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Integrity Legal

Archive for the ‘US Visa and Immigration’ Category

2nd July 2009

On July 2, 2009 the Center for Disease control formally proposed that HIV be dropped from the list of “communicable diseases” that result in a legal finding of inadmissibility. The following is quoted from the preamble of the proposal to change the rule:

The Centers for Disease Control and Prevention (CDC), within the U.S. Department of Health and Human Services (HHS), is proposing to revise the Part 34 regulation to remove “Human Immunodeficiency Virus (HIV) infection” from the definition of “communicable disease of public health significance.” HHS/CDC is also proposing to remove references to “HIV” from the scope of examinations in its regulations. Aliens infected with a “communicable disease of public health significance” are inadmissible into the United States under the Immigration and Nationality Act (INA).

This proposed rule change is subject to a comment period and is not yet finalized, but if it becomes final it will do away with the need to obtain an HIV waiver for a prospective immigrant infected with HIV.

For more information please click here

(This content is for educational use only. It does not constitute legal advice. No attorney/client relationship is created between the author and reader of this post.)


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2nd July 2009

A Legal Ground of Inadmissibility is a provision created by Congress that bars certain immigrants from entering the United States of America. If a prospective immigrant is found to have certain types of communicable disease then they will be barred from entering the United States without first obtaining a Waiver of Inadmissibility.

Waivers of inadmissibility for those infected with Human immunodeficiency virus (HIV) are different than some other legal grounds of inadmissibility because the burden of proof is not the same. In order to obtain a normal I-601 waiver of inadmissibility in most cases the US Citizen or lawful permanent resident petitioner must show that failure to grant the waiver would result in an “extreme hardship,” for him or her. In the case of an HIV waiver, a showing of “extreme hardship” is unnecessary. Instead, one must show that the immigrant with HIV will not become a ward of the United States. Much like the I-864 affidavit of support for Immigrant visas or the I-134 affidavit of support for a fiance visa, the petitioner must show that the beneficiary will not become a “public charge.”

Recently, President Obama has made it clear that he intends to put the wheels in motion to have legislation passed that would repeal the provisions making those with HIV inadmissible to the United States. Obama was recently quoted as saying,

“The rationale for maintaining HIV infection as an excludable condition is no longer valid based on current medical and scientific knowledge and public health practice, and experience which has informed us on the characteristics of the virus, the modes of transmission of HIV, and the effective interventions to prevent further spread of the virus… My administration is committed to rescinding the discriminatory ban on entry to the United States based on HIV status. The Office of Management and Budget just concluded a review of a proposal to repeal this entry ban, which is a first and very big step towards ending this policy.”

Obama has made many recent statements regarding Comprehensive Immigration Reform and the Defense of Marriage Act. If Obama fulfills his campaign promises regarding these issues it will have tremendous ramifications on United States Immigration law. The push to have HIV taken off of the list of communicable disease has its opponents, but it is probable that legislation that would allow those with HIV to enter the USA, without a waiver, will be passed sometime in the next one to two years.

For more information about US Family Visas from Thailand Please see: US Immigration lawyer Thailand or K-1 visa

(Nothing contined herein should be mistaken for legal advice as it is intended for the purpose of education only. No lawyer-client relationship is to be implied to exist between the author and any reader of this posting.)

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1st July 2009

President Obama has recently been criticized by many members of the LGBT community for what appears to be a reversal of his campaign stance on same-sex rights.  Presently President Obama’s Justice Department is defending the Defense of Marriage Act (DOMA) in the US courts. However, President Obama has made statements claiming that while his administration is in the process of enforcing the provisions of DOMA, he is also working to have the law repealed. Apparently, President Obama is trying to apply pressure to Congress in order to make them repeal the Defense of Marriage Act. Mr. Obama was quoted in a speech as saying:

“I’ve called on Congress to repeal the so-called Defense of Marriage Act to help end discrimination against same-sex couples in this country. Now, I want to add we have a duty to uphold existing law, but I believe we must do so in a way that does not exacerbate old divides. And fulfilling this duty in upholding the law in no way lessens my commitment to reversing this law.”

What are the Consequences on US Immigration if the Defense of Marriage Act is Repealed?

Should the Defense of Marriage Act be repealed, the upshot would be that the Federal government would recognize same-sex marriage. Therefore, US Immigration benefits would likely be conferred based upon a marital relationship. Thus, if a same sex couple enters into a valid marriage in a country like Belgium, then they could file an I-130 petition for a CR-1 visa based upon their relationship (under this hypothetical scenario, they could also file a supplemental visa application for a K3 visa).

In another hypothetical situation, the same couple are now unmarried, but they have a bona fide relationship and intend to marry in the United States in a jurisdiction that allows and recognizes same sex marriage (Massachusetts for example). This factual situation would likely allow that couple to file a visa application for a K-1 visa because the parties would meet the legal requirements imposed upon those wishing to obtain a US visa for a fiance.

It is currently uncertain whether Obama will successfully lead the charge to repeal the Defense of Marriage Act. What is certain is the fact that should the Defense of Marriage Act be repealed it will have a major impact on United States law and a crucial impact upon same sex immigration rights. If Obama is successful in repealing DOMA the upshot will likely be that the Uniting American Families Act (UAFA) will be rendered superfluous because same sex marriage would be included in the umbrella term “marriage” under current US Immigration law.

(Please not that the above information is for eductaional purposes only. No attorney-client relationship shall be inferred to be formed between the author and any readers of this post.)

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29th June 2009

Visa Waivers are often accorded to nationals from countries that have a long standing relationship with the USA. Currently, the Kingdom of Thailand is not a participant in the US Visa Waiver Program, therefore, anyone wishing to travel to the USA on a Thai passport must obtain some sort of American Visa.

The US Visa waiver program should not be confused with a waiver of excludability which is usually necessity after a US visa denial based upon a legal ground of inadmissibility. The US Visa Waiver Program (VWP) was created to allow certain foreign nationals entry into the United States visa-free.

In the mid-1980′s, the US Immigration Reform and Control Act integrated the Visa Waiver Pilot Program into the United States Immigration and Nationality Act (INA). The Visa waiver initiative remained a pilot program until October 30, 2000. At that time, the Visa Waiver Permanent Program Act made the program a permanent fixture of immigration law. The Visa Waiver Program’s legal foundation is stipulated in section 217 of the United States Immigration and Nationality Act. In 2007, the addition of section 711 of the INA created measures to strengthen the security of the Visa Waiver Program.

The Secretary of Homeland Security and the Secretary of State, may assign a nation as a participant in the Visa Waiver program if:

  1. The nation grants similar travel rights to Americans;
  2. The nation has attested that it dispenses electronic passports that contain data storage chips;
  3. The nation started issuing such Passports to its citizens on or before October 26, 2006.
  4. The Secretary of Homeland Security and the Secretary of State prepare a report calculating the effect the country’s VWP authorization upon US security; and
  5. The Secretary of Homeland Security and the Secretary of State decide that the nation’s inclusion in the program will not damage American security interest, this includes issues involved in the enforcement of US Immigration law.

Who can enjoy the Visa Waiver Program?

The nationals of the following countries are eligible to enter the USA under the Visa Waiver Program: Andorra, Austria, Australia, Belgium, Brunei, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, Republic of Korea, San Marino, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom (With regard to United Kingdom Passports, Only UK passports denoted as “British Citizens” and/or “with unrestricted right of abode in the United Kingdom” are eligible for entrance to the USA under the Visa Waiver Program. Those holding passports designating that the bearer is a “British Subject,”  “British Dependent Territories Citizen,” “British Overseas Citizen,” or “British National [Overseas],” cannot enter the United States through the Visa waiver program.)

In order to enter the USA visa-free on the Visa Waiver Program an entrant must first use the Electronic System for Travel Authorization.

(Please note: Nothing contained herein should be used as legal advice. No attorney-client relationship is created by reading this piece.)

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28th June 2009

US Immigration from Thailand can be a complex and multifaceted process. Compiling Immigration forms and  documentation can be an arduous task for an American Citizen who understands the English language fluently. This difficulty is compounded when one takes into account the fact that a language barrier and 12 hour time difference can slow the visa obtainment process immeasurably. In some cases, the Thai fiancee must deal with Thai government offices, which can be frustrating and confusing depending upon the office in question.

In a previous post we discussed how retaining a US Immigration Lawyer can be highly advantageous for those seeking to obtain a US visa from Thailand. An American attorney on the ground in Bangkok can expedite the visa process by assisting a Thai fiancee with the US Immigration forms and 221 g follow up documentation at the US Embassy Thailand. Many American Citizens enjoy the peace of mind that comes from knowing a US visa lawyer is assisting their Thai loved one in real time.

That being said, there are certain aspects of the US visa process where a Thai attorney can be a boon to both the American client and the Thai fiancee. The first instance in which a legally trained Thai who is fluent in English can be useful is document translation. Thai legal documents that are pertinent to Visa obtainment should be translated by one with both a fluency in English and a familiarity with Thai law.  Further, some documents that are quite common in Thailand, have no analogous counterpart in the American common law system. A lack of familiarity with Thai legal documentation can create confusion and delay for visa cases submitted and processed by American citizens who opt not to retain representation. Therefore, a Thai attorney’s expertise with Thai legal documents can be essential to an expeditious visa processing time frame. Requests for Evidence (RFE) from USCIS and 221 g denials are far less common where the petitioner and beneficiary have opted to retain a firm that employs Thai and American attorneys.

A Thai Attorney can be of real assistance when it comes to dealing with government offices because they are familiar with bureaucratic protocol and can speak to the Thai officers in their own language.

A Thai attorney can assist an American attorney with preparing the applicant for the visa interview in Bangkok.  This preparation helps the fiancee or spouse feel more comfortable about the impending interview and also will make the interview proceed more quickly because the Thai is given a “heads up.”

A Thai attorney can be of great assistance in US Immigration matters, but they will not be able to accompany a Thai fiancee to the Visa interview at the US Embassy in Bangkok. No one is allowed to accompany a Thai visa applicant to the visa interview (this includes the US Citizen spouse or fiancee). With the large caseload processing through the American Embassy in Bangkok, the waiting room cannot accommodate all of the relatives of those seeking US Visas.

(Please note: the content contained herein is intended for informational purposes only. No attorney/client relationship is created by reading this post.)

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26th June 2009

There are essentially three government agencies that have a hand in the US Visa process: the United States Citizenship and Immigration Service (USCIS), the National Visa Center (NVC), and the United States Department of State (the Department with jurisdiction over the US Embassies, Consulates, and Diplomatic Posts abroad). Of these three agencies, USCIS has the case in its possession for the longest period of time because the petition must be initially adjudicated by their officers.

Within the USCIS administrative structure there are two service centers that handle the adjudication of the K1 visa application and K3 visa application for fiancees of United States Citizens (in both cases, the actual application form is called the I-129f). The Services Centers are located in California and Vermont, respectively. They each have their own unique jurisdiction depending upon the residence of the petitioner.

Within the past few days, the USCIS service center in California issued a revised estimate regarding how long it is taking for adjudication of K-1 visa applications and K-3 visa applications. They are now estimating that it will take 5 months for the average visa petition to be adjudicated. This is compared to the previous estimate of 6 months.

As I have explained on this blog and to people in the past. This estimate tends to be quite conservative as we tend to see these petitions adjudicated by USCIS in a much more timely manner than this. That being siad, the prospective immigrant or sponsor should be aware that the petition must also pass through the National Visa Center (which generally processes I-129f petitions faster than Immigrant Visa petitions) and the US Embassy Bangkok.

K3 visas a re also different because one needs to take into account the underlying I-130 petition that acts as the foundation for the supplemental I-129f petition that garners an expedited visa.

At the back of everyone’s mind should be the idea that all time frames for visa obtainment are estimates only as many factors can be at play when a visa application is processing. The best advice is to plan for the worst, but hope for the best. It has been our experience that the US Embassy in Thailand works in a very efficient manner in an effort to get petitions adjudicated quickly. The USCIS service centers are generally the “bottleneck” where visa applications can get delayed.

(No aspect of this piece should be construed as legal advice because this post is written for educational and informational purposes only. No attorney-client relationship should be construed to exist between the author and reader of this post.)

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23rd June 2009

Of great concern to those United States permanent residents (Green Card holders) visiting Thailand is the amount of time they will be allowed to spend outside of the United States and still retain their lawful permanent resident (LPR) status. Failure to remain in the United States for prolonged periods of time could lead to a revocation of one’s LPR.

In order to stay in Lawful Permanent Resident or Conditional Resident (CR) status for United States Immigration purposes the alien in question must maintain an actual domicile in the USA and not remain outside of the country (as defined in the United States Immigration and Nationality Act) for longer than one year. A Green card holder classified as LPR or CR who possesses a re-entry permit issued by an office of the United States Citizenship and Immigration Service in the United Sates may stay outside of the United States until the re-entry permit’s expiration date. Upon initial issuance, re-entry permits are usually issued with a validity of two years.

An alien classified as having Lawful Permanent Residence or Conditional Residence in the USA who has not returned to the United States for a span of time longer than twelve months, or past the expiration date of a re-entry permit, will be  required to obtain a new immigrant (CR-1 or IR-1 in the case of spouses) visa in order to reenter the United States in order to reestablish permanent residence.

Under specific provisions of United States Immigration law an exception was created which confers special immigrant status as a returning resident to a Lawful Permanent Resident or Conditional Resident who has lingered outside of the United States due to extenuating circumstances beyond the alien’s control. Although being approved for returning resident status negates the requirement that an immigrant visa application be filed on behalf of the alien with USCIS, the alien must establish his or her eligibility for a US immigrant visa, have a medical examination performed and remit the visa processing fee of three hundred and fifty-five United States dollars with an additional security fee of forty-five United States dollars as well as the fee for the medical examination.

Of Important note to Conditional Residents (CR) of the United States in a situation such as this: if a CR fails to submit an application to have the conditionality of resident status lifted, then that person must apply for a new immigrant visa. In this situation, the CR is not allowed to submit an application for status as a returning resident.

Much like advance parole for a K1 visa holder, the SB-1 returning resident travel document and the re-entry permit are both very important documents should an immigrant seek to leave the United States.

(Please be advised that this post is meant for educational purposes only and does not constitute legal advice. No Attorney-Client Relationship is to be deemed to have been formed between the writer of this piece and any subsequent readers.)

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21st June 2009

Crossing Over utilizes multiple perspectives to tell the story of immigrants from different countries aspiring to obtain Lawful Permanent Resident Status in the USA. The movies touches upon the issues of illegal border crossing, false documentation, asylum status, green card obtainment procedures, workplace enforcement, adjustment of status, naturalization, and counter terrorism.

It was interesting to watch this film because it depicted all of the different United States agencies and offices that oversee the immigration process. The film also provided exposure about what United States Immigration officers are deputized to do. That being said, I felt it was a massively unfair portrayal of the personal character traits of most of the officers in Immigration and Customs Enforcement (ICE) and United States Citizenship and Immigration Services.

The portrayal at the beginning of the film made it seem as though all ICE officers were heartless authoritarian brutes. In reality, I doubt this portrayal is accurate. I understand the reason for this less than flattering depiction: it was used to contrast Harrison Ford’s relative compassion when compared against his colleagues. From this standpoint, one can give the filmmakers some leeway on this point.

In another plot line of the film Ray Liotta plays a corrupt USCIS officer who uses his position as a top level adjudicator to bequeath a Green Card upon an aspiring actress in exchange for sleeping with him. If I was a USCIS officer I would be infuriated by this depiction. Its not that corruption doesn’t occur, but that portrayals such as this make it seem as though all employees of the agency lack an ethical compass, which I am sure is not the case.

Overall, I liked the movie because it brought up some interesting human issues, but from the context of United States Immigration I think it portrayed the government as all, or nearly all, bad.

I will say that I liked Ashley Judd’s performance as a United States Immigration attorney although it seemed somewhat stilted in places. Also, there were a few instances in the movie where I felt the attorney Judd played should have been more zealously advocating on behalf of her client. Can we say, “writ of habeas corpus?”

In closing, this was one of Harrison Ford’s best movies in years, which is not saying much if you have seen Indiana Jones and the Kingdom of the Crystal Skull. The movie had an all-star cast and I would argue it had no particular main character, which was interesting. The film effectively drew together multiple plot threads and culminated in some very moving sequences. I would recommend this film to anyone who is interested in the Immigration process or just enjoys well made films.

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20th June 2009

A question sometimes posed with regard to US Immigration from Thailand involves the possibility of a Thai fiancee or spouse eventually acquiring United States Citizenship by naturalization. Even in a case in which the couple in question is seeking a K-1 visa or a K-3 Visa (which are both non-immigrant visas) there still seems to be an underlying belief that eventually the immigrant fiancee or spouse will one day wish to acquire United States citizenship.

Many people wonder about the time and residency requirements for naturalization. In many cases the ability to read, speak, and write in the English language is a requirement and a general knowledge of the history and government of the United States is also mandatory.

As to the residency requirement, the United States Citizenship and Immigration Service (USCIS) stipulates that one must have been lawfully admitted to permanent residence in the United States in order to subsequently apply for citizenship. The USCIS website goes further and states:


“Lawfully admitted for permanent residence means having been legally accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws. Individuals who have been lawfully admitted as permanent residents will be asked to produce an I-551, Alien Registration Receipt Card, as proof of their status.”

To quote further from the USCIS website, in order to Naturalize as a United States Citizen one must meet the following eligibility requirements set forth under the Immigration and Nationality Act. Basically, the applicant must:

  1. have resided continuously as a lawful permanent resident in the U.S. for at least 5 years prior to filing with no single absence from the United States of more than one year;
  2. have been physically present in the United States for at least 30 months out of the previous five years (absences of more than six months but less than one year shall disrupt the applicant’s continuity of residence unless the applicant can establish that he or she did not abandon his or her residence during such period)
  3. have resided within a state or district for at least three months

Beyond these requirements the applicant must also show that they are of good character. Which is best indicated by an absence of criminal record. In cases where a child of an American Citizen is not eligible to acquire US citizenship at birth, naturalization technically occurs automatically upon the child’s entry into the United States on an Immigrant Visa.

Please note: that where the applicant for naturalization gained lawful permanent residence due to marriage to a United States Citizen, the time requirement for naturalization is 3 years of permanent residence and 18 months physical presence in the United States.

(This post is intended for general informational purposes only and should not be used as substantive legal advice. For more information please contact a licensed attorney. This post does not create a lawyer-client relationship between the person writing this post and those later reading it.)

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20th June 2009

Recently, we have received a number of inquiries regarding the so-called Green Card lottery. In the past, Congress created a visa category designed to allow certain foreign nationals access to the United States as Permanent Residents provided they meet occupational requirements and are natives of certain countries which are underrepresented as immigrant groups in the USA. A yearly lottery is held to determine who shall be granted this type of visa.

The State Department is very clear about the fact that assistance in filling out the Diversity Visa application is probably not a necessity in most cases, and they further warn prospective Visa applicants to be wary of those claiming they can assist in the process or “guarantee” a visa. Integrity Legal does not assist with Diversity Visa applications. That being said, as a courtesy to our readers, below is a list of the countries whose nationals are entitled to apply for Diversity Visa benefits for 2010.

The list below shows the countries whose natives are eligible for Diversity Vise in 2010, grouped by geographic region, for more information please see the State Department Website:


AFRICA

Algeria, Angola, Benin, Botswana, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo, Democratic Republic of the Cote D’Ivoire (Ivory Coast), Djibouti, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Gabon, Gambia, Ghana, Guinea, Guinea-Bissau, Kenya, Lesotho, Liberia, Libya, Madagascar, Malawi, Mali, Mauritania, Mauritius, Morocco, Mozambique, Namibia, Niger, Nigeria, Rwanda, Sao Tome and Principe, Senegal, Seychelles, Sierra Leone, Somalia, South Africa, Sudan, Swaziland, Tanzania, Togo, Tunisia, Uganda, Zambia, Zimbabwe, Persons born in the Gaza Strip are chargeable to Egypt.

ASIA
Afghanistan, Bahrain, Bangladesh, Bhutan, Brunei, Burma, Cambodia, East Timor, Hong Kong Special Administrative Region, Indonesia, Iran, Iraq, Israel, Japan, Jordan, Kuwait, Laos, Lebanon, Malaysia, Maldives, Mongolia, Nepal, North Korea Oman, Qatar, Saudi Arabia, Singapore, Sri Lanka, Syria, Taiwan, Thailand, United Arab Emirates, Yemen

Natives of the following Asian countries are ineligible for this year’s diversity program: China (mainland-born), India, Pakistan, South Korea, Philippines, and Vietnam. Hong Kong S.A.R and Taiwan do qualify and are listed above. Macau S.A.R. also qualifies and is listed below (Europe). Persons born in the areas administered prior to June 1967 by Israel, Jordan, and Syria are chargeable, respectively, to Israel, Jordan, and Syria.

EUROPE
Albania, Andorra, Armenia, Austria, Azerbaijan, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark (including components and dependent areas overseas), Estonia, Finland, France (including components and areas overseas), Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Kazakhstan, Kosovo, Kyrgyzstan, Latvia, Liechtenstein, Lithuania, Luxembourg, Macau Special Administrative Region, Macedonia, Malta, Moldova, Monaco, Montenegro, Netherlands (including components and dependent areas overseas), Northern Ireland, Norway, Portugal (including components and dependent areas overseas), Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Tajikistan, Turkey, Turkmenistan, Ukraine, Uzbekistan, Vatican City

Nationals of the following European countries are ineligible for this year’s diversity program: Great Britain (United Kingdom) and Poland. Great Britain (United Kingdom) includes the following dependent areas: Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, St. Helena, and Turks and Caicos Islands. Note that for purposes of the diversity program only, Northern Ireland is treated separately; Northern Ireland does qualify and is listed among the qualifying areas.

NORTH AMERICA
The Bahamas

In North America, natives of Canada and Mexico are ineligible for this year’s diversity program.

OCEANIA
Australia (including components and dependent areas overseas) Fiji, Kiribati, Marshall Islands, Micronesia, Federated States of Nauru, New Zealand (including components and dependent areas overseas), Palau, Papua New Guinea, Solomon Islands, Tonga, Tuvalu, Vanuatu, Samoa

SOUTH AMERICA, CENTRAL AMERICA, AND THE CARIBBEAN
Antigua and Barbuda, Argentina, Barbados, Belize, Bolivia, Chile, Costa Rica, Cuba, Dominica, Grenada, Guyana, Honduras Nicaragua, Panama, Paraguay, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago, Uruguay, Venezuela

Countries in this region whose nationals are ineligible for this year’s diversity program: Brazil, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Jamaica, Mexico, and Peru.

For information about Integrity Legal’s Immigration Services please see: Fiance Visa Thailand

(Be Advised: This content does not constitute legal advice. Please seek legal advice from a licensed attorney. No Attorney/Client Relationship is created by reading this piece.)

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