Presumptive immigration marriage fraud

When a permanent resident obtained a green card by marriage which later ends in divorce, an immigration petition for a new spouse cannot be approved if filed within 5 years of obtaining permanent residence unless the permanent resident can prove that the earlier marriage by which he obtained a green card was in good faith. But the standard of proof of the earlier marriage is raised beyond that required when the permanent resident was issued a green card by that marriage.

Presumptive immigration marriage fraud – from permanent resident by marriage to immigration petition for a new spouse in less than 5 years

When a permanent resident obtained a green card by marriage which later ends in divorce, an immigration petition for a new spouse cannot be approved if filed within 5 years of obtaining permanent residence unless the permanent resident can prove that the earlier marriage by which he obtained a green card was in good faith. But the standard of proof of the earlier marriage is raised beyond that required when the permanent resident was issued a green card by that marriage.

If the permanent resident by marriage files an immigration petition for a new spouse within 5 years of receiving permanent residence by law (The Marriage Fraud Amendments of 1986) the former marriage by which he obtained permanent resident is presumed to have been entered into for immigration purposes without the intent to live together as husband and wife.

In this type of special circumstances marriage fraud is presumed based upon the earlier marriage by which the permanent resident obtained a green card, not the current marriage. The presumption of fraud based on the earlier marriage arises even if there was no finding of marriage fraud and the permanent established that the earlier marriage was in good faith, passed the immigration marriage interview and the joint petition for removal of conditions upon resident (I-751) was approved by USCIS.

What is presumptive immigration marriage fraud?

The Bureau of Administrative Appeals defines immigration marriage fraud as a marriage which may comply with all the formal requirements of the law but which the parties entered into with no intent, or “good faith”, to live together and which is designed solely to get around the immigrations laws. There is no requirement that the person be convicted of fraud. Presumptive immigration marriage fraud is a presumption of law applied to all cases where a permanent resident by marriage petitions for a new spouse in less than 5 years after obtaining permanent residence.

Presumptive fraud is about the earlier marriage

But with presumptive fraud a spousal petition for a new spouse within 5 years of obtaining permanent residence by marriage is enough for the adjudicator to presume that the first marriage was a fraud. The presumption however can be successfully challenged. The USCIS will issue a Notice of Intent to Deny giving the petitioner the opportunity to send evidence to show by clear and convincing evidence that the earlier marriage was in good faith. The rebuttal evidence is directed towards the earlier marriage.

A petition for a new spouse within less than 5 years alone is not unequivocal evidence of a sham marriage. Therefore the petitioner can give evidence that adequately explain the rapid sequences of events. A denied petition does not affect the permanent resident’s ability to re-file the petition for the new spouse after the 5 year period.

Evidence used to rebut presumptive marriage fraud

The evidence used to challenge a finding of presumptive marriage fraud is evidence to prove the good faith of the earlier marriage by which the permanent resident gained his status (not the current marriage to the new spouse). Some examples of the type of evidence that can be used to challenge a finding of presumptive marriage fraud are:

1.            Affidavit from Petitioner

2.            Affidavit from former spouse and former in-laws – don’t burn your bridges

3.            Affidavit from friends – who he knew the couple, how often they saw each other

4.            Affidavit from professionals – e.g. life insurance salesman, doctors that interacted with the couple and observed them during the marriage

5.            Greeting cards from family (dated) – showing family is aware of the marriage

6.            Birth Certificate of children born to the marriage

7.            Photographs of the couple together with family and friends (identified and dated)

8.            Financial statements in both names

9.            Joint Tax returns

10.          Statements in both names

11.          Divorce decree – showing property settlement and other terms of divorce (reason for termination of the marriage)

12.          Evidence showing the length of time the earlier couple lived together

Conclusion

There are lots of factors involved in successfully rebutting presumptive immigration marriage fraud. A lot depends upon the facts of the particular earlier marriage. When entering an immigration marriage it is important to have proper legal advice every step of the way. Even if you former marriage and present marriage were in good faith, your petition for your new spouse could be denied if you cannot successfully rebut the presumption that the earlier marriage was a fraud and do so using the correct legal standard.

Presumptive marriage fraud does not prevent the filing of an immigration petition for a new spouse but it makes it more difficult by requiring the permanent resident to prove the good faith of a former marriage using a higher standard. Presumptive marriage fraud does not apply to naturalized United States citizens or to permanent residence by marriage that has held permanent resident status for over 5 years. It also does not apply to a permanent resident whose marriage end by death of the US citizen or permanent resident through which permanent resident status was received.

If you have any questions please speak to a qualified immigration attorney. Feel free to email me at info@immigrationlasvegas.com. I also urge you to subscribe to this blog or the RSS feed so you can see when new articles are posted.

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Bona Fide Marriage Documents

There are several ways to prove a bona fide marriage for US immigration purposes. In addition to a marriage certificate, the following documents are examples of what an immigrant spouse can offer as proof of a bona fide marriage. As each couple is unique the following is not a substitute for legal advice based on a couple’s individual circumstances.

A legal marriage or a marriage on paper alone is not sufficient basis to obtain a green card through marriage. There are several ways to prove a bona fide marriage for US immigration purposes. In addition to a marriage certificate, the following documents are examples of what a petitioner or an immigrant spouse can offer as proof of a bona fide marriage. As each couple is unique the following is not a substitute for legal advice based on a couple’s individual circumstances (prior petitions, pregnancy, age difference, prior removal orders, date of wedding, manner and date of entry into the United States etc).

Documentary proof of a bona fide marriage may include but is not limited to the following:

  1.  Wedding pictures – showing the couple together and with family and friends. Wedding invitations may also be used.
  2.  Invitation and pictures for the wedding shower, if any.
  3.  Pictures of the couple together and with family and friends (holidays, vacation, in hospital etc.). Chose picture that show proper body language between the couple and from family and friends.
  4.  Birth certificate of each child born to the marriage. A child is strong, irrefutable evidence of a shared live. Pictures of the couple with their children (births, birthdays, baptism, or other traditional celebrations )
  5.  Personal statement or self statement of bona fide marriage, in which the petitioner describe, in great detail, how they met, why they got married, who proposed marriage, and the feelings that they had or still have towards each other and why.
  6.  Bona fide marriage affidavits (statements signed before a notary public) from at least two people with personal knowledge of the marriage and who can give details of the relationship between the immigrant spouse and the U.S. citizen or Lawful Permanent Resident petitioner.
  7.  Letters received from spouse while dating, apart, or during any other stage of the relationship.
  8.  Letters, cards and invitations to the couple from family and friends
  9.  A rental agreement for house or apartment with the names of the couple on it, or a letter from the building manager or owner proving that the couple occupies the premises.
  10.  Tax returns that show taxes filed jointly.
  11.  Papers with the names of both immigrant and spouse that show joint ownership of a car, a house, furniture, or something else together.
  12.  Insurance papers (health, auto, life and property) – that are either joint insurance papers or that show coverage of each other by insurance plan.
  13.  Joint Utility Bills for a marital home, such as cable TV, internet, electricity, water, gas, cell phone, or others that show both names on it.
  14.  For women, a government issued identification card that shows the use of your spouse’s last name could be persuasive but is not required.
  15.  Joint bank statements – as with having a child, having shared bank accounts is strong, evidence of a bona fide marriage because it indicates trust between the couple.
  16.  Any other documents that show trust, a shared life and shared burden of living.

If you have any questions please consult with a local immigration attorney. You may also email me at via the contact form on this website. Please subscribe to this blog or the RSS feed so you can see when new articles are posted.

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Certificate of Translation

A birth certificate, marriage certificate or any document in a language other than English, submitted to USCIS or an immigration court, must be accompanied by a Certified English translation.

What is a certified translation?

A birth certificate, marriage certificate or any document in a language other than English, submitted to USCIS or an immigration court, must be accompanied by a Certified English translation, i.e. a copy or original of the document must be accompanied by two things;

  1. A translation into English (e.g. a birth certificate translation), and
  2. A Certificate of Translation which must be signed by the translator and notarized by a notary public.
Certified Translation
Certified English Translation - the translator may be any person who is fluent in English and the foreign language

While the translations may be done by certified translation services or certified translators, the translations may also be done by applicants or beneficiaries when they are competent in both English and the foreign language in which the document is expressed.

Sample Certificate of Translation

An example of the certificate of translation follows. The form for acknowledgment of the notary will vary by state. The example has a form for acknowledgement for a Florida notary public.

CERTIFICATE OF TRANSLATION

“I, [name of translator] after being duly sworn upon oath, declare that I am fluent in the English and [foreign e.g. Spanish] languages, and that the attached translation of [name of document e.g. birth certificate], related to [applicant’s or beneficiary’s full name], the original of which is in the [foreign] language, is a complete and correct translation from the [foreign] language to English to the best of my knowledge and ability.”

Signature of translator: __________________________________________

Name of translator (Print name) :

__________________________________________

Address of translator

__________________________________________

__________________________________________

Telephone number of translator

__________________________________________

 

SUBSCRIBED AND SWORN to before me on this ______ day of _________________, 20__,

STATE OF FLORIDA
COUNTY OF ________

Sworn to (or affirmed) and subscribed before me this _____ day of _____, 20___, by (name of person making statement).

(NOTARY SEAL) (Signature of Notary Public-State of Florida)
(Name of Notary Typed, Printed, or Stamped)

Personally Known ______ OR Produced Identification _______
Type of Identification Produced_______________________________________________

In closing, all documents filed with the USCIS or Immigration Court must be in English or accompanied by a certified English translation.

 

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K1 Visa Petition and supporting documents

The petition is the first step in the k1 visa process before the foreign fiancé applies for a k1 visa at a United States consulate. A U.S. citizen petitioner must first file a K1 visa petition for her foreign fiancé, the beneficiary. The petitioner will complete and sign form I-129F providing USCIS information about her including her criminal history, if any. She will also provide information about her foreign fiancé and child (ren), if any. The petitioner must send I-129F petition and supporting documents to USCIS. If the petitioner has not yet met her foreign fiancé she should plan her trip or their meeting with the supporting evidence in mind and gather the proper evidence of the relationship.

What is the K1 Visa Petition and how is it different from the K1 Visa Application?

The petition is the first step in the k1 visa process. A U.S. citizen petitioner must first file a K1 visa petition for her foreign fiancé, the beneficiary, at a USCIS office in the United States. The petitioner must complete and sign form I-129F providing USCIS information about her including her criminal history, if any. She will also provide information about her foreign fiancé and his child (ren), if any. The petitioner must send I-129F petition and supporting documents to USCIS. If the petitioner has not yet met her foreign fiancé she should plan her trip or their meeting with the supporting evidence in mind and gather the proper evidence of the relationship.

If USCIS approves the K1 visa petition of the U.S. citizen the beneficiary can then apply for a K1 visa at a U.S. consulate where he lives.

K1 visa petition – photo of a couple’s second meeting

 

 

 

 

 

 

 

 

 

 

Documents for a persuasive K1 visa petition

  1. Evidence of Petitioner’s U.S. Citizenship – front and back of U.S. Birth Certificate, Certificate of Naturalization, Certificate of Citizenship or Consular Report of Birth Abroad, Form FS-240 or all pages of a valid unexpired U.S. Passport.
  2. Copy of evidence that the petitioner and fiancé have met in the past two (2) years.
  3. Relationship letter – how the relationship started and developed and the circumstances of your face to face meeting within the last two (2) years.
  4. Petitioner’s Letter of Intent to Marry“Dear Sir/Madam, I [petitioner’s name], state that I am legally able and willing to marry [beneficiary’s name] and intend to do so within 90 days of her (his) arrival in the United States. Yours truly, Signature, Print Name and Date.
  5. Beneficiary’s Letter of Intent to Marry“Dear Sir/Madam, I [beneficiary’s name], state that I am legally able and willing to marry [petitioner’s  name] and intend to do so within 90 days of my arrival in the United States. Yours truly, Signature, Print Name and Date.”
  6. Divorce decree if either petitioner or beneficiary had earlier marriages.
  7. Form G-325A and passport-style photograph for petitioner. Print name lightly on back of photograph.
  8. Form G-325A and passport-style photograph for beneficiary. Print name lightly on back of photograph.
  9. If the petitioner has ever been convicted any of any crimes specified in Form I-129F Part C she must give certified copies of court and police records showing the charge and disposition (e.g. sentence, community service, probation, dismissal).The petitioner must do this even if her records are sealed or she was told that she no longer has a record.
  10. Evidence of an ongoing relationship. These include
    1. Affidavits of persons with personal knowledge of the relationship (e.g. parents of the petitioner or beneficiary)
    2. Photographs (dated) showing the couple together that tells the story of their relationship using pictures.
    3. Correspondence between the parties – copies of e-mails, letters, telephone bills to prove an ongoing relationship
    4. Receipts for engagement ring or major gift between the parties. An engagement ring is not required but it maybe more persuasive to prove that the relationship is genuine and that the couple intends to marry.
    5. Receipt of money transfers to or from fiancé, if any
    6. Receipts for hotel stays in both names
    7. Flight itinerary to met or visit fiancé – circle the dates. They must show that a meeting occurred within the last two (2) years of the petition date.
    8. Copies of boarding passes (save these)
    9. Passport entry and exist stamps for the country where your fiancé lives
    10. Documentation of wedding plans (invitations and receipt for deposit on a reception hall)
    11. Adoption record, court order, adoption record as evidence of any name change or use of multiple names. An explanation letter may also be proper where the use of different names by the same party could be confusing.

A petitioner must send I-129F filing fees and exact photocopies of unaltered documents. Any documents containing a foreign language are to be accompanied by a full English translation which the translator has certified as complete and correct.

Notice of Action

The USCIS will create an “A” file for the foreign fiancé once they receive the petition. A first Notice of Action is sent to the U.S. citizen acknowledging receipt. Then USCIS will next send a second Notice of Action indicating that it has approved the petition.

Approved K1 Petition sent to the U.S. consulate where the  fiancé can apply for a K1 visa

USCIS will send the approved petition to the National Visa Center (NVC) for processing. The NVC will send it to the U.S. embassy or consulate where the fiancé will apply for a K-1 visa. An approved K1 visa petition is valid for four months from USCIS action. The k1 visa application by the fiancé can now begin.

If you want to know how to get a fiancé visa or have issues with a fiance visa for the United States commonly called the k 1 fiance visa please give my law firm a call at 1-888-747-1108 or contact us through the Contact Us form

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Adjustment of status based on marriage

Adjustment of status is the process of applying for a green card (become a lawful permanent resident) by non-immigrants who are already in the United States. The applicants are not required to leave the United States and go through the hassle and delay of applying abroad.
An adjustment of status by USCIS is discretionary. Obtaining a green card is a privilege, not a right. USCIS will check the applicant’s immigration and criminal history carefully to decide if there are any obstacles (in-admissibility factors) that could prevent issuance of a green card. However, applicants married to a United States citizen may have some obstacles waved such as overstaying or earlier unauthorized work. Even if the applicant has a criminal history that could be an obstacle, he may be able to able to apply for a waiver. A waiver is a request that the immigration service “forgive” past criminal convictions or other obstacles.

What is adjustment of status?

Adjustment of status is the process of applying for a green card (become a lawful permanent resident) by non-immigrants who are already in the United States. The applicants are not required to leave the United States and go through the hassle and delay of applying abroad. An applicant seeking adjustment of status must have made lawful entry into the United States which means admission into the United States after inspection by an immigration officer.

Green card Petition

An adjustment of status application usually does not stand alone (except in diversity visa, asylum or refugee cases). It is based on a petition for an immigrant visa that is immediately available or a prior approved petition for an immigrant visa. The person who does this petition is usually an employer or a family member such as a spouse or parent. For applicants who have married a United States citizen, the green card application and the immediate relative petition can be filed at the same time and they do not need to await the approval of the petition.

Obtaining a green card is discretionary

An adjustment of status by USCIS is discretionary. Obtaining a green card is a privilege, not a right. USCIS will check the applicant’s immigration and criminal history carefully to decide if there are any obstacles (in-admissibility factors) that could prevent issuance of a green card.  However, applicants married to a United States citizen may have some obstacles waved such as overstaying or earlier unauthorized work. Even if the applicant has a criminal history that could be an obstacle, he may be able to able to apply for a waiver. A waiver is a request that the immigration service “forgive” past criminal convictions or other obstacles.

Is the marriage true and real?

The immigration services will also test (using the documents you send and the adjustment of status interview) whether there is a level of trust between the applicant and the United States citizen spouse that would be expected in a marriage. To prove trust in the application process the applicant and spouse must prepare documentary evidence of their marriage. To prove trust at the adjustment of status interview it is important that communication between husband and wife is open enough for them to answer questions about each other (spouse’s date of birth and income, the details of how the couple met) that an immigration officer may ask of the couple.

Adjustment of Status by marriage

 

 

 

 

 

 

 

 

 

 

Green Card Checklist – Documents you need to get

Documents that carry a lot of weight and credibility with the immigration services in proving a marriage follow. Any documents not in English must be translated into English for proper submission to the USCIS.

  1. Birth Certificate of both parties
  2. Marriage Certificates (If the marriage took place abroad, give a copy of the foreign law relied on to prove the marriage is valid in the foreign country.) 
  3. Divorce Decrees for any earlier marriages
  4. Passport – of the applicant
  5. AR-11, Arrival Departure Document
  6. Joint Obligations – Receipts showing join obligations for living expenses (lease, cable, utility bills, auto insurance) – applicant should make sure that accounts have both names.
  7. Joint Ownership of Property – Title that shows joint ownership of property – car title, deed
  8. Joint Management of Finances – Evidence of joint management of finances – joint bank account, life insurance, pension with spouse named as beneficiary. This is very important because it clearly indicates trust (people tend not to trust their money to strangers.)
  9. Photos of the Couple
  10. Wedding Invitations, wedding gift cards
  11. Wedding Photos – also photos from honeymoon, if any
  12. Correspondence addressed to either or both spouses at the same address
  13. Join Tax Returns and W-2s (last two)
  14. Spouse as Emergency Contact – Employment Letters from applicant and spouse on company letterhead and signed by an official of the firm, stating when employment began, salary, marital status, dependents claimed and whom to notify in case of emergency.
  15. The latest two pay stubs/statements.

This is merely an overview of adjustment of status. Please discuss the specifics of your case with a competent immigration attorney as complex legal issues may arise during adjustment of status.

Gary Goodin, Immigration Attorney

Copyright © 2011, the Immigration NavigatorTM

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K1 Visa Process – For K1 Visa Applicants

Once the USCIS approves the k1 visa petition it will then send it to the National Visa Center for forwarding to the proper consular post. Once the consulate receives the petition it will issue a letter to you stating that the consulate is ready to begin processing your k 1 visa application.

The Consulate will send you a set of document often called Packet 3 in order it to process your case. Sometimes the Consulate will not include the above forms. Rather it will send a letter with the applicant’s case number and a visa sheet with step by step instructions on how to go ahead. If this is the case the applicant can download the forms from the consulate website and return them to the Consulate.

A k-1 visa is a single entry visa that permits admission of the fiancé (e) of a U.S. citizen, as a non-immigrant for 90 days to marry that U.S. Citizen and apply for adjustment of status (a green card).  The minor unmarried children of the k1 beneficiary who go with or follow to join her are typically granted K2 visa status.

Wedding Bands

 

Approved Petition

Your K-1 process begins when your U.S. Citizen  fiancé(e) files Form I-129F on your behalf with the United States Citizenship and Immigration Service (USCIS) district office responsible for where he or she lives or intends to live (if U.S. citizen is abroad).

Notice of Action

Once your fiancé (e) has received a notice of action you should begin assembling the relevant documents to support your application as some documents may take much time to get.

Documentary Preparation

You should assemble the following documents in support of your application as some may take much time to get.

  1. Passport(s) valid for travel to the United States – for you and any dependent children accompanying or following to join you.
  2. Birth Certificate(s) – Obtain the original, certified copy of the birth record, or secondary evidence for each family member (yourself and all minor unmarried children) even if the children are not immigrating with you.
  3. Evidence of the end of earlier marriages – final divorce decree, annulment or death certificate.
  4. Police Certificates for each applicant aged 16 year and over. Obtain police certificates from the police authority where you live or any place where you have lived for 6 months since you have reached 16 years old.
  5. Proof of relationship to the petitioner – gather your letters, dated photographs showing you together as a couple, affidavits from people with person knowledge of the relationship, e-mails, telephone bills, documentation of wedding plans and invitations. Airline tickets, visa stamps and receipt for the engagement ring may also be used

You should give accompanying certified English translations of all documents not in English, or in the official language of the country in which application for a visa is made. The translation must include a statement signed by the translator that states that the:

(i)                 Translation is correct, and

(ii)               Translator is competent to translate.

Packet 3

Once the USCIS approves the petition it will then send it to the National Visa Center for forwarding to the proper consular post. Once the consulate receives the petition it will issue a letter to you stating that the consulate is ready to begin processing your k 1 visa application.

The Consulate will send you a set of document often called Packet 3 in order it to process your case. Sometimes the Consulate will not include the above forms. Rather it will send a letter with the applicant’s case number and a visa sheet with step by step instructions on how to go ahead. If this is the case the applicant can download the forms from the consulate website and return them to the Consulate. In Packet 3 should find:

  • K1 Visa Checklist Form IV-15
  • Form DS-230 Part I (Biographic Data) – You must complete and return this form immediately for the Consulate to process your case. Each person applying for a visa must complete biographic data Form DS-230- Part I, regardless of age. You may photocopy the form you received insufficient copies for each family member.
  • Form DS-156 in duplicate (non-immigrant visa application). If your unmarried children under 21 are accompanying you, two copies of Each Child must complete Form DS-156. Please do not sign this form. You must sign it in front of the consular officer on the day of your formal interview.
  • Form DS-156K in duplicate (Non-immigrant Fiancé (e) Visa Application). Please do not sign this form. You must sign it in front of the consular officer on the day of your formal interview.
  • Form DS-157 in duplicate (Supplemental Non-Immigrant Visa Application) – only required for men aged 16-45
  • Information sheet DS-2000 (Lists evidence which you or your fiancé (e) may present to meet the public charge provision of the law). Your fiancé (e) may file Form I-134 with supporting documentation.
  • Sometimes the Consulate will send information about scheduling a Medical Examination at this time.

Complete and send back the following forms to the Consulate:

  • Form DS-230-I (Part I only) for each person applying for a visa, regardless of age
  • Leave unsigned Forms DS-156
  • Leave unsigned Forms DS-156K
  • Form DS-157 (if applicable)
  • Form IV-15 -if required documents are already prepared.

If not already done so, assemble the relevant documents required in support of your application, and mark the documents off on Form IV-15 as you collect them. Do not send these documents to the Consulate.

Sign and date Form IV-15 and forward to the Consulate.

Packet 4

Upon receipt of the above documents, the Consulate will continue any extra processing and tell you about the scheduling of the medical interview and the appointment for the formal visa interview.

Schedule and have the Medical Examination. Arrange for a medical examination with one of the physicians listed on the attached visa instruction. You are responsible for the cost of the examination. A medical examination is also required for each child who will go with you.

Photographs – take Two (2) 2 x 2 Photographs for each applicant according to the specifications on the visa instruction sheet.

Attend scheduled interview with all your unmarried children under 21. Bring supporting documents such as evidence of your relationship to your U.S. citizen fiancé (e), two photographs for each applicant, birth certificates and final divorce decree if any to the k1 visa interview.

If approved, the Consulate may need you to pick up the passport with the visa from the Consulate later.

Sealed Packet – Do Not Open

Consular Officer will give you your passport(s) containing the K-1 visa (K-2) and a sealed packet containing the civil documents you provided, plus other documents prepared by the U.S. Consulate. It is important that you do not open the sealed packet. Only the DHS immigration official should open this packet when you enter the United States.

K1 Visa Validity

Do not finish arrangements for travel to the United States, dispose of properties, or quit your job until the consulate delivers the passport(s) with the k 1/k2 visas to you. A k1 visa is generally valid for six months. You must travel and apply for admission to the United States within that six month window.

After admission on your k1 visa you have 90 days to get married to your U.S. citizen  fiancé (e) or leave the United States. The DHS will issue an entry document (Form I-94) to you (the  k1 fiancé(e)) valid for 90 days. If you marry within 90 days, you can can apply to adjust your status to that of a lawful permanent resident (green card holder) through the filing of a Form I-485.

Gary Goodin, Immigration Attorney

Copyright © 2011, the Immigration NavigatorTM

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