1. Three Ideal Options to Apply for a U.S. Green Card
The National Interest Waiver or NIW, is an employment-based, second preference immigration application. It is so named because it asks that the otherwise required Labor Certification requirement be waived "in the U.S. national interest."
For applicants with an advanced degree - masters or above, there are three ideal options to apply for a Green Card. These options are in different classifications of Employment-based (EB) immigration, including:
- EB1A: Aliens with Extraordinary Ability in science, art, and business (or EB1-EA);
- EB1B: Outstanding Researchers and Professors (or EB1-OR);
- EB2 NIW: Members of Professions Holding Advanced Degrees Applying for a Waiver of Labor Certification in National Interest (or NIW).
Many talented scientists and researchers should have better chances when they apply for an attractive job position. However often times, they failed just because they do not have a U.S. Green Card. Some people with advanced degree do not know how to apply for U.S. Green Card in above three preferred immigration categories, but instead, these people apply for a Labor Certification. However, choosing Labor Certification is not the best strategy for people who may qualify for one of the above three ideal immigration classifications.
To qualify for EB2 NIW, an alien applicant needs to demonstrate that his or her work is in the National Interest of United States, and the alien applicant should have an advanced degree and have exceptional ability in sciences, arts or business. The National Interest Waiver Green Card application can either be filed by an alien applicant, or be sponsored by a U.S. employer. An alien applicant may also file additional Green Card applications in other categories, while a National Interest Waiver application is pending.
2. The EB2 Immigrant Visa Category and EB2 National Interest Waiver
The Immigration Act of 1990 created several new employment-based immigration categories. Section 203(b)(2)(A) includes members of the professions holding advanced degrees and aliens of exceptional ability in the arts, sciences or business. Popularly referred to as EB2, this category normally requires a permanent job offer and an approved Labor Certification.
The EB2 immigrant visa category is for foreign professionals with advanced degrees, and is also for foreign individuals with exceptional ability in the sciences, arts, or business. The EB2 immigrant visa category generally requires a job offer and a Labor Certification issued by U.S. Department of Labor (DOL). The labor certification process is used to protect U.S. workers and the labor market in United States, by ensuring that alien workers seeking immigrant visa are not displacing qualified U.S. workers.
The Immigration Act of 1990 also created a means of avoiding these requirements, by including a provision for a "national interest" waiver of the requirement of a job offer and a Labor Certification. The Act states that "the Attorney General may, when he deems it to be in the national interest, waive the requirement...that an alien's services in the sciences, arts or business be sought by an employer in the United States." The National Interest Waiver applies to both sub-categories of EB2, members of the professions holding advanced degrees and aliens of exceptional ability. Since most scientists, researchers, international students, and university teachers have at least a Master's degree, the waiver provision can be extremely beneficial to the academic community. United States Citizenship and Immigration Services (USCIS) also recognizes that a Bachelor's degree plus five years of progressive work experience in the area of specialty is equivalent to an advanced degree.
The statutory provision for the EB2 National Interest Waiver petition requires that the alien applicant will substantially benefit the national economy, cultural or educational interests, or welfare of the United States prospectively, because of the alien's exceptional ability in the sciences, arts, or business. The regulation defines exceptional ability in the sciences, arts, or business as having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
3. The USCIS Suggested Seven Factors for National Interest Waiver Applications
For Form I-140 petitions in EB2 category, an employer should normally offer the alien employee a job position, except when the alien is seeking an exemption from the job offer requirement. In the job offer exception case, the alien may file the petition in the EB2 National Interest Waiver category. To be exempt from the job offer requirement, the USCIS will determine if an exemption would be in the U.S. national interest. A labor certification is not required if the job offer requirement is waived.
If the presence of a worker can be shown to be of benefit to the U.S. in the future, it may be possible to apply in NIW without having a job offer or labor certification. In order to demonstrably benefit the U.S., the applicant will have to show that his or her there will have a favorable impact on the country's economic, employment, educational, housing, environmental, or cultural situation, or on some other important aspect of U.S. life. The impact must be national in scope, such that a public health researcher at a federal agency or a university might pass, while the same person coming to provide services at a neighborhood clinic would probably not.
The applicant will also need to prove that the field of work has substantial merit, in other words, that it is worthy in and of itself. In addition, the applicant will need to demonstrate that the work will prospectively benefit the U.S. national interest to a substantially greater degree. Unfortunately, USCIS often reinterprets this requirement to mean showing that being forced to go through the labor certification process would actually have an impact on the U.S. national interest.
A person qualifies for the EB2 National Interest Waiver category if he or she falls within the second preference employment-based category, namely a person in the professions who either holds an advanced degree or is considered possessing exceptional ability in the sciences, business or arts.
For EB2 National Interest Waiver application, the U.S. immigration law only requires that the alien's activity has a "prospective national benefit." The USCIS has clarified what conditions the alien applicant may be granted the National Interest Waiver, in which an alien applicant must meet one or more of the following:
1. Improving the U.S. economy;
2. Improving wages and working conditions of U.S. workers;
3. Improving education and training programs for U.S. children and under-qualified workers;
4. Improving health care;
5. Providing more affordable housing for young and/or older, poorer U.S. residents;
6. Improving the environment of the U.S. and making more productive use of natural resources;
7. A request from an interested U.S. government agency or improving international cultural understanding.
The alien applicants do not need to meet all above requirements, but only one or more of them in order to qualify EB2 NIW petition. Also, there are a number of rules or "case law criteria" that the USCIS regularly employs for EB2 National Interest Waiver petition, that are considered in the adjudication of the National Interest Waiver petition.
Typically, alien applicants should establish themselves as having some unique and exceptional skill, experience, or knowledge, that sets them apart from their professional peers. Documents stating that he or she only possesses a certain level of competence will not be sufficient to receive a National Interest Waiver approval. Rather, a proficiency that is greater than mere competence is expected for those seeking a National Interest Waiver application approval.
4. The Case Law Criteria for EB2 National Interest Waiver Petition, and Matter of NYSDOT and Matter of Dhanasar
Matter of NYSDOT (1998)
For years, the USCIS had declined to issue a comprehensive and controlling definition of national interest, and instead had advised the USCIS Service Centers to treat petitions involving National Interest Waiver requests on a case-by-case basis.
The USCIS' Administrative Appeals Office (AAO) had issued several non-binding decisions after enactment of the national interest waiver program that elaborated on the applicable standard. The AAO took the position that the alien's admission must provide a benefit to the country beyond a "prospective national benefit" which all exceptional ability and advanced-degree aliens must establish prior to their admission. In the years immediately after the enactment of the national interest waiver provision, the USCIS had granted such waivers with some frequency relying in part on these early AAO decisions.
In 1998, the USCIS designated its first precedent decision discussing the standards governing the EB2 National Interest Waiver petitions. Matter of New York Department of Transportation (NYSDOT) establishes stricter standards for obtaining national interest waivers than those applicable in the past. The NYSDOT case sets up a three-prong test to establish eligibility for the National Interest Waiver petition:
1) The foreign national must seek employment in an area of substantial intrinsic merit;
2) The petitioner must demonstrate that the proposed benefit will be national in scope; and3) The petitioner must demonstrate persuasively that the national interest would be adversely affected if a labor certification were required for the beneficiary, i.e. a) that it would be contrary to the national interest to potentially deprive the employer of the foreign national's services by requiring that the position be available to U.S. workers; and b) that the foreign national will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.
The 1998 precedent NYSDOT decision continues the trend of tightening the standards for national interest waivers. Under the standards, such waivers proven more difficult to obtain. However, in recent years, USCIS Service Centers began to apply a more exacting standard to EB2 National Interest Waiver petitions requiring petitioners to establish that the alien possesses unique knowledge, abilities, or experience that set him / her apart from others in the field.
Matter of Dhanasar (December, 2016)
In Matter of Dhanasar that USCIS' Administrative Appeals Office (AAO) released on December 27, 2016, AAO created a precedential new test for a EB2 National Interest Waiver petition (EB2 NIW) in sustaining the appeal, and approved the national interest waiver petition.
For an EB2 National Interest Waiver petition, USCIS may grant a national interest waiver of the labor certification, which allows for self-petitioning by the foreign national, if the petitioner demonstrates that the alien is a member of the profession holding an advanced degree or equivalent, or because of exceptional ability in the arts, sciences or business, and will substantially contribute to the U.S. economy, culture, educational interests or welfare. The foreign national’s services must be in the sciences, arts, professions, or business.
In Matter of Dhanasar, the AAO held that the NYSDOT analysis caused much confusion, and had a tendency to lead to unnecessary subject evaluation. AAO held that it was vacating NYSDOT criteria, and adopting a new and clearer framework for adjudicating EB2 National Interest Waiver petitions.
AAO mainly took issue on the NYSDOT case's third prong "the national interest would be adversely affected if a labor certification were required for the foreign national", which led to the dismantling of the NYSDOT framework. As explained by the AAO, this third prong was confusing and vague, and was often interpreted to mean that the petitioner was required "to submit, and the adjudicator to evaluate, evidence relevant to the very labor market test that the waiver is intended to forego.”
Under the new framework in Matter of Dhanasar, after eligibility for EB-2 classification has been established, USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence:
1) the foreign national’s proposed endeavor has both substantial merit and national importance;
2) the foreign national is well positioned to advance the proposed endeavor; and
3) on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.
5. The General Requirements for an NIW Application
For an NIW application, the alien applicant's work should be in an area of "substantial merit and national importance", and the applicant's work should benefit the national interest. Also, the application should also establish that the beneficiary's work has significantly impacted his or her filed of study.
The application documents should explain what the applicant has done above and beyond performing the routine. The applicant should also have made a significant impact within the field, and is different from his or her peers who have performed similar work.
All NIW applicants must show that, if granted permanent residence, they will substantially and prospectively benefit the national economy, cultural or educational interest or welfare of the United States. At the time of adjustment to the Green Card, an applicant is likely to be asked to demonstrate that he or she is continuing to work in the field of expertise presented in the original NIW application.
Further, a NIW application must clearly demonstrate that the alien applicant's past record would project the alien's future benefits to the U.S. national interest. Recommendation Letters testifying to the alien's unique skill, experience, knowledge, or expertise will be examined by the USCIS and the credentials of the individuals who write such letters will be reviewed to determine whether they are qualified to make such evaluations.
Evidence must be submitted to support a Form I-140 petition for EB2 National Interest Waiver. Unlike the requirement for EB1 Outstanding Professor or Researcher Petition, in which an alien applicant must demonstrate that the alien is recognized internationally as outstanding in the academic field, or the the requirement for EB1 Extraordinary Ability, in which an alien applicant must have garnered "sustained national or international acclaim in the field of endeavor", the applicant for NIW is only required to be in an area of "substantial merit and national importance", and the applicant's work should benefit the U.S. national interest.
6. The Advantages of Applying for National Interest Waiver
For many foreign nationals, the EB2 National Interest Waiver is an attractive immigration category, because it also allows self petition without U.S. employer's sponsorship and even a job offer.
The advantages of National Interest Waiver application include:
1) No need for a permanent job offer: An alien applicant can do self-application for the NIW application, without an permanent job position in United States, which means that the alien applicant does not need a specific U.S. employer sponsorship or even a job offer for his or her Green Card application.
2) No need for Labor Certification: The Labor Certification is a long process. Therefore, bypassing the Labor Certification process is really an advantage of NIW, and it makes NIW faster than other immigration categories requiring the Labor Certification. Also, many employers are reluctant to sponsor an Green Card application, this is especially true during the U.S. economic descending time. In such a situation, an employer may not want to begin a Labor Certification process, and an alien cannot apply for a Labor Certification without an employer sponsorship.
3) No U.S. employer's sponsorship: No U.S. employer's sponsorship is required for NIW petition, thus an alien immigrant can self-petition the EB2 NIW with the USCIS.
4) No need to be tied to a specific employer: The alien applicant can change job at any time during the Green Card application process, the only requirement is that the alien applicant should stay in the same field during the Green Card application process.
For a person who may qualify for NIW, applying for this immigration category is a much better choice than Labor Certification. The NIW application does not require Labor Certification. Furthermore, an alien applicant can do self-application for the NIW application. Without the requirement of Labor Certification or even a job offer, an NIW applicant also enjoys much greater freedom in employment. The alien applicant does not need to meet some very strict conditions set otherwise in the Labor Certification, such as:
- Leave current employer;
- Lose job;
- Change job description or title;
- Change job location;
- Employer out of business;
- Employer merger with other company.
In other words, you do not need to worry about a failure to satisfy the conditions set by Labor Certification and the jeopardy of your Green Card application process. You do not have to be stuck with your current employer for several years before change to another employer. The situation is under your control, not your employer.
7. What Supporting Evidence Will Best Show that the Alien Applicant Will Significantly Benefit the U.S. National Interest?
To assess whether an alien applicant is substantially better than others in the field, the EB2 National Interest Waiver regulation and NYSDOT case also requires that an alien applicant should establish exceptional ability for the EB2 immigrant visa category, and achieved significant contributions in the field. To satisfy these requirements, an EB2 National Interest Waiver petition should include substantial supporting evidence which includes:
1) Past Achievements: the submitted evidence should include a history of substantial contributions and achievements in the field, and the critical role played by the alien applicant in important projects. The substantial contributions and achievements should be tangible, and can indicate the alien's “track record of success.“
2) Specific Job Description: A job offer in United States is not required for EB2 National Interest Waiver petition. But if a job is offered by an U.S. employer, a detailed job description will help the EB2 NIW petition case, if the position requires exceptional ability and superior credentials. The submitted evidence can also include the alien's job related activities and crucial role played in the activities which could benefit the U.S. national interest.
3) Recommendation Letter or Reference Letters: It is crucial to submit reference letters or recommendation letters from experts in the field, which will help to establish the alien applicant's qualifications for the EB2 National Interest Waiver petition. The reference letters or recommendation letters should focus on the specific details and underline the benefit of the activity, and the crucial nature of the alien applicant's role.
8. Obtain Recommendation Letter or Reference Letters for Your EB2 National Interest Waiver petition
Strong recommendation letter or reference letters are key to a successful EB2 National Interest Waiver case. A foreign beneficiary should obtain strong letters from both the foreign beneficiary's “inner circle“ and“ outer circle“ of peers. The foreign national's inner circle includes those he or she has directly worked with either in academia or in business. While these letters are often the most glowing, they are also the most suspect since they are possibly biased.
The following is some guidelines for whom you should turn to for recommendation letters
1) Supporting letters from experts or authorities have more weight: Generally, individuals recognized as authorities or experts in the field are given greater weight. A statement should be included in the support letter that establishes the qualifications of these individuals to judge the alien's work.
2) Supporting letters from closely-related or undistinguished persons have little weight: Support from other employees of the same petitioner or organization that is currently employing the foreign beneficiary or seeks to employ the foreign beneficiary have been given little or no weight on the basis that they lack objectivity. Similarly, testimonial letters from undistinguished colleagues or former college instructors have been subject to greater scrutiny than letters submitted by high-level officials of recognized major organizations.
3) A recommendation letter from an objective third party is viewed in a more positive light: Moreover, objectivity is one of the factors considered by the USCIS. Letters of support from other employees of the same petitioner or organization that is currently employing the foreign beneficiary or seeks to employ the foreign beneficiary may be rejected on the basis that they lack objectivity. However, if your professor or employer has substantial knowledge about your accomplishments and can provide strong reference, they may be great candidate of recommendation letters.
9. File a U.S. Green Card Application By Youself
Most of the employment-based immigration categories require a U.S. employer to sponsor the foreign workers for their immigration application (U.S. Green Card Application), there are actually a few immigration categories that allow for self-petition if certain requirements can be met by the alien applicants.
The employment-based first preference (EB1) immigration category has three subcategories, i.e, EB1 Extraordinary Ability (EB-1A, or EB1-EA), EB1 Outstanding Professor or Researcher (EB-1B, or EB1-OR), and EB1 Multinational Executive or Manager (EB-1C, or EB1c). Only one of these 3 subcategories, EB1 Extraordinary Ability, allows for self-petition. This immigration category is available for alien applicants with extraordinary ability in business, science, art, education, or athletics. The alien applicants who may qualify for the EB1 Extraordinary Ability application are generally those who are recognized as being at the top of their respective fields, and who intend to continue to work in that field in U.S.
Another immigration category allowing for self-petition is the EB2 National Interest Waiver (EB2 NIW, or NIW). This immigration category falls within the employment-based, second preference (EB2) immigration category, which is reserved for professionals with advanced degrees and individuals with exceptional ability in the sciences, arts, or business.
The EB2 immigration category generally requires a job offer from an U.S. employer, and it also requires a PERM labor certification approved by the U.S. Department of Labor (DOL). The labor certification process is designed to protect U.S. workers. However, U.S. immigration law allows for a waiver of the PERM labor certification requirement in some cases, in which the alien applicant's contributions for United States are at such a level that the U.S. nation's interests can be better served by not having the alien applicants undergo the PERM labor certification process.
10. The Differences Between EB1 Extraordinary Ability (EB-1A) Petition and EB2 National Interest Waiver Petition
The EB2 National Interest Waiver (NIW) and all EB1 immigrant categories (EB1 Extraordinary Ability, EB1 Outstanding Researcher and Professor, and EB1 Multinational Executive or Manager) do not not require Labor Certification. For the EB2 Exceptional Ability category (not EB2 NIW), the U.S. employer can submit the Form I-140 petition only after obtaining the Labor Certification from U.S. Department of Labor.
Both EB1 Aliens with Extraordinary Ability petition and EB2 National Interest Waiver petition do not require a job offer from a U.S. employer. Thus, both petitions can be self-filed without an U.S. employer as a sponsor. To file an EB-1A petition for alien with extraordinary ability, an alien applicant needs to prove that he or she has “extraordinary ability” in a field, which normally requires greater achievement and ability in a field than the the "exceptional ability" required for an NIW petition. The regulation requirements for a NIW petition is lower than that for an EB-1A petition.
For example, a successful NIW application does not require the alien applicant to "risen to the very top of the field," as required by EB1 Extraordinary Ability application. Also, for EB1 Extraordinary Ability applicants, the applicants need to show a major internationally recognized award, or documentation from at least three of ten criteria. But for EB2 National Interest Waiver petition, the alien applicants are required to show that they are in an area of substantial merit and national importance, and the applicant's work should benefit the U.S. national interest.
The EB1 Extraordinary Ability and EB2 NIW immigrant categories can be self-petitioned, so the foreign aliens do not even need an job offer of employment and the U.S. employer's sponsorship. But for EB2 Outstanding Researcher and Professor petition, an applicant needs a job offer and U.S. employer's sponsorship. The scope for EB2 NIW petition does not have to be very narrow. An alien applicant can submit both EB1 NIW and EB-1A petitions at the some time to increase the approval chance, if the alien applicant can meet the qualification requirements. If an alien applicant is from a visa retrogressed countries, such as India or China, then EB1 category is more desirable route than NIW, becuse the waiting time for filing Form I-485 form is much shorter.
Also, the EB2 National Interest Waiver petition does not require a job offer, but the EB1 Outstanding Professors and Researchers Petition requires a job offer. Thus, the EB1 Outstanding Professors and Researchers petition cannot be self-filed without an U.S. employer as a sponsor. Therefore, the EB1 Outstanding Professors and Researchers petitions must be accompanied by a job offer from a U.S. employer.
11. The Petition of EB1 Extraordinary Ability and EB2 National Interest Waiver at the Same Time
The requirements for EB1 Extraordinary Ability and EB2 National Interest Waiver petition are different. Therefore, the application documents and their preparation are significantly different between these two immigrant visa categories. But for both EB-1A and NIW petitions, the alien applicant can file self-petition without the need of an U.S. employer as a sponsor.
There is no rules in the law to prohibits multiple filings of immigrant visa application. It is possible to file an EB-1A and a NIW petition at the same time, or file an EB-1B and a NIW petition at the same time. Many aliens file two Form I-140 petitions concurrently in EB-1A and NIW (or EB-1B and NIW) to increase their approval chances.
To file EB1-A and NIW concurrently, you can file them by yourself, or you can ask your employer as your sponsor, to file a separate Form I-140 petition for EB-1A and NIW, with the required application fee and supporting documents for each immigrant visa category. Also, the applicant should be careful not to check multiple categories on one I-140 Form.
12. Not Qualify for EB1 Alien of Extraordinary Ability or EB1 Outstanding Researcher/Professor? EB2 National Interest Waiver May Be Your Options
If you believe that you may not qualify for EB1 Alien of Extraordinary Ability or EB1 Outstanding Researcher or Professor, but you want to file your immigrant visa application under the EB2 category, you may consider the EB2 National Interest Waiver (NIW).
For many foreign nationals, the EB1 Extraordinary Ability and EB1 Outstanding Researcher or Professor are attractive immigration categories, because the immigrant visas are current for everyone in the EB1 categories, and the EB-1A also allows self petition without U.S. employer's sponsorship and even job offer. However, the EB1 Extraordinary Ability category has the higher standard which requires the alien applicants to "rise to the very top of the field.", and EB1 Outstanding Researcher or Professor requires a "permanent" research or teaching job offer from a U.S. employer.
For many alien applicants, and also for people whose academic achievements are not quite sufficient for EB-1 applications, the EB2 National Interest Waiver category is a good choice. The regulation standards for NIW petition are somewhat lower than that of EB-1A and EB-1B, and it only requires the "exceptional ability" for NIW.
13. The Advantages of EB2 National Interest Waiver over EB-2 Based on PERM Labor Certification
To get a U.S. Green Card under the EB2 National Interest Waiver category, there are two independent steps. The first step is to file USCIS Form I-140 petition to verify that your employment in the United States has enough national interest to waive the otherwise required Labor Certification (or PERM Labor Certification).
After your EB2 NIW based Form I-140 is approved, you may file USCIS From I-485 to receive your Green Card. Many people prefer EB2 National Interest Waiver application over the EB2 based PERM Labor Certification for several reasons.
- First, you can self-petition the EB2 NIW. This means that you can file for your Green Card application by yourself, without the consent or knowledge of your employer, or your employer's sponsorship.
- Second, the regulation requirements for EB2 National Interest Waiver are easier than that for EB1 Alien of Extraordinary Ability (EB-1A).
- Third, with EB2 National Interest Waiver, you can skip the Labor Certification process. Filing a Labor Certification could be a burdensome and time consuming process.
14. The NIW Petition for J-1 Visa Holder Subjected to the Two-Year Home Country Residency Requirement
For a J-1 visa holder subjected to the two-year home country residency requirement, you can file the NIW based Form I-140 petition now for your immigrant visa, and get your J-1 waiver later. You do not need to have a J-1 waiver before file an Form I-140 petition. The two-year home country residency requirement does not allow you to adjust the status from J-1 to U.S. permanent residency.
After your NIW based Form I-140 approval, you are still subject to the two-year home country residency requirement, and you need to get the J-1 waiver before you can file Form I-485 to adjust your status to U.S. permanent resident.
To help you get your J-1 waiver easily and quickly, we provide a high quality and case-proven Complete Do-It-Yourself Package for J-1 Waiver Application, based on our extensive and practical experience. As added value in the Complete Do-It-Yourself Package for J-1 Waiver Application, we provide comprehensive instructions on J-1 waiver application requirements and processing, and we also let you know the required application documents, evidence, procedures, samples of recommendation letter and J-1 program sponsor letter, samples of required forms, and detailed explanation of the J-1 waiver application related forms and issues for different J-1 waiver options. For detailed information of J1 Waiver application, please visit: http://www.greencardapply.com/j1.htm
15. Apply for Adjustment of Status Using Form I-485 after NIW based Form I-140 Approval
USCIS application Form I-485, application for adjustment of status, is the form you are required to file to get your Green Card after your application for immigration based on EB2 National Interest Waiver is approved. This form, when filed, must be accompanied by items such as photos, letter of employment, affidavit of support, physical examination record, etc. To help your Form I-485 application, we provide a Complete Do-It-Yourself Package for Form I-485 Application.
An immigrant visa's "priority date" is established by the date when your Form I-140 application is filed. Normally, the immigrant visa's priority date for EB2 NIW application is "current" for aliens from many countries, but not for aliens coming from China and India. Therefore, you can file NIW based Form I-140 application with Form I-485 application concurrently, if you are not coming from China or India
With the change of immigration regulation, rules on adjustment of status become more restricted. You must provide visa records to establish your and your family member's continuous lawful status since you or them entered the U.S. This can be a serious problem for those people whose status expired prior to their application for immigration was approved.
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