit.

Partially as a result of our outreach on the upcoming H-1B cap limit, we have been getting many questions on what happens when the H-1B cap is reached?  How does USCIS handle applications which are received on or after the date the H-1B cap is reached?

H-1B Applications Filed on the Day the H-1B Cap is Reached Are Subject to Random Lottery

H-1B filings which are received on the day the H-1B cap is reached are counted and, assuming the number of filed applications exceeds the remaining number of H-1B visas, USCIS conducts a random lottery to determine which of these H-1B applications would be counted and included under the cap.   Those H-1B applications which are filed on the last day but are not selected on the lottery for that last H-1B day are returned to the petitioners.

For example, if on the last day of the H-1B quota there are 700 available H-1B visas, but USCIS, on that day, receives 1,000 H-1B filings, there will be a random lottery among these 1,000 H-1B filings to determine 700 cases which will be accepted for processing under the cap.   The 300 H-1B filings not selected in this last-day lottery will be returned.

H-1B Filings Not Picked by the Last-Day Lottery or Filed Afterwards Are Rejected and Returned

H-1B cases filed on the last day of the H-1B cap but not picked by the last-day lottery (if there is one), or, H-1B cases filed after the last day are processed by USCIS to be returned to the filing petitioner employer (or their attorney) with an explanation that the H-1B cap has been reached and that there are no longer H-1B visas under this year’s cap.

Conclusion

Considering the increasing volume of H-1B filings and given our recent reports on the status of the FY2012 H-1B cap, we believe that the H-1B cap will be reached by the end of November 2011.    We will continue providing updates on the H-1B cap and, once it is reached, on possible alternatives.   If you need our help and services, please contact us at your earliest convenience

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FY2012 H-1B Numbers Update – 56,300 Regular Cap Visas Used; Master’s Cap Reached; Last Call for H-1B Cap Cases (November 14, 2011)

USCIS just released the information on the numbers of cap-subject FY2012 H-1Bs filed since April 1.   As November 14, 2011, USCIS has received approximately 56,300 H-1B petitions counting toward the 65,000 cap (an increase of 7,100 over the previous two weeks).  Similarly, as of November 14, 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 Significantly; H-1B Masters Cap Reached

The numbers, as just reported for the past week, confirm that the rate of filing of new cap-subject H-1B filings is increasing significantly.  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 3,500, compared to 1,000-1,500 previously.     Additionally, we often see a rush of filings towards the end of the cap season as employers realize that the cap is about to close, so we anticipate the rate of filings to increase over the next few weeks.

H-1B Cap Likely to Close by Late November or Early December 2011 — Last Call for Cap-Subject H-1B Filings

Given an estimated rate of H-1B filings of 3,500 per week for the next few weeks, and given that there are approximately 9,000 H-1B visa numbers left towards meeting the annual cap, it is likely that the H-1B cap for FY2012 will be reached towards the end of the year — likely by the end of November or early December  2011.

Considering the fact that an H-1B petition takes at a minimum 7 to 10 business days to file, we urge all employers and future H-1B workers to start the H-1B filing process as soon as possible.    If you are considering filing a cap-subject H-1B petition as part of the FY2012 quota, please contact us.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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Current PERM Processing Times (as of November 1, 2011)

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of November 1, 2011.  Most notable is the slight increase (or delay) in the processing time for regular PERM applications — approximately four to five months.  The processing times, as reported by DOL, are as follows:

  • Regular processing: August 2011.  DOL is processing PERM applications with priority dates in August of 2011.  This suggests that there is a slight improvement in the regular PERM processing times. Accordingly, regular PERM processing times should be between three and four months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
  • Audited applications: March 2011.  DOL is processing PERM audits which have a priority date of March  2011.  This is still an improvement in this category in comparison to prior months.   Accordingly, audited PERM applications are processed approximately seven to nine months after the initial PERM was filed and the priority date established.  We welcome this sign of improvement in PERM audit processing times.
  • Appealed applications: September 2009.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which have a priority date of September 2009.   There is slight improvement in this category in comparison to prior months.   Accordingly, PERM appeals are processed approximately 24-26 months after the initial PERM was filed and its priority date established.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue (see above for processing times).

Conclusion

The November 2011 PERM processing times report shows a slight improvement in the regular and appealed PERM processing times while the audited PERM processing times remain stable.    We hope that DOL would be able to continue to improve the PERM processing times over the next weeks and months.  We also hope the significant improvement in PERM audit and appeal processing times over the fall would continue in the winter as well.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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

The U.S. State Department just released the December 2011 Visa Bulletin which is the third 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 (four and a half months) and the continued forward movement in FB1.

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

Below is a summary of the December 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 four and a half (4.5) months to March 15, 2008.
  • EB-3 ROW, EB-3 Mexico and EB-3 Philippines move forward by only three (3) weeks to January 15, 2006, EB-3 China  moves forward by two (2) weeks to September 8, 2004, while EB-3 India  moves forward by only one (1) week to August 1, 2002.
  • The “other worker” category remains unchanged (again) at  April 22, 2003 for China.  It moves forward by one and a half (1.5) months for ROW, Mexico and Philippines to January 1, 2006.  It also moves forward by five  (5) weeks for India to July 22, 2002.

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

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

  • FB1 moves forward (again, for third consecutive month).  FB1 ROW, China and India all move forward by five (5) weeks to September 1, 2004.   FB1 Mexico moves forward by one (1) week to April 8, 1993 and FB1 Philippines moves forward by three (3) weeks to March 1, 1997.
  • FB2A moves forward by five (5) weeks to March 22, 2009 for ROW, China, India, and Philippines.  FB2A Mexico moves forward by two (2) months to February 8, 2009.
  • FB2B ROW, China and India move forward by two (2) weeks to August 15, 2003.  FB2B Mexico remains unchanged at November 22, 1992.  FB2B Philippines moves forward by one (1) month to August 15, 2001.

Substantial Movement in EB-2 India and China Continues;  Slow Movement  for EB-3; Continued (for Third 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.    This is a confirmation of the Visa Bulletin Predictions provided by our office after meeting Mr. Charles Oppenheim on October 26, 2011.   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 and November 2011 Visa Bulletins.   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

While this month’s Visa Bulletin is silent on anticipated movements in the cutoff dates over the next months, we can share some predictions and expectations for the movement of the cutoff dates over the next several Visa Bulletins.  Two weeks ago, on October 26, 2011, our office met Mr. Charles Oppenheim who shared some of his thoughts on the anticipated movement of the cutoff dates.   While the significant advancement in the EB-2 China and EB-2 India 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, or at least in the January 2011 Visa Bulletin.   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.  However, after meeting Mr. Oppenheim on October 26, 2011, he indicated that he expects to advance EB-2 India and EB-2 China significantly at least in this December 2011 Visa Bulletin and, possibly, in the January 2012 (next month’s) Visa Bulletin.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of this significant movement in the cutoff dates across many of the categories, specifically in EB-2 India and EB-2 China.   Those applicants whose priority dates are current as of the December 2011 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.   Please do not hesitate to contact us if our office can help you take advantage of this significant forward movement in the cutoff dates.

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 December 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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FY2012 H-1B Numbers Update – 49,200 Regular Cap Visas Used; Master’s Cap Reached; Last Call for H-1B Cap Cases (October 28, 2011)

USCIS just released the information on the numbers of cap-subject FY2012 H-1Bs filed since April 1.   As of October 28, 2011, USCIS has received approximately 49,200 H-1B petitions counting toward the 65,000 cap (an increase of 3,000 over the previous week).  Similarly, as of October 28, 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

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.     Additionally, we often see a rush of filings towards the end of the cap season as employers realize that the cap is about to close, so we anticipate the rate of filings to increase over the next few weeks.

H-1B Cap Likely to Close in Mid- to Late December 2011 — Last Call for Cap-Subject H-1B Filings

Given an estimated rate of H-1B filings of 3,500 for the next few weeks, and given that there are approximately 15,000 H-1B visa numbers left towards meeting the annual cap, it is likely that the H-1B cap for FY2012 will be reached towards the end of the year — likely in mid- to late December 2011.

Considering the fact that an H-1B petition takes at a minimum 7 to 10 business days to file, we urge all employers and future H-1B workers to start the H-1B filing process as soon as possible.    If you are considering filing a cap-subject H-1B petition as part of the FY2012 quota, please contact us.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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India Blanket L-1 Visa Stamping Applications to be Processed in Chennai Only

The Department of State (DOS) has announced that effective December 1, 2011, the U.S. Consulate in Chennai will become the only acceptance center in India for all applications for intra-company transfers under the blanket L category.

The U.S. Embassy in New Delhi and U.S. Consulates in Mumbai, Kolkata and Hyderabad will no longer accept or process applications for this visa category.  The blanket L category includes specialized knowledge professionals, executives and managers.

All other visa processing procedures remain unchanged.  Spouse and children visas (L2) and individual L visas (L1B and L1A individuals) which continue to be processed at all posts in India—Chennai, Hyderabad, Kolkata, Mumbai, and New Delhi.

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PERM and LCA Updates from the Department of Labor

Due to the significant number of PERM-based green cards and H-1B work visa applications (including the required Labor Condition Application, or LCA), our office constantly monitors developments at the Department of Labor (DOL) which controls the review of PERM and LCAs.

As of October 5, 2011, DOL has shared some important statistics about their processing of PERM and LCA filings.

PERM Updates

  1. Number of filings.   There have been 65,000 PERM applications filed over the year, an increase over the previous similar period.   The number of PERM applications processed during the same period was 73,000, which makes a decrease in the backlog of PERM cases by more than 50%.   More than half (56%) of the pending cases are in analyst review stage, 3-4% are in supervised recruitment, 25% are in audit, 14% on appeal and 2-3% are in sponsorship verification.     DOL has noted that audits and supervised recruitment cases are growing.
  2. Processing times.  The current processing times are June 2011 for analyst review, February 2011 for audit, April 2009 for appeals and “current” for government errors.    The desired targets for PERM cases are 90 days for analyst review and 180 days average for all PERM cases.
  3. Supervised recruitment.    Audits and supervised recruitment continue to increase.   55% of supervised recruitment cases are ultimately denied (of which 84% are lower-skilled and financial industry cases).   21% are withdrawn and 24% are certified.     Areas of focus for supervised recruitment are lower-skilled positions and positions in the financial sector plus areas where there are demonstrable layoffs of workers.   According to DOL, if an area shows double-digit unemployment, then there is a higher than average PERM audit/supervised recruitment chance (after accounting for the job type, etc.) — essentially, DOL takes into account employment trends across geographic areas and employment fields.

LCA Updates

  1. Number of filings.   There were approximately 360,000 LCAs processed this year, of which 100% were processed within the target 7 business day window.   Approximately 8-9% are denied and most of the denials are due to FEIN verification mismatch, wage source, tracking number problems and boxes checked on the LCA.
  2. FEIN verifications.   Target of processing is two business days and the DOL Chicago processing office receives approximately 140 requests for verification daily.

Prevailing Wage Determinations

DOL stated that they continue to decrease the backlog of prevailing wage determinations and, as of the end of October 2011, all PERM prevailing wage determinations should be within the “normal” processing timeframe of 60 days.   Please see our recent article on the prevailing wage processing times.

Conclusion

We appreciate that DOL is able to release these numbers on a periodic basis because they allow us to draw some (fairly reliable) predictions on the processing times.    Based on DOL reports and based on our firsthand experience from actual cases, we anticipate that PERM cases would take approximately 3-4 months.   Unfortunately, we anticipate higher PERM audits and PERM supervised recruitment cases, especially in certain areas and certain occupations.    Finally, the prevailing wage processing times are trending down and we hope to see processing times of 30-45 days soon.

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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