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E-mail: mczwaik@zwaik.com
 
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Contents
    •  Mitchell's Message
    •  Immigration Reform
    •  Immigration News
    •  Ask the Attorney
    •  Employer News
    •  Did You Know?

MITCHELL'S MESSAGE
  This month has seen the usual range of both good news and bad news on the immigration front. The positive news is that the Congress last week passed a one year extension of H-2B cap relief, effective October 1, 2006. The extension will allow East End employers to re-hire seasonal workers -- including landscapers, busboys, cooks, hotel workers and others -- for the 2007 season. The bad news is that the Suffolk County Legislature, at the urging of the County Executive, passed a bill that requires contractors doing business with the County to "verify that their employees are legally eligible to be employed in the United States." The problem is that the bill is so poorly drafted that it directly conflicts with the federal law regarding employment verification. If employers comply with the County law, they may be sued for discriminatory practices by their employees. Read more below!

I hope you are finding this newsletter informative. If you have suggestions or comments, call me at 631-588-4040 or e-mail me at mczwaik@zwaik.com   Thanks.

Mitchell Zwaik

IMMIGRATION NEWS
 
New Suffolk County Law Requires County Contractors to
Verify the Immigration Status of Workers
The Suffolk County Legislature, on September 19th, approved County Executive Steve Levy's measure that requires contractors doing business with the County to verify that all their employees are legally eligible to be employed in the United States. The law will apply to all county contracts entered into on or after Jan. 1, 2007. On its face the bill seeks to enforce federal rules, effective November of 1986, that require all employers to verify that all newly hired employees have authority to work in the U.S. Employers perform this task by checking documents offered by the employee from among a list of documents approved by the federal government for this purpose. The employer then completes a form I-9 which notes the documents checked and includes certain information provided by the employee.

According to Steve Levy, "The legislature took a bold step forward today in the name of fairness and equity." The law would impose fines of up to $2,000 or 6 months in jail or both for a first offense, and permanent exclusion from future contracts after a third offense. It is estimated that the measure affects 6,000 of Suffolk's 10,000 contracts, including those that are 100-percent county-funded and all public works contracts. The legislature's nonpartisan Budget Review Office estimated the price tag for monitoring contractors could be as much as $332,000 per year.

If the Levy Law did nothing more than require contractors to verify that they have properly completed and maintained their I-9s, the bill would likely survive legal attack. But, the bill goes further. It specifies the documents which the employer must use to verify the employee's employment authorization and requires employers to make photocopies of those documents for later inspection. In both cases, the requirements are more restrictive than the federal legislation and will likely result in the bill being overturned in the federal courts. Employers are likely to be caught in the middle. The federal law allows employees to choose the documents they will provide the employer from the list provided. Employers are specifically prohibited from requesting any specific document on the list. To do so subjects the employer to a charge of discriminatory practices. The County law, by narrowing the list of permissible documents, in effect virtually requires employers to violate federal law and subjects employers to future law suits.

EMPLOYER NEWS
 
Congress Extends H-2B Relief
On the last day before Congress adjourned to campaign for the November elections, it attached a measure extending H-2B relief to the National Defense Authorization Act for Fiscal Year 2007. The bill effectively means that employers with seasonal businesses will be able to rehire workers for next Spring and Summer.

The H-2B visa is used by U.S. employers to employ temporary skilled or unskilled nonagricultural workers in positions for which the employer has a temporary need and for which there are no qualified U.S. workers available. The employer must obtain a labor certification from the U.S. Department of Labor (DOL) that the foreign national will not displace a qualified U.S. worker. H-2B workers are generally limited to ten months per year and are widely used by employers with summer related business on the East End and elsewhere to fill temporary, seasonal, and peak-load employment -- such as bus boys, landscapers, cooks, hotel workers, maintenance workers, pool installers and others.

The H-2B category has an annual cap of 66,00 workers. Though the annual limitation on H-2B visas has been in effect since enactment of the Immigration Act of 1990, exhaustion of the cap has only become a problem in recent years. That problem is magnified on Long Island, because the later tourist season and the longer processing times by the New York Department of Labor has meant that local employers have found the visa cap exhausted by the time their applications are approved. This, in turn, has resulted in employers hiring illegal workers to stay in business.

Employers in seasonal businesses are urged to file applications before mid-November for the 2007 Spring and Summer seasons.

USCIS Expands Premium Processing
On September 22nd, USCIS announced that it would begin accepting Premium Processing requests for I-140 applications -- including filings for EB-1 outstanding professors and researchers, EB-2 members of professions with advanced degrees or exceptional ability (not seeking a National Interest Waiver), and EB-3 workers other than skilled workers and professionals. The Premium Processing program guarantees that USCIS will act on an application within 15 calendar days of its submission upon payment of an additional $1000 fee. The I-140 applications are filed by employers seeking green cards for immigrant workers. The expedited processing is of particular assistance for employers who currently employ H-1B workers who are at or near the end of their six year limitation, since an I-140 approval will permit a 3-year extension of H-1B status.

IMMIGRATION REFORM
 
Congress Sends Border Fence Legislation to President
In a flurry of activity before Congress adjourned for the campaign trail, the Senate joined the House in approving construction of a 700-mile fence along the U.S.-Mexican border. Congress will return after the Nov 7th election for a lame duck session, during which they will take up reconsideration of the President's Comprehensive Immigration Reform Legislation. The 700-mile border fence has signaled the House's determination to resist any immigration initiatives that do not include enforcement-only provisions. It flies in the face of Senate approval of Comprehensive Immigration Reform and the President's support of the reform package. Both U.S. senators from New York and the entire Long Island House delegation has supported Comprehensive Immigration Reform -- with the exception of Representative Peter King.

Last minute amendments to the bill that would have provided greater discretion in determining where the fence should be placed -- and modified the term "operational control" of the border to reflect a more fluid standard -- were rejected in the rush to adjourn.

President Bush is expected to sign the legislation without delay.

ASK THE ATTORNEY
  Question: Is it true that America is being overrun by immigrants?
Answer: No. It is not true.

Here are some statistical facts about immigrants (note 1):
  • The number of immigrants living in the United States remains relatively small, as a percentage of the total population.
    While the percentage of U.S. residents who are foreign-born is higher today than it was in 1970 (currently about 11 percent), it is still less than the 14.7 percent who were foreign-born in 1910.
  • The annual rate of legal immigration is low by historical measures.
    Only 3 legal immigrants per 1,000 U.S. residents enter the United States each year, compared to 13 immigrants per 1,000 in 1913.
  • The 2000 Census found that 22 percent of U.S. counties lost population between 1990 and 2000.
    Rather than "overrunning" America, immigrants tend to help revitalize demographically declining areas of the country, most notably urban centers.


    • Note 1: Data published by American Immigration Lawyer Association

DID YOU KNOW?
 
Most undocumented immigrants want to legalize their status, but they have no legal way to enter or remain in the U.S.
  • Our current immigration system is inadequate and in need of change.
    Many Americans unfamiliar with our arcane immigration laws believe that undocumented immigrants could easily legalize their status and become part of mainstream America, if they simply took the time to fill out the correct paperwork. Unfortunately, nothing could be further from the truth. Under our current system, most undocumented immigrants do not qualify under any of the overly restrictive categories available for individuals wishing to immigrate to this country.
  • The narrowly defined eligibility categories under our current immigration system serve none of the stakeholder's interests.
    Generally, foreign-born individuals can immigrate to this country in one of three ways: through family sponsorship, through an employer sponsor, or by winning one of the limited number of visas in the Diversity Visa Lottery. To qualify under the family categories, the prospective immigrant must have a close family member (defined very narrowly) living in the U.S. legally and eligible to sponsor the foreign relative. However, the waiting times in many of these categories are extremely lengthy. The employment-based route is equally outdated and unworkable. Even assuming the U.S. employer can negotiate the complicated, multi-agency process and prove that there are not sufficient U.S. workers who are able, qualified, and willing to perform the work in question, there are only a very limited number of employment visas available. Once again, waiting times in this category can run a decade or more. As for the Diversity Visa Lottery, it is available only to individuals from countries that send relatively few immigrants to the United States, and provides only a limited number of visas per year.
  • The 3-year, 10-year and permanent bars to admission render most undocumented immigrants ineligible to receive a permanent immigrant visa, even if they were to qualify through a family relation or via employer sponsorship.
    The 1996 immigration law created 3-year, 10-year and permanent bars on admission to the U.S. for a variety of immigration status violations. These bars apply widely and affect immigrants who have family in the U.S., have worked and paid taxes in the U.S., and in many cases are otherwise eligible for permanent resident status. The three-year bar applies to individuals who have been unlawfully present in the U.S. for a continuous period of more than 180 days, but less than one year, and who voluntarily depart the country. The 10-year bar applies to individuals unlawfully present in the U.S. for a continuous period of one year or more and who depart- whether voluntarily or involuntarily. The permanent bar applies to any person who has ever been ordered removed (or has resided in the U.S. unlawfully for more than one year in the aggregate), leaves the United States, and then returns or attempts to return without being admitted. Thus, even if an undocumented individual is eligible to become a permanent resident through family or employer sponsorship, he likely will be unable to attain that status.
Note 1: Data published by American Immigration Lawyer Association