Volume Nine, Number Eleven
SHUSTERMAN’S IMMIGRATION UPDATE is the Web’s most popular e-mail newsletter regarding U.S. immigration laws and procedures with over 40,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with over 30 years of experience practicing immigration law.
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Newsletter US Immigration Update November 2004
TABLE OF CONTENTS:
- 1. The Election & Your Immigration Status: Am I Blue?
- 2. Immigration Government Processing Times
- 3. Physicians: Brief in NIW Lawsuit Filed in Appeals Court
- 4. EB Numbers Expected to Backlog Soon – RNs Hardest Hit
- 5. Immigration Trivia Quiz: A Babel of Tongues
- 6. DV-2006 Green Card Lottery: The Time to Apply is Now
- 7. Employment-Based Immigration: Secrets for Success
- 8. PERM – A New System for Employment-Based Immigration
- 9. Chat Schedule, Transcripts, Audios & Videos
- 10. Winner of the October 2004 Immigration Trivia Quiz
America’s Growing Physician Shortage
The November 2, 2004 issue of the Annals of Internal Medicine contains an article by Dr. Richard Cooper predicting that if present trends continue, our country will have a shortage of 200,000 physicians by 2020.
We recently read a short and informative book on this same topic entitled “Will the Last Physician in America Please Turn Off the Lights?” which we highly recommend. For more information, please see http://www.practicesupport.com/Merchant2/merchant.mv?Screen=PROD&Store_Code=PSR&Product_Code=231 (Link is no longer operational.)
- Asylum– On October 29, the U.S. Court of Appeals for the 9th Circuit posted a 100+ page update of asylum case law. The 9th Circuit reverses a higher percentage of denials of requests for asylum than does any other circuit in the country. We link to link to the new asylum update from both our “Asylum” page at
and from our “Deportation” page at
- Biometric Visa Requirement– As of October 26, most persons applying for nonimmigrant visas abroad were required to be photographed and have their fingerprints scanned before they could be issued a visa. We link to an article on the State Department’s web site entitled “State Department Implements Biometric Visa Program” at
http://usinfo.state.gov/gi/Archive/2004/Oct/27-996933.html (Link no longer operational)
- Business Immigration Newsletter– Periodically, the American Immigration Lawyers Association (AILA) publishes “Connect!” a newsletter devoted to business-related immigration developments. We link to this newsletter from
https://www.shusterman.com/toc-busimm.html (Link is no longer operational.)
- Citizenship– On October 25, the USCIS issued an instructive four-page Fact Sheet about the often-confusing Child Citizenship Act of 2000. We link to the Fact Sheet from our “Citizenship” page at
- Guide for New Immigrants– The CIS web site recently added a new section entitled “Welcome to the United States: A Guide for New Immigrants.” The guide is divided into the following subtopics:
- About this Guide
- Your Rights and Responsibilities as an LPR
- Getting Settled in the U.S.
- Education and Childcare
- Emergencies and Safety
- Learning about the United States
- Becoming a U.S. Citizen
We link to the guide from our “Green Card” page at
- I-9 Law– On November 1, President Bush signed into law a bill (H.R.4306) which will permit U.S. employers to store Employment Verification (I-9) Forms electronically. The law also allows the forms to be completed and signed electronically. Unless the Immigration Service promulgates regulations earlier, the bill will become effective in 180 days.
- Temporary Protected Status (TPS)– On November 2, DHS extended TPS for certain nationals of Honduras and Nicaragua. We link to the FAQ for Hondurans at
http://uscis.gov/graphics/publicaffairs/questsans/Hon_TPS_04_11_02_QA.pdf (Link is no longer operational)
and for Nicaraguans at
We also link to the press release at
http://uscis.gov/graphics/publicaffairs/newsrels/Hon_Nica_TPS_04_11_01.pdf (Link is no longer operational)
For general information about TPS, see our “Asylum” page at
- Visa Waiver Program – As of October 26, persons visiting the U.S. using the Visa Waiver Program were required to be in possession of Machine-Readable Passports. However, Customs and Border Protection (CBP) officers were given permission to grant a one-time exception to this requirement.
- Washington Update– Periodically, the American Immigration Lawyers Association (AILA) publishes its “Washington Update” which brings readers the most up-to-date news about legislation, regulations, congressional hearings and other immigration-related developments from inside the Beltway. We link to “Washington Update” from
https://www.shusterman.com/toc-advocacy.htm (Link is no longer operational.)
* The President
Whatever else may have been decided by the 2004 elections, it is clear that immigration was not a major issue. The candidates barely mentioned the word “immigration” in their debates, and President Bush failed to list immigration reform as one of his priorities in his second term.
Yet President Bush’s speech advocating a guest worker program on January 7, 2004 is still the official administration policy. We link to the President’s speech from our “WebCast” page at
The President may have to drop the “amnesty” portion of his guest worker plan in order to gain the support of the anti-immigration segment of his party.
We note that President Bush effectively killed the bipartisan “AgJobs” mini-amnesty bill during his reelection campaign, presumably so as not to offend anti-immigration legislators in his own party.
* The Attorney General
News reports indicate that Attorney General John Ashcroft will step down before the President begins his second term. Even though all three parts of the former INS were transferred from Mr. Ashcroft’s Justice Department to the Department of Homeland Security in 2003, Mr. Ashcroft continues to be heavily involved in immigration policy.
Justice Department attorneys have argued for expanded governmental enforcement authority over immigrants and citizens alike. Although the courts have rejected claims that the Executive Branch has the power to detain persons without permitting them to consult with an attorney, to apply for release on bond and to have their case decided by a neutral magistrate, Mr. Ashcroft and his attorneys continue to assert that the authority of his branch of government over immigrants is almost unlimited.
Mr. Ashcroft exercises control over the Executive Office for Immigration Review (EOIR) which includes the Board of Immigration Appeals (BIA) and the Immigration Judges (IJs). His “reform” of the BIA in 2002 resulted in the elimination from the Board of the following members: Paul Schmidt (BIA Chairman), Gustavo Villageliu, John Guendelsberger, Cecelia Espenoza and Noel Brennan. These Board members, as well as member Lory Rosenberg who resigned before she was forced off the Board, represented the “liberal” wing of the BIA. Besides purging these members from the Board, Mr. Ashcroft set about reducing the backlog of pending appeals by permitting the massive issuance of form-letter Affirmances without Opinion (AWOs) and decisions by single Board members rather than by three-judge panels. Despite a 1996 law which eliminated judicial review of many BIA decisions, the result of Mr. Ashcroft’s “reforms” has been that the Federal Appeals Courts have been inundated by appeals from adverse Board decisions. The number of reversals of Board decisions by Federal Appeals Courts has been staggering.
For immigration advocates and civil libertarians, the departure of Mr. Ashcroft from the President’s cabinet will be most welcome. However, it remains to be seen whether Mr. Ashcroft’s successor’s policies will result in increased fairness to immigrants. One possible candidate for Attorney General, former New York City Mayor Rudy Giuliani, has shown sensitivity in this area.
* The Congress
Immigration policy was not a strong factor in many races for the Senate or the House of Representatives. In California, two anti-immigration radio hosts tried to defeat two popular Congressmen, a Republican and a Democrat, because they were not considered tough enough on illegal aliens. Both Congressmen were reelected.
Two important pieces of immigration legislation will be considered by the “lame duck” session of Congress later this month:
One is the extension and expansion of existing programs for J waivers for physicians practicing in medically-underserved areas. This piece of legislation is relatively noncontroversial and is expected to be enacted into law. We wrote about this legislation in the October 2004 of our newsletter. To access back issue of our newsletter, see
The other bill concerns the proposed enactment of the recommendations of the 9/11 Commission into law. Against the opposition of President Bush, the anti-immigration wing of the Republican Party added a number of anti-immigration provisions to the House version of the bill (H.R.10). These provisions do not appear in the Senate version of the bill (S.2845).
On November 4, we received the following e-mail message from the pro- immigrant National Immigration Forum concerning this legislation: Last time we sent an update, the four leading members of the Conference Committee-Conference Committee Chair Representative Pete Hoekstra (R- MI), Representative Jane Harman (D-CA), Senator Susan Collins (R-ME), and Senator Joe Lieberman (D-CT) were meeting in an effort to come to agreement on the intelligence reform bill (9/11 Commission recommendations bills – H.R. 10 and S. 2845). The bulk of their discussion was focused on Title I, which addresses the creation of a national intelligence director and the budgetary and other powers that go along with this position.
Not much has changed since then. As expected, the election took center stage and Congress, like the rest of the nation, was focused on its outcome.
Late last week, House Republicans offered another “compromise” to the Senate Conference leaders, again without input from House Democrats. It retained all of the egregious immigration provisions in Title III with the exception of the expedited removal expansion. Although they did strike that section (no doubt in deference to the White House, which wanted this section removed), House Republicans proposed an increase in immigration detention space and modified section 3032 to permit the prolonged or indefinite detention of broad categories of people who have been ordered deported. In addition, the offer also included a stingy proposal to expand the annual green card cap for asylees from 10,000 to 20,000. This change would still not completely address the growing backlog of people who have been granted asylum and access to legal permanent residency but are subject to the arbitrary 10,000 cap.
The latest House Republican offer did not advance the ball in any serious way. In fact, wide differences still remain between the House Republicans and Senate conferees/House Democrats on Title I, which also helps explain why Title III has not been dealt with in any substantive way.
Conference Committee leaders, particularly Senator Collins (R-ME) and Senator Lieberman (D-CT), are still looking for a deal. But without the added pressure of the election, Republicans face significantly less pressure to push legislation through during this session of Congress. When Congress comes back for a lame-duck session on November 16th, it will tackle a short list of must-pass legislation such as FY 05 agency appropriations, supplemental funding for the war in Iraq, and an increase in the ceiling for the national debt. While the 9/11 Conference Committee (in particular, the four leaders) continues to meet, consensus is neither guaranteed nor likely. If Congress does not complete work on the intelligence bill before adjourning for the year, the measure will expire along with all other uncompleted bills of the 108th Congress.
In our best guess, we can see intelligence reform being postponed until next year. In that case, the immigration provisions could certainly be resurrected in the 109th Congress either as part of an intelligence reform package or in other forms.
* The Judiciary
Since the Judiciary has been deluged with immigration appeals since the BIA “reforms” of 2002, the caliber of the President’s judicial nominees, particularly those serving on either the Supreme Court or on Federal Appeals Courts is important in insuring that immigrants receive fair hearings.
During the past six years, Orin Hatch (R-UT), the Chairman of the Senate Judiciary Committee, has played a key role in the Senate’s “advise and consent” powers over judicial nominees. During the final two years of the Clinton Administration, Senator Hatch prevented his committee from voting on “liberal” judicial nominees. For example, Judge Samuel Paez, now a member of the U.S. Court of Appeals for the Ninth Circuit, had to wait three years before his nomination was confirmed. Ironically, since the Bush Administration took power, Chairman Hatch has taken to complaining that the Democrats were preventing the Senate from voting on the President’s nominees for Federal Appeals Courts.
Following the elections, Senator Hatch, who is “termed-out”, is scheduled to hand over his Chairmanship to a more moderate Republican, Senator Arlen Specter (R-PA). Senator Specter’s comments that a judicial nominee’s views on overturning the Supreme Court’s decision in the landmark abortion decision, Roe vs. Wade, should not be a “litmus test” in their selection has earned him the ire of some persons on the right wing of the Republican Party who do not want him to chair the Judiciary Committee. Whether Senator Specter will become the Committee Chairman, and what any of this has to do with immigration policy remains to be seen.
* Arizona Voters Pass Proposition 200
During the 2004 election, state voters were frequently quizzed about their opinions on topics like homosexual marriage. Only in Arizona was there a ballot proposition regarding illegal immigration.
Despite opposition from the state’s Democratic governor and Republican Senator John McCain, Arizona’s voters passed a mini-version of California’s infamous Proposition 187 which would require applicants for certain state benefits to show proof of legal status, and would provide for the jailing of government workers who fail to report applications for state benefits by illegal aliens to the Department of Homeland Security (DHS). Ironically, it is the stationing of massive number of Border Patrol officers on the California and Texas borders which has resulted in a large upsurge of illegal immigrants crossing the U.S.- Mexican border into Arizona
Court challenges to Proposition 200 are likely.
For additional information about Proposition 200, listen to the audios on our “National Public Radio” page at
We link to the most recent immigration waiting times for each of the four USCIS Service Centers, the National Benefits Center and the Administrative Appeals Office. We also link to the processing times of all of the 83 USCIS District Offices and Sub-offices. We link to the Labor Department’s page entitled “Processing dates for labor certification applications”. Finally, we link to the State Department’s “Visa Wait Times” page.
On October 25, our law firm submitted a brief to the 9th Circuit Court of Appeals which challenges the CIS rules which restrict the ability of foreign-born physicians who wish to obtain permanent residence through National Interest Waivers (NIWs). The rules also keep many physicians from opening their own practices in medically-underserved areas and make it more difficult for the physician’s spouses to work and travel. The government has 60 days to respond to our opening brief.
Our lawsuit, Schneider vs. Ashcroft, involves physicians from Massachusetts, Washington, Oklahoma, New York and California, all of whom have submitted NIWs and all but one of whom have filed for permanent residence based on the approval of their NIWs.
Although the law allows “any alien physician” to apply for benefits, the CIS regulations exclude specialists who work in medically-underserved areas from applying.
The law requires foreign-born physicians to work an “aggregate” of five years in underserved areas. However, the regulations impose a number of arbitrary rules as to when this five-year period begins. For example, if the physician did his medical residency in H-1B status, the five years does not start until after the NIW petition is approved by the CIS no matter how long the physician has already practiced medicine in an underserved area. In some cases, the regulations would require physicians to work eight to 10 years in underserved areas before they can become permanent residents.
The law creates an exception to the five-year service requirement for physicians who had NIWs filed on their behalf prior to November 1, 1998. These physicians are only required to work for three years in underserved areas. The regulations add a requirement that this exception only applies where the NIW was either approved or pending on the date that the law was enacted in 1999.
We are challenging these and other provisions of the regulations as being inconsistent with the law. As CIS expects every applicant for naturalization to know, only Congress has the power to write laws. The executive agencies, like the CIS, may create regulations to implement the law, but these regulations may not conflict with the clear language of the law.
If we are successful in this appeal, thousands of physicians who must currently undergo the long and tedious labor certification process will be eligible for NIWs.
We will continue to update you on the progress of our appeal. Our October 25th opening brief and a variety of information about NIWs for physicians is available online at
Charles Dickens begins his famous novel “A Tale of Two Cities” with the words: “It was the best of times, it was the worst of times…”
The same is true in today’s immigration world. During the past three years, the hundreds of thousands of applications for adjustment of status based upon employment-based (EB) petitions were submitted, but were never decided. However, during the past few months, the CIS has been deciding over 20,000 each month. In January and February of this year, our law firm received less than half a dozen I-485 approvals. During September and October, we received over 100 approvals each month. For our clients who received approvals, this is the “best of times.”
However, because of all of these approvals, starting on January 1, 2005, for many aspiring immigrants and their employers, this will be the “worst of times.” This is because, absent congressional intervention, the EB 3rd preference category (professionals and skilled workers) for persons born in China, India and the Philippines will backlog between two and three years. Persons with “priority dates” prior to some unknown date in 2002 will no longer be able to apply to adjust their status in the U.S.
Why is this?
The number of persons who may obtain permanent residence each year through their employment is limited to 140,000 plus certain exceptions which raise this year’s total to over 200,000, a large number, but not large enough to accommodate 20,000+ approvals each month. In order to keep approvals within numerical limits, the State Department will, in it’s January 2005 Visa Bulletin (which we will post online in early December) announce “cut-off” dates sometime in 2002 for aspiring EB immigrants from China, India and the Philippines, the three countries with the most EB applicants.
What difference will this make?
Since most EB immigrants are required to have approved applications for labor certification before they may apply for adjustment of status, and because it takes at least two years to obtain an approved labor certificate, they will not be affected by the backlogs. However, there is one group of applicants who will be immediately and adversely affected by the backlogs.
Registered Nurses (& Physical Therapists)
The Labor Department exempts persons in shortage occupations from undergoing the labor certification procedure since few, if any, U.S. workers are available to apply for their jobs. The shortage list currently consists of only two occupations: registered nurses and physical therapists. My guess is that for every physical therapist who applies for permanent residence in the U.S., at least a hundred RNs do so. The number of job vacancies at U.S. hospitals for RNs exceeds 100,000 and is rapidly growing. The shortage in nurses is directly responsible for tens of thousands of unnecessary patient deaths in the U.S. each year.
Since RNs are usually ineligible for temporary H-1B visas (since a four- year university degree is not a prerequisite for most RN jobs), thousands of RNs come to the U.S. as tourists each year, pass the state licensing exam, and are sponsored for permanent residence by U.S. hospitals. Such RNs can obtain work authorization from the CIS in a matter of weeks. With U.S. nursing schools closing down, and the nurse shortage growing more severe all the time, this influx of foreign-born, U.S.-licensed nurses provides an important safety valve for hard-pressed hospitals desperately seeking trained RNs.
Most foreign-born RNs are Filipinos. Because their language of instruction is English, and because they usually obtain their nursing education in order to work abroad, they are ideal candidates to fill vacant positions in U.S. hospitals. For over 40 years starting in the 1950s, our immigration laws allowed them to enter the U.S. to work in a matter of weeks using temporary visas. This visa category was allowed to expire in 1995. Since then, they have used the permanent residence process to obtain work permits. However, since they do not have “priority dates” dating back to 2002, this route will no longer be possible after the end of December.
Unless Congress takes immediate action, on January 1, 2005, this safety valve will cease to exist. The real losers will be U.S. patients in hospitals who lack nurses to care for them.
For information about the national shortage of nurses, see our “Nurse” page at
Once again, the State Department’s DV-2006 Visa Lottery will be conducted online.
Natives of all countries except the following may apply for inclusion in DV-2006 Lottery:
- China – mainland China (nationals of Hong Kong, Macau and Taiwan may apply)
- Dominican Republic
- El Salvador
- South Korea
- United Kingdom (natives of Northern Ireland and Hong Kong are eligible, but natives of Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, St. Helena, and the Turks and Calicos Islands are not eligible)
Applications must be received between November 5, 2004 (noon, ET) and January 7, 2005 (noon, ET). We link to the official State Department instructions and to the free, online application form from our “Lottery” page at
As a continuing feature, we summarize recent cases successfully handled by our US immigration law firm involving employment-based temporary visas and green cards:
* In the National Interest
Mr. G., a talented engineer and a specialist in solar power technology, had been working in the United States for an energy company under an H- 1B visa. Since he was only weeks away from reaching his 6-year limit in H-1B status and a filing of a Labor Certification application on his behalf was forbidden (he was a major shareholder in the company), Mr. G would be required to leave the U.S. for a year before he could re-enter in H-1B status. This would have negatively impacted not only Mr. G’s life, but also those of his fellow employees, whose livelihoods depended on Mr. G’s specific scientific expertise.
Mr. G’s only option was to pursue a National Interest Waiver, a request for lawful permanent residence grounded upon the assertion that his presence in the country would serve our national interest. Though Mr. G seemed clearly eligible for this category, making the case would be extraordinarily difficult: while the statute governing National Interest Waivers seems very open-ended, for non-physicians the rules are astoundingly strict. A landmark case decided in 1998 requires that National Interest Waivers be granted only when the filing of a Labor Certification would be detrimental to our national interest.
For this reason, we normally do not recommend that our clients pursue this avenue if there are other options available. In Mr. G’s case, however, National Interest Waivers were his only hope. Thanks to letters submitted by experts in the field heading major government agencies, we demonstrated that Mr. G’s expertise and the national interest in his specific area of solar power research. The USCIS granted a National Interest Waiver on Mr. G’s behalf, and he continues his groundbreaking work today after gaining lawful permanent residence in the United States.
* A VisaScreen Waiver for a Nurse
Our law firm represents over 100 hospitals in various locations across the United States
Ms. N, a registered nurse working in TN status returned to her native Canada to visit her parents over the weekend and attempted to reenter the U.S. A new rule eliminating blanket healthcare certificate (VisaScreen) waivers for nonimmigrant healthcare workers had gone into effect in July. The rule provides that if she left the country she would be required to present a healthcare certificate to the border official upon reentry. She left the U.S. and was denied reentry due to her failure to provide a certificate. Ms. N did eventually manage to convince the official to allow her to enter the U.S., but only in B-2 tourist status which prevented her from working. She called our office in a panic.
Fortunately, one of our paralegals came to her rescue -although the regulations prohibit blanket VisaScreen waivers, the prefatory information to the regulations stipulates that waivers may be issued on a case-by-case basis. An eloquent support letter explaining Ms. N’s predicament was submitted with her change of status petition to the Nebraska Service Center, and the USCIS kindly restored her to TN status despite her lack of a VisaScreen certificate.
PERM is the system that the Department of Labor proposed in May 2002 to replace the current labor certification system for qualifying for permanent residence through an offer of employment. The proposed PERM regulations are posted online on our “Labor Department” page at
In anticipation of the PERM final regulation, DOL has implemented national procedural changes in “FY 2005 Transition Guidance”(TG) (September 29, 2004):
If PERM is not published in 2004: Beginning January 1, 2005, State Workforce Agencies (SWAs) will not “open” a case but will date stamp it, log it in and forward it to one of the two National Processing Centers (NPCs). Cases from the Eastern part of the U.S. will be processed by the Atlanta NPC while cases from the Western part of the U.S. will be processed by the Chicago NPC. SWAs will continue to work on cases opened before January 1, 2005 until March 31, 2005 at which time, they will be forwarded to the appropriate NPC.
If PERM is published: SWAs will stop accepting both RIR and regular labor certification applications after 60 days rather than 120 days as originally anticipated. Afterwards, there will be no filing with the SWAs.
Backlog Reduction: Cases are being transferred to the Dallas and Philadelphia Backlog Reduction Centers (BRC). Cases will be sent to the BRCs by both the regional certification offices and the SWAs. The backlog will be processed on a first-in, first-out basis which is expected to benefit the heavily-backlogged states like California, New Jersey and New York. BRCs are expected to remain open for two years.
We link to the complete text of the September 29 memo from our “Department of Labor” web page at
We only received one entry that was even close to the mark: Dear Mr. Shusterman,
Teresa Heinz Kerry — foreign born to US parents; spouse of Democratic Presidential candidate
Barak Obama — son of Kenyan immigrant father and Kansas mother; Senatorial candidate for Illinois
Tom Lantos — Hungarian-born immigrant; Democratic member of Congress from CA since 1981; up for reelection
Anli Shundi And who is Anli Shundi? In his own words:
I’m a native of Albania and, for two years, a proud US citizen. I’ve been very lucky in my immigration process by winning the 1996 green card lottery and fulfilling what was inconceivable when I grew up. I’m a software architect in the North Carolina office of a US software company.
I’ve seen your monthly newsletter for at least 8 years. It’s very pleasant reading, informative but not overloaded. The quiz and reminiscences are very nice features too. Your site is a great resource as well.
I knew all three persons featured in the last quiz: Heinz-Kerry is all over the news these days; Obama was featured at the Democratic convention and I’d first (but not last) seen Congressman Lantos when he was in Tirana more than a decade ago as the dictatorship was falling down. A google search provided the details.
I’ll call your office to schedule a consultation for someone in my family.
Editor’s Note: Anli, Teresa’s Heinz-Kerry’s parents were not U.S. citizens at the time of her birth. She was born in Zimbabwe, at that time the Portuguese colony of Mozambique. Her father was a Portuguese medical doctor and Teresa’s maiden name was Maria Teresa Thierstein Simoes-Ferreira. Her parents came to the U.S. in 1976. Barak Obama was born in Hawaii of a U.S. citizen mother and a Kenyan father. Congressman Lantos is the only Holocaust survivor ever to serve in Congress. Anli, since you submitted the only credible entry, you are our winner – congratulations!
November 7, 2004
Certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service Trial Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (1988-97)
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550
Los Angeles, California 90017
Nobody wants to be the person who stamps the visa for the next Mohammed Atta, but we’ll never know who it was who refused a visa for the next Einstein.
Professor Alivisatos University of California, Berkeley
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