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A New Test for “National Interest Waiver” Cases (Dec. 2016)

Posted by on Jan 1, 2017 in Featured | Comments Off on A New Test for “National Interest Waiver” Cases (Dec. 2016)

The “National Interest Waiver” is a test for foreign nationals who are applying for permanent residence based on their work in their field of expertise, to determine if they may be approved for permanent residence on their own, without a job offer from a U.S. employer.   To qualify, the applicant, called a “self-petitioner,” must either be a “member of the professions holding an advanced degree” or an “alien of exceptional ability in the sciences, arts, or business.”   These are the baseline requirements for the “EB-2” category for permanent residence.   If the self-petitioner can meet these baseline EB-2 requirements, then he or she may apply for permanent residence under the “National Interest Waiver,” by proving that it would be in the “national interest” of the United States to waive, or set aside, the usual requirements of (a) job offer and (b) testing of the U.S. job market (“labor certification”). New “National Interest Waiver” requirements, under Matter of Dhanasar (December 2016) On December 27, 2016, the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS) reversed USCIS’s long-standing, problematic policy (see NYSDOT discussion, below) and announced a new analytical framework, or test, for the National Interest Waiver.  Restating the test as set out in the AAO decision, called Matter of Dhanasar: USCIS may grant a national interest waiver, if the petitioner demonstrates by a preponderance of the evidence [that is, that he or she more likely than not satisfies the requirements]: That the foreign national’s proposed endeavor has both substantial merit and national importance; and That the foreign national is well positioned to advance the proposed endeavor; and That, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion [if the foreign national otherwise merits a favorable exercise of discretion]. Language in [brackets] has been added for clarification.  Boldface has been added for emphasis. Matter of Dhanasar involved an application by a researcher and educator in the field of aerospace engineering at a state university in North Carolina.  He showed that he intended to continue research into the design and development of propulsion systems for potential used in military and civilian technologies, and that research in this area enhances the national security and defense by allowing the United States to maintain its advantage over other nations in the field of hypersonic flight.   The AAO agreed that Mr. Dhanasar’s proposed endeavor: (1) has substantial merit and is of national importance; that (2) he is well-positioned to advance the proposed endeavor; and that, (3) on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus, of a labor certification. A history of the “National Interest Waiver,” and its evolution, follow. The initial “National Interest Waiver” standards, prior to August 1998 Initially, after the “National Interest Waiver” was created by a 1990 amendment to the Immigration and Nationality Act, U.S. immigration authorities indicated that the following factors could be relevant to determine whether the admission of a foreign national would be sufficiently in the “national interest”:The alien’s admission will improve the U.S. economy; or It will improve...

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The American Gateway for Entrepreneurs

Posted by on Aug 1, 2016 in Featured | Comments Off on The American Gateway for Entrepreneurs

The American Gateway for Entrepreneurs

Introduction:  I counsel entrepreneurs and investors as part of my immigration law practice, and I derive great satisfaction from finding creative, cost-effective solutions for my clients, whenever possible.  In this post I will review a few potentialUS visa options. US immigration law offers several alternatives to individuals and their families who wish to relocate to America. * Permanent residence – “EB-5″ program:  For investors with deep pockets($500,000 to $1 million), the EB-5 employment-creation visa for permanent residence offers a two-step program.  In my opinion it is an overly complicated and challenging option.  For example, it requires ongoing employment of at least 10 workers, in addition to the high-level initial investment. ———————————————————————————————————- * “L” visa for “Long-distance” transferees, and transition to permanent residence:  I consider it an intelligent, cost-effective alternative to “the EB-5” for foreign entrepreneurs small-business owners who are looking to expand, from existing and ongoing overseas operations, to a branch or subsidiary in the United States.  The “L-1” visa can offer a relatively direct, common-sense platform for the initial, “new office” stage, with renewal of the visa after successful operations in the first year, and then a transition to permanent residence.   In short, the L-1″ visa may provide a relatively affordable a for many entrepreneurs and smaller employers, and their employees.  Incidentally, “L” visa spouses are eligible for unrestricted, temporary work permits. ———————————————————————————————————- * “E” visa for “Entrepreneurial” investors and traders and employees, with limited access to permanent residence:  The key ingredient is a “treaty of commerce and navigation” between the United States and the individual’s home country, of which there are several dozen.  For example, the United States – United Kingdom treaty dates from 1815.  Click on this link for a listing of “treaty” countries for “E-1” (trader) and “E-2” (investor) visas:  https://travel.state.gov/content/visas/en/fees/treaty.html An “E” visa is requested directly through a US embassy or consulate, upon its registration and approval of the proposed American enterprise.  Generally a minimum investment of about $100,000 is required, but the law allows for flexibility, based upon the proportional capital needs of a start-up.  The “E” visa is renewable; however, the transition to permanent residence may be problematic, without the presence of a related foreign operation. “E” visa spouses are eligible for work permits in this visa category as well. ———————————————————————————————————- * Limited options for retirees:  Americans are known to be friendly to older visitors, but our immigration system does not accommodate them, apart from vacationers and seasonal “snowbirds.”  Without proper immigration planning, a vacation home in Colorado or Florida will have to be vacant most of the year. As part of an immigration retirement plan, consider the “E” visa, which can support a retail franchise or other small business which will create jobs locally.  A franchise-type investment — consider the fast-food industry — could generate jobs for US workers while supporting “E” visas for family members, for example in supervisory positions.   *********************************** This post contains is provided for general information only.  It is not legal advice.  No attorney-client relationship is intended.  Consult a lawyer for specific legal...

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In Search of ‘the Good Life’

Posted by on Aug 1, 2016 in Featured, Uncategorized | Comments Off on In Search of ‘the Good Life’

In Search of ‘the Good Life’

“What is at stake is … how one should live one’s life.” – Plato “Life is not primarily a quest for pleasure … or a quest for power … but a quest for meaning.” – Rabbi Harold S. Kushner, from the foreword to Man’s Search for Meaning by Dr. Viktor L. Frankl “[T]rue happiness is something deeper than lucking into a beautiful state of affairs.  It’s the dignity of mastering the blessed gift of the mind.  It’s tranquility.  It’s an ability to bear up under the most difficult circumstances.  It’s the deeply satisfying sense of doing what we’re supposed to be doing.” – Scott Samuelson, The Deepest Human LIfe   “We shall not cease from exploration, / And the end of all our exploring / Will be to arrive where we started / And know the place for the first time.” T. S. Eliot, “Little...

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Reading the Tea Leaves … November and Beyond

Posted by on Aug 1, 2016 in Featured, Uncategorized | Comments Off on Reading the Tea Leaves … November and Beyond

Reading the Tea Leaves … November and Beyond

The candidacy of Mr. Donald Trump, while hugely entertaining (or disturbing, depending on one’s point of view), is not likely to lead to the White House.  While Mr. Trump, as Ms. Palin before him, is undeniably charismatic, and offers appealingly simplistic answers to the world’s most complex issues, he will simply not be able to amass the broad base he needs for election to the presidency.   Assuming Mrs. Hillary Clinton is elected to the presidency, I believe that she (and husband Bill) will push for meaningful reform of the immigration laws of this country, and that she will be successful in working with the Congress to an infinitely higher degree than her well-intentioned but aloof predecessor. Looking beyond 2016:   We need a dramatic overhaul of the US work visa system. The biggest change would be to restore the pre-fiscal-year-2000 allowance for the “H-1B” work visa for professional-level positions, termed “specialty occupations.”  The current permitted annual allotment is roughly 40% (at best) of the earlier “cap” figure.  It is a shameful fact that this country offers university education to the world’s best young minds, but no stable employment beyond that.  We are creating our own “brain drain” and thus contributing to the competitiveness of the rest of the world’s economy Another glaring inadequacy of the work visa system is that there is virtually no accommodation for skilled worker positions.  Americans depend on undocumented labor to grow our food, mow our lawns, and care for our small children — in short to help us enjoy the lifestyle we so love.  There is nothing standing in the way of a fairer set of labor laws to recognize the value of these service-providers, except our politicians.  Progressive Republicans, who historically have been friendly to business and free-market principles, could take the initiative to create a visa category whereby employers could sponsor any worker of their choosing, following a process to test the labor market. Such is the system for permanent residence, but it presupposes that the individual is known to the employer and hence already legally employed.  This creates a Catch-22 for the skilled worker, since there is no such visa appropriate to skilled (or for that matter, unskilled) workers.  That inconsistency is typical of the dangerously dysfunctional US immigration system we have...

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When an “Umbrella” Is a Visa … Is an Umbrella

Posted by on Aug 1, 2016 in Featured, Uncategorized | Comments Off on When an “Umbrella” Is a Visa … Is an Umbrella

When an “Umbrella” Is a Visa … Is an Umbrella

“Come again?  Umbrella, visa … and just how does that work?” Stop.  Think creatively for a moment.  Pull yourself away from the gravitational pull of the linear, the written, the logical “real world.” Listen:  We are all at our best when we let our imaginations stretch their legs, run a little wild.  Switching over to right-brain mode, observing, allowing the mind to wander, and letting those “Aha!” moments just happen. Speaking personally (and professionally), I’ve learned that I thrive when I am in the creative side, the imaginative side, of practicing immigration law — the part that’s all about figuring out solutions to problems — and helping people overcome these challenges. I’ve found that an ability to “think in pictures” (acknowledgment to Dr. Temple Grandin) is pivotal in resolving tangled immigration-law issues.  Another advantage is having a white board and colored markers handy in a client consultation, to map out a visual strategy — and with pictorial aids, such as apples, hourglasses, safety nets, and yes, even umbrellas.  This is the simplest, most effective way I’ve found to convey the complexities of visa cases, in my years of practice in US immigration law.  I get smiles, nods of recognition, from my clients.  Nothing dull about it.  We have some fun. Getting back on point.  So, uh, why exactly an umbrella?   An umbrella, or parasol, is of course a form of protection from the elements.  It offers the person carrying the umbrella, and those squeezed in under its canopy, a safe and reasonably comfortable passage, with a minimum of inconvenience.  It is available for a fairly reasonable price and in a variety of sizes, styles and colors to suit its owner/user.  It is held over our heads right up until our arrival at the destination, just long enough to ensure our entrance.  Then, it is shaken and left to dry, ready for the next venture outdoors. A visa is similar, in some respects.  Passports stamped with visas allow for international travel,  Visas are available to qualified individuals who invest the time and resources — including the guidance and “due diligence” that competent immigration counsel can provide.  A visa offers assurance that the individual may board the international flight to a US destination.  Upon arrival at the airport, he or she will present the passport and visa, to ask permission for legal entry — for “admission” as US immigration law puts it.  If the individual has secured admission, then he or she goes on about business at the final destination in the United States, and the visa and passport are put away until the next trip abroad. I’ll give a few examples of some “visa umbrellas” — caveat:  purely as creations of one lawyer’s imagination — and their shapes and colors, and I will offer profiles of  people who can carry these “visa umbrellas” in their immigration journey: *  Picture a US citizen, who unfolds a bright green umbrella with legend, “Permanent Residence.”  Our citizen then raises it to cover, and protect, a spouse and children.  There’s even room for the citizen’s parents to scoot in under the umbrella. *  And here, a foreign entrepreneur and business partner, both citizens of a “treaty nation” (covered in a later post); they are holding a bright blue “EU”-style umbrella.  On one side it bears the...

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How Is an Immigration Waiver like a “Monopoly” Card?

Posted by on Aug 1, 2016 in Featured, Uncategorized | Comments Off on How Is an Immigration Waiver like a “Monopoly” Card?

How Is an Immigration Waiver like a “Monopoly” Card?

So your first question must be:  “What is an ‘immigration waiver’?”   Let me answer, in terms of what an immigration waiver does.  A waiver sets aside a legal obstacle to getting a visa, or to being allowed (“admitted”) into the United States, or to becoming a permanent resident (i.e., a “green card” holder). What kinds of “legal obstacles” are we talking about? The Immigration and Nationality Act (INA), the statute that forms the basis for the US immigration laws, lays down the ground rules for immigration benefits — who is eligible to apply for them, and who is disqualified from applying, and things that can get you disqualified.  These grounds for disqualification, or obstacles, are known as “grounds of inadmissibility.”  They are listed in section 212 of the INA.  They include criminal convictions, acts of immigration fraud and misrepresentations, health and safety dangers, drug violations, national security issues, and immigration violations. The INA allows, in some instances, an otherwise-disqualified foreign national to apply for a waiver of a ground of inadmissibility.  These waivers are often premised on the basis of the disproportionate harm to a close US relative that will result, if the waiver is not approved. In instances where the foreign national is attempting to apply for permanent residence, he or she must nearly always demonstrate some degree of unusual hardship to a “qualifying relative” who is a US citizen or permanent relative. For example, the foreign spouse of a US citizen, who entered the United States illegally, is generally prevented or “barred” for 10 years from applying for permanent residence — yes, despite being married and even having US citizen children —  and the 10 year “penalty” period must be spent living outside the United States.   Section 212(a)(9) of the INA provides, however, that the US immigration authorities have discretion to set aside, or waive, this penalty, based on the anticipated “extreme hardship” that the US citizen spouse will face, if the 10-year bar were enforced.  The US spouse must demonstrate such hardship in terms of two scenarios:  (1) If he or she were to remain in the United States for the 10 years and (2) if he or she were to join the foreign spouse and wait out the 10 years in a foreign country.  If it’s all about applying for a visa for a visit or short-term job in the United States, the law provides for an all-purpose “nonimmigrant” waiver, under section 212(d)(3) of the INA, without the need of a qualifying US relative.  (“Nonimmigrant” means “temporary” as in “not immigrating permanently.”)  Suppose a foreign company wants  to transfer a manager or a technician to the United States for a three-year assignment, and that this worker has a conviction for a minor crime such as simple possession of a small amount of marijuana, or has two shoplifting convictions.  These convictions would normally bar the foreign national from getting a visa, or from traveling without a visa on the ESTA program, because they are “grounds of inadmissibility.”  Arranging for a waiver, in connection with a visa application or request for entry into the United States, can overcome these legal obstacles. So, in a sense, an immigration waiver is like a “Monopoly” card.  We’re all familiar with this popular board game.  When a player lands on...

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Why Is a Green Card Like an Apple?

Posted by on Aug 1, 2016 in Featured, Uncategorized | Comments Off on Why Is a Green Card Like an Apple?

Why Is a Green Card Like an Apple?

I’ll start by defining what I mean by “green card.”  It is the popular reference to US permanent residence, which is evidenced by a plastic card issued by the Department of Homeland Security.  Many years ago the “green card” was printed on green paper, and the name stuck. So, what is permanent residence?  Think of it as one step below US citizenship. Anyone born in the United States is automatically a US citizen, thanks to the Fourteenth Amendment.  Everyone else (nearly) has to become a permanent resident in order to “naturalize” to US citizenship. Is permanent residence a big deal?  You bet it is.  Permanent residence offers, as the name suggests, the right to live (and work) indefinitely in the United States.  It’s beyond the reach of most of the world’s population — in fact, so is getting any legal status in the United States … even a visa … but that’s for another post. You might say wanting a green card is like wanting a tempting piece of fruit.  (Apple, anyone?)  And like the apple in the picture, the permanent residence process has two halves.  The two halves represent the two parties in the permanent residence process — the sponsor or “petitioner” and the “applicant.”  In most cases, it takes two halves to make the whole, petitioner and applicant.  (There are exceptions but they are rare; notably, refugees and asylees, and individuals of extremely high talent and recognition.) I know — it’s a silly, too-simple illustration, but I use it to explain the process to my clients.  And they smile … because they get it.  So please let me share it with you. The two models, the two paradigms, for this two-part permanent residence process are “family-based” and “employment-based.”  In many cases, there are numerical limits on the number of green cards that may be allotted each year; the exception is for“immediate relative” family-based cases, such as those involving a US citizen and foreign-national spouse. In the employment-based green card process, a US employer (petitioner) must willingly offer a job to the foreign-national applicant, after first proving to the satisfaction of the US Department of Labor that there is a shortage of American workers for the position in question.  Then the applicant may accept the position as the basis for the green card.  So, two halves, and one “whole” apple — full-time employment.  Everybody benefits. In the “family-based” green card process, a US citizen petitioner is tied by blood or marriage to the applicant.  In some cases — marriage and parenthood — the petitioner may be a permanent resident.  Let’s look at marriage between a US citizen (“Jane”) and foreign national (“Juan”), in terms of the two halves of the apple in the picture.    Jane is, as we know, the petitioner and will thus sponsor Juan as his legally-wedded spouse.  She must also provide proof that she is able to support Juan, through an “Affidavit of Support.”  These are what make up Jane’s half-apple.  Juan, as applicant, must prove that he is legally eligible for permanent residence — either because he has entered the United States legally or has obtained a waiver based on proof of family hardship.  This is what makes up Juan’s half-apple. Here’s the point:  What joins Jane and Juan is the marital relationship, the...

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FAQ #1 On DIY For Visas To The USA

Posted by on Feb 22, 2014 in Featured | Comments Off on FAQ #1 On DIY For Visas To The USA

FAQ #1 On DIY For Visas To The USA

Q:  What does “DIY” mean?  A:  “Do It Yourself.” Q:  What does “DIY” mean, in the context of this visas4rightbrainers blog? A:  Think of it as, “How can I get a visa to run my own business in the United States?” Q:  Is it easy, to get a visa to run my own business? A:  No.  U.S. immigration law does not favor self-employment: A foreign national is, by and large, dependent on a job offer from a U.S. employer, to qualify for a work visa or become a permanent resident. Q:  Are there other options, for talented individuals wishing to work in the United States?  What are these options?  And for whom? A;  Broadly speaking, they fall into several groups. Q:  What is the first group? A:  “Business visitors.” Individuals who will provide temporary skilled-work or professional services, and will not receive remuneration in the United States. Individuals who will receive training to further their careers abroad – no compensation. Professional athletes – may compete for prize money. Business owners and principals abroad, who will perform preliminary work prior to establishing a U.S. business – no compensation. Q:  Will there be more on this subject, in the visas4rightbrainers blog? A:  You bet!  I have a lot of information I want to share with you.  Keep an eye out for a soon-to-come blog...

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Why Immigration Reform Is A Big Plus

Posted by on Feb 22, 2014 in Featured | Comments Off on Why Immigration Reform Is A Big Plus

Why Immigration Reform Is A Big Plus

This is a short excerpt from the non-profit organization, American Immigration Council, in its newsletter “Entrepreneurship and Innovation Update,” dated November 18, 2013.  It appears in html format, with hyperlinks, athttp://www.immigrationpolicy.org/entrepreneurship-and-innovation-update-november-18-2013.  This may be of particular interest to readers who may benefit from proposed Comprehensive Immigration Reform, but will be appreciated by anyone who has an interest in the contributions of immigrants to the American way of life. “Immigration reform would positively impact economic growth, budgets, and housing. A November 1 post overviews a recent report from the Bipartisan Policy Center and Macroeconomic Advisers. The analysis shows that over the course of two decades, the Senate’s immigration bill (S.744) would increase economic growth by 4.8 percent, lower the federal deficit by $1.2 trillion, increase demand for housing, increase the size of the labor force, offset the aging of the native-born workforce, and raise wages over the long-term. The accompanying infographic provides an illustrative summary of the report’s major findings. “Immigration Myths and Facts: Report interjects facts to dispel common immigration myths. On October 28, the U.S. Chamber of Commerce released an updated version of its immigration myths and facts report. …. The compilation shows that immigrants significantly benefit the U.S. economy by creating new jobs, and complementing the skills of the U.S. native workforce, with a net positive impact on wage rates overall. “Immigration leads to local job growth in metropolitan areas. An October 25 post highlights a new report by economist Jack Strauss of the University of Denver, looking at the broader trends of how immigration helps metropolitan areas. Through statistical analyses of 505 metropolitan areas using data from 2005 to 2011, the report finds that immigration helped employment growth and small business creation. Specifically, an increasing number of immigrants moving to an area leads to significantly higher employment growth, a rise in employment share, and a decline in the unemployment rate. Additionally, rising rates of immigrant entrepreneurship, including self-employment of immigrants, leads to greater job creation in a metro area. “New state resource pages highlight the economic and political impact of immigrants state-by-state. The American Immigration Council recently created new state resource pages for all fifty states. The pages compile a variety of research reports, fact sheets, commentary, and blog posts related to each particular state. An interactive clickable map of the United States provides easy access to each state’s resource page. …. “It’s time to return to the economics of immigration reform. In a November 12 op-ed for the Daily Californian, Kevin Shih, in the Department of Economics at the University of California at Davis, describes reasons why there should be more focus placed on the economics of immigration reform. Specifically, he describes research that shows how immigrants from across the skills spectrum are beneficial to the economy. Shih also states that “political stagnation is destroying the possibility of immigration reform. We must refocus attention on the facts .…  Grounding discussions in research and facts, instead of in airtime for rabble-rousers, will ultimately improve our chances at reform in the next rounds – whenever they may be.” “New television ad urges leaders in Congress to pass immigration reform.  A new, nationwide television ad from www.FWD.us points to immigration reform’s economic benefits and urges Congressional leaders to pass immigration reform. Additionally, a November 18 article in Politico summarizes the ad, which features comments from...

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Why the “Immigration Pyramid”?

Posted by on Feb 22, 2014 in Featured | Comments Off on Why the “Immigration Pyramid”?

Why the “Immigration Pyramid”?

As I mentioned in my first blog post, I often describe the byzantine nature of US immigration law, by breaking it down to simple pictures and other visual imagery.  It is a helpful device in storytelling and advocacy, and it helps to get the message across simply.  And more effectively than dry legal language. In this vein, what do I use to present the overall framework of the US immigration hierarchy, top to bottom, from citizenship to permanent residence to work visas to visitor and student visas to undocumented or “illegal” status?  Could be a layer cake, or a ladder, or a high-rise building, or even the Statue of Liberty.  But one day long ago it just came to me — an Egyptian pyramid.  (Sorry, Mayans among you.  The Egyptian model is a cinch to draw so it won out.)  It is geometrically sound, symmetrical, and three-dimensional; that seemed intuitively appropriate.  And perhaps most importantly – easy to recognize.  It has tiers, which fact is useful for obvious reasons.  It could, as well, be surrounded by burning sands or some other unforgiving environment – analogous to the harsh consequences of loss of legal status.  If the sun-kissed apex is US citizenship – a point reserved to the few — then the broad and shadowy lower base level must correspond to undocumented or “illegal” status.  (The “huddling masses yearning to breathe free,” if you recall the poem by Emma Lazarus.) One day not too long ago, I was reviewing the Pyramid model with my staff (who seem to enjoy my childlike enthusiasm about the use of imagery, and my simple cartoons of umbrellas and toy houses and stick-figure people), and it hit me – that, in reality, the “pyramid” is just the visible part of a giant, sunken Obelisk.  Following the imagery, in the shaft below the surface we find 9/10 of the object – 10 million-plus undocumented aliens.  Huh, who knew? OK, back to US immigration laws and creative people who want visas to come work here.  We will be focusing our attention on the middle layers.  Working downwards, beginning one level below US citizenship, they are: Permanent residence, especially through employment, but occasionally through stand-alone (“self-petition”) cases based on international recognition. Work visas, for creative people who are investors and entrepreneurs, and occasionally artists and performers of international recognition. Student and “exchange visitor” visas, as precedents to work visas. Visitor visas, a controversial subject of late, due to corporate abuse, but nonetheless offering valid yet little-known provisions for short-term professional services. I’ll be back soon to review these in depth, working our way back up, starting with visitor visas.  In the meantime, send me your ideas … and enjoy the pyramids.  Try not to let your mind stray to Steve Martin or King Tut.  “Born in Babylonia, raised in Arizona ….”  Yes, that...

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