New Look to Green Cards & EAD Cards  

USCIS will start issuing redesigned cards with enhanced graphics to applicants.  The new cards will start being issued on May 1, 2017.

These redesigns use enhanced graphics and fraud-resistant security features to create cards that are highly secure and more tamper-resistant to prevent document tampering, counterfeiting and fraud; than the ones currently in use.

The Redesigned Cards

The new Green Cards and EADs will:

  • Display the individual’s photos on both sides;
  • Show a unique graphic image and color palette:
  • Green Cards will have an image of the Statue of Liberty and a predominately green palette;
  • EAD cards will have an image of a bald eagle and a predominately red palette;
  • Have embedded holographic images; and
  • No longer display the individual’s signature.

Also, Green Cards will no longer have an optical stripe on the back.

How To Tell If Your Card Is Valid

Some Green Cards and EADs issued after May 1, 2017, may still display the existing design format as USCIS will continue using existing card stock until current supplies are depleted. Both the existing and the new Green Cards and EADs will remain valid until the expiration date shown on the card.

Certain EADs held by individuals with Temporary Protected Status (TPS) and other designated categories have been automatically extended beyond the validity date on the card.

Employers, please note that both the older version and the new cards are acceptable for Form I-9, Employment Eligibility Verification, E-Verify, and Systematic Alien Verification for Entitlements (SAVE).

Some older Green Cards do not have an expiration date.  These older Green Cards without an expiration date remain valid.

Individuals who have Green Cards without an expiration date may want to consider applying for a replacement card bearing an expiration date. Obtaining the replacement card will reduce the likelihood of fraud or tampering if the card is ever lost or stolen.

Nalini S Mahadevan, JD, MBA ▪ nsm@mlolaw.us ▪ Office: 314.932.7111 & 314.402.2024

Disclaimer:  Not meant as legal advice! For information purposes only.

 

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Secretary Johnson Announces Process for DACA Renewal

In early June, Secretary of Homeland Security Jeh Johnson released the procedure for individuals to renew their enrollment in the Deferred Action for Childhood Arrivals (DACA) program. The Federal Register now has the updated form that individuals, who were already enrolled in DACA, can use to extend their deferral for two years. USCIS has already begun taking forms for renewal. USCIS is also taking forms from those who were not previously enrolled in DACA. Over 560,000 individuals have enrolled in DACA since April 2014.

The DACA approvals for those who were already enrolled will start expiring in September 2014. To prevent deferral and an interruption in employment authorization, individuals must re-enroll for the program before their approvals expire—according to USCIS, individuals should re-enroll at least 120 days, or four months, before their deferred action lapses.

DACA defers removal action for certain individuals, and allows them to stay in the US and acquire employment authorization for two years. Individuals who were not previously enrolled in DACA, but meet DACA’s guidelines, may still apply for deferral. Only those who have steadily lived in the US since June 15, 2007 are qualified for DACA.

Individuals can re-enroll in DACA if they meet these guidelines:

  • Did not depart the US on or after Aug. 15, 2012, without advance parole;
  • Have continuously resided in the US since they submitted their most recent DACA request that was approved; and
  • Have not been convicted of a felony, a significant misdemeanor or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.

You may renew your enrollment in DACA by filling out the new Form I-821D “Consideration of Deferred Action for Childhood Arrivals,” Form I-765 “Application for Employment Authorization,” and the I-765 Worksheet. Form I-765 has a filing and biometrics fee of $465. USCIS will also run a background check on DACA renewals.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Copyright 2014. All rights reserved.

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Why Comprehensive Immigration Reform Has a Chance to Pass This Year

Since President Obama was inaugurated for his second term, he has made Comprehensive Immigration Reform (CIR) a key policy initiative for his administration. Interest groups from the left and right, and even some Republicans, such as Florida Sen. Marco Rubio, are also in support of a comprehensive overhaul of US immigration laws.

Condoleezza Rice (former Secretary of State in the Bush Administration), Henry Cisneros (former Housing and Urban Development Secretary) and Haley Barbour (former Mississippi Governor) are three of 4 leaders spearheading a high profile group by the Bipartisan Policy Center in Washington D.C. The group’s aim is to act as a sounding board, and to assist and shepherd the initiative into law by the summer of 2013.

Bipartisan support continues, as Senators from both parties have also offered Obama a framework of principles that they hope will be included in CIR. This bipartisan group consists of eight senators, four Democrats and four Republicans: Sens. Charles Schumer (D-N.Y.), John McCain (R-Ariz.), Richard Durbin (D-Ill.), Lindsey Graham (R-S.C.), Robert Menendez (D-N.J.), Marco Rubio (R-Fla.), Michael Bennet (D-Colo.), and Jeff Flake (R-Ariz.).

A Round Up of Ideas Offered by Proponents

The draft of the Senators’ proposed bill, entitled the “Immigration Innovation Act”, increases available H1B visas from 65,000 to 115,000 visas every year. It will create a market-based H1B escalator, which will allow for additional visas if the cap is hit early during the filing season, with a ceiling of 300,000 visas. The visas will be adjusted based on market demands.

The 20,000 H1B visa cap for US Masters and PhD students will also be abolished, allowing the US employer to employ foreign students of US universities with advanced degrees without limit.

This bill will provide the ‘plug and play’ workers needed by all sectors of industry, whether it be healthcare or hospitality; workers who are ready to hit the ground running, and keep services for the American consumer consistently available.

In addition, there is a proposal to allow dependents of H1B visas to work on their H4 visas.  Of course, there will be an increase in the filing fee, dedicated to worker re-training at the state level in technical fields.

The senators’ framework stipulates that, before illegal US immigrants can attain “probationary legal status”, they must pass a background check, as well as pay fines and back taxes. Illegal immigrants with serious criminal backgrounds will not be eligible for legal status. Additionally, the framework states that illegal immigrants will not be granted work authorization until the government increases enforcement, such as expanded border surveillance, to protect and secure the nation’s borders.

The President’s Plan Is Not So Differrent

Obama’s proposal for immigration reform comes in four parts:

  1. Strengthen our borders;
  2. crack down on companies that hire undocumented workers;
  3. hold undocumented immigrants accountable before they can earn their citizenship; and
  4. streamline the legal immigration system for families, workers and employers.

Earned Citizenship

Almost 11 million undocumented immigrants live in the US. Obama proposes to give undocumented immigrants the legal means necessary to earn citizenship, which will also persuade them to come out from hiding and pay their taxes and adhere to the rules. Illegal immigrants will be held accountable: before they can obtain citizenship, they must pass national security and criminal background checks, pay back taxes and penalties, learn English, and go to the back of the line. Young people will also have the chance to gain citizenship faster if they seek higher education or serve in the military.

Mandatory E-verify

Sen. Chuck Grassley of Iowa has introduced a mandatory E-Verify bill, which will require all employers to verify the authorized work status of their US workers. Today, the E-Verify system is voluntary; however, Sen. Grassley’s bill requires all employers to comply within 1 year of enactment. The bill will reduce employer’s liability for wrongful termination, and use E-verify to screen an applicant with his/her consent. The bill also imposes a mandate on the Social Security Administration to develop algorithms to detect multiple users of single Social Security numbers.

How will CIR help our economy?

Our economy demands legal immigration that is simple and adept, so that it encourages the best and the brightest to remain in the USA. A shorter wait for permanent resident status for the highly educated immigrants will boost the economy — if it is easier for STEM graduates to stay in the US, they will bolster and create industries, therefore creating jobs.

University education in the US will get a boost from the revenues generated by foreign students and their families; estimates put the revenue generated by foreign students at about $20 to $40 billion dollars every year. Often, American universities spend several hundreds of thousands of dollars educating these students, only to lose them to Canada, Australia, UK and Europe, or the students’ home countries. A chance for these students to remain in the US and pursue their academic and entrepreneurial dreams will add to the economy.

The taxes collected from the highly educated will help ensure that our Social Security and Medicare budgets are met. This revenue stream will be enhanced by offering a chance for a legalized workforce to pay employment-based taxes. These taxes will reduce the strain on American social systems, such as hospitals and schools. A legal workforce will be paid the mandated prevailing wage. Without a Social Security Number, a worker cannot open a bank account, buy car insurance, obtain a driver’s license, or attend school or college. Hence, a legalized workforce will provide a boost to the insurance, banking and finance industries, and increase wages for all, as employers will now pay the legal minimum wage.

The proposals all call for supplemental visas so that foreign entrepreneurs wanting to begin startups, and foreign graduate students with STEM degrees, will either come to the US to work or remain in the US post-graduation. We want, and need, the best and brightest minds for the US to flourish.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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DACA Applications Received and Approved

Since the Obama Administration announced the Deferred Children for Childhood Arrivals (DACA) Memorandum, which allows immigrants who meet certain requirements to apply for deferred action, 53,273 applications have successfully gone through the entire approval office and been accepted.

A total of 308,935 applications have been submitted for approval since August — 298,834 of those applications have been accepted for the approval process; 10,101 have been rejected; 273,203 have been scheduled for biometrics; and 124,572 are still under review for complete approval. Almost 4,827 average requests are filed per day.

Of the top countries of origin, Mexico is the highest with 212,514 applications received to date. The other top countries are El Salvador, Honduras, Guatemala, Peru, South Korea, Brazil, Colombia, Ecuador and the Philippines. Of the top states of residence, California is the highest with 81,858 applications received to date. The other top states of residence are Texas, New York, Florida, Illinois, North Carolina, Arizona, New Jersey, Georgia and Virginia.

There is no application deadline for DACA.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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How DACA Affects Employers

As of today, USCIS has received 298,834 applications for Deferred Action for Childhood Arrivals (DACA) eligibility. Of these, 53,273 have been approved; workers who have been approved will either seek new employment or continue with past employment. My previous blog post from mid-October discussed how employers could unintentionally admit to ‘knowingly’ hiring unauthorized workers who apply for DACA.

DACA allows illegal immigrants, who meet certain guidelines, to remain in the US. Individuals who receive approval, also receive USCIS-issue work authorization cards called Employment Authorization Document (EAD) to demonstrate eligibility to work in the US for US employers.

Under current law, employers must keep a Form I-9 for all hired employees, both citizens and non-citizens, who are engaged to work in the US. USCIS has now issued specific guidance for employers about treatment of DACA recipients’ EAD cards, and procedures to record and process their Forms I-9 for these employees.

Hiring new Employees with EAD cards issued under DACA

In order to properly complete a Form I-9, certain documentation is required to prove both identity and employment authorization; under List A, an unexpired EAD is an acceptable document for Form I-9 completion.

The DACA EAD provides proof that an employee has been allowed to stay in the US and has been authorized to work, but has no legal status. The employer can enter EAD information in Section 2 under List A since an EAD card provides both proof of identity and work authorization. The EAD alone provides I-9 proof of the employee’s ability to work in the US; if the employer is presented with an EAD, he or she may not ask for additional documents. When an EAD expires, the employer must reverify that the employee still has work authorization in Section 3 of Form I-9.

Guidance for Processing Existing Employees

Employers who collect updated documentation from employees should examine the employee’s previously completed Form I-9 to decide whether a new Form I-9 should be completed for that employee, or decide to only complete Section 3 of the original Form I-9.

Employers should complete a new Form I-9, write the original hire date in Section 2 and attach the new I-9 to the old I-9 if any of the following changes from Section 1 of the previously completed I-9:

  • employee’s name
  • date of birth
  • attestation
  • social security number (if one was provided)

Employers should only complete Section 3 of the previously completed I-9 if:

  • information from Section 1 hasn’t changed or if
  • the employee provides a new EAD

The employer should examine the documentation for authenticity; and, if provided, record the document title, number and expiration date. Employers should also sign and date Section 3.

Guidance on E-Verify

If the employer must complete a new Form I-9, and uses E-Verify, then the employer should confirm the new I-9 information through E-Verify. If the employer only has to complete Section 3 of I-9, then an E-Verify check is not required.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

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DHS Grants Same-Sex Couples a Reprieve

US immigration allows US citizens, who are ‘married’ to citizens of other countries, to apply for permanent residency based on marriage. In other words, the foreign spouse can qualify for permanent residency based on their marital relationship with the US citizen. The US government is now seeking to expand the scope of the marital relationship to include same-sex couples in long-term relationships.

To achieve this, in June 2011 the Department of Homeland Security (DHS) and US Immigration and Customs Enforcement (ICE) issued a policy called, “Exercising Prosecutorial Discretion Consistent with Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens”, or the Prosecutorial Discretion Memorandum. This policy outlined the guidelines that enforcement officers are to follow when finding and removing illegal aliens from the US. This memo was issued to explain the position that DHS and ICE would take on treatment of young immigrants who are in long-term, same-sex relationships with American citizens.

In a written statement in September, DHS further clarified the Prosecutorial Discretion Memorandum by specifically stating that young immigrants, with American same-sex partners, will remain eligible for deferral, which means that no action would be taken to remove foreign-born, same-sex couples from the US.

Prosecutorial Discretion Policy

Prosecutorial discretion is the act of an agency or officer deciding how to bring charges upon a person and how to handle a case.

When deciding how to pursue a case, enforcement officers follow the guidelines of the Prosecutorial Discretion Memorandum. As the guidelines state, officers must asses an individual’s “ties and contributions to the community, including family relationships.” As it was made clear by DHS Secretary Janet Napolitano this September 2012, these ‘family relationships’ also include “committed, long-term, same-sex partners.” Instead of centering efforts on cases that do not pose a threat to US security, the Obama administration is focusing enforcement resources on deporting immigrants who are potential risks to public safety and national security.

Policy Ambiguities

Though guidelines for same-sex couples were outlined in the Prosecutorial Discretion Memorandum, many thought the memo was vague. In July, over 80 Democrats from the House of Representatives wrote to Secretary Napolitano, “it would be beyond senseless to see L.G.B.T. persons with family ties here in the United States deported” because officers might be uninformed about the guidelines on gay partners (NYT, “Same-Sex Couples Granted Protection in Deportations”, 28 Sept 2012).

Thousands of deportation cases have been closed since DHS’s clarification. While immigrants-in-question can remain in the US, they still will not be granted legal status.

DHS’s clarification does not affect the issue of gay immigrants, who are married to American citizens, being able to acquire permanent resident visas. According to current law, same-sex immigrant spouses are not eligible for green cards and can be deported.

DHS may not deport same-sex couples, and will give these couples reprieve. However, deferral is not a path for citizenship. We will wait until November to see if these policies will be continued.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

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Employers Could Admit to ‘Knowingly’ Hiring

Young immigrants applying to Deferred Action for Childhood Arrivals (DACA) must prove that they have lived in the US for at least five years, and one way to obtain evidence is to ask employers to supply proof of job status. However, employers who consent might also be admitting that they ‘knowingly’ hired an unauthorized worker, which violates federal law.

Low Figures

There are an estimated 1.2 million young immigrants who are eligible for DACA, but since Aug. 15, when US Citizenship and Immigration Services (USCIS) began accepting applications, the Department of Homeland Security (DHS) has only received over 82,000 applications. Figures are lower than predicted, partly because of unforeseen drawbacks in DACA guidelines.

If young immigrants receive eligibility for DACA, they receive deferred action and legal work permits; but they do not receive legal immigration status. While DACA does not lead to a ‘green card’, in most states, applicants are eligible for a driver’s license, a huge benefit.

‘Knowingly’ Hiring and New DACA Guidelines

In order to be eligible, young immigrants must be enrolled in school or have a high school diploma, which may present a dilemma for employers and applicants alike. Many employers rely on low-wage labor in order to run their businesses, and many employees are young immigrants who must work in order to pay for university, or who were forced to drop out because they couldn’t afford university costs. It is estimated that 740,000 working immigrants are eligible for DACA.

USCIS, a division of DHS, made addendums to the DACA guidelines, confirming that employers can help verify DACA applicants. Evidence of knowingly hiring unauthorized workers will not be revealed, “unless there is evidence of egregious violations of criminal statutes or widespread abuses,” the guidelines state. All DHS enforcement resources are being directed towards threats on public safety.  However, the term ‘egregious violations’, has not been defined in the guidance.

DACA guidelines ask applicants to provide any Social Security numbers (SSN) they have previously used. Falsification of SSNs, whether they are fake numbers or real numbers belonging to someone else, is a common occurrence and can be seen as evidence of fraud or identity theft. However, the new guidelines state that the form is only inquiring about numbers, “that were officially issued to you by the Social Security Administration.”  Hence no disclosure of social security numbers is required if the number was not specifically applied for by the applicant. This is a huge relief for E-verify employers, who may reduce the possibility of facing social security mismatches and tentative non-confirmation messages from the Social Security Administration.

The bottom line is that no DACA applicant will be given immunity, but DHS is not interested in using the application as a means to discover individuals who may have abused federal law in an employee-employer relationship.

(NYTimes, “Deportation Deferrals Put Employers of Immigrants in a Bind”, 9/26/2012)

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

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Health Law Limitations for Young Immigrants

In June, President Obama was pleased to announce the Deferred Action for Childhood Arrivals (DACA) Memorandum – but with some ineligibilities. The Obama Administration has ruled that young immigrants, who can apply to DACA, will not qualify for health insurance under Obama’s health care renovations.

Young Immigrants Ineligible for Health Law

Normally, immigrants would fall under the definition of “lawfully present” residents, which qualifies them for government subsidies to purchase private insurance, a major facet of the new health care law. However in August, the administration declared that young immigrants will be barred from the definition of “lawfully present”.

Obama’s administration also announced that young immigrants will not be eligible for Medicaid or the Children’s Health Insurance Program – the areas of immigration and health care coverage are separate issues.

Immigration and Health Laws are Unrelated

The administration further justified their decision by stating that the immigration initiative is “an exercise of prosecutorial discretion,” that has been enacted so law enforcement officers can differentiate between immigrants who will cause a threat to national security or public safety.

According to the new federal health law, only citizens and “lawfully present” low-income immigrants are eligible for insurance subsidies. This group still includes green card holders and people granted asylum.

Immigrants who are employed, and qualify for DACA, will still be able to receive health insurance from employers; however, those who are not covered by employers will struggle to gain coverage.

(NYTimes, “Limits Placed on Immigrants in Health Law”, 18 Sept 2012)

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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Employer Liability on DACA Issues

Mike is 27 and has a GED; he is employed by XYZ company. He applies for an Employment Authorization Document (EAD) card under the Deferred Action for Childhood Arrivals (DACA) Memorandum. When he goes to his boss at XYZ, he tenders the EAD as evidence of his newly minted status as being allowed to work legally. While DACA does not confer status on Mike, he is now allowed to work legally for XYZ. Many employer liability issues arise from this scenario.

Employer Liability

Firstly, as the employer, XYZ could have constructive knowledge of the employee‘s prior unauthorized status. Hence, the employer could be charged under Missouri Omnibus immigration law as ‘knowingly’ employing an unauthorized worker in the US. In addition, XYZ could be charged with violating Form I-9 laws.

Secondly, the employer may have other potential Form I-9 issues. Now that the employer has constructive knowledge of the employee not having work authorization in the US, the employer may have to seriously consider terminating the employee, or could potentially become liable of knowingly retaining an employee whose immigration status is under question.

However, an employer is not supposed to be an immigration document expert. If the employer previously employed a worker who provided false documents that appeared to be valid and to relate to the individual employee, then the employer may provide a “good faith argument” if there is an ICE audit.

Yet, if a prior employee now declares that he/she is eligible for DACA work authorization, the employer needs to make certain that this policy of terminating this ‘newly discovered’ unauthorized employee does not discriminate against other similarly placed employees in the employer’s workforce. In other words, the employer cannot have one policy towards ‘seemingly foreign looking individuals’ and another policy towards ‘seemingly US born individuals’ if both populations present with similar DACA-related issues. This is called national origin discrimination.

Form I-9 Issues

The employer, under I-9 guidance, may have to terminate the employee who needs DACA employment authorization in order to continue working with the employee. The employer may have to terminate the employee and, if needed, rehire after new DACA-related employment authorization has been produced by the employee. The employer may also have to manage employer liability, and purge their employment records of all unnecessary I-9 documents in line with USCIS guidance.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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Post-DACA, Illegal Immigrants Face Challenges in Arizona

After this summer’s Deferred Action for Childhood Arrivals (DACA) Memorandum, illegal immigrants have been on the receiving end of great news. However, the story is slightly different in Arizona, even after many of the state’s immigration laws were found unconstitutional this past July.

Deferred Action Challenges

According to DACA, in order to be eligible for deferred action, a child must, “currently be in school, have graduated from high school, or have obtained a general education development certificate.” Arizona passed Proposition 300 in 2006, which prohibits state-funded schools from admitting undocumented immigrants to free GED classes. The situation has become problematic for illegal immigrants who are now too old to take classes in the public school system.

Denial of Benefits

In August, both Arizona Gov. Jan Brewer and Nebraska Gov. Dave Heineman issued executive orders to prohibit deferred action applicants from acquiring a driver’s license or other public benefits. Texas Gov. Rick Perry has also followed suit.

Taking the GED

While it is not compulsory to take a GED course before taking the exam, it is required that test-takers present two forms of identification at the exam. Many undocumented immigrants do not have green cards or work visas, which complicates things. The best option is to take an online course, which does not necessitate legal presence.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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