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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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Congress prepares to depart for the summer recess having accomplished absolutely nothing of value for immigration reform.
After the failure of Comprehensive Immigration Reform last summer, our legislative leaders seemed content this year to turn
their backs on the entire issue. As a result, the problems continued to multiply. The failure of Congress to allocate additional
H-1B visas for temporary professional workers has driven more high tech industries to Canada, Mexico, and elsewhere.
The failure to of Congress to solve the H-2B mess for temporary seasonal workers will mean more employers turn to illegal
workers again this summer to keep their businesses operational. And of course, the failure to tackle the problem of tens of
millions of illegal immigrants in our country will mean more uncollected tax revenue at a time when that revenue is desperately
needed for a new economic stimulus package.
That does not mean there is no immigration news to report. A recent federal study claims that the number of illegal immigrants
in the U.S. has actually declined by more than 1 million in the last year. Whether this is a result of tougher border enforcement,
the downturn in the economy or both is unclear. Immigration and Customs Enforcement (ICE) continues to raid worksites that
employ workers with illegal documents, and Citizenship & Immigration Services (CIS) reports a new program that allows aliens
with deportation orders to voluntarily surrender in order to avoid possible incarceration in the future.
Enjoy the rest of the summer!
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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EMPLOYER NEWS
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Department of Labor Awards Back Pay For H-1B Workers
A series of recently released decisions by the Administrative Review Board of the U.S. Department of Labor again highlights the
importance to H-1B employers and employees to carefully document their employment relationship and notify USCIS when that
relationship terminates. This is particularly true in employment where "benching" of workers is common, such as the computer
consulting field.
The DOL has awarded back pay with interest and civil fines against employers who fail to notify the USCIS after they have "terminated"
an employee and in one case back pay was awarded even though the employer notified USCIS of the termination, but continued to
correspond with the worker to help her find additional work. Both of these decisions occur in "benching" circumstances.
Benching occurs when an individual who has been approved for H-1B employment is in nonproductive status (i.e. "benched") "due
to a decision by the employer." If the H-1B nonimmigrant is nonproductive due to lack of assigned work, lack of a permit or license,
or some other employment related reason, the employer is required to pay the wages due under the Labor Condition Application
which was filed with the H-1B application. Benching occurs routinely when computer professionals, contracted out to clients by a
consulting company, complete the project to which they were assigned. They often remain "unproductive" until a new client is retained.
The law provides that the employee must continue to be paid the higher of the actual wage or the prevailing wage during the benching
period. This is to be distinguished from the nonproductive status that results at the "voluntary request and convenience" of the employee,
such as maternity leave, an incapacitating accident, or a requested leave to care for a sick relative or extended vacation.
This leads to the ultimate question: when does employment "terminate." Clearly, if the employer notifies the H-1B employee in writing
that his or her employment will end on a specific date, sends a copy of this notification to USCIS and ceases any further contact with
the employee after the specified date, then employment will have terminated on the specified date.
Employers are reminded that USCIS regulations require the employer to notify CIS when the employment relationship has been
terminated so that the petition is canceled by USCIS. The employer if further responsible to provide the employee with payment
for transportation home under certain circumstances.
ICE Steps Up Work Site Raids
In a series of highly controversial and highly publicized raids, ICE officials arrested scores of undocumented workers as well as allegedly
corrupt company officials who assisted the workers in obtaining false work documents. The raids come on the heals of the controversial
Postville, Iowa raid in May at which time over 300 undocumented workers were seized at Agriprocessor, the worlds largest kosher meat
processor. That raid became notorious among civil rights advocates because of pressure applied by federal officials through an "exploding
plea bargain" (sign the deal within 7 days of arrest or face maximum prosecution with 2-year mandatory minimum sentences) which required
detainees to forfeit all possible immigration relief. Most are now serving 5-month federal prison terms which will be followed by immediate
deportation," according to the American Immigration Lawyers Association. The willingness to use the threat of criminal prosecution is the
newest weapon in the ICE arsenal.
So far in fiscal year 2008, ICE has made more than 3,700 administrative immigration arrests in connection with worksite enforcement
investigations, including 850 involving criminal violations. In fiscal year 2007, ICE made more than 4,900 arrests in connection with
worksite enforcement investigations, including 863 involving criminal violations.
The most recent raids this summer include the following:
- More than 160 employees arrested at a Houston Rag-Exporting Company in June. The raid against Action Rags USA, an international
supplier of used clothing and rags, resulted in criminal charges against the owner and manager, alleging a conspiracy to harbor illegal aliens,
inducing illegal aliens to come to the U.S. and engaging in a pattern or practice of hiring illegal aliens. According to the criminal complaint, the
year long investigation revealed that the company did not complete I-9 forms to verify eligibility for employment, hired undocumented aliens
and paid them in cash until they were able to purchase fraudulent identity and social security cards from local flea markets.
- Thirty-two arrested at a Puget Sound Area Aerospace Manufacturer in June. Aerospace Manufacturing Technologies, Inc. (AMT) is a
leading supplier of frame and interior parts for commercial and military aircraft, providing many of the parts used in some of aviation's
most popular airplanes, including the Boeing 737 and Boeing 777. The arrests followed an ICE audit of AMT that revealed discrepancies
leading agents to believe that a small percentage of the company's employees used counterfeit documents to secure their jobs. There
is no evidence AMT was aware the arrested workers had used false credentials to secure their employment. The investigation is ongoing.
- Two alleged supervisors at the Agriprocessors Inc. plant in Postville, Iowa, were arrested in July on various criminal immigration and
fraudulent identity charges. The criminal complaint alleges that, a few days before the May 12, 2008, execution of a search warrant at
Agriprocessors, the Human Resources manager told a group of employees they needed new IDs and Social Security numbers to continue
working at the company, and they would need to provide him with a photograph and $200 or $220. Fraudulent resident alien cards were
allegedly supplied to Agriprocessors workers. The Complaint also alleges that the May 12 search resulted in seizing dozens of fraudulent
permanent alien resident cards from offices within the human resources department at Agriprocessors.
- Forty-five employees of a Maryland painting company were arrested in July and charged with administrative immigration violations.
All of the individuals arrested will be placed in removal proceedings.
- Eighteen workers at a Colorado Concrete Plant were arrested in mid July for being in the United States illegally. One is from
El Salvador; the rest are from Mexico. The company fully cooperated with ICE during the operation; no criminal charges are anticipated
against the company.
Employers are again advised to complete the I-9 form for EVERY employee and to do so in good faith. If the documents later turn out
to be fraudulent, the employer is protected as long as the employer could not reasonably know that the documents were false.
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IMMIGRATION NEWS
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Declining Numbers of Undocumented Immigrants Reported
The number of illegal immigrants in the country has dropped by as much as 1.3 million in the past year, an 11 percent decline since a historic
peak last August, according to the Center for Immigration Studies, a restriction immigration group based in Washington. The groups findings
add to a growing body of studies indicating that the population of illegal immigrants in the United States is dropping significantly.
The more controversial issue is whether this decline can be attributed to a step up in enforcement policies or the declining economy. "The decline
can easily be explained by changes in the economy," said Steve Levy, senior economist at the Center for Continuing Study of the California Economy
in Palo Alto. He said California had lost 134,000 construction jobs since the summer of 2006.
The arguments provoked by the study reflected the difficulties of discussing options for halting illegal immigration, when researchers cannot agree
on how many illegal immigrants there are and how they are affected by immigration enforcement.
The Center based their findings on census figures for foreign-born Hispanics ages 18 to 40 with a high school degree or less. They estimated that
three-quarters of those Hispanics were illegal immigrants, and that they made up about two-thirds of the illegal immigrants in the United States.
Using those estimates, they concluded that the illegal immigrant population had dropped to 11.2 million, from a historic high of 12.5 million in August 2007.
Jeffrey Passel, a demographer at the Pew Hispanic Center in Washington who studies illegal immigration, said his research also showed a decline
in immigrants. But because of recent changes in the census's data reporting, he said it was too soon to make precise calculations.
Wayne Cornelius, director of the Center for Comparative Immigration Studies at the University of California, San Diego, said Mr. Camarota and
Ms. Jensenius had applied "highly arguable assumptions" to their data.
"They offer no direct evidence that fewer undocumented immigrants are attempting to come to the United States, or that fewer of them are getting
in, or that more of those already here are leaving the United States as a result of enforcement efforts," said Mr. Cornelius, who has studied the
impact of border enforcement over the past 15 years.
USCIS Again Promises Two-Year Work Cards
U.S. Citizenship and Immigration Service (USCIS) announced that beginning on June 30, 2008 it will issue work cards valid for two years
to individuals who have filed for permanent residence ("green cards") but whose applications cannot be approved because an immigrant
visa number is not currently available.
The problem has become common for individuals who applied for permanent residency last summer when the State Department reported
that all employment based green card categories were currently available. This announcement resulted in a deluge of applications in July
and August that created long backlogs in the issuance of green cards that will likely continue for several more years. USCIS later qualified
its position by announcing that to be eligible for a 2-year work card, the I-140 petition, filed by the employer prior to or concurrently with the
green card application (I-485) must have been approved. If the I-140 is still pending, USCIS will only issue a 1-year work card.
USCIS will review the issue of visa retrogression at the time the work card application (I-765) is filed. However, if the priority date is current
as of the date of filing, but later retrogresses while the I-765 application is pending, USCIS has the discretion to review the case again and
issue the 2-year EAD. If the priority date is backlogged as of the date of filing, but later becomes current while the I-765 is pending, USCIS
also has the discretion to review the case again and issue a 1-year EAD.
ICE Program To Allow Fugitive Aliens To Leave Voluntarily
U.S. Immigration and Customs Enforcement (ICE) announced last week the launch of a pilot program, "Scheduled Departure," which allow
fugitive aliens who have no criminal history and pose no threat to the community an opportunity to remain out of custody while they coordinate
their departure from the U.S. with ICE. The program effectively permits aliens with deportation orders to surrender to ICE officials if they agree
to leave the U.S. within 90 days. The program will allow these individuals to remain at liberty pending their departure, although some may be
required to wear monitoring ankle "bracelets."
Initially, the Scheduled Departure Program will run from Aug 5th to Aug 22nd and may be expanded as ICE continues to evaluate the pilot.
Non-criminal fugitive aliens who live in or around Santa Ana, Calif., San Diego, Phoenix, Chicago and Charlotte can visit their local ICE
Offices to discuss their departure plans. Aliens who have not previously been detained by immigration officials or who have criminal
records, or are determined to be a danger to the community are not eligible for this program and may be arrested and taken into custody
if they report to ICE.
There are approximately 572,000 ICE fugitives in the United States, including 457,000 who do not have criminal histories. An ICE fugitive
is defined as an alien who has failed to depart the United States based upon a final order of removal, deportation, or exclusion from a
U.S. immigration judge, or who has failed to report to ICE after receiving notice to do so. Only non-criminal fugitive aliens are eligible for
the program and will be screened by an ICE officer when reporting to verify status.
The Scheduled Departure Program will not alter a participant's immigration status or provide any immigration benefit. The program is not
a form of voluntary departure or voluntary return. Participants will continue to have a final order of removal, deportation or exclusion.
As of this writing, exactly one alien has surrendered under this program.
USCIS Starts Online Service to Check FOIA Requests
U.S. Citizenship and Immigration Services (USCIS) recently launched the online FOIA Request Status Check service providing customers
a quick and secure way to check the status of requests they have made under the Freedom of Information Act (FOIA). The service will work
much like the existing procedure that allows applicants with pending immigration applications to check the status of their applications.
Customers use the FOIA service by entering their assigned control number to receive a "pending" or "processed" response. A pending
response indicates to the customer the position of their request relative to all other requests in the same processing track. A "processed"
request indicates that the request was processed and the customer will be provided that processing date. USCIS will make daily updates
to the status information.
Customers without Internet access can still obtain information on their FOIA requests by calling the USCIS FOIA Requester Service
Center at (816) 350-5785 from 7 a.m. to 2:15 p.m. (Central Time). USCIS receives more than 110,000 requests annually for access to
immigration records. These requests include both active cases, involving immigrants seeking information about pending or completed
adjudications as well as relatives seeking immigration histories about family members.
USCIS Clarifies Premium Processing for Certain I-140 Petitions
U.S. Citizenship & Immigration Services (USCIS) announced confirmed that Premium Processing Service requests for Form I-140
(Immigrant Petition for Alien Worker) will be limited to H-1B applicants who are nearing the end of their sixth year in H-1B nonimmigrant status.
Premium Processing Service offers 15 calendar-day processing for designated employment based petitions and applications upon request.
There is a nonrefundable fee of $1,000 for this service. During the 15-day period, USCIS will issue an approval or denial notice, a notice of
intent to deny, a request for evidence, or open an investigation for fraud or misrepresentation. USCIS previously designated certain classifications
under Form I-140 for Premium Processing Service in the May 23, 2006 issue of the Federal Register.
USCIS is limiting Premium Processing Service for Form I-140 petitions that are filed on behalf of aliens:
- Who are currently in an H-1B nonimmigrant status;
- Whose sixth year will end within 60 days;
- Who are only eligible for a further extension of H1-B nonimmigrant status under section 104 (c) of the American Competitiveness in the
Twenty-first Century Act of 2000 (AC21); and
- Who are ineligible to extend their H-1B status under Section 106(a) of AC21.
Section 104 (c) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to three years,
provided they are the beneficiary of an approved Form I-140 and an immigrant visa is not immediately available. Section 106(a)
of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to one year, provided the Form I-140
petition or underlying labor certification has been pending for at least 365 days.
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DID YOU KNOW?
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It's a myth that undocumented immigrants are more likely
to commit crimes than native-born citizens
Here are the facts (note 1):
This is a frequently repeated claim, but the exact opposite is true. Both undocumented and legal immigrants are significantly
less likely to commit crimes than U.S. citizens.
- According to a 2007 study by sociologist Ruben G. Rumbaut of the University of California, Irvine, among men age 18-39
(who comprise the vast majority of the U.S. prison population), the incarceration rate for the native-born (3.5 percent) was
five times higher than the rate for immigrants (0.7 percent) in 2000.
- The study also found that incarceration rates were lower for immigrants from Mexico, EI Salvador, and Guatemala -- who
account for the majority of undocumented immigrants. In 2000, only 0.7 percent of foreign-born Mexican men and 0.5 percent
of foreign-born Salvadoran and Guatemalan men were in prison.
- A 2005 study by economists Kristin F. Butcher and Anne Morrison Piehl, released by the Federal Reserve Bank of Chicago,
concluded that lower incarceration rates among immigrants are not the result of deportation or the threat of deportation. Rather,
immigrants are a "self-selected" group with "low criminal propensities."
Note 1: Excerpt from "Top 5 Immigration Myths from this Campaign Season" from the
American Immigration Lawyer Association
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