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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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Long Island employers with seasonal businesses are scrambling to file applications to secure foreign workers
for the Spring and Summer of 2008. The annual insanity is worse this year than in previous years, in part
because of an ever greater demand for the 66,000 new H-2B visas issued every year. But the insanity is made
worse this year by Congress' failure as of yet to reauthorize the issuance of additional H-2 visas for
"returning workers" as they have in past years. Without this returning worker reauthorization, the H-2
program will almost certainly run out of visas during the next thirty (30) days.
In other news, the USCIS crackdown on "no match letters" has been sidetracked indefinitely due to the
issuance of a permanent injunction by a federal judge in California . . . the Department of Homeland Security
prepared to issue a new I-9 form that will impact on every employer in the U.S. . . . the DREAM Act which would
have given legal status to children who completed their education in the United States was defeated in the
U.S. Senate and USCIS announced a new examination for naturalization applicants. All of this and more to follow 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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BREAKING NEWS ROUNDUP
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Travel Rules for "H" and "L" Non-Immigrants
USCIS announced a final rule to streamline the readmission of
"H" and "L" nonimmigrants who travel outside the U.S. while their applications for adjustment of status
are pending. The rule removes the requirement that such persons present a receipt notice upon reentering
the U.S. to prove to ICE officials that their green card case is pending. Generally, adjustment of status
applicants must obtain special permission, called Advanced Parole, from USCIS before leaving the U.S. or
their applications are deemed abandoned. H-1 and L-1 nonimmigrants are now exempt from that requirement.
New I-9 Form Imminent
DHS has advised the immigration bar that a new I-9 form and employer handbook will
be issued the week of November 5th. The I-9 is the form which EVERY employer must complete when hiring ANY
employee. The two page form requires documentation that the new employee has authorization to work in the
U.S. Page 2 of the form contains a list of acceptable documentation that the hiree may present to show he
or she is a U.S. citizen or an immigrant with employment authorization. Page one contains additional
information about the employee and a place for the employer to indicate the specific documentation which
the employee has provided.
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IMMIGRATION NEWS
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USCIS Announces New Naturalization Exam
Following a study that required six years and $6.5 million dollars, the USCIS has announced a new naturalization
exam that will be effective October 1, 2008. The revised test will have "an emphasis on the fundamental concepts
of American democracy" and "will help encourage citizenship applicants to learn and identify with the basic values
we share as Americans." The exam tests many of the same subjects as the current exam but the questions are often
phrased in a way to test the applicant's understanding of underlying principles. So for, example, the new test
does not ask how many stars were on the original flag, but what the stars represented. A side-by-side comparison
with a current and redesigned test is available at:
www.uscis.gov/files/nativedocuments/COMPARISON.pdf.
October 1, 2008 is the key date in determining which exam the applicant will take. All applicants filing
for naturalization after October 1, 2008 will take the new exam. Those who file before October 1, 2008 will
take the current exam if they are interviewed before October 1, 2008 and the new exam if they are interviewed
after October 1, 2008.
Department Of Labor Eliminates Backlog
The U.S. Department of Labor announced that it had eliminated the backlog in processing of old applications
that were pending when the new, electronic, PERM processing began on March 28, 2005. Prior to PERM,
applications for Labor Certifications were manually prepared and reviewed by each state's Department
of Labor. Approved applications were then manually forwarded to the U.S. Department of Labor for review.
Processing times on these manually filed applications routinely ran four to six years. In March of 2005,
the U.S. Labor Department switched to an electronically filed PERM application under which applications
are generally filed via e-mail at one of two central locations where they are initially processed by a
USDOL computer. Processing times now take between two weeks to six months, depending upon the application.
At the time of the switchover in March of 2005 there were over 300,000 pending Labor Certifications that
had been filed manually. Now, 2.5 years later, the U.S. Department of Labor indicates that they have
finally eliminated that backlog. Applicants who have labor certification applications that were filed
manually under the old system and have not heard from the Department of Labor should contact their
attorneys or the DOL immediately.
DREAM Act Fails
On October 24, 2007 the Senate failed to garner the sixty votes needed to move forward with debate on
DREAM Act. The 52 to 44 vote in favor of proceeding to debate on "DREAM Act" was eight votes short of the
60 votes necessary for cloture. A successful cloture vote would have allowed Senators to begin debating
and amending the DREAM Act before voting on its passage. The DREAM Act would have allowed children who
entered the United States while under the age of 16 and subsequently completed their education in the
United States or served in the U.S. military to obtain legal status and eventual citizenship.
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EMPLOYER NEWS
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H-2B Crunch Time
Long Island employers are working furiously this month to submit their remaining applications for H-2B workers
for the Spring and Summer of 2008. The H-2B non-immigrant program permits employers to hire foreign workers to
come to the U.S. to perform temporary non-agricultural work for seasonal peakload and intermittent businesses.
It includes business such as landscapers and pool maintenance and installation companies as well as East end
resorts and restaurants that are closed during the winter months. The program requires three stages. In the
first stage the employer must obtain a "Labor Certification" from the State Department of Labor. This Labor
Certification requires that the employer prove it has first tried to hire U.S. workers for the position through
advertisement in the local newspaper. The second stage requires the approved labor certification be filed with
USCIS for review along with and employer's financial records. The final step requires processing at a U.S.
consulate abroad.
Congress has limited the H-2B program to 66,000 foreign workers per year, the fiscal year beginning October 1st.
In recent years, however, Congress has provided some breathing space under the cap by providing that "returning
workers" are not counted towards the cap. That returning worker provision, however, expired under September 30th
of this year and has yet to be renewed by Congress. As a result a mad scramble is currently under way by all
employers to complete their Labor Certifications immediately and file H-2B applications before Visa numbers
are exhausted.
On October 17, 2007 the Senate approved an amendment to the Commerce, Justice Science (CJS) Appropriations
Bill that would extend the program for an additional year, thus, recapturing the returning workers. That
bill has yet to pass and President Bush has promised to veto the bill, because it exceeds the spending
limits in his budget proposal. At the same time, a promise by DHS to expedite processing of labor certifications
has also gone unfulfilled.
Court Halts "No Match" Crackdown
A federal judge in Northern California last month issued a permanent injunction that prevents the Department
of Homeland Security (DHS) from enforcing its proposed regulations to penalize employers who ignore "No Match"
letters issued by the Social Security Administration (SSA). A "No Match" letter is issued by SSA when the
employee's name and social security number does not match SSA's records. These letters are currently advisory
only and do no require the employer to take any action to correct the discrepancy. In August of this year,
DHS proposed a series of rules that would have required employers to take corrective action in response to
the no match letters. If the discrepancies could not be satisfactorily resolved within ninety days, the
employer was required to discharge the employee or risk significant fines.
Judge Charles Brewer, in issuing the injunction that prevents these new regulations from taking affect, held
that the new regulations would have "massive ramifications" from employers without giving any legal explanation
or conducting the required survey to determine the cost and impact to small businesses, which could lead to
"irreparable harm to innocent workers and employers."
The injunction will remain in effect until the Court ultimately decides on the merits of the lawsuit which
will not be until next year, at the earliest.
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