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Archive for the ‘H-1B Visas’ Category

President Announces H-4 Work Authorization for Spouses of Certain High Skilled Workers on H-1B Visas

Wednesday, April 9th, 2014

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What does this mean exactly….STEM workers on H-1B visas?  Will it apply to spouses of all H-1B visa holders in specialty occupations?  We don’t really know at this time; however, it is good news and very long overdue.  These EAD cards will provide unrestricted work authorization to H-4 workers enabling them to work at any US employer for the duration of the validity of the card. The period of validity is expected to mirror the H-1 primary Beneficiary’s period of stay.  As soon as we know more, we will share it.  This certainly does sound hopeful.

Scroll down to the paragraph with the heading:  The World’s Best and Brightest here

 

 

USCIS Announces H-1B FY 2015 Cap has been met

Monday, April 7th, 2014

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U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015.  USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U. S. advanced degree exemption.

Before running a random selection process, USCIS will complete initial intake for all filings received during the filing period which ended today. Due to the high number of petitions, USCIS is not yet able to announce the date on which it will conduct the random selection process.

A computer-generated process will randomly select the number of petitions needed to meet the caps of 65,000 visas for the general category and 20,000 under the advanced degree exemption. USCIS will reject and return filing fees for all cap-subject petitions that are not selected, unless found to be a duplicate filing.

The agency will conduct the selection process for the advanced degree exemption first. All advanced degree petitions not selected will become part of the random selection process for the 65,000 limit.

Avoiding the H-1B Cap

Wednesday, January 22nd, 2014

iStock_GlobeAirplanePP_000012052479XSmallIf you Previously had an H-1B for Less than 6 Years

Pursuant to § 212(g)7) of the The Act, if you had an H-1B in the past and were in the USA for less than 6 years, you may be eligible to recoup the time that is remaining on the 6-year maximum period of stay to accept employment with a new employer – without being counted against the cap.  An example of this would be someone who works for 3 years in H-1B classification and decides to go back to school on an F-1 student visa.  This individual would be eligible to apply for an H-1B for the remaining 3 years at any time of the year.

If you are abroad for at least one year, you have the choice to either apply for a “new” cap H-1B  for a full 6-year period, or take advantage of the remainder option if you previously had an H-1B.

H-1B 7th Year Extensions – How This Works

If you are the beneficiary of a labor certification or an I-140 petition that was filed 1 year prior to your 6th year in H-1B status, pursuant to §106 of AC21, you are permitted to file for a 7th year extension.  You are also permitted, according to §104(c) of AC21, to apply for a 3-year extension of your H-1B when you have an approved I-140 petition and are unable to move forward with filing your permanent residency case due to employment-based immigrant visa country limits (referred to as retrogression).

If you are in the US and out of status due to a layoff, or are abroad, you are entitled to a 7th year extension of your H-1B if your labor certification or I-140 petition was filed before your 6th year in H-1B status with either the sponsoring employer, or with a new employer.  You will more than likely be required to consular process your case in these scenarios.

It is recommended that you seek the advice of a skilled immigration professional with the above cases as they are complex in nature.

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Who are H-1B Exempt Employers?

Wednesday, January 15th, 2014

News_bannerThere are certain classes of non-profit employers who are exempt from the H-1B cap. The exemption from the cap only applies to institutions of higher education, non-profit research institutions, government research institutions, and non-profits formally affiliated with an exempt educational institution.  Let’s discuss this.

 Institutions of higher education: Under the definition, an institution of higher education is one which:

  • admits students who have completed secondary education;
  • is licensed to provide education beyond secondary school;
  • provides educational programs for which the institutions award bachelors’ degrees or provide programs of not less than 2 years that are acceptable for full credit toward bachelors’ degrees;
  • is a public or nonprofit institution; and
  • is accredited or has been granted pre-accreditation status by a recognized accrediting agency.

What does it mean to be related or affiliated to a higher education institution nonprofit entity?

The USCIS states that it is sufficient that a nonprofit entity is related or affiliated to an institution of higher education through shared ownership, control or be somehow affiliated to the higher education institution as a member, branch or subsidiary.

This narrow definition makes the types of non-profits that qualify for this exemption few and far between.  For instance, non-profit service, community, policy and arts organizations would not qualify for the exemption from the H-1B cap. Unless the non-profit employer is primarily devoted to research, or is formally affiliated with a university, it will not qualify as a cap-exempt H1B petitioner. Public secondary schools do not qualify for H1B cap-exemption unless they have a formal affiliation agreement with a college or university. However, the exemption does cover certain professionals employed by a for-profit entity but but does when working at an exempt location, as long as the work continues to serve the core mission of the exempt institution, such as a physicians’ practice group affiliated with and located at a university teaching hospital.

Nonprofit Research Organizations | Government Research Organizations:  Nonprofit research organizations or governmental research organizations, are defined in 8 CFR 214.2(h)(19)(iii)(C), as follows:

  •   A nonprofit research organization is an organization that is primarily engaged in basic research and/or applied research.
  •   A governmental research organization is a United States Government entity whose primary mission is the performance or promotion of basic research and/or applied research.

Basic research is general research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest. It may include research and investigation in the sciences, social sciences, or humanities.  

Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met. Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services. It may include research and investigation in the sciences, social sciences, or humanities.

Conclusion

It should be noted that all of the criteria above must be met in order for an institution or an organization to qualify for a cap-exempt status for H-1B purposes. Such institutions and organizations can indicate that their H1B filing is cap exempt by marking Form I-129 (Petition of Non-Immigrant Worker) with a “yes” answer to questions 1, 2, or 3 in Part C of the H1B Data Collection and Filing Fee Exemption Supplement. Bear in mind that an employer or a foreign national who wishes to seek H-1B status under a cap-exempt petition must verify that they qualify for the cap exemption under one of the three categories above. It is recommended that you work with an immigration practitioner that understands this casework as the analysis is often complex.  If you’d like to become a client of our office, please contact us at info@immigrationcompliancegroup.com or call 562 612-3996.

 

It’s Beginning to Look A lot like H-1B Filing Season 2015!

Friday, January 3rd, 2014

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The H-1B visa category is one of the most used visa classifications by US employers and is available to professionals that will work in a specialty occupation that generally requires a minimum of a bachelor’s degree or its equivalent.

Last year, the number of H-1B visa petitions filed in the first 5 days exceeded the entire H-1B visa allotment.  Hundreds of employers were unable to hire all the foreign-based professional talent that they required, and their petitions went into a lottery pool, left to chance and uncertainty.

Given that we are seeing improvements in the economy, it is anticipated that this filing season will be the most competitive one in many years.  Just to review…There is a limit of 85,000 H-1B visas available each fiscal year, 20,000 of which are reserved for individuals who have graduated with an advanced degree (a master’s or higher degree) from a US college or university that is  accredited by a nationally recognized accrediting agency or association. Pre-accreditation status is also acceptable. Secondly, the school must be a public or other nonprofit institution. If these requirements are not met, the candidate will not qualify for the master’s degree exemption. It is also to be noted that employers stand a stronger chance obtaining advanced degree petition approvals, even if the position being offered only requires a bachelor’s degree or its equivalent.

Our position is that it’s just not too early to start assessing where you’d like to add personnel and to start working with your immigration provider on such important matters as:

1)  Credential evaluations for prospective employees with foreign degrees

2)  Thorough job descriptions indicating the percentage of time spent on core areas of the position

3)  Needed updates to your corporate stats and profile information

4)  Updating intake questionnaires for H-1B employees

5)  For new employers who have previously not filed H-1Bs and are not in the databases accessed by government agencies, be prepared for a request to submit to the Department of Labor iCERT system for Labor Condition Applications (LCA) a copy of your IRS letter confirming your EIN number.  It is also not unusual for them to request your corporate formation documents before they will certify your LCA.  H-1B petitions will be denied if not accompanied by a certified Labor Condition Application.  It might be advisable to file your LCA’s in late January or February even though this will shorten a few months from the 3-year initial approval.

If the prospective employee is a national of Canada, Mexico, Australia, Singapore or Chile you have other options to consider.  Canadian and Mexican professionals qualify for TN status (pursuant to Trade NAFTA).  You can file anytime of the year under this classification; there are no quotas, applicants can apply right at the border, and the 3-year period of stay can be extended indefinitely.  Here is a link to the list of occupations that qualify for TN classification.

Australian nationals are eligible for E-3 status in 2-year increments and can consular process their applications, with unlimited extensions available.  A Labor Condition Application is required for these cases.  Nationals from Singapore and Chile qualify according to Free Trade Agreements for the H-1B1 classification.  There is a quota for this category that has never been reached.

If you are contemplating the hire of a professional who currently holds H-1B status with another employer, they are exempt from the quota and can start working for you immediately even though the petition is pending approval.

We encourage employers to call us with any questions that you might have or if you’d like to retain our firm to handle your H-1B filings.  Our email: info@immigrationcompliancegroup.com or by phone 562 612.3996.

 

 

Infosys to pay $34M in Fines for Visa Fraud and I-9 Violations

Thursday, October 31st, 2013

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Infosys is India’s second largest software exporter, and has about 30,000 workers in the U.S. (160,000 worldwide) with $6B in sales.

After years of investigation, it was found that Infosys “knowingly and unlawfully” brought Indian workers into the United States on B-1 business visitor visas( since 2008), to circumvent  the higher costs and delays of a longer-term employment-related visa, such as the H-1B visa that the workers should have had.  It was found that Infosys systematically submitted misleading information to US immigration authorities and consular officials to obtain the B-1 visas that do not permit employment, unfairly gaining a competitive edge and undercutting American workers qualified for the jobs

Press release states: “Infosys failed to maintain I-9 records for many of its foreign nationals in the United States in 2010 and 2011 as required by law, including a widespread failure to update and re-verify the employment authorization status of a large percentage of its foreign national employees…more than 80 percent of Infosys’s I-9 forms for 2010 and 2011 contained substantive violations.”

The largest fine of its kind, was paid out as follows: $5 million to Homeland Security Investigations, $5 million to the Department of State, and $24 million to the DOJ.

How can employers protect themselves?

The five federal agencies charged with workplace enforcement are not only going after businesses that are known to employ undocumented workers, but they are also making examples out of industry leaders across the country creating headline news. It goes without saying, that this is now a topic that should be on HR executives’ action list.  Turning a blind eye can be exceedingly costly and cause great damage to a company’s reputation.

For more on this Story:  CBS Reports   NY Times

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The Heavy Lift of Immigration Reform

Monday, June 17th, 2013

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After considering some 200 amendments to the Gang of 8’s immigration bill entitled the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (a/k/a CIR, or Comprehensive Immigration Reform), it survived the Senate Judiciary Committee overhaul and has been introduced onto the floor of the Senate for further debate taking place this month.  It is the goal of the Senate to complete their work on the Bill by the July 4th recess. On the weekend talk show circuit, Lindsay Graham (S-SC) told conservatives who are trying to block the measure that they will doom the party.  Sen. Robert Menendez, D-N.J., went a step further and predicted “there will never be a road to the White House for the Republican Party if immigration overhaul fails to pass.”

The big question is – will the House of Representatives cooperate and pass a bill?  The theory on this is that the purpose of the legislative process right now is for the House to get a bill passed. It could be a good or bad bill; it just has to be an intact bill because once something makes it through the House, it will go to conference with the Senate and the Committee will compare the two bills and draft a compromise bill that both chambers can accept

The Temperature on Immigration Reform in the House of Representatives:

While many House conservatives agree immigration reform is a critical priority for Congress, they part with President Obama, Senate Democrats, and some in their own party who believe allowing eventual citizenship to those in the country illegally is part of the solution. They vow that they won’t support any bill that adds to the deficit and they want to see a tougher approach to border security and to the benefits issue.

Not only has the federal government consistently increased spending on border enforcement, it has also met the border-security benchmarks laid down in the three immigration-reform bills introduced in the Senate since 2006. Read more on border security here

The GOP insists that newly legalized workers now working in the shadows have no access to government-sponsored health care during their 15-year pathway to citizenship.  Democrats say that since these newly legalized immigrants would be paying taxes (millions already do pay taxes), they should be eligible for benefits.

In the end, both chambers of Congress must eventually pass the identical legislation for the bill to make its way to the President’s desk to become law.  The question is…Will House Republican leadership pass a bill or fail?

White House Official stated to the Daily Caller, “If a Gang of Eight-style bill is signed into law by the President, it will probably be one of the top five legislative accomplishments in the last twenty years.”

For a Summary of S 744 refer here.  Refer here for more on the progress of S. 744 in the Senate, the text of bill, the summary and the proposed amendments.

The House Judiciary Committee markup of the bill starts this week, and will start with SAFE Act (H.R. 2278), a bill to improve the interior enforcement of our immigration laws and strengthen national security and will then take up the AG Act (H.R. 1773), a bill to provide American farmers with a workable temporary agricultural guest worker program that will help provide access to a reliable workforce.  Read more here

Immigration Bill: Getting Ready for the BIG Reveal from the Senate

Tuesday, April 16th, 2013

The proposal, which is expected to be officially unveiled this week is titled the “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.”

Sens. Chuck Schumer (D-N.Y.) and John McCain (R-Ariz.) — members of the bipartisan group that crafted the bill — will go to the White House today to meet with President Barack Obama about the immigration bill, according to a source familiar with the meeting.

The legislation would have a far-reaching impact on virtually every corner of the American economy.

In other compromises, the bill would reduce the categories of family members eligible for green cards, eliminating siblings of United States citizens and limiting sons and daughters of citizens to those under 31 years of age. It would eliminate a lottery that has distributed 55,000 visas each year. Those visas would be used to reduce backlogs of applicants elsewhere in the system. Republicans have sought to limit what they call family chain migration and to accomplish changes without increasing the overall number of visas.

Undocumented Immigrants

There would be two tracks: one based on the number of points immigrants could accumulate, with a fixed annual numerical cap, and another for immigrants who have been legally employed and living in the United States in good standing for 10 years or more. The second track would not have a cap.  Formerly, undocumented immigrants would be eligible to apply for initial adjustment of status referred to as  “Registered Provision Immigrant” (RPI) legal status following the filing of the Notice of Commencement of Completion by Secretary Napolitano (DHS) for each of the border security and fencing strategies.  Only undocumented immigrants who arrived in the country before Dec. 31, 2011, would be eligible for RPI status.   After 10 years, aliens in RPI status may adjust to Lawful Permanent Resident Status through the same Merit Based System everyone else must use to earn a green-card.  They must also wait until all people currently waiting for family and employment green-cards  have been cleared through the system.

The border security programs would be required to evidence a 90% effectiveness rate before any immigrants who have been here illegally would be able to apply for permanent resident green cards, achieving a series of border-security benchmarks that would require the Department of Homeland Security to spend as much as $5.5 billion over 10 years to increase enforcement and extend fencing along the Southwest border.

Undocumented immigrants would be ineligible if they have been convicted of a felony, aggravated felony, three or more misdemeanors, an offense under foreign law or unlawfully voted.

Undocumented immigrants who were deported for non-criminal reasons would be able to apply to re-enter the country if they are the spouse or parent of a child who is a citizen or lawful permanent resident, or they arrived during childhood and are eligible for the DREAM Act.  People in DREAM Act Status and the Agricultural Program can obtain their green cards in 5 years and DREAM Act kids will be eligible for citizenship immediately after they get their green cards.

High Skilled Visas

The legislation would give employers in technology and science fields tens of thousands of new temporary and permanent resident visas annually, which they have been urgently seeking for tech workers and foreign graduates with advanced degrees from American universities. It immediately raises current annual caps on temporary high-skilled visas, such as H-1Bs, to 110,000 from 65,000, while adding 5,000 more of those visas for the foreign graduates. The cap would gradually rise to 180,000 annually.

Start-Up Visa

The legislation would create a “start-up” visa for foreign entrepreneurs who want to come here to establish companies that employ Americans.

Two New Guest Worker Programs

The bill also responds to the demands of American farmers and other employers of seasonal workers by creating two new guest-worker programs, one for farmworkers and another for low-wage laborers.

One major overhaul is the new classification for low-skilled workers. Called the W-visa, a new independent statistical agency is created — the Immigration and Labor Market Research Bureau — which is to be headed by a commissioner appointed by the president and with the consent of the Senate. The new bureau would get $20 million to devise a method to calculate the low-skilled worker visa cap, determine worker shortages, survey the unemployment rate of construction workers every three months and give annual recommendations on how to improve the programs. Employer fees and other fees for hiring undocumented workers will also be used to fund the bureau.

The number of low-skilled visas available starts at 20,000 in its first year, followed by 35,000 in the second, 55,000 in the third year and 75,000 the following year. Employers must hire W-visa holders at the same wage of other employees of similar experience, or at the prevailing wage. The bill also requires that companies have not laid off an employee 90 days prior to or after hiring a guest worker.

The program also singles out the construction industry, saying no more than 33 percent of the W-visa positions would be granted to the construction industry, capping it at 15,000 per year.

Mandatory Employer Verification System

A significant change for employers would be a mandatory employer verification system to check the immigration status of their employees. With a five-year phase-in period based on size of the business, employers would be required to certify that non-citizen workers presented a “biometric green card” that matches a photo stored in an e-verify system.

Highlights Regarding Legal Immigration

The bill repeals the availability of immigrant visas for siblings of U.S. citizens once 18 months have elapsed since the date of enactment;  amends the definition of “immediate relative” to include a child or spouse of an alien admitted for lawful permanent residence; amends the existing category for married sons and daughters of citizens of the United States to include only sons and daughters who are under 31 years of age.

For Employment Green-Card Categories:  The bill exempts the following categories from the annual numerical limits on employment-based immigrants: derivative beneficiaries of employment-based immigrants; aliens of extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors and researchers; multinational executives and managers; doctoral degree holders in any field; and certain physicians.

The bill will allocate 40 percent of the worldwide level of employment-based visas to :

1) members of the professions holding advanced degrees or their equivalent whose services are sought in the sciences, arts, professions, or business by an employer in the United States (including certain aliens with foreign medical degrees) and

2) aliens who have earned a master’s degree or higher in a field of science, technology, engineering or mathematics from an accredited U.S. institution of higher education and have an offer of employment in a related field and the qualifying degree was earned in the five years immediately before the petition was filed.

The bill increases the percentage of employment visas for skilled workers, professionals, and other professionals to 40 percent; maintains the percentage of employment visas for certain special immigrants to 10 percent and maintains visas for those who foster employment creation to 10 percent.

For more on the bill, please refer to the 17-page Senate Outline referenced below.

In closing, the NY Times states:

“The senators are gambling that the bill will repair enough longstanding problems in the system to attract support from a broad array of groups who will benefit from those changes, including Latinos, religious groups and labor unions who support the path to citizenship for those here illegally; big technology companies like Microsoft and Facebook, which have been clamoring for more visas for engineers and computer specialists; agricultural growers and other employers in labor-intensive businesses; and immigrant families who stand to be united more quickly with family members coming here legally.”

Article Resources:

Outline of the Bill

Politico

NY Times

 

H-1B Visa: California Service Center Enforces Radical Interpretation of H-1B Requirements for Job Location Changes

Tuesday, January 15th, 2013

There have been reports for some months now that the USCIS California Service Center has enforced new interpretation concerning the way it views H-1B requirements for job location changes, when duties and all other employment terms remain the same.

Previously, according to a 2003 legacy INS memo, a simple change in job location did not require that a new petition be filed with USCIS.  The employer was required to analyze prevailing wage for the new location, file and obtain a new certified Labor Condition Application (LCA) with the Department of Labor prior to the employee moving to the new location, post the LCA at the new work site according to DOL regulations, make sure wage and hour obligations were met, but did not have to file an amended petition with USCIS.

Under the CSC’s new and controversial interpretation, changes in job location alone do require amended petitions. In fact, employers are reporting site audits and revocation of H-1B petitions when USCIS inspectors could not find the H-1B worker at the work site listed in the petition. At this point, no other USCIS service center has followed this radical reinterpretation of the law – just the CSC.

Long-standing guidance still indicates that no amended petition should be required when only job location changes. However, to avoid adverse consequences – at least, until the CSC revisits its controversial new interpretation – employers should proceed with caution and work with a competent immigration professional whenever an H-1B worker’s job location changes, in order to determine whether any amended filings are required. Employers need to be careful to reveal all possible jobsite locations for each H-1B worker at the front end of case processing.

USCIS headquarters has the H-1B amendment issue under consideration and has indicated that they may issue additional guidance regarding this matter. In the meantime, please be advised that for cases under the jurisdiction of the CA Service Center for H-1B workers whose jobsite locations have changed, an amended petition prior to any geographic relocation is now required.

Should you wish to become a client of our office, please contact one of our immigration professionals at info@immigrationcompliancegroup.com, or call 562 612.3996.

H-1B Visas – The Job Description and Degree Requirement

Wednesday, January 9th, 2013

It’s almost that time of year again for H-1B filing season FY 2014 as of April 1, 2013, and  it’s not too early for employers to be discussing hiring needs with their management team and assessing where in the organization they wish to sponsor H-1B professionals, and identifying  potential candidates that they may want to sponsor for H-1B status. This could include, for example, recent graduates employed pursuant to F-1 Optional Practical Training, foreign nationals in TN status that the company may wish to sponsor for permanent residence, and candidates in L-1 status working for other employers or in some other non-immigrant classification who would need to change their status to H-1B in order to extend their stay and accept new employment.

The H-1B job offer and the job description must be for a specialty occupation that requires a minimum of a bachelor’s degree or its foreign equivalent.

What is the definition of a specialty occupation? A specialty occupation requires the theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its US equivalent.  For example, architecture, engineering, IT, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, and the arts are considered specialty occupations.

Small to medium-size companies are frequently asked to justify why the position  requires someone with a bachelor’s degree and to explain, through various types of evidence including organizational charts, examples of work being produced, the education of previous employees in the position, etc., why their business is more unique than other similar businesses in their industry that they would require a candidate with a bachelor’s degree in a particular position.

Bachelor’s Degree equivalency can be attained through a single-source foreign degree that meets US standards, a combination of a degree and work experience, or a work experience alone equivalency that meets the “3 for 1″ rule; namely, that 3 years of work experience is equivalent to 1 year of university level education (this requires an expert credential evaluation by a service or university that is authorized to evaluate work experience for degree equivalency).

Note: Bear in mind that if you have a skilled immigration professional that has a strategy in place for your green-card sponsorship (permanent residency), it is essential that your degree and its equivalency be carefully reviewed so that it will be compatible with the classification under which you will be filing your labor certification, the first step in the green-card process.

USCIS now requires very detailed job descriptions that contain the position summary, duties and responsibilities, as well as the percentage of time spent on each job duty. It is hard to imagine that a job description with a 15-bullet point list of duties and a full page in length is insufficient, but when you work with a skilled immigration practitioner, this can be successfully argued against the O*NET and the OOH which is the primary source of job information for USCIS and the Department of Labor.

In summary: Employers need to be prepared with complete job descriptions for their H-1B prospective employees and document the need for a degreed professional thoroughly in their casework.

Discuss your H-1B requirements as well as any other business immigration matters by contacting us at info@immigrationcompliancegroup.com, or call 562 612.3996.


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