3900 Veterans Highway
Suite 120
Bohemia, NY 11716
Tel: 631-588-4040
Fax: 631-588-7175
E-mail: mczwaik@zwaik.com
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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With the presidential election cycle in full swing and Congress mired in partisan bickering, there is little
chance of meaningful immigration legislation this year. In fact, any proposal that even touches on immigration
issues seems doomed to fail. Witness the recent attempts by U.S. employers to obtain an extension of "returning
worker" status for H-2B seasonal employees. The extension bill would have allowed employers in seasonal and peak
business to bring back workers including landscapers, maids, cooks, busboys, laborers, and pool maintenance
people for the 2009 summer season. Such workers are critical for Long Island East-End businesses and other
summer industries who cannot find sufficient U.S. workers to fill their temporary slots.
Congress dropped the ball.
Now we face the annual April Fool's Day madness, when employers from some of the largest hi-tech firms in
America enter a lottery in the hope of obtaining temporary professional visas for key employees. Many
immigration professionals believe that USCIS will receive more than 250,000 applications on the first
day of filing for one of the 65,000 precious visas. The result is that many hi-tech companies will
continue to send operations overseas, in order to find the critical employees they need. Apparently,
Congress prefers that these highly qualified applicants find work in India, where they appear to welcome
economic development.
The inability and unwillingness of Congress to act on legal immigration is, in large part, responsible
for the problems we are currently suffering with illegal immigration. Employers need foreign workers
to run their businesses, when they cannot find U.S. workers to do the work. When we make legal immigration
impossible, we make illegal immigration inevitable.
We have added a new section to our newsletter entitled "Practical Pointers" that may help you
understand and navigate through certain common immigration problems.
In other news developments, CIS officials met on Long Island, the DHS released an ID regulation,
the HHS updated poverty guidelines, the H-1B visa lottery is coming up on April 1st, and H-2B visa applications
have reached their cap. Read more about these issues in the 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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CIS Officials Meet With Long Island Lawyers
The New York District Director and key officers of the Garden City Immigration Office met with members
of the Nassau and Suffolk County Bar Associations to discuss improving relations between the Immigration
Services and the public. The luncheon, held at the Nassau County Bar Headquarters, is part of a new
community relations program started by recently appointed Director Andrea Quarantillo.
Information that came out of the meeting included:
- Processing of Naturalizations at the Garden City Office is taking approximately 6 ½ months from filing
to interview, although the United States' average is reported to be 18 months.
- The Garden City Office processes over 300 Naturalization and Adjustment of Status interviews daily.
- Plans continue to relocate the office on Long Island, although no site has yet been chosen.
- An applicant's denied Adjustment of Status will be placed in deportation proceedings under a new
program that is currently underway. By this summer, the program should be fully in place and applied
in all cases.
Ms. Quarantillo also reviewed procedures under which attorneys could obtain action on pending cases, although
she cautioned that CIS was powerless to approve cases where FBI security checks were still pending. Also at
the meeting were Garden City Field Office Director Sham Q. Chin-Gee, Naturalization Section Chief Elizabeth
H. Miller, and Valerie Auletta, 245 Section Chief.
DHS Releases Real ID Regulation
The U.S. Department of Homeland Security announced on January 11th that it had issued a final rule establishing
minimum security standards for state issued drivers' licenses. The regulation, which implements one of the key
recommendations of the 9/11 Commission, is not binding on the states, although it will mean that individuals
with licenses from non-compliant states will not be able to use those licenses to board commercial airlines or
enter federal facilities. The regulation attempts to reduce document fraud by setting specific requirements
that states must adopt for compliance, including (1) information and security features incorporated into the
license (2) proof of the identity and legal status of the applicant, thereby eliminating undocumented aliens
from receiving licenses (3) verification of the source documents provided by the applicant and (4) security
standards for the offices that issue the licenses. The requirements do not go into effect until
December 31, 2009 and states attempting to comply with the regulations can apply for further extensions beyond
that date.
Annual Update of the HHS Poverty Guidelines for 2008
The Department of Health and Human Services issued its annual update of the HHS poverty guidelines to account
for last calendar year's increase in prices -- as measured by the Consumer Price Index, effective January 24, 2008.
These guidelines are then converted into a sliding scale that increases along with the number of dependents of the
sponsoring family member. An American citizen with no dependents, petitioning for a foreign born spouse must earn
at least $17,500 per year, an increase of $387.50 over 2007. If that American sponsor has four dependents, the
income level rises to $31,000. If the sponsor's income is not sufficient according to the guideline, he or she
will be required to have an additional "joint sponsor" who can satisfy the income requirements.
The new income levels become effective April 1st.
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EMPLOYER NEWS
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H1-B Lottery Looms
Employers and immigrant professional workers across the country began gearing up this month for the annual
April Fool's Day H-1B Lottery. Many predicted that as many as 250,000 applications would be filed for the
computer generated lottery. USCIS promised new rules to expedite processing and weed out duplicate filings.
During last year's H-1B cap lottery, some applicants tried to "stack the deck" by filing multiple applications
for the same employee. If USCIS identified a duplicate petition, the Service receipted in the case and issued
an automatic denial for the second case without refunding the filing fees. This year, they plan to deny the
initial application as well.
Congress has allocated a total of 65,000 H-1B visas each year for new H-1B applicants. The fiscal year
begins on October 1st and new applications can be filed no more than 6 months prior to the anticipated
start date. Thus April 1 is the earliest possible day to file applications for nonimmigrant professional
workers to begin work October 1. Once the cap is reached, further applications are returned to the employer
without being adjudicated. Last year USCIS received approximately 120,000 applications for H-1B's on the
earliest possible filing date (April 2nd since April 1 was a Sunday) and a computer generated lottery was
instituted.
The H-1B visa category is establish for foreign professional workers coming to the United States to
perform professional work at a prevailing wage established 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.
At the December annual meeting with members of the American Immigration Lawyers Association (AILA), Associates
Commissioner Michael Aytes suggested that CIS would be issuing guidelines for filing procedures (e.g. envelope
identification information, cap vs. non-cap address information, etc.) and that these guidelines might be
available as early as January. They have yet to be issued. We will keep you posted.
H-2B Cap Reached as Congress Fails to Act
The U.S. Citizenship and Immigration Services (USCIS) announced on January 3 that it had received a sufficient
number of petitions to reach the H-2B cap for the second half of the 2008 Fiscal year. USCIS has rejected
any H-2B applications received on or after January 2, 2008. The announcement is a body blow to Long Island
business that rely on foreign workers for summer job vacancies. The H-2B visa is for seasonal and peak workers
for businesses such as landscapers, pool maintenance and installation companies, golf courses, and marinas as
well as East End restaurants, hotels and resorts. In order to qualify for the visas, employers must first
undergo a recruitment procedure to try to attract U.S. workers under a procedure established and reviewed
by the U.S. Department of Labor. A measure before Congress that would have allowed for a one year "quick fix"
to allow employers to be exempt from the cap H-2B workers who had been approved in past years, ultimately was rejected.
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PRACTICAL POINTERS
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Dealing with Delays in Security Clearances
Non-citizens, trying to navigate U.S. immigration laws in the post-9/11 world, are often frustrated by delays
that are caused by "security clearances." These delays occur in a variety of instances: green card holders
waiting to be sworn in as citizens, immigrants eligible for permanent residency waiting to be approved for
green cards, various temporary visitors to the U.S. with approved applications at U.S. consulates abroad who
are unable to obtain visas. The delays can stretch for years and have severe repercussions for immigrants who
are separated from family or jobs. It is important to understand the reasons for these delays and what, if
anything, that can be done to reduce them.
When a non-citizen applies for various benefits under the U.S. immigration laws, the applicant must frequently
undergo a security check. Before 9/11, these checks were quickly approved. Immigration officials submitted names
and fingerprints to the necessary organizations and if no negative reply was received within a certain time
period, it was assumed that the applicant was "clean" and the application was approved. Since 9/11, DHS now
requires a positive response from the security agency before it will approve the case.
Security clearances involve more than traditional fingerprint ID. Today's checks include name checks --
and these name checks include every possible variation of the name. For example, "Mohammad Chaudhry" will
also be checked for "Chaudhry Mohammad" "Muhammad Choudhry" "Muhammad Chaudry" etc. If any of these combinations
match a name on one of multiple watch lists, a more extensive security screening is required.
In a December meeting with AILA and other organizations, DHS Secretary Chertoff indicated that USCIS and the FBI
are changing parts of the name check process, with the expected result that a large proportion of the backlog
should be cleared within six months. He also promised that additional resources will be committed to the problem.
What can you do if you are confronted with the problem? In most instances nothing. With the initial application you
should submit copies of all passports as well as verifiable birth certificates, drivers' license and other government
issued IDs. You should also be truthful with DHS officials. Neglecting to advise officials of arrests you consider
"unimportant" will only hinder the process. You can also contact local Congressional offices that can help in
identifying the problem, if one exists. Beyond these steps, there is very little you can do unless your application
falls into one of the following classes: (1) you are an applicant for naturalization and you have been interviewed by
CIS and your case is pending more than a year and (2) you are an applicant for permanent residency and you have
been interviewed and your case is pending more than 2 years, solely due to security clearances. In these instances,
an immigration attorney may advise that you bring a lawsuit against DHS. These suits, called mandamus actions,
can often result in the clearance being "fast tracked" for quick results.
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ASK THE ATTORNEY
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Question:
I was a visitor to the U.S. and forgot to turn in my I-94 when I left the U.S. What should I do?
Answer:
The I-94 is the small card (usually white) that is stapled into the passport of most non-immigrants coming
temporarily to the U.S. It is the principal means by which DHS can track the people who enter and leave
the U.S. If you failed to surrender that card when you left the U.S. , it means your departure was not
properly recorded and DHS thinks you are still in this country. That can have dire consequences, including
the fact that DHS may prevent you from re-entering the U.S. in the future, under the mistaken belief that
you have previously violated U.S. immigration laws by overstaying.
If you failed to submit the I-94 when you left, you should send it to the following address:
ACS-CBP SBU
1084 South Laurel Road
London, KY 40744
With the I-94, you should send proof of your timely departure from the U.S. This proof should include airline
boarding passes, photocopies of passport stamps, and any relevant proof of your return to your home country --
including banking, school or employment records, credit card receipts, and other verifiable transactions.
Your explanation should be written in English and you should keep copies of everything to show DHS officials when
you return to the U.S.
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DID YOU KNOW?
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It's a myth that enforcement-only policies are a practical solution
to the problem of
undocumented immigration
Here are the facts (note 1):
Policies geared only towards "sealing the border" or deporting the undocumented without reforming the
immigration system and providing a path to legal status for undocumented immigrants already in the country
would cost the nation hundreds of billions of dollars and have a devastating impact on vast swaths of the
U.S. economy.
- A 2005 study from the Center for American Progress (CAP) estimates that it would cost between
$206 billion and $230 billion over five years to deport all undocumented immigrants from the United States.
Moreover, in a 2006 study, CAP calculates that removing all undocumented immigrants from the U.S. labor force
will result in a shortfall of nearly 2.5 million less-skilled workers.
- As a 2006 report from the Pew Hispanic Center notes, there were 14.6 million people in families headed
by undocumented immigrants as of March 2005, including 3.1 million U.S.-citizen children and 1.8 million
undocumented children, as well as adult family members who are legally present in the United states.
Attempting to deport all undocumented immigrants would therefore disrupt entire families and communities
and decimate industries that depend heavily on immigrant workers, both legal and undocumented.
- The Pew report also estimates that the 7.2 million workers among the 11.5 undocumented immigrants
in the U.S. as of March 2005 -- while accounting for 4.9 percent of the labor force as a whole -- comprises
24 percent of all workers in farming, fishing, and forestry; 17 percent of all workers in building and grounds
cleaning and maintenance; 14 percent in construction; 12 percent in food preparation and serving; and 9 percent
in production occupations. Mass deportations would therefore have a devastating effect on numerous
industries, particularly given the small and shrinking number of younger native-born workers available
to fill these kinds of less-skilled jobs.
Note 1: Excerpt from "Top 5 Immigration Myths from this Campaign Season" from the
American Immigration Lawyer Association
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