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3900 Veterans Memorial Hwy
Suite 120
Bohemia, NY 11716
Tel:  631-588-4040
Fax: 631-588-7175
E-mail: mczwaik@zwaik.com
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2753 Coney Island Ave
Brooklyn, NY 11235
Tel: 718-891-0007
Fax: 718-891-1203
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Contents
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MITCHELL'S MESSAGE
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Immigration continues to be in the news this month, as Congress pushed ahead toward possible Comprehensive Immigration
Reform. The disconnect between Republican presidential candidates and the American public seemed to grow ever
wider. Republican candidates, vying for the support of Iowa committee members and angry over illegal immigration,
came out hard against illegal immigrants -- even while the latest polling continued to show that most Americans
support some form of earned immigration benefits for a reported 12 million foreign nationals living and working
illegally in the U.S. Senate majority leader Reid has set the last two weeks of May aside for debate in the
Senate on immigration reform, although no one in the Senate has yet to introduce an immigration bill. In the
House, the STRIVE Act, a rational compromise bill that would require undocumented aliens to return home briefly
before returning and applying for citizenship, continued to be attacked from all directions
(see Immigration Reform below).
And amid all this din, U.S. employers continued to be the losers. As predicted, the Citizenship & Immigration
Services ran out of H-1B visas for professional workers on the first day of filing, with over 120,000 applications
for the 65,000 available visas. This set in motion a lottery process that will allow the lucky "winners" to
file applications. Those applications that are not selected will be returned to the applicant, along with the
filing fees.
Other immigration issues that have made the news recently include the Visa Bulletin for May, various
polls of Americans on immigration-related issues, and 2007 PERM statistics (see Immigration News below).
If you have comments or suggestions about this newsletter, call me at
631-588-4040 or e-mail me at
mczwaik@zwaik.com.
Thanks.
Mitchell Zwaik
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IMMIGRATION NEWS
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Employment-Based Green Card Visas Jump Ahead
The U.S. State Department issued its Visa Bulletin for May, indicating that Employment-Based Third
Preference Visas had jumped ahead one year to August 1, 2003. This means that foreign workers with
Labor Certifications that were filed on or before that date, can now apply for their green cards.
The numbers had been backlogged to August 2002 for five months.
The Visa Bulletin is issued by the State Department each month in order to notify the public of visa
backlogs. Individuals applying for permanent residency ("green cards") will usually require a sponsor
who is either an employer or close family member. These sponsorship applications are categorized
according to the familial relationship or the nature of the work to be performed. So, for example,
adult unmarried children of U.S. citizens will go into a different category than brothers and sisters
of U.S. citizens. Similarly, skilled workers go into a different category than highly educated
professionals. The backlogs on some of these categories extend over ten years.
Polls, Polls, Polls
The New York Times, in its Sunday editorial for April 22nd, quoted a USA Today/Gallup Poll that showed
78% of Americans favored earned immigration benefits for "illegal aliens." Although the numbers are higher
than in most polls, it does reflect the continuing support in America for some program that will allow
foreign nationals living illegally in the U.S. to earn some form of legal status en route to eventual
U.S. citizenship. A recent polling summary by the National Immigration Forum highlighted that:
NY Times/CBS News Poll showed that 59% of respondents believe that "illegal immigrants who have lived
and worked in the United States for at least 2 years" should be "given a chance to keep their jobs
and eventually apply for legal status."
Quinnipiac University Poll showed that 65% said that they support "creation of a guest worker program
that would allow illegal immigrants to register for temporary legal status and employment."
Pew Research Center Poll showed that 59% of Americans continue to favor a proposal to allow undocumented
immigrants who have been in the U.S. for several years to gain legal working status and the possibility of future
citizenship.
PERM Statistics
The Employment and Training Administration of the U.S. Department of Labor issued PERM statistics
for Fiscal year 2007 showing that computer professionals continued to dominate the list of most
sought after foreign workers. Of the ten most demanded occupations, four were for computer professionals,
including 67% of all applications approved for the top ten occupations. The raw numbers were as follows:
1. Computer Software Engineers (5,066)
2. Computer Systems Analysts (1469)
3. Restaurant Cooks (887)
4. Electronics Engineers (741)
5. Computer and Information Systems managers (680)
6. Financial Analysts (635)
7. Market Research Analysts (507)
8. Electrical Engineers (488)
9. Computer Programmers (482)
10. Mechanical Engineers (407)
PERM applications are electronically process applications for alien labor certifications. Employers
seeking to obtain green cards for foreign workers must first show that they have attempted to recruit
U.S. workers for the same position at a prevailing wage established by the U.S. Department of Labor.
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EMPLOYER NEWS
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H-1B Lottery Completed . . "Winners" To Be Notified
U.S. Citizenship and Immigration Services (USCIS) announced on April 12th that it had completed a
computer-generated random selection process to determine which H-1B petitions -- subject to the cap --
would be accepted for processing. On April 2nd and 3rd, the earliest days for submission of applications
for the professional worker visas, USCIS received 123,480 applications. Congress has mandated a
cap of 65,000 for professionals with Bachelor degrees and an additional 20,000 for professionals
with Masters degrees earned from U.S. institutions.
On April 3rd, USCIS announced it had received enough "bachelors" petitions to meet the cap for fiscal
year 2008. The cap for Masters degree professionals has not yet been reached, although almost 17,000
were received as of April 16th. In order to select which applications they would accept for processing,
USCIS then announced a computer-generated random selection process. USCIS warned that some applicants
had erroneously received receipt notices prior to the selection process and that they cannot assume
that they had been selected. All petitions not chosen will be returned with the fees to the petitioner
or their attorney.
The H-1B visa category is established for foreign professional workers coming to the United States
to perform professional work. Workers in this "specialty occupations" category include scientists, engineers
or computer programmers, among others. A minimum or "prevailing wage" is established for these workers
by the U.S. Department of Labor. An additional 20,000 are set aside for foreign workers who have
obtained a Masters Degree or higher from a U.S. University. The cap does not apply for foreign workers
who have already received an H-1B within the last 6 years and are seeking to change employers or extend
their period of authorized employment with the same employer.
Several bills were immediately introduced into the Senate in order to increase the number of H-1Bs and
alleviate the employment-based green card backlogs. They are expected to be addressed as part of the
Comprehensive Immigration Reform legislation.
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IMMIGRATION REFORM
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Overview of the STRIVE Act of 2007
In the U.S. House of Representatives, Rep. Jeff Flake (R-Arizona) and Rep. Luis Gutierrez (D-Illinois)
are co-sponsors of legislation that would allow certain undocumented immigrants to obtain legal status through
a process that includes payment of fines and back taxes, and leaving and re-entering the country legally.
Known as the STRIVE (Security Through Regularized Imigration and Vibrant Economy) Act, the bill would also
let foreign workers into the country through a three-year visa and require employers to verify workers'
legal status with a system established by the Department of Homeland Security and the
Social Security Administration. An overview of the STRIVE Act is as follows:
SECURING OUR BORDERS
The STRIVE Act sets certification requirements that must be met before implementation of the New Worker Program
and the program to legalize undocumented individuals. The Secretary of DHS must certify to Congress
that improvements in border surveillance technology are being implemented; that the systems and
infrastructure necessary to carry out improvements to immigration document security are ready to
use; and that the first phase of the Electronic Employment Verification System requiring the
participation of critical infrastructure employers has been implemented.
- Increases border and other enforcement personnel, including port of entry inspectors, immigration
and customs enforcement investigators and border patrol
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Accelerates technology and border infrastructure, including unmanned aerial vehicles, cameras, poles,
sensors, and other technologies necessary to achieve operational control of the border
NEW WORKER PROGRAM THAT REFLECTS REALITY OF OUR WORKFORCE
A new Worker Visa Program creates a legal channel for future immigrant workers (and their spouses and children)
by establishing the H-2C visa, which is valid for three years and renewable for another three. Employers
must attempt to hire U.S. workers by first offering the job to any eligible U.S. worker who applies and
is qualified and able. To achieve this, employers must go through a rigorous recruitment process. Employers
are barred from hiring new immigrant workers if they are located in an area with an unemployment rate
higher than 9 percent for workers whose education level is at or below a high school diploma.
The visa program has an initial cap of 400,000 which adjusts yearly based on market fluctuations. Requires
H-2C immigrants who are unemployed for more than 60 days to leave the United States. Includes the following
labor rights and protections for H-2C workers: fair and competitive wages, the ability to travel outside the
United States, whistleblower protections, flexibility to change employers ("portability"), an opportunity
to apply for conditional permanent residence after five years of employment and eventual citizenship,
if desired, among other protections.
STRENGTHENING INTERIOR ENFORCEMENT
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Expands the types of crimes and increases penalties related to passport, visa and document fraud
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Creates new immigration penalties for aliens convicted for drunk driving and gang crimes
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Enhances the criminal penalties associated with the unauthorized employment of aliens
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Enhances the address reporting requirements under the immigration law
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Requires DHS to significantly increase the number of facilities for the detention of aliens (at least 20
additional detention facilities that have the capacity to detain 20,000 aliens)
REFORMING A BROKEN VISA SYSTEM IN A WAY THAT PROTECTS FAMILIES
(Will be summarized in next month's newsletter)
EARNED LEGALIZATION FOR QUALIFIED HARDWORKING INDIVIDUALS
(Will be summarized in next month's newsletter)
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ASK THE ATTORNEY
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(Excerpt from an Apr 8, 2007 Newsday article by Bart Jones)
Question:
My cousin came here legally using a B1/B2 visa which she eventually violated by overstaying.
Now she has found an employer willing to do anything he can for her so she can get a green card.
Is there any way she could get a green card if she overstayed her visa?
Answer:
A B1/B2 visa is officially known as a "visitor's" visa and allows a foreign national to come to the U.S.
temporarily either as a tourist or to perform work for a foreign employer, such as the repair of machinery
manufactured abroad, said Bohemia-based immigration attorney Mitchell Zwaik. The immigration officer at the
port of entry will typically admit the visitor for up to six months.
The officer notes the date of admission on a small white card called an I-94 and staples that card to the
visitor's passport. When the visitor leaves the United States, he or she turns in the I-94 and the
departure is noted in the immigration computer. This is the basic way U.S. Citizenship & Immigration
Services attempts to keep track of foreign nationals in the United States.
If the visitor overstays the period authorized, he or she becomes "out of status" and is subject to
deportation, Zwaik said. Generally, a visitor who is out of status cannot get his or her status legalized
without first leaving the United States. Furthermore, a visitor who has been out of status for more than
a year and subsequently leaves this country, generally cannot re-enter for up to 10 years. This is part
of the reason there are more than 10 million people living illegally in the United States.
If your cousin is out of status, she probably won't be able to get a green card even if she has an employer
willing to sponsor her, Zwaik said. And even if the initial sponsorship application, known as a labor
certification, were approved, she likely would have to go back home and wait up to 10 years before returning.
There are exceptions to this rule, however. If your cousin was previously sponsored by an employer or a
family member and the application was filed on or before April 30, 2001, she may be covered under a
special provision in the law that allows her to complete processing in the United States without
returning home.
It is also important to note that comprehensive immigration reform, supported by President Bush and
recently introduced in Congress, would largely alleviate your cousin's problem, Zwaik said, by legalizing
many of the undocumented immigrants currently in this country.
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DID YOU KNOW?
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It's a falsehood that by enforcing the laws already on the books we can fix our broken immigration system
Here are some truths about Comprehensive Immigration Reform (note 1):
Virtually every senior security official to look at this problem (including DHS Secretary Chertoff
and former DHS Secretary Ridge) concurs that we cannot simply "enforce our way out of this problem."
Our failed enforcement policies offer glaring evidence that more enforcement is an empty promise,
not an effective solution. During the past decade, we tripled the number of agents on the border,
quintupled their budget, toughened our enforcement strategies, and heavily fortified urban entry
points. Yet, during the same time period there have been record levels of illegal immigration,
porous borders, a cottage industry created for smugglers and document forgers, and tragic deaths
in our deserts.
Effective enforcement policies are critical to restoring integrity and legitimacy to a system that
currently lacks both, but our current laws are so divorced from this country's economic and social
realities that to think we will be able to restore order and legality without reform of those laws
is naive. The apt enforcement analogy is to consider what would happen if we lowered the speed limit
on our highways to 25 mph. We would create a nation of lawbreakers and an impossible enforcement
challenge for our highway patrols.
Enforcement will work only when our laws reflect the economic and social realities of 21st century
America. By establishing legal immigration channels, we can reduce the enforcement targets so that we
focus our resources on those who mean to do us harm, not on those who are filling our labor market
needs or reuniting with their close family members. Our current immigration policy exhibits the same
fundamental flaws we saw with laws enacted during Prohibition. It's not realistic, it doesn't reflect
our needs, and it makes good, law-abiding individuals into lawbreakers. In short, it's bad policy.
Comprehensive immigration reform is needed to make legality the norm and restore legitimacy to the law.
This will help us to differentiate between the law-abiders and the law-breakers, and will allow for a more
efficient allocation of enforcement resources.
Note 1: Excerpt from Making the Case for Comprehensive Immigration Reform by the American
Immigration Lawyer Association
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