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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 summer of '07 is barely half over and already it is likely to be remembered as one of the most eventful
in recent memory for immigration news. The summer began, of course, with the fierce debate over Comprehensive
Immigration Reform. The reform movement was ultimately defeated, sweeping away not only the hopes of more
than 12 million undocumented immigrants, but also the hard work of countless business leaders and local
Chambers of Commerce who sought a dependable means to fill chronic vacancies in their skilled, unskilled
and high tech work force. Yet, even this was overshadowed more recently by the employment-based visa fiasco,
which saw the U.S. State Department declare in mid-June that visas were available for nearly all employment-based
visa categories starting June 1st -- only to have Citizenship & Immigration Services declare on July 2nd that
there were no employment-based visas available in any category. Amid threats of litigation and Congressional
intervention, the fiasco was quickly resolved, but the roller coaster ride continues.
In other news developments, Congress has passed a passport backlog reduction act, immigration application
filing fees have increased, and a federal court has ruled as unconstitutional a local law barring illegal immigrants.
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.
Enjoy the summer!
Mitchell Zwaik
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IMMIGRATION NEWS
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Congress Passes Passport Backlog Reduction Act
In a rare show of bi-partisanship, Congress moved quickly in July to eliminate the passport bottleneck that
had outraged so many American citizens who saw their summer vacation plans jeopardized. On July 18, 2007,
the Senate passed the House amendment to the Passport Backlog Reduction Act of 2007 by unanimous consent,
clearing the amended bill to be signed into law by the President.
The original bill, passed by the Senate on June 29th, provided for the temporary rehiring of Foreign Service
retirees to assist in reducing the current backlog in passport applications. The bill also allowed rehired
workers to retain their retirement benefits.
The version passed by the Senate includes modifications passed earlier in the House by voice vote. The
amended bill contains additional language to allow rehired workers to assist in passport fraud investigations.
Federal Court Finds Local Law Barring Illegal Immigrants Unconstitutional
In a decision that could have significant implications for Suffolk County, a federal court in Hazleton
Pennsylvania on July 26, struck down a local law that sought to discourage undocumented immigrants from
settling in the town. The law, among other things, barred approval of renewals of business permits and
city contracts to entities who employ illegal immigrants and prohibited undocumented immigrants from
leasing or renting property in the city. The Hazleton decision will be widely studied by local communities
around the country, including Suffolk County, that have sought to pass local legislation similar to the
Hazleton ordinance -- a means of controlling the growing numbers of undocumented immigrants in their community.
Last fall, the Suffolk County legislature, at the urging of the County Executive, passed a law that imposed
requirements on contractors doing business with the county to verify the immigration status of their employees.
The bill imposes greater burdens on the contractors than those required under federal law and will therefore
likely face legal challenge.
In the Hazleton case, the federal judge held that the ordinances violated the U.S. Constitution by penalizing
landlords, tenants, employers and employees without providing them the procedural due process protections
required by the federal law, including the notice and the opportunity to be heard. The Court went on to say
that we "cannot say clearly enough that persons who enter this country without legal authorization are not
stripped immediately of all their rights because of a single illegal act."
Employers Prepare For H-2 Visa Battle
As the summer begins to wind down, local employers begin to gear up for the annual H-2 slugfest that
will allow them to keep their businesses running next summer. The H-2 is a temporary visa for foreign
workers who are needed for seasonal or "peak period" employers. On Long Island, these visas are sought
after by pool and landscaping companies, as well as East End hotels, restaurants and clubs. The visas
are limited numerically, however, and many local employers were shut out this season, causing major
business disruptions.
In recent years, Congress has sought to ease the burden a bit by allowing employers to re-hire
returning workers they have sponsored in the past. That "returning worker" provision is set to
expire on September 30th however. It will require Congressional action if it is to be extended.
In anticipation of the problem, the USCIS has urged employers to continue to identify returning
workers on new petitions to make it possible to segregate these cases for quicker approval if
Congress acts on an extension.
We urge employers who will require seasonal workers for next year to ACT NOW! The application
process is difficult and time consuming and employers who have now submitted applications by
the end of October are likely to be shut out!
Reminder: Filing Fees Were Increased on July 30th
Applicants for immigration benefits are reminded once again to double check their filing fees for all
immigration applications postmarked after July 30, 2007. The new fees, which are available at the
government website
www.uscis.gov,
have increased over 80% in some cases. Applications by spouses of
U.S. citizens for permanent residence will jump to $1365 from $765. Similar increases are in effect
for employment-based applications. The new fees do NOT apply to employment-based applications for
adjustment of status filed under the July visa bulletin (see "Employment-based Green Card Scramble" above).
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EMPLOYER NEWS
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Employment-Based Green Card Scramble
Tens of thousands of employment-based immigrants will have the right to apply for green cards in the next
few weeks after a bizarre series of events that left immigration officials embarrassed and immigrant
advocates jubilant and exhausted. The end result was that virtually any skilled or professional immigrant
who has sought permanent residency through employer sponsorship can now apply for a green card. The door
will slam shut on August 17, 2007 and may not open again for a year or more.
In a press release dated July 17, 2007, USCIS announced it would accept employment based applications to
adjust status filed by aliens whose priority dates for labor certification are "current" through July 31,
2007. This includes all employment-based applicants, except for unskilled "Other Workers."
A foreign worker may seek permanent residency in the United States through the sponsorship of an employer,
if the employer can demonstrate that it needs the immigrant because it cannot fill the position with a
U.S. worker. In order to do that, the employer must undergo a recruitment effort to attract U.S. workers
under a complicated series of rules promulgated by the U.S. Department of Labor (DOL). If the employer
completes the recruitment process without finding a qualified U.S. citizen or permanent resident, the
DOL issues a "labor certification," which the foreign worker can use to obtain a green card. However,
since the number of green cards which can be issued each year is limited numerically by law, an
applicant may have to wait years before he or she can convert the approved labor certification into
a green card. The announcement by USCIS that the priority dates were "current" means that virtually
every immigrant with a labor certification for a skilled or professional position can apply immediately
for a green card.
The announcement by USCIS came after a roller coaster series of events that began in mid-June, with an
announcement by the State Department that the visas would be available starting July 1st. On July 2nd,
USCIS announced that all employment-based visas were actually exhausted for July. This left many
immigrants outraged and confused. The American Immigration Lawyers Association (AILA) threatened a
massive class action and prominent Congressmen called for an investigation. USCIS backtracked.
Bottom Line: if you, as an employer or immigrant/applicant, have ever filed or received an application
for a labor certification, you must contact your immigration attorney IMMEDIATELY. Because of the number
of applications USCIS is expected to receive on or before August 17th, employment-based visas are unlikely
to be available again for several years after that date.
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IMMIGRATION REFORM
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With Comprehensive Reform Defeated, the Next Best Thing
The defeat of Comprehensive Immigration Reform in Congress this summer was a major setback for business
leaders and local employers around the United States. Although they may not be as dramatically impacted
as the estimated 12 million undocumented immigrants who will continue to work and live among us, employers
will continue to feel the pressure of trying to manage businesses large and small without a sufficient
workforce. Immediate attention will turn to extending the "returning worker" provisions to permit employers
to hire seasonal workers for next Spring and Summer (see above). After that, increasing the number and
easing the processing of H-2B applications will surely follow.
For undocumented immigrants, their immediate efforts will turn to passage of the Dream Act, which will
likely come before Congress when it returns in September from the summer recess. The bill, which has
resurfaced annually for several years, would give temporary legal status to immigrant teenagers who
were brought to this country as young children and remained to complete their education here. Many of
them are not even aware of their current illegal status. The bill would give them an eventual path to
U.S. citizenship, if they complete two years of college or military service.
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ASK THE ATTORNEY
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Question:
I keep hearing different things about paying or reimbursing my employer for sponsoring me.
I know a lot of people who either had to pay their boss to do this or had the money deducted from
their paychecks. But then I also heard that this is illegal. Which one is it?
Answer:
Excellent question. Up until just recently the laws were unclear regarding this issue.
However, on May 17th the U.S. Department of Labor clarified this issue and stated that no application
for labor certification may be sold, bartered or purchased as of July 16, 2007. This includes
monetary payments, exchanges of services or property, and even wage deduction. According to this
final ruling, an alien may pay his/her own costs, including attorney's fees for representation of
the alien, except that when the same attorney represents both the alien and the employer. In that
scenario all costs related to preparing, filing, and obtaining the permanent labor certification
must be borne by the employer.
Question:
I understand that everyone with a labor certification can now apply for a green card. I have an
employee with an approved labor certification, but he is currently outside the United States. Can he
take advantage of the new procedures and apply for his green card?
Answer:
A foreign worker with a labor certification as a skilled worker -- with a priority date on or before
July 31, 2007 -- can apply for adjustment of status, as long as the application is received by USCIS
on or before August 17th. In plain English, if your employee has an approved labor certification that
was filed with the Labor Department before August 1, 2007, that employee can file for his green
card if he is in the United States. This applies to any labor certification that was filed for a
professional or skilled worker. If, however, the employee is outside the U.S. and will be processing
his application at the U.S. consulate, the new processing rules will not help him/her and may actually
hurt. This is because visas for foreign workers are limited numerically by law and USCIS may use up
all or most of those green card visas for people applying within the U.S.
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DID YOU KNOW?
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It's a falsehood that legalizing undocumented immigrants is unfair to those who are
patiently waiting in line.
Here is the truth (note 1):
Earned legalization proposals do not allow anyone to "cut in line." In fact, they will help
those waiting in line, because a central component of comprehensive reform is reduction of the
family backlogs to allow families to reunify in a timely manner. One symptom of our current failed
policies is that families can be separated for many years. Immigrants without papers already living
in the United States will go to the back of the line. After first registering for temporary admission,
they must work for a number of years before they can earn the opportunity to permanently adjust
their status.
Note 1: Excerpt from Making the Case for Comprehensive Immigration Reform by the American
Immigration Lawyer Association
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