Arlington, VA

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

The best things in life are free. The best things in law are expensive, with one exception: Freedom of Information Act requests, which are free, free, free.

The Freedom of Information Act is, as readers surely know, a useful tool for journalists and ordinary citizens to obtain information about what our government does. But it is extremely useful and vastly underused in the immigration context. Submitting FOIA requests for immigration records is a simple process that helps immigrants and practitioners alike by giving us a look at someone’s entire immigration history.

FOIA requests are filed with USCIS’s National Records Center online or by mail on a simple form called the G-639. The form can be used to request specific documents, such as an old application or certificate of naturalization, or an individual’s entire immigration file. There is no charge unless the government sends a bill; in our experience, the government never, ever does.

The results of FOIA requests have given us some of our most exciting cases. We’ve found:

  • A client who thought they were waiting for an asylum decision had been granted asylum years ago. The approval notice had been lost in the mail.
  • A client who thought he was simply a green card holder had actually been a U.S. citizen for many years.
  • A client who did not know about youthful interactions with immigration officials discovered, with our help, that he had an old deportation order. (There are many ways to find out that unpleasant fact, but believe us: filing an FOIA request is the least painful by far.)

Any time you have questions about what happened in an immigration case or if you’ve lost your documents, file an FOIA!

Where’s that file? I know it’s around here somewhere…

FOIAs are also helpful for American citizens researching family history. You can submit a G-639 seeking the records of a deceased family member using an obituary or death certificate. For example, Doran wanted to learn more about her grandmother Lillian’s immigration history and submitted an FOIA request to USCIS with a copy of her grandmother’s obituary.

In the FOIA results, Doran received a copy of Lillian’s Argentine birth certificate, a copy of Lillian’s visa application and Lillian’s application for U.S. citizenship. Doran also learned that her grandmother did not legally change her name from Luisa to Lillian until Lillian became a U.S. citizen in 1956. All of this information was sitting in a government office waiting to be discovered and would have otherwise been unknown.

Analyzing FOIA results are some of our favorite things to do at our office. We’re happy to help our clients request their file and make recommendations about how to move their cases forward. We do an FOIA request at no extra charge whenever we think it is necessary as part of a consultation — information wants to be free, and we want to help you liberate it.

We’ve participated in the immigration FOIA review process at an even nerdier level — helping sue USCIS to try to compel the production of allegedly exempt material — but that’s a story for another day. For now, our message is: File an FOIA request! You’ll learn a lot, and your future lawyer will be deeply grateful.

As always, we welcome any thoughts or comments and will do our best to respond.

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

In the fair city of Washington D.C., we have a semi-quadrennial tradition. After we vote the bums out, the bums spend their last weeks in office working to enshrine their political program via last-minute regulatory and personnel actions. It’s not the most picturesque tradition, but it’s ours.

The Trump administration did exactly this with respect to immigration law and policy. It promulgated all sorts of regulations concerning asylum, student visas and the H-1B program: Asylum applicants would have to show “extreme and severe” harm, students would have to renew their visas frequently, and H-1B petitions would be cherry-picked for the highest-paying jobs.

The Biden administration — like Mr. Freeze, the most delightfully awful Batman villain of all time — has put all of these changes on ice with a memorandum entitled The Regulatory Freeze Memorandum. In short, it says that all of these midnight rules are being sent to the cooler.

[Arnold Schwarzenegger voice] CHILL

Here is the actual text. In paraphrase, it says:

  • No new regulations may be sent for publication in the Federal Register until a Biden-appointed agency head says so.
  • Regulations sent to the Federal Register but not yet published in the Federal Register shall not be published until a Biden-appointed agency head says so.
  • Regulations sent to the Federal Register and published but with an effective date in the future will not become effective for at least 60 dates from Jan. 28, 2021.

What this means, in practice, is that recently proposed changes to the H-1B visa system, the asylum system and the immigration courts will be frozen until the Biden administration decides (probably) to withdraw them. All regulations, which were effective before Inauguration Day, will remain in force. It takes as much administrative paper-shuffling to repeal a regulation as it does to promulgate one, so the Trump administration’s approach to immigration questions will be with us for some time.

The Biden administration has announced, with great fanfare, that the Department of Justice will be ending contracts with private prisons. That’s all to the good, but we want our readers to notice the dog that isn’t barking: the Department of Homeland Security, which holds the lion’s share of private prison contracts, will be renewing its contracts with the very same contractors.

We enjoy answering questions about immigration from commenters. We also enjoy the oeuvre of Arnold Schwarzenegger. Ask us anything, and we’ll do our best to answer.

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

The second-biggest immigration news item of the week was a surprise: The Trump Administration announced, on its last day of office, that Venezuelans in the United States on Jan. 20, 2021, are eligible for Deferred Enforced Departure.

Here are the facts about Deferred Enforced Departure for fellow citizens and for Venezuelans in the United States who may be eligible.

  1. Deferred Enforced Departure is similar to, but not the same as, Temporary Protected Status. If you receive Deferred Enforced Departure, you can obtain a work permit and temporary protection from deportation.
  2. Deferred Enforced Departure is not a substitute for asylum. Many Venezuelans in the United States have bona fide asylum claims. It is important to continue to pursue these claims.
  3. Deferred Enforced Departure does not offer a path to permanent residency or citizenship under current law. Note that asylum, if granted, does both of those things.
  4. Deferred Enforced Departure does not automatically come with a travel permit.
  5. Deferred Enforced Departure is an executive action. As such, it can be reversed by the new Biden administration, but we regard that as highly unlikely given the Biden administration’s pledge to preserve Temporary Protected Status.
  6. As of the publication of this article, the application process has not yet opened. Don’t pay a lawyer to apply for you until the process formally opens. If you need advice, we’re here to help — both directly and with referrals to nonprofits that can do this work, too.

The biggest immigration news of the week is that Laura Maria Lorenzo has joined our office as a practicing attorney. Laura is originally from Argentina and is licensed to practice law both in Argentina and the United States. She is fluent in Spanish and French, which will help our office serve many more clients in their native language, and her impressive tour through D.C.’s international financial institutions — the IMF, the World Bank and the Inter-American Development Bank — brings a new policy perspective to our office. We’re stoked. Watch for her to begin contributing to these columns soon!

Doran (L) and James (C) are happy to welcome Laura M. Lorenzo (R) to our immigration practice.

We welcome any comments and will do our best to respond.

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

(Authors’ Note: The civil unrest and accompanying curfews yesterday are obviously the first thing on our minds, but we’re going to focus on our usual topic — immigration — because we know, from talking with clients, that these informational posts have a long life on Google, and we’d like to do some good. Stay safe, everyone.)

Congress frequently deadlocks and fails to pass meaningful immigration legislation. However, as we reported almost exactly one year ago, Congress authorized an amnesty for many Liberian nationals, allowing them to apply for lawful permanent residence in the United States.

The amnesty, known as the Liberian Refugee Immigration Fairness Act or LRIF, was passed as part of a large spending bill. The original LRIF Act imposed a deadline of December 20, 2020, for eligible applicants to apply, and sadly, data showed that many eligible Liberians did not apply before the deadline.

To our surprise and excitement, Congress has come through again for Liberians! In late December, Congress passed a bill which extended the deadline to apply for residency under LRIF to December 20, 2021. The bill was part of an appropriations package that President Trump signed into law.

As a reminder, here are the baseline eligibility requirements to apply:

  • You must file an application for a green card by December 20, 2021.
  • You must be a citizen of Liberia.
  • You must have been continuously present from November 20, 2014, to the date of filing the green card application.
  • You must not have been convicted of a serious crime.
  • You must not have persecuted others for their political or religious convictions.

We encourage any Liberian who has been in the United States since November 2014 to contact a lawyer to see if he or she qualifies for LRIF benefits. Applying for residency under this program could be your way to becoming a permanent resident and later, a U.S. citizen.

We welcome any comments and will do our best to respond.

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

In a tough year, we realize how dependent we are on others. In that spirit, we want to say a few words about some of the people who help us keep pushing forward.

First, we want to salute the U.S. postal workers who deliver the mail, rain or shine. Our mailman — pictured here — is the hardest working guy in Dominion Hills. We’ve seen him working by headlamp after dark, in the cold, to fulfill his duty. Hats off to you, Sir.

Our business depends on this hardworking man. The guy on the right just holds the camera.

Second, we want to thank Good Earth Cleaning not just for cleaning our office, but for taking extra steps to keep our clients safe. Good Earth spends extra money on environmentally-friendly products and treats its employees well. If you need an ethical and communicative partner, get in touch with Sean Juman and his team.

The hardworking people at Good Earth Cleaning keep us safe and civilized.

Last, but certainly not least, we tip our hats to the Arlington Community Federal Credit Union. Our favorite banker, Mr. Rocha, remembers James’s name literally every time we hit the drive-through. It’s great to be more than just a number at the window. And the ACFCU staff helped us through the tense times this year with a PPP Loan long before most of our big-bank friends were able to get help.

We miss going inside! But it wasn’t worth putting employees at risk to get a better shot.

We’re optimistic about the coming year. We’ve hired a third lawyer (coming soon to an ARLnow masthead near you!) because Arlington is a great place, and we’re here to stay.

Merry Christmas and Happy Hanukkah, to those who celebrate. We’ll be back in the New Year with more plain-English coverage of the world of immigration and are looking forward to your questions and comments.

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

The Trump Administration continues to receive major blows in federal court, both in the election and immigration contexts. On December 4, 2020, Federal District Judge Nicholas Garaufis ordered that the Trump Administration revert the Deferred Action for Childhood Arrivals (DACA) program back to its original incarnation from 2012.

First, we’ll give you the TL;DR on what Judge Garaufis’ decision means for immigrants right now, and then we’ll give you a summary of how we got here.

New DACA Applications

As of Monday, December 7, 2020, and until further notice, USCIS is accepting new DACA applications. If you qualify for DACA, find a lawyer and apply now. Judge Garaufis’s decision may not last forever, and it’s in your interest to protect your legal rights. If you can’t afford us — and our prices are pretty competitive! — we’ll gladly refer you to a nonprofit that can help you.

To qualify for DACA, you must meet the following criteria:

  1. Born on or after June 15, 1981
  2. Came to the U.S. before the age of 16
  3. Was in the U.S. on June 15, 2012, and is still here
  4. No proper immigration status as of June 15, 2012
  5. High school graduate, enrolled in high school, recipient of GED, enrolled in GED program or honorably discharged from the U.S. military
  6. No significant criminal record

Consult a lawyer for details.

New Travel Permit Applications

As of Monday, December 7, 2020, and until further notice, USCIS is accepting travel permit applications for people who already have DACA. This can be extremely useful both for intrinsic travel purposes — some of our DACA recipients haven’t seen family at home since they were little kids! — and for legal reasons.

To make a long story short, traveling with a permit puts you in a good position to apply for a green card later. So, if you already have DACA, find a lawyer and consider applying for a travel permit now. Again, if you can’t afford us, we’ll gladly refer you to one of the many nonprofits doing great work in our area.

How We Got Here

Our loyal ARLNow readers know there has been a lot of back and forth regarding the Obama Administration’s DACA program. The DACA program allows certain undocumented people who arrived here as children to apply for work permits and avoid deportation, as long as they are in high school or have graduated from high school.

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

It’s Black Friday. We’re online shopping, just like you are! But we’re also here to tell you the immigration news, and this week brings a major personnel shift: President-Elect Biden has announced that Alejandro “Ali” Mayorkas will be nominated to become the new Secretary of the Department of Homeland Security.

Our view is the Mayorkas nomination matters both in terms of the approach he personally is likely to bring to the job and as a signal of the Biden administration’s likely immigration priorities. We’ll take each of those in turn.

Mayorkas is broadly known as a bureaucratic heavyweight with plenty of immigration experience. He was director of U.S. Citizenship and Immigration Services from 2011 to 2014 and Deputy Director of Homeland Security from 2014 to 2016. But Mayorkas’ background is (to us) a bit more interesting than that. He cut his teeth as a federal prosecutor in the Central District of California, rising from frontline prosecution to United States Attorney between 1989 and 2001, then joined the defense bar. He has spent most of his legal career either prosecuting or defending federal criminal cases.

By comparison, current DHS leadership is mostly homegrown: Chad Wolf rose through the ranks at TSA and then as chief of staff for Kirstjen Nielsen; Deputy Director Joe Edlow was an immigration prosecutor and then a Congressional staffer on the Immigration and Border Security subcommittee.

We read the nomination of Mayorkas as a signal that the Biden administration wants to return the immigration system to the normalcy of the Obama years — choosing, one might say, dysfunctional normalcy over dysfunctional abnormalcy.

What is the downside of the Mayorkas nomination? Well, Mayorkas has been accused (by sources left and right) of being a bit of a swamp creature. When Mayorkas was head of USCIS, he was accused of intervening to obtain approvals on several EB-5 cases in response to pressure from important Democrats — Anthony Rodham (brother of Hillary Clinton), Gov. Ed Rendell of Pennsylvania, Majority Leader Harry Reid and Terry McAuliffe. We recommend reviewing the DHS Inspector General’s Report on the subject, as well as Mayorkas’ lengthy statement in his own defense.

What is the upside of the Mayorkas nomination? Our view is that the Biden administration is signaling a shift toward the benefits-granting apparatus of DHS — USCIS, where Mayorkas most experience — and away from the enforcement apparatus of DHS, from which current leadership was drawn.

Mayorkas administered the DACA program, which President-Elect Biden is set to resurrect, and would be a capable bureaucratic operator if President-Elect Biden attempts to use his executive authority — as he well may — to enact further reforms to our country’s immigration system.

As always, we would love to hear your thoughts and we will do our best to respond.

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

Joseph Robinette Biden Jr. will be the 46th President of the United States. What’s next for immigration? We’re here with a few careful, hedging predictions.

There are four major ways a Biden presidency will influence immigration policy: exercising the power of prosecutorial discretion, executive orders, promulgation of regulation through various federal agencies, and supporting (or refusing to support) legislation from Congress.

Prosecutorial Discretion

During the Obama Administration, the Department of Homeland Security concentrated its finite immigration enforcement resources on criminals, recent border crossers and people who posed a threat to public safety. The Trump administration took the opposite approach, by broadening its enforcement focus to embrace nearly all undocumented migrants, and by attempting to add enforcement capacity at the same time.

We predict that the focus will change, but that the increased enforcement capacity remain. This means that even with a narrower prosecutorial target, the deportation numbers are unlikely to decrease in the medium term — whether Biden follows through on his campaign promise of a 100-day moratorium on deportations or not.

Executive Orders

We believe that President Biden is likely to announce the rescission of the travel bans imposed during the Trump administration. The Supreme Court stepped in to stop the rescission of DACA, but we think that the Court is unlikely to act to preserve the Travel Bans, because the Travel Ban orders did not confer any government benefits; in fact, they did the exact opposite. The Supreme Court upheld the latest iteration of the travel ban as a legitimate exercise of Presidential power, and we expect that it would treat a rescission in the same way.

Regulatory Reversals

We also expect the Biden Administration to reverse or refuse to defend various federal regulations imposed during the Trump presidency. As our loyal ARLnow readers know, the Public Charge rule has been hotly contested in federal court. We expect that if litigation is still ongoing when Biden takes office, the Biden administration will refuse to defend new public charge rule, and so the rule will revert to its pre-Trump state.

Another regulation that has been contested and is currently enjoined is the USCIS fee increase. This is an area where we don’t expect a total reversal; we do expect some moderate fee increases to go into effect. Whether those increase will be as huge as those proposed by the Trump Administration is an open question.

We also expect the Biden administration to rescind a proposed rule that would prevent H-4 visa holders from obtaining employment authorization. H-4 visa holders are spouses or dependents of H-1B visa holders. After satisfying some other requirements, H-4 spouses may apply for employment authorization. A Biden administration is likely to rescind this proposed rule, sending things back to the status quo of the Obama administration.

Finally, the Trump Administration has recently proposed that the H-1B lottery be replaced by a strange auction system in which applicants are rank-ordered by salary and then the most lucrative positions are picked first. We expect that proposal to sink without a trace in January.

Legislation

The odds of comprehensive immigration reform remain low. Neither President George W. Bush nor President Obama, despite one-party control of the legislative machinery, was able to accomplish it. What are the odds that Biden and McConnell will do better?

Our prediction for legislative reform is more modest: a legislative effort aimed at the elimination of per-country limits for employment-based visas.

Currently, all employment-based visas have yearly quotas, depending on the category and immigrant’s country of birth. These quotas have been built into our immigration system for decades, and, over time, their effects have become more pronounced. Immigrants from certain countries wait years, and sometimes decades, before they are actually eligible for permanent residency.

For example, visas are available to Indian nationals who hold advanced degrees and got in the visa line in September 2009, meaning there is currently about an 11-year wait time. Eliminating this per-country limit would get rid of the decades-long wait time while pulling talented individuals into the U.S. labor market.

This is not a new idea. Vice-President Elect Kamala Harris proposed a bill that would have eliminated the per-country limit for employment-based visas in 2019. The bill ultimately failed.

As always, we would love to hear your thoughts and we will do our best to respond.

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

This fall, many students are not returning to their college campuses as they normally would, due to the coronavirus pandemic.

If the Trump Administration can have its way, many foreign national students also won’t be continuing their education in the United States as easily as they did in the past. If you find discussion of regulation boring, you won’t like this post — our advice to you is to start drinking heavily.* (Sentences with Animal House references are marked with a *).

There is a little-known codicil in the United States Constitution which gives the Secretary of Homeland Security power to issue regulations affecting the administration of the F-1 visa program.* Acting on that authority, the Trump Administration has issued a new proposed regulation that would only allow students to enter the country for a maximum of four years.

Currently, a student who enters the United States with a valid visa is admitted for “duration of status,” which means that as long as the student is properly registered for classes and following all of the rules, the student remains in valid status.  Some students, like Bluto, abuse this privilege by watching — Christ! — seven years of college go down the drain.* But many students have excellent reason to extend their stay — for example, by starting a Ph.D after finishing an undergraduate degree.

The Trump Administration’s four-year limit could be problematic for a few reasons. First, some students do not finish a degree in exactly four years; some programs, like PhD programs, are significantly longer. This means that students would likely have to request an extension in the middle of their academic program in the hopes that they will receive the extension and finish their degree.

To qualify for an extension, the proposed regulation requires “a compelling academic reason, documented illness or medical condition, or circumstances beyond the student’s control.” (Post-traumatic stress from frightening an innocent horse to death presumably does not count.* Whether a simpler reason would count — e.g., changing majors — is unclear.)

This puts a heavier burden on students, and could affect initial enrollment if students are concerned that they will not be permitted to finish their degree program in the first place.

Second, this regulation will put an additional burden on Designated School Officials (DSOs). Under the new rules, the DSO’s recommendation to extend would only be half of the equation; USCIS would take the DSO’s extension recommendation into account, but the DSO’s recommendation is not the end all be all.

Therefore, DSOs may have to provide multiple recommendations just so an international student can finish a single degree program, stretching the DSOs’ resources thin and increasing the administrative cost of education — which is already so high that it resembles extortion.*

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

Most inspiring comment last week: “This column is nerdy and niche AF.”

Our goal, this week, is to live up to those expectations. Fortunately for us, last week the Trump Administration issued a pair of regulations promulgated by the Department of Labor and the Department of Homeland Security concerning the H-1B visa program — two scoops of nerdy niche ice cream topped with litigation sprinkles. Let’s dive in!

TL/DR: The Trump administration is moving, in the last months of its term, to try to tighten the requirements for H-1B visas. We’ll tell you how the new requirements (might) work, and offer our prediction on whether the new requirements will ever take effect. Our prediction is that the new changes won’t stick.

First, a little lawsplainer. The H-1B visa is a temporary work visa available to foreign nationals who want to work in a “specialty occupation” job for which at least a bachelor’s degree is typically required. The U.S. corporation which hires the foreign worker must promise to pay (and actually pay) the worker a competitive wage, as determined by the Department of Labor or by a private wage survey.

About 85,000 H-1B visas are awarded each year, typically through the H-1B lottery each April. (For more info on that, see our prior column on the nuts and bolts of H-1Bs.) Many H-1B visaholders renew their visas and stay in H-1B status for up to six years; some of them then go on to apply for U.S. lawful permanent residency.

How might the new regulations change the landscape? In three ways:

  1. Increase the required wage rate. By making technical changes to the method by which prevailing wages are calculated, the Interim Final Rule increases the required wage rates for all H-1B visaholders. (Unlike the other changes described below, these increases are effective immediately.) The technical changes are complex, but the upshot is that required wages go up across the board — but most especially for entry-level employees.
  2. Tighten the definition of “specialty occupation”. The new regulation insists that a worker who wants a job in a specialty occupation must have a bachelor’s degree or higher which is directly related to the occupation in question. (We doubt that this will be a problem for the vast majority of H-1B beneficiaries, who tend to be computer scientists who majored in computer science.)
  3. Increase inspections. The new regulation clarifies that USCIS has the authority to conduct site visits before, during and after the approval of an H-1B petition, as well as expanding USCIS’s ability to conduct site visits at outside job placement locations.

Will these regulations take effect? We expect that they won’t survive judicial review, for nerdy and niche reasons. The Trump Administration chose to promulgate these changes as a final rule and as an interim final rule, respectively, rather than via a notice of proposed rulemaking.

In plain English, this is a regulatory rush job, designed to go into effect before January. The federal courts generally dislike this sort of move. Remember DHS v. Regents of University of California, in which Justice Roberts overturned the rescission of DACA because DHS didn’t do the regulatory work properly? We do. DHS does. Our prediction is that the federal judiciary will too, and both of these regulations will be quickly enjoined.

As always, we welcome your thoughts and comments and will do our best to respond.

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