CSPA age is calculated by subtracting the number of days the petition was pending from the applicants age on the date an immigrant visa becomes available to the applicant. The applicant also files an adjustment of status application based on the second Form I-140. [^ 30] While the priority date is often the same as the filing date (also referred to as the receipt date), there are instances in which the priority date is not the same, such as in employment-based cases based on the filing of a labor certification. This letter should also include your and your parents names and dates of birth and the receipt number for your Form I-130. Even though visas are available to a principal applicant and derivative child based on their priority date and country of chargeability in both October and November, the derivative child does not apply for adjustment of status in October or November (while the principal does apply). [^ 29] A transfer request potentially affects the CSPA age calculation for the derivative beneficiaries. In most cases, you do not need a Form I-130 to get a Green Card if you are a K-2 nonimmigrant. Since your age freezes on the date the Form I-130 is filed, you benefit from the CSPA as long as your stepparent files the Form I-130 before your 21st birthday. See 9 FAM 502.6-4, Diversity Visa Processing. The Child Status Protection Act, or CSPA, was enacted in 2002 in an effort to prevent certain children from aging out while they wait to immigrate on a family-based petition. [10], Certain Preference Applicants with No Adjustment Application Pending on the Effective Date. Citizenship and Immigration Services (USCIS) is revising its policy guidance in the USCIS Policy Manual to align with the Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements Final Rule, published in the Federal Register on August 3, 2020. VAWA self-petitioners and derivatives who age out before adjusting status are considered self-petitioners for preference status, and derivatives retain the priority date of their parents Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) VAWA self-petition. When considering a claim of extraordinary circumstances, the officer should weigh the totality of the circumstances and the connection between the circumstances presented and the failure to meet the sought to acquire requirement within the 1-year period, as well as the reasonableness of the delay. A visa initially becomes available to the prospective applicant according to the Dates for Filing chart on October 1, 2020, which USCIS has designated for use in that month. Note:Certain forms, including Form I-290B, have a filing fee. The DV Program registration period began on Oct. 1, 2012, and the DV selection Letter is dated May 1, 2013. The date a Form I-590 is considered filed is the date of the principal refugee parents interview with a USCIS officer. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual regarding the Child Status Protection Act (CSPA), to include how USCIS calculates age under certain contexts and what actions satisfy the sought to acquire requirement. The calculated age is the childs CSPA age. This allows some people to remain classified as children beyond their 21st birthday. For DV applicants, the number of days the petition was pending is the period of time between the first day of the DV application period for the program year in which the principal applicant qualified and the date on which notifications that entrants have been selected become available. Limited CSPA Coverage for K-2 Nonimmigrants. The month . So, both you and your brother do qualify for CSPA, you need to write a letter to NVC stating that you and your brother may qualify for CSPA status so please review the situation, Once NVC reviews the case, they will send invoice for you and your brother. He said we need to write a letter to tell them why we believe. A previously filed Form I-824 that was denied because the principal applicant's adjustment application had not yet been approved may serve as evidence of having sought to acquire. See 9 FAM 502.1-1(D)(6), Sought to Acquire LPR Status Provision, for more information regarding how overseas applicants may satisfy the sought to acquire requirement in the consular processing context. If the visa does not remain continuously available for accepting and processing the application, and becomes unavailable again, the period starts anew once the visa becomes available again. [^ 13] A child of a widow(er) who is ineligible to be included as a derivative may be eligible for consideration under INA 204(l) or humanitarian reinstatement under 8 CFR 205.1(a)(3)(i)(C)(2). You can find the receipt number on the receipt and approval notices. Alert: On Feb. 14, 2023, USCIS issued policy guidance in the USCIS Policy Manual to update when an immigrant visa becomes available for the purpose of calculating Child Status Protection Act (CSPA) age for noncitizens seeking lawful permanent resident status in a preference category. 21 years 9 months old. CSPA applies only to the following people: If you are applying for a Green Card based on one of the categories above, you are eligible for CSPA consideration if either your qualifying Form I-485, Application to Register Permanent Residence or Adjust Status, or one of the following underlying forms was filed or pending on or after Aug.6, 2002: If you are a derivative refugee, your CSPA age is your age on the date your principal refugee parent or Form I-730 petitioner filed his or her I-590, which is the date of his or her interview with a USCIS officer. Official websites use .gov 1 USCIS-PM B - Part B - Submission of Benefit Requests, 7 USCIS-PM A - Part A - Adjustment of Status Policies and Procedures, 7 USCIS-PM F - Part F - Special Immigrant-Based (EB-4) Adjustment, 7 USCIS-PM M - Part M - Asylee Adjustment, 11 USCIS-PM A - Part A - Secure Identity Documents Policies and Procedures. Pending time includes administrative review, such as motions and appeals, but does not include consular returns. The CSPA went into effect on August 6, 2002. The visa remains available to the prospective applicant through March 2021, that is, for a continuous 1-year period of visa availability. If you think, you are eligible under CSPA then you must write letters to NVC, Consulate and INS claiming your eligibility to speed up processing on your file. If we transfer your underlying basis, calculate your CSPA age using your age at the time your immigrant visa becomes available, minus the time the petition that forms the new basis of your adjustment of status application was pending. As a K-2 nonimmigrant (child of a K-1 nonimmigrant who is the fianc(e) of a U.S. citizen), you typically get a Green Card based on your admission into the U.S. with a K-2 visa and your K-1 parents marriage to the U.S. citizen petitioner within 90 days of being admitted to the U.S. As long as you were under 21 when you were admitted to the United States as a K-2 nonimmigrant, you will not age out of eligibility for a Green Card. If the applicants CSPA age is over 21 at the time of subsequent visa availability, the applicant is no longer eligible for CSPA coverage. APPLICATION OF THE CHILD STATUS PROTECTION ACT TO THE CHILDREN OF U.S. CITIZEN PETITIONERS 2 APPLICATION OF THE CSPA TO THE CHILDREN OF U.S. CITIZEN PETITIONERS | DECEMBER 2018 B. Child's Age Frozen on the Date of the Parent's Naturalization The CSPA also amended Section 201 of the INA to provide that if a permanent resident parent who had filed a visa [15], CSPA allows children who turn 21 years old after a refugee application is filed but prior to adjudication to continue to be classified as children and remain eligible for derivative refugee status. In between we also sent an email to NVC to know the status of our CSPA application for which they replied on 22nd July 2016 like this Quote This case is currently under review for applicability of the Child Status Protection Act (CSPA). If you want to opt out of the automatic conversion, you must submit a written request to the USCIS office that approved your Form I-130. For more information about CSPA, see the following: An official website of the U.S. Department of Homeland Security, An official website of the United States government, To protect your privacy, please do not include any personal information in your feedback. However, if your stepparent and your K-1 nonimmigrant parent did not marry within 90 days (a requirement for getting a Green Card based on K-1 and K-2 nonimmigrant status), your stepparent might choose to file a Form I-130 for you. Since your age freezes on the date your stepparent files the Form I-130, you may benefit from the CSPA as long as your stepparent files the Form I-130 before your 21st birthday. If the adjustment applicant was under the age of 21 at the time the petition was filed or automatically converted, the applicant is eligible for CSPA and will not age out. [^ 37] In order to qualify under CSPA, the applicant must also remain unmarried through final adjudication and must have sought to acquire lawful permanent residence within 1 year of visa availability. CSPA applies only to those applicants specified in the statute: Family-sponsored preference principals and derivatives; Violence Against Women Act (VAWA) self-petitioners and derivatives;[4], Employment-based preference derivatives;[5]. I suggest you gather up the relevant documents (particularly the I-130 receipt and I-130 approval notice) and get a lawyer to send a letter to the NVC that demonstrates your CSPA calculation, asserts your eligibility to stay in F2A and urges them to forward your case to the consulate for final processing. [^ 27] For CSPA purposes, the age at time of visa availability is the applicants age when USCIS considers the applicants visa available. The applicant is 21 years and 4 months old when USCIS considers an immigrant visa available. or NVC; pay the affidavit of support fee with the NVC; file the DS-260 . USCIS employees should not rely on the historical versions for current laws, precedent decisions, policies, directives, guidance, and procedures. Collect all the supporting documents and fill out DS-260 (include your child's name on DS-260). The derivative child does not have an available visa based on the Final Action Dates chart in December 2020, and cannot apply during that month. See INA 204(a)(1)(D)(i)(I) and INA 204(a)(1)(D)(i)(III). [^ 4] In addition to CSPA protections, VAWA self-petitioners and derivatives who turn 21 prior to adjusting status may be eligible for age-out protections provided in the Victims of Trafficking and Violence Protection Act (VTPVA) of 2000, Pub. When an applicant seeks to acquire after the 1-year period of visa availability has elapsed and does not provide an explanation or evidence of extraordinary circumstances, the officer issues a Notice of Intent to Deny (NOID) to give the applicant an opportunity to rebut the apparent ineligibility. If a VAWA self-petitioner was the beneficiary of a previously filed Petition for Alien Relative (Form I-130), the VAWA self-petitioner and the VAWA self-petitioners derivatives CSPA age is calculated using the date the Form I-360 was filed because this is the petition through which they are seeking adjustment of status. The applicant may file an untimely motion to reopen or reconsider without a filing fee if: Special rules apply in cases where an adjustment applicant would otherwise age out on or after August 6, 2002. 272, 362 (October 26, 2001). You will receive instructions concerning interview preparation in the appointment letter that you will receive from the NVC. You are 21 years and 4 months old when USCIS considers an immigrant visa available to you. See Part L, Refugee Adjustment, Chapter 2, Eligibility Requirements, Section F, Special Considerations for Refugee Adjustment of Status Applicants, Subsection 2, Child Status Protection Act Provisions [7 USCIS-PM L.2(F)(2)]. Generally, in order to establish eligibility, a derivative asylee must have been listed on the principal applicants Form I-589 prior to a final decision on the principals asylum application. Read Shimanto's reply, I posted the format there. The historical versions linked below reflect the pertinent policy in effect on that date and dates reflect when updates occurred. Official websites use .gov The letter format is on this forum. [^ 33] For more information, see Chapter 3, Filing Instructions, Section B, Definition of Properly Filed, Subsection 4, Visa Availability Requirement [7 USCIS-PM A.3(B)(4)] and Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)]. See AFM 21.2(e) (PDF, 1.82 MB), The Child Status Protection Act of 2002. Based on the CSPA rule, she should be still qualified for F2A. More Immigration US visas Immigrant visas Looking for U.S. government information and services? This guidance becomes effective October 2, 2020. VAWA self-petitioners and derivatives who do not qualify for CSPA may qualify for age-out relief under VTPVA. A written request to transfer the underlying basis of the adjustment of status application also will meet the sought to acquire requirement, if we receive the request within 1 year of an immigrant visa becoming available in the new preference category. [49], Impact of Visa Unavailability on the 1-Year Sought to Acquire Requirement. The priority date should not be used for purposes of determining CSPA eligibility. Secure .gov websites use HTTPS [^ 10] See Matter of Avila-Perez (PDF), 24 I&N Dec. 78 (BIA 2007). Thinking the NVC was acting on the case, the family sat back and waited for further word. If we approve a request to transfer the underlying basis of the pending adjustment of status application, calculate the CSPA age using the approved petition that forms the new basis of the adjustment application. When a lawful permanent resident (LPR) files a Form I-130, Petition for Alien Relative for his or her child or unmarried son or daughter, the petition is classified as a family second preference case. However, if the qualifying underlying form was approved prior to the effective date, an applicant who applies for adjustment of status after the effective date may still qualify for CSPA coverage. NVC is asking us to pay IV Application Processing Fees on ceac.state.gov but it only displays names of my husband and I on ceac.state.gov. For DV derivative applicants, the number of days the petition was pending is the period of time between the start of the DV Program registration period and the date of the DV selection letter. The length of time a petition was pending (pending time) is the number of days between the date that it is properly filed (filing date) and the approval date. Certain Preference Applicants Who Did Not Have an Adjustment Application Pending on the Effective Date. For more information, see Part F, Special Immigrant-Based (EB-4) Adjustment [7 USCIS-PM F]. In order to qualify as a stepchild, the marriage between your U.S. citizen stepparent and your K3 nonimmigrant parent must have occurred before your 18th birthday. If a continuous 1-year period of visa availability elapsed and the applicant did not seek to acquire during the 1-year period, the applicant cannot benefit from the age-out protections of the CSPA. The widow(er)s children, if any, who are under the age of 21 and unmarried at the time of the petitioners death can be classified as derivatives on the automatically converted Form I-360 and therefore qualify for the CSPA. [^ 2] The situation in which noncitizens can no longer be classified as children for immigrant visa purposes due to turning 21 is commonly referred to as aging out.. You are only eligible for CSPA if you are the beneficiary of a Form I-130, Petition for Alien Relative. Legal Authorities and Additional Guidance, CSPA age is frozen on the date the principal refugee parents Form I-590 is filed (the date of the parents interview with USCIS). The applicants calculated CSPA age must be under 21 years old; The applicant must have sought to acquire lawful permanent residence within 1 year of visa availability, absent extraordinary circumstances. The applicant must indicate whether a complaint has been filed with the appropriate disciplinary authorities about any violations of counsels legal or ethical responsibilities, or explain why a complaint has not been filed. Adjustment applicants who fail to fulfill the sought to acquire requirement within 1 year of visa availability may still be able to benefit from CSPA if they can establish that their failure to meet the requirement was the result of extraordinary circumstances.[50]. See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)]. The adjustment applicant must have had one of the following approved or pending on or after the CSPAs effective date: a qualifying Petition for Alien Relative (Form I-130), Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360), or Application to Register Permanent Residence or Adjust Status (Form I-485); The applicant must have been under the age of 21 and unmarried at the time the qualifying Form I-130 or Form I-360 was filed; and, If the petitioner of a pending or approved IR spousal petition dies, the spousal Form I-130 automatically converts to a widow(er)s Form I-360. and write this SAMPLE letter to the NVC when sending the documents. When the visa becomes available again, the applicants CSPA age is calculated based on the new visa availability date. How can I request NVC to consider my son's CSPA age and grant him immigrant visa as well? This technical update clarifies thatcertain child beneficiaries of family-sponsored immigrant visa petitions who are ineligible for the Child Status Protection Act may continue their adjustment of status application if the petition is automatically converted to an eligible category. . If you were under the age of 21 at the time of your parents interview, your age is frozen as of that date and you will not age out. It helps lock in the age and preserve the "child" status of both immediate relatives and those in the preference categories. For more information about K-1 and K-2 nonimmigrant visas, see the Fianc(e) Visas page. However, you may choose to opt out of the automatic conversion and stay in second preference classification (F2B) if the waiting time for the second preference visa is shorter than the waiting time for the first preference visa. For example, the law allows unmarried children of U.S. citizens to remain immediate relatives if they are under 21 when the I-130 petition is filed. Yes. As per CSPA calculator, his CSPA age remains under 21 till November 2017. Under Section 424 of the USA PATRIOT Act, if a qualifying form was filed before September 11, 2001, then the applicant is afforded an additional 45 days of eligibility.[11]. You will need the ten (10) digit barcode number from your DS-260 confirmation page to book your appointments. This page was not helpful because the content: Green Card for Employment-Based Immigrants, Green Card for Family Preference Immigrants, Green Card for an Immediate Relative of a U.S. Citizen, Fiscal Year 2023 Employment-Based Adjustment of Status FAQs, Adjustment of Status Filing Charts from the Visa Bulletin, While Your Green Card Application Is Pending with USCIS, International Travel as a Permanent Resident, Rights and Responsibilities of a Permanent Resident, Volume 7, Part A, Chapter 7, Part F, Section 2, of the USCIS Policy Manual, Form I-485, Application to Register Permanent Residence or Adjust Status, Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, Form I-140, Immigrant Petition for Alien Worker. Citizenship and Immigration Services (USCIS) is issuing policyguidance addressing the general policies and procedures of adjustment of status as well as adjustment under section 245(a) of the Immigration and Nationality Act (INA). In September 2015, DOS and USCIS announced a revision to the Visa Bulletin, which created two charts of dates. Congress recognized that many children were aging out due to large USCIS processing backlogs, so it enacted the Child Status Protection Act (CSPA) to protect certain children from aging out. However, we called NVC and was told that she was moved to F2B. [34] DOS publishes a new Visa Bulletin on a monthly basis. If your LPR parent filed a Form I-130 for you as an unmarried son or daughter (second preference classification) and then your parent became a U.S. citizen, you normally would automatically convert to a first preference classification as the unmarried son or daughter of a U.S. citizen (F1). [^ 51] In Matter of O. Vazquez, the BIA ruled that extraordinary circumstances could warrant the exercise of discretion to excuse an applicant who failed to meet the sought to acquire requirement during the 1-year period. L. 106-386 (October 28, 2000). Hi, Our case was approved 2 days after the childs 21 birthday. However, you must remain unmarried in order to qualify. You should not have your exam until your interview has been scheduled. [33] The date USCIS considers a visa available for accepting and processing an adjustment of status application according to the USCIS website and the Visa Bulletin is also the date USCIS considers a visa available for CSPA purposes if the petition is already approved. A visa subsequently becomes available again on October 1, 2021, based on the Dates for Filing chart, which USCIS has designated for use in that month. This guidance is effective immediately and applies to adjustment of status applications we adjudicate on or after Feb. 14, 2023. Officers should review the USCIS Adjustment of Status Filing Charts from the Visa Bulletin webpage to determine whether the applicant had a prior 1-year period of visa availability to file for adjustment of status. The History tab was added to the USCIS Policy Manual on June 11, 2021, and provides historical versions on and after that date. For DVs, the date a visa is considered available is the first day on which the principal applicants rank number is current for visa processing. L. 107-208 (PDF) (August 6, 2002). [3] CSPA does not alter this definition. The historical versions are provided for research and reference purposes only. If you are a K-4 nonimmigrant, you are eligible for CSPA because you will apply for a Green Card as an immediate relative based on a Form I-130 filed by your U.S. citizen stepparent. The core purpose of the Child Status Protection Act (CSPA)[1] was to alleviate the hardships faced by certain noncitizens who were previously classified as children for immigrant visa purposes, but who, due to the time required to adjudicate petitions, had turned 21 years old and consequently became ineligible to receive such immigrant visas. The CSPA does not solve the problem of "age outs" for all children of LPRs and other derivative beneficiaries. [31] In other words, the pending time is the period of time between the start of the DV Program registration period to the date of the DV Selection Letter. CSPA allows children who turn 21 years old after an asylum application is filed but prior to adjudication to continue to be classified as children and remain eligible for derivative asylum status and adjustment of status. Commonplace circumstances, such as financial difficulty, minor medical conditions, and circumstances within the applicants control (such as when to seek counsel or begin preparing the application package), are not considered extraordinary. An applicant may only establish extraordinary circumstances due to ineffective assistance of counsel (the applicants legal representative or attorney) if he or she completes the following: The applicant must submit an affidavit explaining in detail the agreement that was entered into with counsel regarding the actions to be taken and what information, if any, counsel provided to the applicant regarding such actions; The applicant must demonstrate that he or she has made a good faith effort to inform counsel whose integrity or competence is being questioned of the allegations brought against him or her and that counsel has been given an opportunity to respond; and. [^ 31] For DVs, the qualifying petition is the DV Program electronic entry form. CSPA may still apply for a preference applicant who did not have an adjustment application pending on August 6, 2002, and who did not timely seek to acquire. The Child Status Protection Act (CSPA) was enacted in order to keep immigrant families intact despite family-based and employment-based waiting times which can be long. The noncitizen cannot benefit from the age-out protections of the CSPA. Unfortunately, the CSPA requires that if a child is eligible, the child must "seek to acquire" a visa within one year. [^ 8] For information about the impact of CSPA on applicants for an immigrant visa, see 9 FAM 502.1-1(D), Child Status Protection Act. Applicants who will follow to join the principal applicant later will be interviewed separately. DV applicants also use the DOS Visa Bulletin to determine visa availability. [^ 7] See Section H, Summary of Child Status Protection Act Applicability [7 USCIS-PM A.7(H)] for a condensed guide to basic provisions for each category of CSPA-eligible immigrants. Note: If an applicant has multiple approved petitions, calculate the applicants CSPA age using the petition that forms the underlying basis for the adjustment of status application. [^ 32] The rank number is the number following the two-letter region code and should correspond with cut-off numbers available in the DOS Visa Bulletin. If a visa initially becomes available and then becomes unavailable[38] for accepting and processing an adjustment of status application before the potential adjustment applicant has filed an application, the applicants CSPA age is not locked in. While K nonimmigrants are not covered under CSPA, K-2 and K-4 nonimmigrants may benefit from CSPA under certain limited circumstances. USCIS approved the petition on August 1, 2016. [^ 41] See Chapter 3, Filing Instructions, Section B, Definition of Properly Filed [7 USCIS-PM A.3(B)]. This technical update replaces all instances of the term foreign national with alien throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [any person not a citizen or national of the United States]. In order to benefit from CSPA as a family preference (including VAWA self-petition), employment-based preference, or DV applicant, you must seek to acquire lawful permanent resident status within 1 year of when a visa becoming available to you for filing an adjustment of status application. In order for the immigrant visa to be considered available for CSPA purposes, two conditions must be met: The visa must be available for the immigrant preference category and priority date. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. For DVs, the qualifying petition is the DV Program electronic entry form. Child of LPR (F2A) Becomes Child of a U.S. Citizen (Immediate Relative). You (not your parent) should send a signed letter stating that you wish to opt out of the conversion from F2B to F1. An adjustment applicant may satisfy the sought to acquire requirement by any one of the following: Properly filing an Application to Register Permanent Residence or Adjust Status (Form I-485);[41], Submitting a completed Immigrant Visa Electronic Application (Form DS-260), Part I to the DOS;[42], Paying the immigrant visa fee to DOS;[43], Paying the Affidavit of Support Under Section 213A of the INA (Form I-864) review fee to DOS (provided the applicant is listed on the Affidavit of Support);[44] or, Having a properly filed Application for Action on an Approved Application or Petition (Form I-824) filed on the applicants behalf. Review our. Officers may use the USCIS webpage to track movement of dates over time but should confirm consequential dates in the relevant monthly bulletin and chart. CSPA applies to both noncitizens abroad who are applying for an immigrant visa through the Department of State (DOS) and noncitizens physically present in the United States who are applying for adjustment of status through USCIS. For IRs and IR self-petitioners or derivatives under VAWA, a childs age is frozen on the date the Form I-130 or Form I-360 is filed, respectively. [^ 19] See Part L, Refugee Adjustment, Chapter 2, Eligibility Requirements, Section F, Special Considerations for Refugee Adjustment of Status Applicants, Subsection 2, Child Status Protection Act Provisions [7 USCIS-PM L.2(F)(2)]. If your LPR parent filed a Form I-130 for you as his or her child and then your parent became a U.S. citizen before you turned 21, your age freezes on the date your parent became a citizen. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicators Field Manual (AFM) content into the USCIS Policy Manual. For historical versions before June 11, 2021, navigate to the USCIS Policy Manual within the USCIS website at:https://archive.org, Select a date to view the historical version, An official website of the U.S. Department of Homeland Security, An official website of the United States government, Part R - Abandonment of Lawful Permanent Residence, POLICY ALERT - Age Calculation under Child Status Protection Act, POLICY ALERT - EB-5 Reform and Integrity Act of 2022, Technical Update - Adding References to the EB-5 Visa Program in Child Status Protection Act Guidance, Technical Update - Replacing the Term Alien, POLICY ALERT - Age and Sought to Acquire Requirement under Child Status Protection Act, POLICY ALERT - Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements Final Rule, Technical Update - Moving the Adjudicators Field Manual Content into the USCIS Policy Manual, Technical Update - Replacing the Term Foreign National, Technical Update - Child Status Protection Act, POLICY ALERT - Child Status Protection Act, POLICY ALERT - Adjustment of Status Policies and Procedures and 245(a) Adjustment, To protect your privacy, please do not include any personal information in your feedback.
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