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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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The battle over immigration reform hit a fever pitch last week, as the U.S. Senate took up a debate on
the bi-partisan proposal endorsed by the White House. The bill would grant legal status to most immigrants
illegally living in the U.S. since January of this year and totally re-write the law regarding employment
immigration. We believe the bill, in its present form, is seriously flawed. It will actually make
immigration harder on families seeking to immigrate legally to the U.S., while doing little to alleviate
the strains on Long Island employers suffering through labor shortages. Over the coming weeks, we will be
following Congressional efforts to amend the proposal. More on that subject in the Immigration Reform
section below.
In other, less dramatic, but more practical news developments, the backlogs on employment based "green card"
applications have been dramatically reduced and newly proposed regulations would dramatically alter the
processing of future employment applications. Finally, the proposed increase in USCIS filing fees,
scheduled to go into effect on June 1st, has been delayed until July 30th. Read more about these issues in
the Immigration News and Employer News sections 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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Fee Increases Postponed Until July 30th
The proposed fee increases, announced by USCIS in February and slated to go into effect June 1st, have
been postponed until July 30th.
As recently as last month, it seemed that the agency would meet its goal of implementing the fee increases
in June. USCIS officials had scheduled a press conference for May 10th to announce release of the final regulation
increasing the fees, but cancelled it a few hours before it was due to start -- providing only vague explanations
for the cancellation. In the meantime, the Web site for the Office of Management and Budget (OMB)showed the regulation
as still under review. Today, two weeks later, the Web site continues to show the regulation as under review.
A regulation cannot be published until it has been cleared by OMB. Under the Administrative Procedure Act,
a regulation generally must be published at least 30 days before it takes effect. Therefore, the increase will
take effect on July 30th.
The U.S. Citizenship and Immigration Services (USCIS) announced a proposal to increase filing fees for all
immigration benefits by an average of 86 percent on June 1, 2007. The sharp jump is intended to fulfill
the Congress mandate to make the immigration benefits portion of CIS self-sustaining.
Although fees have increased on various applications almost every year in piecemeal fashion, this would be
the first across-the-board increase since 1998, when fees rose an average of 76 percent.
U.S. Department of Labor Amends Rules on Labor Certifications
The Department of Labor (DOL) has published a final rule which will have a major impact on the processing of applications
for employment-based permanent residency. The rule, set to go into effect on July 16, 2007, provides that:
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Employers can no longer substitute workers on labor certification applications. Under the current rules,
an employer with an approved labor certification can substitute the initial immigrant with another worker,
thereby saving considerable time and expense when the first worker leaves the employer. Under the revised
rule, the employer will have to start from the beginning with a new recruitment and new labor certification
application.
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Approved Labor Certifications will only be valid for a period of 180 days. During that time, the employer
must take the next step in the application process, filing an I-140 petition with the approved labor
certification and supporting documents. Under the current rules, a labor certification is valid indefinitely,
allowing the employer time to obtain the necessary documentation after approval of the labor certification.
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Employers must pay all costs and disbursements -- including attorney's fees -- for preparing, filing
and obtaining labor certification, "except when work to be performed by the alien in connection with the job
opportunity would benefit or accrue to the person or entity making the payment." If the attorney represents
both the employer and the employee, which is frequently the case, the employer must pay the fee. Exactly
what this means is unclear. In many labor certification cases, the employee wishes to be represented by his
own attorney. Does this mean the employer must pay the employee's attorney fees? What if the employee has
already retained an attorney and signed a retainer agreement? Stay tuned!
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EMPLOYER NEWS
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Backlogs Reduced 3 Years For Employment-based Green Cards
The U.S. State Department announced this week that the backlog for employment-based applications for permanent
residency ("green cards") has been reduced by more than three years to June 1, 2005. As a result, applications
for Professionals and Skilled Workers (Employment-based Third Preference) that were filed with the Labor Department
on or before June 1, 2005, can now be processed for green cards. Until recently, the backlogs had stretched to
August of 2002.
Most foreign nationals seeking to obtain permanent residency through employer sponsorship must first obtain
approval from the U.S. Department of Labor (DOL), through a process known as Labor Certification. This process
requires the employer to first seek to recruit U.S. workers for the job by advertising the position at a prevailing
wage set by the DOL. The date on which the employer files this Labor Certification application with the DOL becomes
the immigrant's "priority date" for green card processing. Congress has set a numerical limit on the number of
green cards that can be issued each year for immigrants in this category. Since the number of applicants exceeds
the number of visas, a backlog has occurred. Immigrants are processed in this backlog according to their priority date.
The law is further complicated by the fact that each country has a limited number of green cards that its citizens
can obtain each year. In this way, all of the green cards do not go to citizens of certain high demand countries.
The backlogs for these countries have also moved forward. The available date for China, India and Mexico is
June 1, 2003 and for the Philippines it is June 1, 2005.
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IMMIGRATION REFORM
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Senate Debates Immigration Reform
The announcement by the White House on May 17th that it had reached a consensus on immigration reform with
a bi-partisan group of senators touched off an immediate storm of criticism. The proposal, in its initial
form, had something for everyone to dislike. The key provisions in the bill called for a new "Z" visa that
would give legal status to most immigrants who had been illegally in the U.S. before January 1, 2007. This
would include both individuals who had entered illegally and those who had initially entered
legally, but overstayed their allotted time or otherwise violated their status (as by dropping out of school).
Supporters and opponents battled over whether this provision was an "amnesty." Opponents claimed that giving legal
status to "illegals" was amnesty. Supporters claimed that the payment of high fines, back taxes, and other
requirements prevented the proposal from being an amnesty. In any event, it is clear that no immigration reform
can have any chance of success without some program to address the 10 to 15 million undocumented immigrants.
Other controversial provisions of the bill would create a guest worker program that allows skilled and unskilled
workers to come to the U.S. for up to 2 years. They would have to return home for at least a year before they
could obtain approval of an additional 2-year guest worker visa. The proposal would also seek to dramatically
shift the very nature of immigration to this country, by favoring employment skills over family unity as the
basis for obtaining a green card.
Whatever happens in the Senate this week, the bill is a long way from becoming law. The Senate debate will
likely continue after the Memorial Day recess. This will include votes on a wide number of proposed amendments.
If the Senate passes an immigration bill, consideration will move to the House of Representatives. If the
Senate does not pass the bill, the House will not take up comprehensive immigration reform this year. The
House will complete a series of committee hearings in the coming weeks and their bill markup will include a variety
of amendments. It will then go to the full House Judiciary Committee, to the Rules Committee, and then to the House
floor for debate and a vote. The bill is expected to be on the House floor in July. Following action in the House,
the bill will then go to a conference committee with the Senate. If a compromise bill comes out of this
committee, it will go back to the House and Senate for a final vote. If the identical bill passes both
the House and Senate, it will go to the President for signature.
We have prepared an initial
review of the immigration reform proposal.
Additional information is available as follows:
We have not provided a direct link to the actual bill itself, which runs 326 pages. Those of you
who wish to spend a few days engrossed in the proposal can contact me and I will be glad
to forward it to you.
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ASK THE ATTORNEY
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(Excerpt from a May 6, 2007 Newsday article by Bart Jones)
Question:
I entered here legally via a visitor's visa. I was petitioned by my employer after I overstayed. Now my labor
certification was approved and my I-140 has been approved by the U.S. Citizenship and Immigration Service.
Would I still encounter any problems if my priority date (I filed in March 2003) becomes current? Or would
I just apply for adjustment of status, once it becomes current? One more question: I got married also, and
I was able to include my husband in filing my I-140. Will he be included in the adjustment of status?
Answer:
The question involves many overlapping issues, some of which are difficult to answer, because we do not have
all of the necessary information, said Bohemia-based immigration attorney Mitchell Zwaik. If you entered
on a visitor's visa and overstayed the permitted time, then you are out of status and illegally in the
United States.
This will ordinarily require that you return home to obtain your green card from the U.S. consulate. The
law also provides that if you have overstayed by more than a year in the United States and then return
home, you may be prohibited from returning to the United States for up to 10 years.
You may qualify for one of the exceptions to this 10-year bar, if you were sponsored for a green card by an
employer or family member on or before April 30, 2001. If that's the case, you would be considered
"grandfathered" under prior law and could apply for adjustment of status in this country, Zwaik said.
In order to qualify for adjustment of status, a visa number must be currently available to you.
For most sponsorship categories, the numbers of "green card" visas issued each year are limited by law.
When the number of qualified applicants exceeds the number of available visas, a waiting list is created.
Your question does not indicate the nature of the job for which you were sponsored. Assuming this is a
skilled job (requiring either two years experience or a bachelor degree) you are in the "Employment-based
Third Preference" with a "current" priority date of August 1, 2002. This means that applicants who
filed on or before that date have come to the top of the waiting list and can apply for a visa. There
is no way to accurately predict when your priority date of March 2003 will become current. Although
your priority date appears to be seven months behind the "current" date, these visas do not always
move in a timely fashion and you may have a year or more to wait, Zwaik said.
There is some good news, he added. Your husband can be included in your final green card processing,
even if he was not originally mentioned on your I-140 petition. The other bit of good news is that
the comprehensive immigration reform legislation, supported by President George W. Bush and introduced
recently into the House, would greatly increase the number of visas in this and many other categories,
thereby shortening the waiting lists. It also may make it possible for you to obtain a green card, even
though you are currently out of status.
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DID YOU KNOW?
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It's a falsehood that Comprehensive Immigration Reform
will lead to more illegal immigration
Here are some truths about Comprehensive Immigration Reform (note 1):
Security experts agree that one of the principal failures of the 1986 legalization program - the lmmigration
Reform and Control Act (IRCA) -- was the failure to address prospective migration flows. The goal of
"comprehensive" immigration reform is to deal realistically and simultaneously with both the symptoms
of our failing system (the current undocumented population) and the root causes (lack of legal channels).
As envisioned, comprehensive immigration reform would replace the current illegal flow with a legal flow. Programs
that would match willing essential workers with willing employers, reduce the backlogs on family immigration,
and offer people the opportunity to earn their permanent legal status would eliminate the strong incentives
to skirt our immigration laws. Such programs would create a safe, legal, and orderly avenue for those who
seek employment in the U.S., as well as those who seek to reunify with family members. With these alternatives
in place, immigrants would eschew dangerous border crossings in favor of a safe, controlled visa process.
And, because comprehensive reform proposals mandate that people must be residing in this country by the date
of their introduction to be eligible, these measures would not function as a magnet for future undocumented
immigration.
Comprehensive immigration reform would also end the incentive to hire undocumented workers. Employers who still
resort to using illegal workers would be targeted with tough new penalties. Under an enhanced temporary worker
program, employers would be able to verify electronically that a foreign worker is authorized to work.
Any employer who participates in the program would be required to use this system, with stiff fines levied on
employers who knowingly violate immigration or labor laws. This verification system also would include safeguards
to ensure that employers do not discriminate against job applicants, and would allow workers to verify personal
information and appeal to the government to address any inaccuracies in the system.
Moreover, comprehensive immigration reform would continue to focus resources at our borders, providing
for better technology and a process by which the Department of Homeland Security (DHS) can monitor and
address changing border enforcement needs. Recent comprehensive reform proposals have specifically
targeted efforts to combat human smuggling and increased coordination and information sharing among
officials responsible for border control.
Note 1: Excerpt from Making the Case for Comprehensive Immigration Reform by the American
Immigration Lawyer Association
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