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Cases & Decisions
Board of Alien Labor Certification Appeals (BALCA)
BALCA Upholds Denial, Employer Unable to Substantiate Infeasible to Train Argument
(106 KB - 12/30/2008)
BALCA concludes that CO properly denied certification of a traditional LC application, as the employer did not substantiate his argument that it was infeasible to train a new Manager/Video technician because of a new store opening. (
Matter of Third Avenue Video Corp.
AILA Doc. No. 08123067.
BALCA Finds Lack of Effort in Contacting U.S. Workers, Unlawful Rejection for Overqualification
(114 KB - 11/24/2008)
BALCA upholds the denial, finding that a U.S. applicant cannot be rejected solely for being overqualified, and that unanswered phone calls are not evidence of a reasonable effort to contact a U.S. worker. (
Matter of Global Travel International Co.
AILA Doc. No. 08112474.
BALCA Finds Employer's SVP Argument Unconvincing
(118 KB - 11/24/2008)
BALCA upholds CO’s finding that the job opportunity should have been coded as a job with an SVP of 4 to 6, and not an SVP of 7. (
Matter of Abe’s On Time Limousine
AILA Doc. No. 08112471.
BALCA Finds Winter Month Employment for Landscape Gardener Must be 40 Hours/Week
(87 KB - 11/12/2008)
BALCA concludes that evidence submitted to prove that a position for a landscape gardener is full-time, year-round employment is unsupported. Finds employees averaged less than 40 hours a week during winter months. (
Matter of Greenbelt Landscapes, Inc.
AILA Doc. No. 08111270.
BALCA Upholds Denial of Labor Certification Application for Landscape Gardener
(88 KB - 11/12/2008)
BALCA concludes that quarterly withholding statements provided by the employer in response to the NOF prove that the business is open year-round, but not that the position is for permanent, full-time, year round employment. (
Matter of MC Landscape Design, Inc.
AILA Doc. No. 08111268.
Despite Global Warming, BALCA Finds Landscape Position Is Not Offer of Permanent Employment
(85 KB - 11/5/2008)
BALCA upholds the denial a landscape gardener application because duties performed 9-10 months per year cannot be considered permanent employment for the purposes of a labor cert. (
Matter of Suburban Nursery
AILA Doc. No. 08110565.
BALCA Finds Experience Requirement in Advertisement is Unduly Restrictive
(92 KB - 11/5/2008)
BALCA upholds denial of a traditional labor certification filed for a pizza parlor general manager. The employer’s advertisement for the position included more restrictive experience requirements than were listed on the ETA 750A. (
Matter of Pac Pizza, LLC
AILA Doc. No. 08110564.
BALCA Finds Employer Needed to Further Investigate Otherwise Qualified Applicant
(136 KB - 11/4/2008)
BALCA finds that the employer did not demonstrate good faith recruitment for a secondary math teacher position because it did not further investigate an applicant whose resume raised a reasonable possibility that he met all requirements. (
Matter of Wisconsin Career Academy
AILA Doc. No. 08110467.
BALCA Affirms Denial Finding Employer Took Minimalist Approach to Recruitment
(110 KB - 11/4/2008)
BALCA upholds denial of a traditional application, finding that what may be considered adequate recruitment by an employer for routine hiring is not necessarily adequate to establish good faith efforts for purposes of a labor certification application. (
Matter of Technivate, Inc.
AILA Doc. No. 08110465.
BALCA Remands for Supervised Recruitment
(121 KB - 10/31/2008)
BALCA remands so that employer can re-advertise, finding that the NOF was written in a way to suggest that if the business necessity justification was not accepted, agreeing to re-advertise was not an option. (
Matter of The Montessori Center of Nyack
AILA Doc. No. 08103160.
Suspension of Attorney Causes CO to Question Bona Fide Job Opportunity
(107 KB - 10/29/2008)
BALCA finds that a NOF issued because employer’s counsel had been suspended raised the question of whether the application presented a bona fide job opportunity and explicitly stated that the finding would not be cured solely by obtaining new counsel. (
Matter of The Awning Warehouse
AILA Doc. No. 08102960.
BALCA Finds U.S. Applicants Were Not Rejected for Lawful Job-Related Reasons
(110 KB - 10/28/2008)
BALCA affirms denial, finding that alien’s previous work experience listed on the ETA750 does not indicate that he had experience in the qualifications upon which the employer relied in reviewing U.S. applicants. (
Matter of J.E. Liesfield Contractor, Inc.,
AILA Doc. No. 08102867.
BALCA Finds Position Offered for Entertainer Is Not Full-time
(123 KB - 10/23/2008)
BALCA affirms denial of a traditional labor certification filed for an ethnic singer/entertainer, finding that the position, which requires 20 hours per week, did not constitute full-time employment. (
Matter of Mast Enterprise, Inc.
AILA Doc. No. 08102360.
BALCA Remands for Re-advertisement to Correct Deficiency
(86 KB - 10/22/2008)
Where employer admitted a defect in the traditional application, but the NOF did not include any instructions for curing it, BALCA found that the employer established intention to correct the violation by re-advertising without instruction. (
Matter of Yujin S & T American, Inc.
AILA Doc. No. 08102269.
Motion to Appeal Out of Time Based on Ineffective Assistance of Counsel Fails
(107 KB - 10/21/2008)
BALCA affirms denial of traditional labor certifications. Employer filed Motion to Appeal Out of Time based on ineffective assistance of counsel, but BALCA found employer did not establish sufficient grounds to merit equitable relief.
Matter of Hopkins Lumber Co.
AILA Doc. No. 08102163.
BALCA Finds No Obligation to Allow Re-advertisement to Cure Lack of Good Faith Recruitment
(87 KB - 10/21/2008)
BALCA finds that a CO is not obligated to permit the employer to re-advertise to cure lack of good-faith recruitment efforts. The employer had unsuccessfully tried to contact applicants by telephone, but did not follow up with a letter. (
Matter of Lynch Metals, Inc.
AILA Doc. No. 08102162.
BALCA Does Not Excuse Following Defunct Regulations or Advertising Outside Window
(85 KB - 9/22/2008)
BALCA concludes that mistakenly filing an application with the wrong office under defunct regulations does not present a compelling case for equitable relief. (
Matter of Wangs Ming Garden, Inc.
AILA Doc. No. 08092268.
BALCA Addresses Requirements for Retention of Pre-PERM Priority Date
(94 KB - 9/18/2008)
BALCA upholds loss of pre-PERM priority date, finding that the job title and description were not identical on the 750A filed for a middle school teacher job and the 9089 for an elementary school teacher job. (
Matter of North Forest Independent School District
AILA Doc. No. 08091872.
Lack of FEIN Fatal to PERM Application
(99 KB - 9/18/2008)
Although BALCA agreed that the CO’s original letter denying the PERM application was deficient in failing to note the lack of a FEIN, it found that as the employer did not have a FEIN at the time of filing, the application was fatally flawed. (
Matter of Mays
AILA Doc. No. 08091867.
BALCA Finds K-8 Omission Was Not a Scrivener’s Error
(94 KB - 9/17/2008)
BALCA upholds the denial of a PERM application for a fork lift operator because section K-8 of the 9089 was left blank. It finds that without K-8 the CO could not adequately judge whether the actual minimum requirements were met. (
Matter of North County Cooling
AILA Doc. No. 08091772.
BALCA Upholds Denial Because of Incomplete ETA 9089
(96 KB - 9/17/2008)
BALCA upholds the denial of a PERM application for a home health aide because the employer indicated that she did not have a FEIN number and failed to complete F-4 and K-5 of the application. (
Matter of Lee
AILA Doc. No. 08091771.
BALCA Upholds Denial of Child Care Worker ETA-750
(96 KB - 9/5/2008)
BALCA upholds denial for a nanny who did not have the required 2 years of experience in a related occupation prior to being hired by the employer. (
Matter of Hills
AILA Doc. No. 08090568.
BALCA Remands Because Employer Not Informed of Burden on Rebuttal
(92 KB - 9/3/2008)
BALCA remands finding that the pro se employer was not given adequate notice of its rebuttal burden. CO did not inform employer in the NOF of the option to document that a wage lower than the prevailing wage was appropriate. (
Matter of Apostolic Assembly of the Faith in Christ Jesus
AILA Doc. No. 08090369.
BALCA Upholds Denial After Wrong Rebuttal Documentation Is Provided Without Explanation
(129 KB - 8/29/2008)
BALCA affirms the denial where, in the rebuttal to the NOF, the employer submitted documentation related to a company that did not match the one named in the application, and then did not attempt to explain the error in an appellate brief. (
Matter of At Your Service Enterprises
AILA Doc. No. 08082960.
Employer Fails to Provide Documentation that Required Job Knowledge is Implicit
(107 KB - 8/26/2008)
BALCA upholds denial of ETA-750, finding that the employer did not incorporate the job duties by requiring experience in the job offered, and that the listed duties were too vague to provide an objective basis for rejecting applicants. (
Matter of Latin American Enterprises, Inc.
AILA Doc. No. 08082670.
Employer Cannot Reject Possibly Qualified Applicant Based on Resume Alone
(111 KB - 8/26/2008)
BALCA affirms denial of an ETA-750, finding that 2 U.S. applicants raised the reasonable prospect that they were capable of performing the job offered, thus the employer had a duty to verify their qualifications. (
Matter of Big Apple Contractor Co.
AILA Doc. No. 08082669.
BALCA Remands Because Pro Se Employer Likely Found NOF Confusing
(97 KB - 8/22/2008)
BALCA vacates and remands a traditional application for a “houseworker, general,” because of the employer’s pro se status and the NOF’s potential for confusion. (
Matter of Ferraro
AILA Doc. No. 08082269.
BALCA Finds Employer Must Provide Evidence Despite Inapplicability of NOF Boilerplate Language
(93 KB - 8/22/2008)
BALCA upholds denial of an ETA-750 for a domestic household “day worker.” It found that the NOF used boilerplate language regarding ability to pay, which was not applicable to a household, but it was unreasonable for the employer to ignore the request entirely. (
Matter of Mcham
AILA Doc. No. 08082267.
BALCA Remands as Employer Was Not Given Opportunity to Readvertise
(120 KB - 8/21/2008)
BALCA finds that an application that was before the CO to request RIR should have been referred for regular processing because of unduly restrictive job requirements. Instead, NOF was written to preclude the employer from readvertising. (
Matter of Atlanta Oriental Food Wholesale Co.
AILA Doc. No. 08082173.
Employer Unable to Prove Business Necessity and Actual Minimum Requirements
(101 KB - 8/21/2008)
BALCA affirms denial of an ETA-750 for a cabinetmaker, finding that the issue of job misclassification was not timely raised, and that employer failed to provide specific documentation regarding business necessity and actual minimum requirements. (
Matter of Virginia Millwork, Inc.
AILA Doc. No. 08082172.
BALCA Finds it “Unfortunate” that Employer Disbanded Since Application Filing
(84 KB - 8/20/2008)
BALCA upholds denial of traditional labor certification filed for a “Public Relations Representative” because the sponsoring company disbanded during the 6+ years that it took DOL to process the labor certification. (
Matter of Camelback Wedding Center
AILA Doc. No. 08082065.
Denial of Domestic Worker PERM Case Upheld
(106 KB - 8/20/2008)
BALCA upholds PERM denial for a “housekeeper/child care nanny” because recruitment efforts did not occur within the time window, the beneficiary failed to meet the actual minimum requirements, and the employer failed to provide an executed contract. (
Matter of Pena
AILA Doc. No. 08082063.
BALCA Concludes Private Household Must Have FEIN Number
(101 KB - 7/28/2008)
BALCA affirms denial of PERM application because employer did not fill out C-6, C-7, F-4 and K-5, rendering the 9089 incomplete. BALCA concludes that a private household must obtain a FEIN number from the IRS. (
Matter of Carmen Lee
AILA Doc. No. 08072870.
Employer Recruits Prior to 180 Days, Faults Fed-Ex for Delay in Filing
(92 KB - 7/28/2008)
BALCA finds PERM recruitment conducted more than 180 days before filing of 9089. Form 9089 sent overnight, but not received and date stamped until a couple days later. Employer failed to provide evidence to support assertion of overnight mailing. (
Matter of First Truck Services
AILA Doc. No. 08072869.
Employer May Not Require Bachelor’s, But Appendix A Job Requires Professional Recruitment
(104 KB - 7/21/2008)
BALCA underscores that an Appendix A occupation requires use of the professional recruitment standard, even if the employer does not require a bachelor’s for the position. (
Matter of A One Auto Center
AILA Doc. No. 08072171.
BALCA Finds Employer Cannot Substitute Agent’s FEIN Number
(87 KB - 7/14/2008)
BALCA upholds denial of PERM application, finding that an employer cannot provide an agent’s FEIN number in lieu of its own in Section C-6 of Form ETA 9089. (
Matter of Pacific Molding, Inc.
AILA Doc. No. 08071461.
BALCA Clarifies that 30 Days Must Pass After Closing of SWA Job Order Prior to Filing
(76 KB - 7/10/2008)
BALCA upholds denial of PERM application because the employer did not allow 30 days to pass after the closing of the SWA job order before filing. (
Matter of the Nut Club LTD.
AILA Doc. No. 08071066.
BALCA Finds Requested Docs are Relevant to Issue of Bona Fide Job Offer
(129 KB - 7/10/2008)
BALCA affirms denial of ETA-750, finding that the employer failed to establish that the documentation requested by the CO was not reasonably obtainable. Employer argued that its “financials” were beyond the authority of the DOL to look into. (
Matter of Meisner’s Take Out
AILA Doc. No. 08071065.
No Bonafide Job Opportunity Exists if Some Drivers to Remain Unsalaried
(205 KB - 5/29/2008)
BALCA upholds denial in RIR case. Employer failed to establish that the 196 applications for limo drivers represented bona fide job opportunities open to U.S. workers, as the rest of its 254 drivers work on a contract basis. (
Matter of Elite Limousine Plus, Inc.
AILA Doc. No. 08052960.
U.S. Applicants Unlawfully Rejected Based on Presumptions in Traditional Labor Cert. Case
(92 KB - 5/22/2008)
BALCA finds employer unlawfully rejected U.S. applicants based on assumptions that an overqualified applicant would become bored, an applicant would not be wiling to relocate, and unreliability, as well as an applicant’s accent. (
Matter of Express Line Corporation
AILA Doc. No. 08052250.
BALCA Finds Employer’s Request of Additional Documents Has “Chilling Effect” on U.S. Applicants
(97 KB - 5/19/2008)
BALCA affirms the denial of and ETA-750 because the employer did not exercise good faith recruitment, and failed to document lawful job-related reasons for rejecting U.S. applicants. (
Matter of Gaynor Gardens Homes, Inc.
AILA Doc. No. 08051969.
Employer Doesn’t Require Bachelor’s, but BALCA Finds Professional Recruitment Mandatory for Appendix A Job
(120 KB - 5/16/2008)
BALCA affirms denial of PERM application, noting that an occupation that appears on Appendix A requires the professional recruitment standard, regardless of whether the employer has required a bachelor’s degree for its particular position. (
Matter of EPI Limited Partnership
AILA Doc. No. 08051668.
Denial Upheld as Employer Could Not Substantiate that Error Was Inadvertent
(110 KB - 5/16/2008)
BALCA affirms the PERM denial where the employer did not conduct the required recruitment for a professional occupation. The employer claimed an inadvertent error in the SOC/O*Net code, but failed to provide the prevailing wage determination. (
Matter of Federal Medical Group, Inc.
AILA Doc. No. 08051660.
Original Priority Date Retained in Amended Application Refiled Under PERM
(83 KB - 5/14/2008)
BALCA reverses and the original priority date is retained where the 750A and 9089 were not identical, but it was shown that the amendments were made to the pre-PERM application prior to its withdrawal for the purpose of refiling. (
Matter of Select Imports, Inc.
AILA Doc. No. 08081430.
BALCA Upholds Denial of Incomplete PERM Application
(75 KB - 5/9/2008)
Although the employer submitted a new ETA Form 9089 on appeal, supplying most of the information omitted in the original application, BALCA upheld the denial noting that the appropriate remedy is for the employer to file a new application. (
Matter of 5th Avenue Landscaping, Inc.
AILA Doc. No. 08050960.
BALCA Upholds Denial Finding Employer and Beneficiary Are One and the Same
(109 KB - 2/14/2008)
BALCA upholds denial of pre-PERM labor certification application, concluding that a bona fide job opportunity open to U.S. workers did not exist, as the beneficiary and the employer were one and the same. (
Matter of ATI Consultores,
AILA Doc. No. 08021460.
BALCA Finds Beneficiary Gained Experience on the Job
(85 KB - 2/13/2008)
BALCA affirms the RIR denial because the employer did not show that the beneficiary had the requisite experience prior to being hired, or that it could now hire a worker with less than the minimum qualifications. (
Matter of Professional Staffing Services of America
AILA Doc. No. 08021359.
BALCA Finds Groundskeeper Is Not Year-Round Position
(86 KB - 2/13/2008)
BALCA upholds denial of pre-PERM labor certification application because the record established that the incumbent foreign national had been working less than 12 months of the year in full-time employment. (
Matter of Rankin Landscaping, Inc.
AILA Doc. No. 08021379.
BALCA Finds Lack of Evidence that Job Was Permanent & Full-Time Fatal to Application
(98 KB - 2/13/2008)
BALCA finds pre-PERM application was properly denied because the employer failed to show that the position was full-time and year-round. A letter from the company accountant was found an inadequate substitute for the requested payroll records. (
Matter of Twin Industries
AILA Doc. No. 08021378.
BALCA Finds Employer Rejected Qualified U.S. Applicants
(98 KB - 2/13/2008)
BALCA affirms CO’s denial of a pre-PERM labor certification application, finding that the employer rejected U.S. applicants who met the minimum requirements specified for the position on the ETA 750A. (
Matter of Houston Music Institute
AILA Doc. No. 08021377.
BALCA Upholds Denial for Lack of Proper Evidence of Ability to Pay Wage
(112 KB - 2/13/2008)
BALCA upholds denial of pre-PERM application, rejecting employer’s argument that ability to pay is an issue only USCIS can determine. Also finds employer failed to establish a bona fide job opportunity. (
Matter of South Valley Drywall, Inc.
AILA Doc. No. 08021360.
BALCA Finds Application Inherently Implausible
(136 KB - 2/12/2008)
Employer submitted documentation that it was able to pay the proffered wage, but did not show whether it had any employees. BALCA concludes the employer did not establish that it was offering a bona fide, full-time position. (
Matter of Factor’s Row, LLC
AILA Doc. No. 08021273.
BALCA Finds Employer Unable to Establish Worksite or Bona Fide Job Opportunity
(105 KB - 2/12/2008)
BALCA upholds the denial of an RIR case, drawing a distinction between a “virtual office” for a job without a fixed worksite and a fictionalized location for a job offer. (
Matter of PR Consultants Inc.
AILA Doc. No. 08021270.
BALCA Affirms Denial for Lack of Job Order
(79 KB - 2/12/2008)
BALCA finds that employer’s lack of awareness that a job order was required is insufficient to overcome the PERM application deficiency. (
Matter of Beck AG Operations Inc.
AILA Doc. No. 08021266.
BALCA Finds Application without SWA Job Order Dates Incomplete
(92 KB - 2/12/2008)
BALCA upholds CO's denial of PERM application because the employer failed to enter the dates of the SWA job order on Form ETA 9089, leaving I.c.6 and I.c.7 blank. (
Matter of Dr. Afshin Abdollahi, DMD, Inc.
AILA Doc. No. 08021260.
BALCA Affirms Denial of PERM Application Filed Too Early
(87 KB - 2/11/2008)
BALCA affirms denial of a PERM application filed less than 30 days after the end of the SWA job order. Although the job order had not produced any new U.S. applicants, BALCA noted that the requirement is not a mere formality. (
Matter of Syncsort Inc.
AILA Doc. No. 08021167.
Employer Misconstrues Regulations on Labor Certification Filing Window
(77 KB - 2/11/2008)
BALCA finds that the employer filed the PERM application too early, believing that an application could be filed 30 days after the SWA job order started, rather than 30 days after it ended. (
Matter of Oyassan
AILA Doc. No. 08021166.
BALCA Finds Filing of Labor Cert. Seven Days After End of Job Order Was Substantive Violation
(86 KB - 2/11/2008)
BALCA upholds the denial of a PERM application, finding that the employer’s filing of the application less than 30 days after the end of the job order was not a harmless clerical error, but a substantive violation. (
Matter of Constructions Pros Corp.
AILA Doc. No. 08021165.
BALCA Upholds Denial of Application Filed Too Soon After Conclusion of Job Order
(73 KB - 2/11/2008)
BALCA upholds denial of PERM application because employer filed the ETA 9089 less than 30 days after the conclusion of the SWA job order. (
Matter of Texas Storm of Houston
AILA Doc. No. 08021160.
Employer Cannot Use SSN as Substitute for FEIN on ETA 9089
(76 KB - 2/8/2008)
Upholding CO’s denial of PERM application, BALCA finds that pursuant to 20 C.F.R. § 656.3 an employer must possess a valid FEIN. (
Matter of Discolo
AILA Doc. No. 08020867.
BALCA Finds that Landscape Gardener Position is Seasonal
(88 KB - 1/9/2008)
BALCA upholds CO’s denial of RIR case in which the employer fails to establish that the position for a Landscape Gardener is a full-time permanent position. (
Matter of Odonata Corp.
AILA Doc. No. 08010960.
BALCA Finds that Required Experience and Duties Render “Manager” Level II
(110 KB - 1/8/2008)
BALCA concludes that regardless of O*NET job classification at issue, position is properly classified as Level II rather than Level I in pre-PERM labor certification application. (
Matter of Plaza Express Car and Limo Service
AILA Doc. No. 08010878.
BALCA Finds Requirements Cannot be Implied and Interview Process Must be Timely
(136 KB - 1/8/2008)
BALCA upholds denial of an ETA-750 for a rug repairer, rejecting Employer’s contention that undisclosed requirements were implied in the job description. Also finds that delayed interview process shows lack of good faith effort to recruit. (
Matter of Bistany’s Oriental Rug Dealers
AILA Doc. No. 08010873.
BALCA Finds Employer Failed to Make Good Faith Effort to Recruit
(122 KB - 1/7/2008)
BALCA concludes that evidence of Employer’s one minute or less telephone contact with applicants is inadequate to show good faith effort to recruit, upholding CO's denial of pre-PERM application. (
Matter of El Jalisco Mexican Restaurant
AILA Doc. No. 08010701.
BALCA Finds Employer’s Amendments to the Job Requirements Untimely
(112 KB - 1/7/2008)
BALCA upholds denial of a pre-PERM labor certification application filed for a hotel manager, finding that the amendments to the application proposed after it was denied were a fundamental change in the job requirements. (
Matter of Century Wilshire Hotel
AILA Doc. No. 08010763.
BALCA Upholds Denial for Failure to Answer H-6A
(83 KB - 1/4/2008)
BALCA upheld the denial of a PERM application for Employer’s failure to complete Section H-6A. Attorney argued that his records show that the application was properly completed, but the appeal file supports the CO’s finding. (
Matter of Best Manufacturing
AILA Doc. No. 08010470.
BALCA Upholds Denial of Application Filed Less than 30 Days After End of Job Order
(85 KB - 1/4/2008)
BALCA finds that the filing of a PERM application less than 30 days after the end of the SWA job order is a substantive violation, even though the job order did not appear to produce qualified candidates after the 30 days. (
Matter of Golden Bridge Restaurant
AILA Doc. No. 08010461.
Submission of Forms without DOL Logo Not Fatal to PERM Application
(92 KB - 1/4/2008)
BALCA finds CO improperly refused to reconsider denial of PERM application after Employer presented evidence that recruitment would have been timely, but for its error of submitting forms without the DOL logo.
Matter of Subhashini Software Solutions
AILA Doc. No. 08010460.
BALCA Finds that a FEIN is Needed to Employ a Domestic Worker
(81 KB - 1/3/2008)
BALCA upholds denial of PERM application, concluding that although a household may not be a business in a commercial sense, it must nevertheless obtain an FEIN to verify that it is a bona fide business entity and able to legally employ a domestic worker. (
Matter of Alpert
AILA Doc. No. 08010373.
BALCA Upholds PERM Denial for Lack of FEIN
(86 KB - 1/3/2008)
BALCA finds that the Employer’s lack of a FEIN at the time of the labor certification application filing is a substantive omission. It concludes that the CO was correct in declining the Employer’s request to remedy the deficiency. (
AILA Doc. No. 08010368.
BALCA Upholds Denial for Failure to Answer H-8 and H-10A
(85 KB - 1/3/2008)
BALCA concludes that failure to answer Sections H-8 and H-10A were not “slight omissions” and constitute grounds for denial. (
Matter of Subhashini Software Solutions
AILA Doc. No. 08010366.
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