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H-1B Petitions for FY2008 on April 2 March 28, 2007

Posted by dsheen88 in Employment-Based Immigration, H-1B visa, Immigration Laws and Policies, MyComments, News and politics, Simply Immigration!, Tips.
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WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year 2008 (FY08) H-1B cap on Monday, April 2, 2007.  USCIS will not reject cases delivered during the weekend (March 31 or April 1).  Instead, USCIS will treat those petitions as if they arrived on April 2.  The deciding factor for USCIS is when the agency takes possession on the petition and not when the petition was postmarked.
 

USCIS will monitor cap cases closely and will inform the public of the date the agency has received enough petitions to meet the FY08 H-1B cap.  After that date, known as the “final receipt date,” USCIS will not accept any additional petitions requesting H-1B cases that apply against the FY08 congressionally mandated cap.

If you need more information or attorney assisatnce for your H-1B petitions, please feel free to contact David Sheen at david@jdgloballaw.com or call us as 510.438.6868 to make an appointment.   

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CIS released new H-1B/H-4 timing and extension policies January 1, 2007

Posted by dsheen88 in Employment-Based Immigration, H-1B visa, Immigration Laws and Policies, Info for Doctors and Health Professionals, MyComments, Simply Immigration!, Tips, USCIS Press Release.
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Good news to H-1B holders!  CIS recently released their new policies that addresses several H-1B timing issues.  The following policies will be in effect January 2007:

1.  Time spent as an H-4 and L-2 dependent does not count against the maximum allowable periods of stay available to principals in H-1B or L-1 status.

2. Individuals do not need to be in H-1B status or in the U.S. in order to request additional H-1B time beyond six years under AC21.

3.  Individual who was in the U.S. in H-1B status for less than six years and then subsequently leaves the U.S. for more than one year, may elect to either be re-admitted for the remainder of the initial six-year admission period w/o being counted against the cap OR seek to be admitted as a new H-1B subject to the cap.

Separating of H-4 and L-2 Time from H-1B and L-1 Time

The first issue addressed in this CIS memo is how to count H-4 and L-2 time against maximum periods allowed under H-1B and L-2 time.  For example, would an individual present in the U.S. in L-2 status for the past 6 years be eligible for any H-1B time?  The answer is yes.

USCIS clarifies that any time spent in H-4 status will not count against the 6-year maximum period of admission applicable to H-1B individuals.  For example, an individual who was previously in H-4 dependent status and who subsequently becomes an H-1B principal is entitled to the maximum period of stay applicable under H-1B time.

Periods of Stay on H-1B Status Beyond 6 Years Pursuant to AC21 (H-1b portability law)

The second issue addressed in this CIS memo deals with requesting extensions beyond six years under AC21 even if the individual is no longer in H-1B status or no longer in the U.S.  For example, if someone previously maxed out H-1B time and changed to TN status, and s/he is now eligible for H-1B time beyond six years under AC21, can s/he request more H-1B time even though s/he is now in TN status?  The answer is yes.

The memo reads “Though both provisions of AC21 use the term “extension of stay,” eligibility for the exemptions is not restricted solely to requests for extensions of stay while in the United States.  Aliens who are eligible for the 7th year extension may be granted an extension of stay regardless of whether they are currently in the United States or abroad and regardless of whether they currently hold H-1B status.”

H-1B Remainder Option

The third issue in this CIS memo addressed the situation of an individual who did not max out his or her H-1B time but subsequently left the U.S. for more than one year.  For example, if an individual was previously in the U.S. in H-1B status for less than six years, and then subsequently leaves the U.S. for more than one year, may s/he be re-admittted for anytime remaining from their previous H-1B admission period or does s/he now need to admitted as a new H-1B with a new six years available, but subject to the cap?  The answer is actually either and up to the individual.

The memo futher provides…

“There have been instances where an alien who was previously admitted to the United States in H-1B status, but did not exhaust his or her entire period of admission, seeks readmission to the United States in H-1B status for the remainder of his or her initial six-year period of maximum admission, rather than seeking a new six -year period of admission,  pending AC21 regulations, USCIS for now will allow an alien in the situation described above to elect to either (1) to be re-admitted for the “remainder” of the initial six-year admission period without being subject to the H-1B cap if previously counted or (2) seek to be readmitted as a “new” H-1B alien subject to the H-1B cap.”

Under this new policy, if the H-1B cap is an issue, the option will be for the individual to come in now and take whatever H-1B time they have left, or wait and file under the cap and have six-years available again.

SENATOR HARKIN CALLS FOR COMPREHENSIVE IMMIGRATION REFORM FOLLOWING SWIFT RAIDS December 20, 2006

Posted by dsheen88 in Immigration reform, MyComments, News and politics, Politics and World Events, Simply Immigration!.
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WASHINGTON D.C. —- In the wake of the recent Immigration and Customs Enforcement (ICE) raids on Swift & Co., Senator Tom Harkin (D-IA) today sent a letter to Homeland Security Secretary Michael Chertoff to express concern about alleged humanitarian and civil rights abuses against detainees, and to urge the agency’s cooperation with Congress in implementing comprehensive immigration reform.

The complete text of the letter is as follows.

The Honorable Michael Chertoff

Secretary of Homeland Security

U.S. Department of Homeland Security

3801 Nebraska Avenue Center, N.W.

Washington, D.C. 20528

Dear Secretary Chertoff:

I am writing to express my deep concern about the handling of workers of the Swift & Co. meat processing facilities detained throughout the nation last week. As you know, Swift has a plant in Marshalltown , Iowa and close to one hundred workers were arrested at this facility.

Your Department has an obligation to fully enforce our nation’s immigration laws and these raids have provided a very clear illustration of just how broken our current system is.

However, I am appalled by the process that has apparently been used to detain and deport the workers. First, according to both media reports and information my office has received, the hotline by which family members and others were supposed to obtain information has at times been unanswered by ICE officials, and at other times provided no information of any use.

Second, your Department has apparently made it almost impossible for lawyers and even clergy to obtain access to those detained and has transported workers to other states without granting them access to counsel.

Third, although assurances were provided to my staff that any individuals with small children who would otherwise go without care would be released to make alternative arrangements, there continue to be reports of numerous single mothers remaining in custody.

I continue to be concerned that the process in the wake of such raids lacks transparency and is being conducted without even the most basic fairness. I hope you share my belief that the failure to ensure that basic legal rights and humanitarian protections are afforded to individuals in our immigration system reflects poorly on the principles that have made the United States strong.

Finally, this incident highlights the need for comprehensive reform to our antiquated immigration system. Only when we bring the 12 million illegal workers out of the shadows and into the legal system will both industry and employees benefit. These improvements must include increased security at our borders and a means to legal citizenship for immigrants already in the country, which would include fines, learning English, passing a background check and paying back taxes. I hope that your agency will pledge to work with Congress next year to bring about this change.

I look forward to your prompt response.

Sincerely,

Tom Harkin

United States Senator

H-1B & EB Advocates Continue to Push for Relief December 6, 2006

Posted by dsheen88 in Employment-Based Immigration, H-1B visa, Immigration Laws and Policies, Immigration reform, MyComments, Simply Immigration!.
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As the House and Senate reconvene today for the final days of the 109th Congress, the chances of enacting H-1B visa and employment-based (EB) green card relief look increasingly slim. Despite behind-the-scenes efforts by immigration advocates and sympathetic members of Congress, reports suggest that the lame duck session is unlikely to offer an appropriate legislative vehicle for measures that would alleviate the caps and backlogs faced by high-skilled immigrants and their American employers.Plans by Republican leadership to pass a continuing resolution instead of completing appropriations legislation would preclude passage of H-1B and EB relief as part of fiscal 2007 spending bills. However, Congress may vote on a number of authorization bills this week, opening up a small possibility that H-1B and EB relief could be passed as part of authorization legislation.

Improvements to the Visa Waiver Program November 29, 2006

Posted by dsheen88 in Action, Employment-Based Immigration, Immigration Laws and Policies, MyComments, News and politics, Simply Immigration!, Tips, USCIS Press Release.
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Department of Homeland Security (DHS) Secretary Michael Chertoff issued a statement on security improvements to the Visa Waiver Program (VWP). It followed President Bush’s announced intention to work with Congress to reform the VWP to encourage some international allies to join the program.

Here is the complete press release–

Release Date: November 28, 2006

For Immediate Release
Office of the Press Secretary
Contact: (202) 282-8010

President Bush has announced his intention to work with Congress to reform the Visa Waiver Program by strengthening security measures to better facilitate the increased interest among some international allies in joining the program. Americans rightly expect this Department to fulfill its legal and moral obligation to secure our borders from those who would do us harm, while maintaining our great legacy as a welcoming country to legitimate foreign visitors. These reforms will accomplish both objectives, and encourage international allies that their goal of joining the Visa Waiver Program is a realistic one.

The Visa Waiver Program began in 1988 in the pre-9/11 world. In a post-9/11 environment, homeland security must be the priority. We can achieve greater security and greater efficiency in our Visa Waiver Program.

We envision a secure travel authorization system that will allow us to receive data about travelers from countries before they get on the plane. Countries that are willing to assist the United States in doing effective checks on travelers could be put on track to enter the program soon. For countries seeking admission to the Visa Waiver Program, this would be an opportunity to set a standard that will be applied to the program generally.

We want to welcome people who are interested in working or traveling in the United States provided they abide by the terms of their admission and, also importantly, provided they don’t furnish a security threat. I want to stress that the United States will equally accept the burden of new security measures and will not require citizens of visa waiver countries to adopt measures that we are unwilling to undertake ourselves. The Department looks forward to working with Congress and our foreign allies to improve the visa waiver eligibility requirements.

Positive Impact on Market Value by Immigrant Entrepreneurs November 27, 2006

Posted by dsheen88 in Employment-Based Immigration, H-1B visa, Immigration Cases, Immigration Laws and Policies, MyComments, Simply Immigration!.
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Here is an interesting study to share… 

A “first of its kind” study, commissioned by the National Venture Capital Association (NVCA) as part of its MAGNET USA initiative (Maximizing America’s Growth for the Nation’s Entrepreneurs and Technologists), reports that immigrant entrepreneurs have had a profound impact on company creation, innovation, and market value in the United States.

The study, entitled “American Made: The Impact of Immigrant Entrepreneurs and Professionals on U.S. Competitiveness” found that over the past 15 years, immigrants have started one in four venture-backed public companies in the U.S., representing a market capitalization of more than $500 billion. Moreover, a survey of today’s private, venture-backed start-up companies in the U.S. estimated that 47 percent have immigrant founders. The study also found that two-thirds of the immigrant founders surveyed believe that current U.S. immigration policy hinders the ability of future foreign-born entrepreneurs to start American companies.

The study was authored by Stuart Anderson of the National Foundation for American Policy, a non-profit, nonpartisan public policy research organization focusing on trade, immigration, and related issues, and Michaela Platzer of Content First, LLC, a public policy research services firm that utilizes research and analysis to bring advocacy data, industry statistics, and policy research to trade associations, businesses, law firms, consulting firms, and the public affairs community.

-AILA

USCIS Annoucement re Changes to I-539 Student Reinstatement Processing October 27, 2006

Posted by dsheen88 in Immigration Laws and Policies, MyComments, Simply Immigration!, Tips, USCIS Press Release.
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USCIS announced that beginning October 30, 2006 local USCIS offices will forward new filings for Form I-539, Application to Extend/Change Nonimmigrant Status, for F-1 and M-1 student reinstatement, to the California Service Center or the Vermont Service Center, depending on where the student is engaged in study.

For the complete notice go to: http://www.uscis.gov/graphics/publicaffairs/statements/FilingChange102506.pdf

VISA BULLETIN FOR NOVEMBER 2006 October 16, 2006

Posted by dsheen88 in Employment-Based Immigration, H-1B visa, Immigration by Marriage, Immigration Cases, MyComments, Simply Immigration!, Tips, Visa Bulletin.
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VISA BULLETIN FOR NOVEMBER 2006

A. STATUTORY NUMBERS

1. This bulletin summarizes the availability of immigrant numbers during November. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible under the numerical limitations, for the demand received by October 6th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.

Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date.

2.Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First : Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.

Second : Spouses and Children, and Unmarried Sons and Daughters of Permanent

Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

Third : Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth : Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

EMPLOYMENT-BASED PREFERENCES

First : Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second : Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third : Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “Other Workers”.

Schedule A Workers : Employment First, Second, and Third preference Schedule A applicants are entitled to up to 50,000 “recaptured” numbers.

Fourth : Certain Special Immigrants: 7.1% of the worldwide level.

Fifth : Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.

4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

5. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Fam-ily All Charge- ability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPP-INES
1st  22APR01 22APR01 22APR01 01JUL93 15NOV91
2A 01SEP01 01SEP01 01SEP01 01DEC99 01SEP01
2B 01FEB97 01FEB97 01FEB97 22FEB92 15AUG96
3rd 15NOV98 15NOV98 15NOV98 01JAN95 08FEB91
4th 22OCT95 22APR95 01AUG95 22OCT93 01MAY84

*NOTE: For November, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01DEC99. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT  MEXICO with priority dates beginning 01DEC99 and earlier than 01SEP01. (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)

  All
Charge-ability
Areas
Except
Those
Listed
CHINA-
mainland born
INDIA MEXICO PHILIP-PINES
Employ-ment
-Based
         
1st C C C C C
2nd C 15APR05 01JAN03 C C
3rd 01JUL02 01JUL02 22APR01 08MAY01 01JUL02
Schedule
A
Workers
01OCT05 01OCT05 01OCT05 01OCT05 01OCT05
Other
Workers
01MAY01 01MAY01 01MAY01 01MAY01 01MAY01
4th C C C C C
Certain Religious Workers C C C C C
5th C C C C C
Targeted Employ-ment Areas/
Regional Centers
C C C C C

The Department of State has available a recorded message with visa availability information which can be heard at: (area code 202) 663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month.

Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105 – 139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This reduction has resulted in the DV-2007 annual limit being reduced to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For November, immigrant numbers in the DV category are available to qualified DV-2007 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately  
AFRICA 8,500 Except:
Egypt
5,600
Ethiopia
5,600
Nigeria
4,300
ASIA 2,600  
EUROPE 5,700  
NORTH AMERICA (BAHAMAS) 6  
OCEANIA 280  
SOUTH AMERICA, and the CARIBBEAN 350  

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2007 program ends as of September 30, 2007. DV visas may not be issued to DV-2007 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2007 principals are only entitled to derivative DV status until September 30, 2007. DV visa availability through the very end of FY-2007 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN DECEMBER

For December, immigrant numbers in the DV category are available to qualified DV-2007 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately  
AFRICA 10,300 Except:
Egypt
7,700
Ethiopia 7,300
Nigeria 5,900
ASIA 3,500  
EUROPE 7,700  
NORTH AMERICA (BAHAMAS) 7  
OCEANIA 375  
SOUTH AMERICA, and the CARIBBEAN 525  

D. OVERSUBSCRIPTION OF THE SCHEDULE A WORKER (EX) VISA CATEGORY

Background: Title V, Section 502 of the REAL ID Act of 2005 (Division B of Pub. L. 109-13 enacted May 11, 2005) provided for the recapture of 50,000 Employment-based immigrant visa numbers that were unused in fiscal years 2001 through 2004. Such numbers have been made available to Employment-based immigrants described in the Department of Labor’s Schedule A and their accompanying spouses and children. The immigrant category for these 50,000 visa numbers was designated as Schedule A Workers in the cut-off date table.

Issue: The Schedule A Workers category has become oversubscribed for November and a cut-off date established to hold number use within the 50,000 numerical limit. It is expected that demand will bring allocations up to the program limit during November. Once the limit is reached no further allocations will be possible, and the category listing will be removed from future cut-off date tables.

E. EMPLOYMENT-BASED VISA AVAILABILITY IN THE COMING MONTHS

Cut-off date movements in recent months have been greater than might ordinarily be expected, in an effort to maximize number use within the annual numerical limits. This has been necessary because demand being received from Citizenship and Immigration Services (CIS) Offices for adjustment of status cases has been relatively light. As these dates have advanced, however, many thousands of applicants have become eligible for processing at CIS Offices. Once number use increases significantly as CIS addresses its backlog, cut-off date movement will necessarily slow or stop. Moreover, in some categories cut-off date retrogression is a particular possibility.

Readers should be aware that the recent rate of cut-off date advances will not continue indefinitely; however, it is not possible to predict when significantly increased CIS number use will begin to influence the cut-off date determinations.

F. OBTAINING THE MONTHLY VISA BULLETIN

The Department of State’s Bureau of Consular Affairs offers the monthly “Visa Bulletin” on the INTERNET’S WORLDWIDE WEB. The INTERNET Web address to access the Bulletin is:

http://travel.state.gov

From the home page, select the VISA section which contains the Visa Bulletin.

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type:
Subscribe Visa-Bulletin First name/Last name
(example: Subscribe Visa-Bulletin Sally Doe)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address :

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (area code 202) 663-1541. The recording is normally updated by the middle of each month with information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514
CA/VO:October 6, 2006

DV (“greencard”) Lottery Scam October 16, 2006

Posted by dsheen88 in Fraud Alert!, Greencard Lottery, MyComments, Simply Immigration!, Tips.
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Americam Immigration Lawyers Association members have seen a marked increase in recent weeks in fake emails telling people that they have “won” the visa lottery. When you are selected for the visa lottery, you are NOT notified by email, and money is NOT requested up front.

Lawsuit to Challenge DHS’Refusal to Follow Perez-Gonzalez, Ninth Circuit I-212 Decision September 30, 2006

Posted by dsheen88 in Immigration Cases, Immigration Laws and Policies, MyComments, Simply Immigration!, Tips.
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This class action challenges the Department of Homeland Security’s willful refusal to follow the precedent decision of the Ninth Circuit in Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). The Ninth Circuit determined that individuals who have previously been removed or deported may apply for adjustment of status (under INA § 245(I)) along with an accompanying I-212 waiver application.

The suit is brought by Northwest Immigrants Right Project, the American Immigration Law Foundation, and Van Der Hout, Brigagliano & Nightingale, LLP. The case is Duran Gonzalez v. U.S. Dept. of Homeland Security, C-06-1422, and was filed in the United States District Court for the Western District of Washington on Thursday, September 28, 2006.

-source AILA