The New “Hardship” Filing Rule in Immigration Law

Earlier in January, Secretary of Homeland Security Janet Napolitano announced that on 4 March 2013, USCIS‘s new family unity waiver process will go into effect. The new process will decrease the amount of time US citizens are apart from their immediate relatives — spouse, children and parents — who are in the process of acquiring visas for lawful permanent residency in the US. Particular individuals can fill out a form, called a provisional unlawful presence waiver, before leaving the US and interviewing in their home country.

Final Rule

“This final rule facilitates the legal immigration process and reduces the amount of time that US citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa,” said Secretary Napolitano.

Current Law

Current law is much different. According to current law, a US citizen’s immediate relatives, who cannot adjust their status to become US lawful permanent residents, must depart the US and acquire an immigrant visa in their country of origin. Those who have unlawfully been in the US for more than six months must obtain a waiver that overlooks their unlawful status and overstay before the can return to the US after going to their home country to appear at  US Embassy or Consulate to be approved for an immigrant visa.  This has  meant that if the waiver was denied by the Consulate abroad, the relative was not allowed to re-enter the United States to be re-united with their family.  A great many people were therefore understandably reluctant to avail themselves of this benefit without a decent chance of a favorable outcome.

Qualifying for a Waiver

In order to qualify for a provisional unlawful presence waiver, the applicant must be an immediate relative of a US citizen, inadmissible only on account of unlawful presence and show that a rejected waiver will end in “hardship” for the applicant’s US citizen relative.  The grounds of waiver remain the same.  The wait time is reduced because the waiver is adjudicated by USICS in the United States and therefore the wait time outside the US is reduced.

The New Process

The new process will have a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver. Individuals who apply under the new waiver must inform the DOS’s National Visa Center before filing.

The Takeaway

The new waiver process will allow eligible applicants to remain in the US while anticipating the outcome of their application. No more waiting in Ciudad Juarez, where local dangers await the unwary; where being found inadmissible means that families have to make the choice to leave the US, and cannot re-unite with a spouse or parent.

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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USCIS Enters the Digital Age

In an effort to modernize and systemize immigration policy, USCIS recently launched the USCIS Policy Manual Page. The Policy Manual page will be split into three phases: the first phase is information on USCIS Citizenship and Naturalization policies — following phases will encompass further updates to different areas of immigration law.

USCIS’s new Policy Manual will, at some point, take the place of the current Adjudicator’s Field Manual (AFM). The rejuvenated Policy Manual will digitally streamline most aspects of immigration policy, including policy updates, immigration forms, updated and extended table of contents, and URLs to INA and CFR sections. USCIS will also supply dates for when updates have occurred on the Policy Manual page, which can be found here.

USCIS is making progress towards e-filing and digitizing its data and adjudications. Last May, USCIS introduced its Electronic Immigration System (ELIS) program. The system was created to enable immigration benefit seekers and legal representatives to create an account to file for benefits, and extend visas, online. The program is now moving towards welcoming other visa processes.

Today, immigration law is like a piece of Swiss cheese: if the body of the cheese represents the law, the larger holes are filled in with regulations and the small holes with memos from USCIS Directors. This still leaves some situations unaddressed or ripe for litigation and denials.

The Takeaway

Currently, all the resources for naturalization, laws, regulations, memos and AFM, have been consolidated in the policy manual. We hope highly complex areas, such as H1B visa and L visa filings and adjudications can be consolidated in the policy manual, offering the filer the assurance that all the legal resources related to the filing have been exhausted. This will lend transparency to adjudications and certainty to the law. Dare I dream?

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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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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USCIS Develops Tools to Help Foreign Entrepreneurs in the US

In late November, USCIS Director Alejandro Mayorkas revealed a new addition to the Entrepreneurs in Residence (EIR) initiative, an online resource center called Entrepreneur Pathways. The digital resource center will aid entrepreneurs, who are looking to start a business in the US, in maneuvering through the immigration process.

The EIR initiative

The USCIS EIR initiative was instituted in early 2012, and works to bolster USCIS policies and economic growth using industry expertise. The EIR Team is comprised of USCIS immigration and business experts who work together to standardize the process for obtaining various nonimmigrant visa categories that are often utilized by entrepreneurs.

Additionally, the EIR team has also:

  • Developed and deployed a training workshop for USCIS employment-based immigration officers that focuses on startup businesses and the environment for early-stage innovations;
  • Trained a team of specialized immigration officers to handle entrepreneur and startup cases;
  • Modified Request for Evidence templates for certain nonimmigrant visa categories to incorporate new types of relevant evidence into the adjudicative process; and
  • Developed a plan for quarterly engagements with the entrepreneurial community to ensure that USCIS stays current with industry practices.

One of the team’s main goals is to find a way for foreign entrepreneurs to establish a business in the US within the scope of immigration law. In order to continue to build momentum, the EIR team will remain in effect until April 2013.

What We Need Now

A great first step has been taken by USCIS using the present framework to answer a need for self-sponsorship by entrepreneurs; but the same processing-bottlenecks remain in place, such as long waits for filing adjustment of status to complete the ‘green card’ process due to backlogged priority dates. We may be better served instead if there were more treaty countries added to the E-Treaty Trader and Treaty Investor Visas, or if there was a separate category of E-Investor Visa at the $250,000 investment level with a requirement for four full-time jobs created.

Subscribe to read my blog regularly. Your comments are welcomed.

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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What An Employer Should Do Now that H-1B Visas are Over

As of December 1, 2011, the US Consulate General in Chennai will process all Blanket L Visas. The New Delhi US Embassy and Mumbai, Kolkata and Hyderabad US Consulates no longer process petitions for Blanket L Visas. Visas for dependent spouse and children (L-2) and individual visas (L-1A and L-1B) can still be processed at the Chennai, Hyderabad, Kolkata, Mumbai and New Delhi posts.

What is a Blanket L Visa?

A Blanket L visa is available to employees whose employers hold such a designation to file L visas under a Blanket L permit, issued by the Department of State. To be eligible, an employer must be in business in the US for more than one year; have three or more domestic or foreign, subsidiaries or affiliates; and be engaged in commercial trade or services. The employer must also have annual US sales of $25 million; a US workforce of 1,000 employees; or the employer should have received at least 10 L petitions in the last 12 months. An employer may be in danger of losing their Blanket L permit if they file fewer than 10 petitions in the prior year. Only commercial employers can be approved for a Blanket L permit; non-profits are not eligible.

Blanket L visas are for employees who have, in the three past years, been employed abroad for one year and will continue to be employed by the same company in the US. Employees can either be petitioned individually or under a blanket, and must meet the criteria of a “specialized knowledge” professional, executive or manager.

Three Major Issues

1. Will the L visa employee work at client sites?

If your answer is yes, then you must establish an employer-employee relationship during the time the employee is working at a third party worksite on behalf of the petitioner (employer). If the employee is to work in the office of the L visa employer, then that fact should be made very clear both in the documentation and at the interview. Consular officers are very concerned about L visas being misused by employers and being used when H-1B visas are no longer available.

At the US Consulate, the employee is often asked to go up to a window to answer questions. The interview is about 5 minutes, and very often consular officers may not have the time to read the entire petition. If the employee is to work on a particular project at a site other than the US employer’s offices, that fact should also be presented both at the interview and substantiated in the application.

L visa employees must be ready to answer any and all questions, and justify the reason for working at a end-client’s office instead of working at the L visa employer’s office.

2. Is the salary of an ordinary programmer or of a specialist in an L-1B visa category?

Salary earnings in India are indicative of the level of services an employee provides for his/her company; there is certainly a difference between IT workers who complete general services and those who have specialized knowledge. If the applicant is earning a sizeable salary, it is important to state the applicant’s salary in the support letter; salaries are often indicative of a specialist eligible for an L-1B visa instead of a programmer more suited to H-1B visa category status.

It is these distinctions that have caused a rise in the denial rate, 27%, of all filed L visa applications.

3. Is the applicant’s work in India not indicative of a specialized job?

The consular officers will most likely deduce that the applicant has no specialized knowledge if the applicant’s work in India is based in general services. This can include testing; enterprise recourse planning maintenance; or execution of Oracle, Microsoft or SAP software.

Experience

L-1B visa holders are supposed to be specialists; if the applicant has a three-year degree and one year of experience, then the consular officer is not likely to consider the applicant experienced enough to warrant an L-1B visa approval. The standard by which L visa applications are approved is “clearly approvable”. Hence, the burden of proving L visa eligibility lies with the employer. If the L visa has been approved by USCIS, the US Consulate may grant the L visa unless special circumstances exist, or the consulate determines more evidence is required.

We live in a climate where no USCIS application is sacrosanct, and where the Department of State often re-adjudicates USCIS approvals.

B-1 In Lieu of H-1B

The B-1 In Lieu of H-1B visa is a hybrid visa, a cross between a business visa and an employment visa in the US. The employee with H-1B visa qualifications comes to the US instead on a business visa (B-1), applies for the visa at the consulate and declares intent at the border. This employee cannot receive any remuneration in the US other than an expense allowance.

However, this visa is under attack. Employers should demonstrate that there are unexpected circumstances and an urgent need for the employee to obtain a B-1 Visa In Lieu of an H-1B. The controversy arises over the extent to which the B-1 visa is used or misused in lieu of an H-1B. Even if the consulate grants this visa, it is likely that the visa holder may encounter difficulty at the US port of entry.

True need for the visa must be well-planned to demonstrate the benefit of the short-term visit to the foreign employer, as opposed to the US client.

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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DHS Enforcement Actions — July 2012

On July 19, Department of Homeland Security’s (DHS) Secretary Janet Napolitano spoke before the House Judiciary Committee, offering important information on how US immigration law enforcement would affect employers.

US Immigration and Customs Enforcement

Since January 2009, ICE has audited 8,079 employers who are suspected of “knowingly hiring” workers who do not have authorization to work in the US. The federal government has also debarred 726 companies and individuals from federal contracts; imposing and collecting more than $87.9 million in fines and sanctions against companies and their officers.

Sec. Napolitano said ICE will eliminate high-profile raids on worksites because such raids do little to improve public safety. The government now feels that deportation of criminal aliens and unauthorized workers is having little affect on employers’ willingness to hire these individuals. Instead, the government will renew and focus its efforts on Form I-9 inspections; civil fines; debarment; and employer education and compliance with current law.

USCIS, ICE and the Office of Special Counsel (OSC) have greatly increased their engagement with employers and the public through national and local stake holder meetings, webinars and newsletters. Self-check through E-Verify is also encouraged for individual employees. There are now 385,000 companies participating in E-Verify with more than 1.1 million hiring sites. E-Verify is also developing a robust customer service hotline; and increasing outreach staff to promote the E-Verify’s benefits, and educate employers and employees about rights and responsibilities.

Federal agencies receive information to prosecute employers through local police enforcement; traffic stops; criminal prosecutions and informers; and through employee complaints to ICE hotlines and OSC online complaint forms.

The Obama Administration is refocusing efforts on worksite compliance and arrests of unauthorized and criminal aliens, and deporting these aliens at great cost to their countries of origin.

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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Missouri Lawyers Weekly: Immigration decision may have impact on Missouri laws

My coworker, Diane Metzger, and I were recently interviewed for an immigration article in Missouri Lawyers Weekly. The article focuses on the Supreme Court’s ruling of Arizona immigration law, and how the ruling may affect Missouri immigration law.

Reprinted with permission from Missouri Lawyers Media.

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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Visiting India

India is a very beautiful, colorful place–but like many countries, tourists must apply for a visitor’s visa in order to gain entrance. A foreigner is only granted a tourist visa if he/she does not possess property or a job in India, and whose only goal is recreational: sight-seeing and meeting friends and family.

Apply by Mail

To apply by mail, applicants should fill out and print the application with all the required documents. Send it through a carrier with trackable mail: FedEx, UPS or USPS. Applications sent by mail will take 7-9 business days to process. Once the India Visa Center receives an application, they will notify the applicant of receipt via email and attach an individualized URL that allows the applicant to check on the status of his/her application.

Apply in Person

To apply in person, visit the nearest India Visa Center; bring all required documents and a completed application.

Same Day Visas

Sam day visa applications for US-born US citizens will only be accepted in person by appointment at the India Visa Center. Applicants can choose an appointment time when filling the online application, and will need to pay the application fee in cash or by money order.

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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ICE Targets F-1 Visa Violators

ICE targets visa violators:

Forty immigration status violators, visa overstays and foreign students were arrested by special agents with US. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI). These violators disobeyed the conditions of their nonimmigrant visas during a 12-day operation that ended Friday, June 1.

Immigration Status Reviewed

Twenty-one men and 19 women were arrested by HSI’s Counterterrorism and Criminal Exploitation Unit (CTCEU), part of a national program designed to prevent terrorists and other criminals from exploiting the nation’s immigration system. In addition, CTCEU reviews the immigration statuses of known and suspected terrorists; combats criminal exploitation of the student and exchange visitor visa program; and leverages HSI’s investigative expertise to identify national security threats.

Countries Targeted for Removal for Overstay and Visa Violations

Those arrested are from the following 17 countries: Saudi Arabia(1), Yemen(1), Kenya(15), Azerbaijan(1), Zimbabwe(1), Zambia(1), Nepal(2), Nigeria(4), Gambia(2), Cameroon(3), Grenada(2), Thailand(1), Spain(1), Jamaica(1), Dominican Republic(1), Mexico(2), and Antigua and Barbuda(1).

The 40 arrested were encountered in Edmond, OK, and the following 12 north Texas Cities: Wichita Falls, Tyler, Lubbock, Amarillo, Abilene, Arlington, Prosper, Irving, Dallas, Plano, Carrollton And Mansfield. All have been processed for immigration removal proceedings.

Grounds for Removal

In addition to their immigration violations, three of those arrested falsely claimed US citizenship, which is a felony and results in being permanently barred from legally re-entering the US. A Mexican national was also arrested and charged for illegally re-entering the US after having been previously deported twice.

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.

Any information here is not meant as legal advice, but strictly educational.

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USCIS Centralizes Filing and Adjudication of I-601 and I-212

Today, US Citizenship and Immigration Services (USCIS) announced the centralized filing and adjudication of certain waivers for grounds of inadmissibility.

Beginning June 4, 2012, individuals abroad who have applied for certain visas and have been found ineligible by a US Consular Officer will be able to mail requests to waive certain grounds of inadmissibility directly to a USCIS Lockbox facility. This change affects individuals abroad who have been found inadmissible for an immigrant visa or a nonimmigrant K or V visa — these individuals must send waiver applications.

Currently filed applications
Currently, applicants experience processing times from one-month to more than a year, depending on their filing location. USCIS’s new centralization will provide customers with faster and more efficient application processing and consistent adjudication. It is part of a broader agency effort to transition to domestic filing and adjudication; it does not reflect a change in policy or the standards by which the applications are adjudicated. Individuals filing waiver applications with a USCIS Lockbox will now be able to track the status of their case online.

The change affects filings for:
• Form I-601, Application for Waiver of Grounds of Inadmissibility
• Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal
• Form I-290B, Notice of Appeal or Motion, (if filed after a denial of a Form I-601 or Form I-212).

Applicants who mail their waiver request forms should use the address provided in the revised form instructions on the USCIS website. Applicants who wish to receive an email or text message when USCIS receives their waiver request, may attach Form G-1145, E-Notification of Application/Petition Acceptance, to their application.

Filing a waiver at Ciudad Juarez
During a limited six-month transition period, immigrant visa waiver applicants in Ciudad Juarez, Mexico, will have the option to either mail their waiver applications to the USCIS Lockbox in the US, or file in-person at the USCIS office in Ciudad Juarez. Applications filed at CJ will be transferred to the US for adjudication.

If you filed before June 4th, 2012
USCIS is aware of the pending caseload for applicants in Ciudad Juarez, and is taking proactive steps to work through these cases. USCIS will significantly increase the number of officers assigned to adjudicate the residual cases filed before June 4, and those filed during the interim six-month transition period. USCIS has already begun to test this process and has transferred applications from Ciudad Juarez to other USCIS offices in the US.

This change is separate and distinct from the provisional waiver proposal published in the Federal Register on March 30, 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.

This blog is not intended as legal advice.

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