E2 Visa Guide: All You Need to Know About the E2 Visa
The E2 Visa is an excellent option for investors and entrepreneurs who wish to live in the United States, launch a U.S. business, and actively work for their company.
This guide covers essential information about the E2 visa, including eligibility, benefits, and the application process.
If you have questions about the E2 visa, feel free to contact me directly at abbas@espadaimmigration.com. I am very responsive and happy to provide further information.
Overview:
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What is the E2 Visa?
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What advantages does the E2 Visa offer?
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What are the eligibility criteria for the E2 Visa?
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How does acquiring an E2 Visa differ from changing to E2 status?
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What is the estimated timeframe for receiving an E2 Visa?
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What is the duration of stay permitted in the U.S. with an E2 Visa?
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Do family members gain immigration benefits if I obtain an E2 Visa?
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Is it possible to secure an E2 Visa as an employee of an E2 business?
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What is the process for transitioning from an E2 Visa to a Green Card?
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Summary.
1. What is the E2 Visa?
The E2 visa is a non-immigrant visa intended for investors, entrepreneurs, and individuals interested in managing a business in the United States. This visa allows you to either start a new business or invest in an existing U.S. business and actively manage its operations.
To qualify for an E2 visa, applicants must make a substantial investment in a U.S. business and be actively involved in directing and developing that enterprise. You can choose to establish a new business or invest in a pre-existing one to meet the requirements.
The E2 visa is only available to nationals of certain countries that maintain a treaty with the United States (a list of eligible countries is provided below).
There is no set limit on E2 visa renewals. As long as the business remains active and continues to meet E2 visa requirements, the visa holder can keep renewing their E2 visa, allowing them to live and work in the United States.
Summary:
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The E2 visa is a non-immigrant visa designed for investors.
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Eligibility for an E2 visa requires a substantial investment in a U.S. business.
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The E2 visa can be renewed indefinitely, provided the business remains operational and continues to meet E2 visa requirements.
2. Benefits of an E2 Visa
An E2 visa offers a range of advantages for entrepreneurs and investors looking to establish and manage a business in the United States:
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Business Opportunity: The E2 visa allows you to start and actively operate a business in the U.S.
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Family Eligibility: Your spouse and unmarried children under 21 years of age can also qualify for E2 visas, allowing them to accompany you.
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Work Authorization for Spouse: Your spouse can receive authorization to work in the U.S., opening up additional employment opportunities.
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Education for Children: Your children are eligible to attend school in the U.S., providing them access to American education.
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Flexible Investment Amount: There is no minimum required investment amount for an E2 visa. In some cases, investments as low as $50,000 or less have qualified.
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Unlimited Extensions: The E2 visa can be renewed indefinitely, allowing some visa holders to remain in the U.S. for 15 years or more with regular extensions.
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No Requirement for Foreign Residence: Unlike many other non-immigrant visas, the E2 does not require you to maintain a residence outside of the United States.
3. What are the Requirements for an E2 Visa?
To qualify for an E2 visa, applicants must meet the following eight key criteria:
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Nationality Requirement: You must be a citizen of a country that maintains an E2 treaty with the United States.
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Intent to Depart: You need to demonstrate intent to leave the United States once your E2 status ends.
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Substantial Investment: A significant financial investment must be made in a U.S.-based company.
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Active, For-Profit Business: The business you invest in must be actively operating and for-profit.
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Non-Marginal Enterprise: The business should not be considered marginal and must have the capacity to support more than just the investor’s personal needs.
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Role in Business: You must be entering the U.S. to actively direct and develop the business.
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Lawful Source of Funds: The funds used for the investment must come from a legal source.
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Investment Commitment and Risk: The investment must be fully committed to the business, with funds at risk and subject to potential financial loss.
i. You must be a national of a country with an E2 treaty with the United States.
For an E2 visa, you must be a national of a country that has an E2 treaty with the U.S. This requirement has two components:
- Country of Nationality: You must hold nationality from a country with an E2 treaty.
- Qualifying Treaty: The U.S. must have an active treaty with your country that allows for E2 visas.
Nationality
To qualify for the E2 visa, you must hold the nationality of a country that has an eligible treaty with the United States.
Generally, your nationality is determined by your citizenship. If there is any question regarding your nationality, it will be based on the nationality laws of your country and the specific language in your country’s treaty with the United States.
There are two main pathways to qualify for an E2 visa:
- Investing in a U.S. business as an individual
- Investment by a foreign business in a U.S. business
Investment as an Individual
If you are personally investing in a U.S. business, you will be regarded as the principal E2 investor. Your citizenship will be used to assess if you meet the nationality requirement.
For individuals with dual nationality, you may still be eligible for an E2 visa but must apply based on the nationality of the treaty country.
Investment by Foreign Business
If a foreign business is making the investment, the business itself will be considered the principal E2 investor. The nationality of the business is determined by the nationalities of its individual owners.
To meet E2 requirements, the business must be at least 50% owned by nationals of the treaty country. If less than 50% of ownership is by treaty nationals, the business may still qualify if restructured so that treaty nationals hold a minimum of 50% ownership.
Qualifying Treaty with the United States
To qualify for an E2 visa, there must be an existing E2 treaty between the United States and the investor’s country of nationality.
Below is a complete list of countries that currently have an E2 treaty with the United States:
- Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia and Herzegovina, Bulgaria, Cameroon, Canada, Chile, Colombia, Congo (Brazzaville), Congo (Kinshasa), Costa Rica, Croatia, Czech Republic, Denmark, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Ireland, Israel, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kosovo, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Mexico, Moldova, Mongolia, Montenegro, Morocco, Netherlands, New Zealand, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Portugal, Romania, Serbia, Senegal, Singapore, Slovak Republic, Slovenia, South Korea, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Taiwan, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom, Yugoslavia.
Major Countries Without an E2 Treaty with the US
The following countries do not have an E2 treaty with the United States:
- Brazil, China, India, Russia
ii. You must have the intent to depart the US once your E2 status ends.
To qualify for an E2 visa, you need to demonstrate the intention to leave the United States when your E2 status concludes.
Unlike many other non-immigrant visa categories, which require you to establish a non-immigrant intent, the E2 visa has different criteria.
Typically, proving non-immigrant intent involves showing strong connections to your home country, such as owning a residence or having family there.
However, this requirement does not apply to the E2 visa. In most instances, you can fulfill the “intent to depart” obligation by providing a signed statement indicating your plan to leave the United States when your E2 status ends.
If you need assistance with this process, please feel free to reach out to me directly at abbas@espadaimmigration.com
iii. You must make a substantial investment in a US company.
To be eligible for an E2 visa, it is necessary to make a substantial investment in a U.S. company.
The regulations do not establish a specific minimum amount that qualifies as substantial. The Foreign Affairs Manual explicitly states: “No set dollar figure constitutes a minimum amount of investment to be considered ‘substantial’ for E-2 visa purposes.” [9 FAM 402.9-6(D)]
Instead, a proportionality test is applied to assess whether the investment is substantial.
Proportionality Test
The proportionality test compares two figures: the amount of money you have invested in your business and the overall value of the business.
For an existing business, the value is generally represented by its purchase price. In contrast, the value of a startup is determined by the total cost required to make the business operational.
To ascertain if your investment is substantial, the immigration officer handling your case will calculate the proportion between your actual investment and the total value of the business.
For businesses with a lower value, your investment should constitute a significant percentage of the total value to be deemed substantial. Conversely, for businesses with a high valuation, a smaller percentage of investment may still qualify as substantial.
Unfortunately, there are no fixed percentages to define what constitutes a substantial investment.
If the total value of your business is $100,000 or less, your investment should typically be 100% of the total value for it to be considered substantial. On the other hand, if the total value is considerably higher (for instance, $10,000,000), an investment of $5,000,000 would likely be regarded as substantial, even though it represents only 50% of the business’s total value.
If you have questions regarding your specific business and whether your investment qualifies as substantial, please reach out to me directly at abbas@espadaimmigration.com. I would be glad to assist you in evaluating your investment.
Rule of Thumb
As a general guideline, I recommend that at least $100,000 be invested in the business and put at risk. However, there have been instances where investments as low as $50,000 have qualified for the E2 visa.
In summary, the greater your investment, the more likely it will be considered substantial, enhancing the strength of your case.
IV. Your E2 Business Must Be Active and For-Profit
To qualify for an E2 visa, the business in which you invest must be an active, for-profit entity engaged in entrepreneurial activities. This can include businesses that sell products or services with the intent of making a profit.
Examples of Qualifying Businesses:
- Companies that provide goods or services to customers.
Non-Qualifying Investments:
- Passive investments, such as purchasing residential real estate or investing in the stock market, do not meet this criterion.
V. The Business Must Not Be a Marginal Enterprise
For an E2 visa, the invested business cannot be considered a marginal enterprise. A marginal enterprise is defined as one that lacks the capacity to generate enough income to provide more than a minimal living for the E2 investor and their family (as per CFR Section 214.2(e)).
Proving Non-Marginality:
- You can demonstrate that your business has the ability to generate sufficient income to support you and your family.
- Alternatively, you can show that your business will make a “significant economic contribution” by employing multiple workers, either currently or in the future.
VI. You Must Enter the U.S. to Direct and Develop Your E2 Business
As an E2 investor, your purpose for entering the United States must be to direct and develop the E2 business.
Ownership and Control:
- You must own at least 50% of the business to meet this requirement. If you own less, you can still qualify by demonstrating operational control through a managerial role.
Operational Control:
- Holding a management position or having similar responsibilities can fulfill the requirement. Passive investors are not eligible for the E2 visa.
Equal Ownership:
- In cases where two parties share equal ownership (50/50), both must have full management rights and responsibilities to satisfy the “direct and develop” requirement.
As an E2 investor, your focus should be on directing and developing the business rather than engaging in daily operations. For example, if you are starting a café, you should take on a leadership role rather than performing tasks like making coffee.
VII. Your Investment Funds Must Be Lawful
The funds you use for your E2 investment must come from legal sources.
Acceptable Sources of Funds:
- Earnings from legitimate employment
- Proceeds from property sales
- Gifts or inheritances
You may also use funds from a loan, provided the loan is either unsecured or backed by your personal assets. Loans secured by the E2 business’s assets do not qualify. You must document how your funds were obtained.
VIII. Your Investment Must Be Irrevocably Committed and At Risk
To obtain an E2 visa, your investment must be at risk, meaning the funds should be actively committed to the business rather than sitting idle in an account.
At Risk Requirement:
- Your investment must be subject to potential loss, meaning there can be no assurance that you will recover any part of your funds.
To assess the risk, consider how much money you would lose if the E2 business fails.
Irrevocably Committed:
- The investment funds must either be already deployed in the E2 business at the time of filing or actively being invested.
You should be close to commencing actual business activities to demonstrate your commitment to the E2 business’s success. Mere intent to invest without action is not enough, nor is placing funds in a bank account without commitment.
However, a reasonable amount of funds in a business operating account can count towards your investment. In some instances, you may place your investment in an escrow account, with the release of funds contingent upon the approval of your E2 visa or change of status.
4. What is the Process for Getting an E2 Visa?
The E1 visa application involves several steps, and an immigration attorney can guide you through this process. You can apply for an E1 visa either from within the U.S. through USCIS or from a U.S. consulate abroad. Regardless of the application location, the following documents are typically required:
- Form G-28
This Notice of Entry of Appearance form is completed by your attorney or accredited representative, allowing them to act on your behalf. - Passport
Either a current passport or a copy of its biographic page. - Proof of E1 Eligibility
Evidence demonstrating that you meet the criteria for E1 status. - Business Information
Documentation about the business, including its industry, scope, and ownership structure. - U.S. Company Support Statement
A letter from your U.S. employer explaining the importance of your role for the company’s operations. - Intent to Depart
Evidence showing your intention to leave the U.S. once your E1 status ends.
Applying for an E1 Visa
If you are outside the U.S., you will need to apply for an E1 visa at a consulate or embassy in your country. It is advisable to work with an experienced immigration attorney to gather and prepare all necessary documentation for your application. Keep in mind that different consulates may have varying requirements regarding the types of documents needed and how they should be organized and presented. Therefore, it’s important to check the specific consulate’s website to ensure your application is properly submitted. Additionally, most consulates do not accept applications from third country nationals, so you will likely need to apply through your home country’s consulate.
Once you have compiled all required documents, your attorney will assist you in completing Form DS-160, the Online Nonimmigrant Visa Application. This form provides essential information that helps consular officers determine your eligibility for a nonimmigrant visa, including the E1 visa.
Your attorney will also fill out Form DS-165E, the Nonimmigrant Treaty Trader/Investor Application, which requires information about both yourself and your company. This form further assists consular officers in evaluating your application for an E1 visa.
After completing the application and gathering all supporting documents, your attorney will submit your E1 visa application directly to the consulate.
Next, you will need to schedule a personal interview with a consular officer. Your attorney should prepare you for what to expect during this visa interview.
During the interview, you may be asked various questions regarding your E1 business, personal background, and immigration plans. If the interview goes well, your E1 visa should be stamped in your passport within a few days.
With the E1 visa, you will be allowed to enter the United States under the terms of the visa. Upon entry, you will receive E1 status.
Change of Status
If you are currently in the United States on a valid non-immigrant status and have maintained continuous non-immigrant status, you may be eligible to apply for a change of status to E1 status. This process involves filing a change of status petition with USCIS.
It is advisable to work closely with an experienced immigration attorney to navigate this process. Your attorney will assist you in gathering all the necessary documentation required for the change of status application.
Your attorney will also complete Form I-129, which is the Petition for a Nonimmigrant Worker. Additionally, you will need to fill out the E-supplement associated with this form.
You might also consider filing Form I-907, which is a Request for Premium Processing Services. This form allows you to request expedited processing for your application.
Once all the documents are assembled and the forms are completed, your attorney will submit the application to USCIS, including a copy of the biographic page of your passport and your I-94 card.
Upon approval of your change of status, you will be granted E1 status. It’s important to note that this is not a visa; instead, you will receive a new I-94 that reflects your E1 status and indicates the duration of your validity.
The entire change of status process occurs while you remain in the U.S.
5. What is the estimated timeframe for receiving an E2 Visa?
There are many factors to consider before deciding between changing status or opting for consular processing.
Before making your choice, it’s recommended to consult with an immigration attorney.
Here are some key considerations:
Are you lawfully present in the U.S.?
Only those lawfully present in the U.S. are eligible to apply for a Change of Status.
If you are outside the U.S., a Change of Status is not an option.
How quickly do you need the E2 visa?
A Change of Status can be appealing for those seeking faster processing times.
USCIS offers Premium Processing for Change of Status applications, allowing approval within as little as 15 days. Consular Processing, on the other hand, may take significantly longer.
Will you need to travel outside of the US?
If you change your status to E2 while in the United States, be aware that leaving the country will cause you to lose that status.
To re-enter the U.S. under E2 status, you would need to obtain an E2 visa through a U.S. consulate outside of the country.
Keep in mind that consulates do not base their decisions on previously approved E2 status changes from USCIS. This means you will need to apply for an E2 visa from the consulate as a new application, re-submitting documentation to prove you meet the E2 requirements.
How much are you investing?
Some U.S. consular posts are stricter than others and may require a higher investment amount to meet the “substantial” investment criteria.
If your consulate tends to be strict, you may consider changing your status within the U.S. first to allow time to grow your E2 business. At a later date, you could apply for the E2 visa abroad with additional investment to strengthen your case.
However, note that this strategy could work against you if the business does not perform as expected. In that case, consular officials will have a record of your business activities to assess, which may impact the outcome.
6. How Long Does it Take to Get an E2 Visa?
There are three primary stages in the E2 visa process that impact processing time:
- Document Gathering
- Legal Preparation
- Consular Processing or Change of Status
Document Gathering
Once you engage an immigration attorney, they will review your case and provide a list of required documents for your E2 visa application.
Gathering the necessary documents typically takes clients around one month, though this can vary based on individual circumstances.
Legal Preparation
After you submit the required documents, your attorney generally takes about two weeks to prepare and complete your E2 petition before filing.
Consular Processing/Change of Status
Your application will then proceed in one of two ways:
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Consular Processing: If you’re applying through a U.S. consulate in your home country, this stage typically takes 2-3 months.
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Change of Status (within the U.S.): Processing through USCIS generally takes 6 to 8 months. If you need faster processing, you can opt for premium processing, which expedites the decision to 15 business days. However, an RFE (Request for Additional Evidence) may add to the timeline if USCIS requires further information.
Note: Premium Processing only ensures that USCIS responds within 15 days. If they find issues or need more information, they can issue an RFE, which may delay the final decision.
7. How Long Can I Stay in the U.S. on an E2 Visa?
The duration of your E2 visa depends on the issuing country, with typical validity periods ranging from 3 months to 5 years.
- If your E2 visa is valid for 5 years, this does not permit a continuous 5-year stay in the U.S.
- Your actual stay in the U.S. is determined by your status rather than the visa’s validity.
- Generally, each time you enter the U.S. on an E2 visa, you are granted 2 years of status.
- With a valid multiple-entry E2 visa, you may leave and re-enter the U.S., obtaining another 2 years of status each time.
- There are no limits to the number of renewals for an E2 visa.
- You can keep renewing your E2 visa as long as your business continues to meet the visa’s requirements.
8. If I Obtain an E2 Visa, Do My Family Members Receive Immigration Benefits?
Yes, as the primary E2 visa holder, your spouse and unmarried children under 21 may also qualify for E2 visas.
Your spouse automatically receives work authorization with E2 status, meaning they can work in any lawful job in the U.S. once they enter on the E2 visa or upon approval of an E2 change of status.
No separate application for work authorization is needed for an E2 spouse; work eligibility is automatically provided based on their E2 status as the spouse of the principal visa holder.
Your children are permitted to attend school in the U.S. but are not eligible to work.
9. Can I Get an E2 Visa as an Employee of the E2 Business?
Yes, a foreign national may qualify for an E2 visa as an employee of an E2 business enterprise.
Typically, there are three categories of employees who may be eligible for an E2 visa:
- Executive Employees
- Supervisory Employees
- Employees with Specialized Skills Essential to the E2 Enterprise
10. How to Go From an E2 Visa to Green Card
Here are some important considerations:
- The E2 visa is classified as a non-immigrant visa, meaning it is temporary and does not provide a direct path to a green card.
- To obtain a green card, you must apply for an immigrant visa or adjust your status to that of a lawful permanent resident.
- It’s important to keep in mind that holding an E2 visa requires you to intend to depart the U.S. when your E2 status ends.
- However, you cannot be denied E2 status simply because you have an approved immigrant visa petition.
- You may apply for an immigrant visa or adjust your status within the U.S. while holding an E2 visa.
- This process can be complex and requires a strategic legal approach, ideally with guidance from an immigration attorney.
With these key points covered, let’s explore some green card options.
Green Card Options:
EB-5 Visa
The EB-5 visa is an investment-based immigrant visa, meaning it provides a pathway to a green card. To qualify, you must invest a minimum of $1,050,000 in a U.S. business. Alternatively, you can invest $800,000 if your investment is primarily directed within a targeted employment area. This investment must also lead to the creation of 10 full-time jobs for U.S. workers.
An advantage of transitioning from an E2 visa to an EB-5 visa is that, in certain cases, your initial E2 investment may count toward the EB-5 requirements. Additionally, any jobs you created for your E2 business might also apply toward the job creation requirement for the EB-5 visa. If you’ve already invested a substantial amount in your E2 business and created sufficient jobs, you may be well-positioned to qualify for the EB-5 visa.
Family-Based
If you have close family members who are U.S. citizens or lawful permanent residents, they may be able to petition for your green card. This option may apply to relationships with spouses, parents, children, or siblings, depending on specific family circumstances.
Spousal
A marriage to a U.S. citizen or lawful permanent resident may qualify you for a green card, provided it is a bona fide marriage.
Employment-Based
You may be eligible for a green card if you receive a full-time job offer from a U.S. company willing to sponsor your petition. In this case, the U.S. employer must obtain a PERM Labor Certification through the U.S. Department of Labor.
EB-1A
The EB-1A visa is designated for individuals with “extraordinary ability.” A major benefit of the EB-1A visa is that it permits self-petition, which means you can apply for your green card independently, without needing a job offer or employer sponsorship.
EB-2 National Interest Waiver
The EB-2 visa is for individuals with “exceptional ability” or those holding advanced degrees. What makes this visa unique is the option to apply for a “National Interest Waiver” (NIW) along with it.
With a National Interest Waiver, you can self-petition for your green card, bypassing the need for a U.S. company sponsor and a job offer. To qualify, you must demonstrate that it is in the national interest of the United States to waive the job offer and employer labor certification requirements. Among other criteria, you need to show that your intended endeavor in the United States holds substantial merit and significance at a national level.
11. Conclusion
After reviewing this guide, you should now have a comprehensive understanding of the key elements related to the E2 visa.
We have discussed: What the E2 visa entails, the qualifications needed to obtain an E2 visa, the advantages of holding an E2 visa, and several other important points. I recognize that there is a lot to absorb here. If any part of the process feels unclear, don’t worry—I’m here to assist.
If you have further questions, please feel free to reach out to me directly via email at abbas@espadaimmigration.com. I’m highly responsive by email and would be glad to assist you.
Resources:
- U.S. Department of State – Treaty Countries
- 9 FAM 402.9
- 22 CFR Section 41.51
- USCIS – E2 Treaty Investors
- “E-1 and E2 Nonimmigrants” – Updated by Henry J. Chang
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