Wednesday, December 13, 2017

H-1B Paperwork Wars

{1:48 minutes to read} Lost in the President’s anti-Muslim tirades and in the administration’s public policy of halting humanitarian programs such as DACA and TPS, is a more general assault on legal immigration. We saw this over the summer in the form of unprecedented demands for documentation from companies sponsoring H-1B computer professionals and we are seeing it more generally in a new United States Citizenship and Immigration Services (USCIS) policy that ends the long-running policy of giving deference to previously approved applications.

The previous policy, in effect since 2004, had given deference to previously approved applications. So, for example, if an employer had previously received approval for an engineer in H-1B status, then extending that employee in that status would generally be approved as well, absent some negative information. The new policy, in effect, means that employers must requalify their workers from the beginning.

Although this may not seem like an insignificant policy change, it has the effect of greatly increasing the burden on US employers seeking to hire highly skilled foreign workers. Viewed in conjunction with the increased paperwork demands on the hiring of new H-1B employees, the unmistakable goal is for the administration to use whatever power it possesses within existing law to discourage the hiring of skilled foreign workers.

The inevitable result will be that other countries will hire the world’s most skilled workers and our country will fall behind in the ongoing technology revolution.

Mitchell C. Zwaik
Zwaik, Gilbert & Associates, P.C.
5014 Express Drive South
Ronkonkoma, NY  11779

Wednesday, November 22, 2017

Refugees: Between Zero and One

{1:42 minutes to read} The opening paragraph of a recent front-page New York Times profile of Chief of Staff John Kelly tells you most of what you need to know about the Trump Administration’s position on refugee admissions:
This past summer, the Trump administration debated lowering the annual cap on refugees admitted to the United States. Should it stay at 110,000, be cut to 50,000 or fall somewhere in between? John F. Kelly offered his opinion. If it were up to him, he said, the number would be between zero and one.
The Statute of Liberty wept.
The US immigration laws define a refugee as an individual unwilling to return to their home country due to a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.” The law gives the president the power to “set numbers.”
A “refugee” is distinguished from an “asylee.” Although the law applies the same persecution standard to both terms, they are not the same. An asylee is an individual applying within the United States while a refugee is an individual applying from abroad.
Although international treaties commit the United States to providing a haven for those whose life or freedom would be threatened in their country of origin, it does not commit the US to accept any specific number of refugees.
Mitchell C. Zwaik
Zwaik, Gilbert & Associates, P.C.
5014 Express Drive South
Ronkonkoma, NY  11779

Wednesday, November 8, 2017

Dreamers Held Hostage

{1:54 minutes to read} No one should have been surprised when the Trump administration announced that it would require massive new immigration restrictions in exchange for agreeing to extend benefits for 800,000 Dreamers.
Most expected that the price for the Dreamers would be paid for in a wall along the southern border, but many hoped the payoff would stop there. It has not. Instead, the administration is pushing its entire anti-immigrant agenda, pitting the Dreamers against virtually every other immigrant group.
The Trump plan would:
  • Reduce legal immigration by half within 10 years;
  • Build a wall along the southern border (which virtually no one believes will halt illegal immigration, including ranchers who live along that border);
  • Impose new restrictions on children who enter the US to escape abuse and gang violence in their home countries by making it easier to deport them;
  • Limit family sponsorships to spouses and minor children, making it impossible for citizens to sponsor parents or siblings;
  • Hire 370 new immigration judges, 1000 new U.S. Immigration and Customs Enforcement (ICE) officers and 300 additional federal prosecutors. (Where the money will come from for all these additional expenditures remains a mystery.)
The tactic is both obvious and ineffective. Trying to divide the pro-immigration forces will not work, and Congress will not pass such a bill. The entire Democratic coalition and many Republican lawmakers in the Senate will most likely oppose it. This will all go nowhere. But it does appease the Republican base that supported Mr. Trump and that, apparently, is all that matters anyway.

Mitchell C. Zwaik
Zwaik, Gilbert & Associates, P.C.
5014 Express Drive South
Ronkonkoma, NY  11779

Wednesday, October 25, 2017

How Can Illegal Immigrants Become Legal?

{4:54 minutes to read} President Trump and many others in this country have been upset about the number of undocumented immigrants in the United States and the fact that few of them are obtaining permanent residency through the normal processing mechanisms. Although their grievance is understandable, it is also necessary to understand that the present system makes it impossible for most undocumented immigrants to “get legal.” It's because the current legal structure prevents them from becoming permanent residents.
When President Trump says they should leave the United States and come back in legally with everybody else, he fails to mention the fact that the law makes that all but impossible. As I mentioned in my last blog, the reason is that most immigrants who have been illegally in the United States for more than a year and need to leave the United States in order to obtain a green card cannot come back for up to 10 years.
We have many clients who find themselves caught in this no-win situation. A young mother came into the United States when she was a teenager, has been here for more than 10 years, is married to an American citizen, and has 3 US citizen children ranging in age from 12 to 18. At this point, her husband has left her and she is working to support her family.
Her child who is 18 could make an application to obtain permanent residency for his mother when he turns 21, but unfortunately, mom is going to have to leave the United States and will not be able to return for up to 10 years. In her situation, she can't leave her children behind for 10 years. It's just virtually impossible.
There is a waiver program that allows for a forgiveness of this 10-year bar, but that waiver program is only available if the immigrant has a “qualifying relative,” which the law defines as a parent or spouse who is a permanent resident or US citizen. The mom, in my example, must show that the qualifying relative would suffer extreme hardship if the mom cannot avoid the 10-year bar. Because she does not have parents or a spouse who is a citizen or is a permanent resident who can serve as the basis for this waiver, it's virtually impossible for her to ever get a green card. She's going to stay in this country illegally forever unless the law changes.
In this country, there are millions of people in her situation who were brought into this country as minors without having any input of what was happening to them. Under President Obama, many of these young people qualified for Deferred Action for Childhood Arrivals (DACA), but this young lady was over the age of 30 when the program was put into effect.
Prior to 1996, this young woman would have simply gone home, gotten her permanent residency approved and returned in short order. At that time, there were about 2-1/2 million undocumented immigrants in the United States. The 10-year bar was designed to be so draconian that nobody would come into the United States or stay illegally. Instead, what's happened is the law of unintended consequences. People still come in illegally, but now they never leave. The 2-1/2 million has grown to 11 or 12 million. In trying to be so tough and draconian, they have made the situation 10 times worse.

The bars will require an act of Congress to be changed. All we're suggesting is that they eliminate these 3 or 10-year bars so that illegal immigrants like this young lady can go home, get her green card, and reenter the United States legally. She's paid her taxes. She has no criminal record. There should be some way in which she can get legal status, but under the current law, that's simply impossible.

Mitchell C. Zwaik
Zwaik, Gilbert & Associates, P.C.
5014 Express Drive South
Ronkonkoma, NY  11779 

Wednesday, October 11, 2017

Illegal Immigrants Leave and Return Legally: Sounds Good, But Won’t Work!
{3:12 minutes to read} Donald Trump said during his campaign and has repeated as President that he wants people who are illegally in the United States to leave, get in line behind others wishing to come to the US, and return legally. Although it sounds great, the reality is that under current law, it is virtually impossible for many people to do this.

The reason is that, since 1996, the law provides that people who have been illegally in the United States and acquiring “unlawful presence” for a year or more, and who need to leave the United States in order to become legal, are not permitted to return for up to 10 years. Before that, people could leave the United States, get their green cards in their home countries after a few weeks and re-enter legally, resuming their lives. Since the 1996 law, it's virtually impossible for many millions of people to “get legal” without leaving the US for at least 10 years.

There are some exceptions to that rule, the most notable of which allows an individual to apply for a waiver or a pardon of that 10-year bar if that person has a “qualifying relative,” defined as spouse or parent who is a US citizen or permanent resident. The immigrant must show that the qualifying relative will suffer exceptional hardship if the 10-year bar is not lifted. The number of people who can apply for a waiver or pardon of the 10-year bar is limited, which leaves many, many millions of people simply unable to obtain permanent residency without leaving the United States for 10 years. Even if you are a mom with multiple US citizen children, it is impossible for you to get a green card unless you have a spouse or parent who can be one of these qualifying relatives.

If Donald Trump wants to follow through on his pledge, then the logical thing to do is to remove the 10-year bar, so that people can leave the United States and then re-enter legally without spending 10 years outside the United States. Removing this 10-year bar would be a quick, effective way to amend the law and bring about the kinds of requirements that Donald Trump says he wants.

In the weeks and months ahead, we're going to be talking about families caught in this 10-year penalty, who have family members and/or employers who desperately need them to get legal, but who simply can not get legal because of this law.

Mitchell C. Zwaik
Zwaik, Gilbert & Associates, P.C.
5014 Express Drive South
Ronkonkoma, NY  11779 

Thursday, September 28, 2017

DACA and the Sacrificial Lambs

{1:30 minutes to read} The reported discussions between President Trump and the Democratic leadership to extend protection for Deferred Action for Childhood Arrivals (DACA) recipients was welcome news but hardly cause for celebration. As always, the devil is in the details.
Most importantly, it leaves unanswered the issue of the other 10 million undocumented immigrants. Are they to be sacrificed to obtain status for Dreamers?

In addition, we need to understand exactly what status the Dreamers will receive under the proposed legislation. Mr. Trump has repeatedly said that Dreamers should not get “amnesty” or a “path to citizenship.” What then will they receive?
  • Will it just be an indefinite extension of the current quasi-legal status that will never lead to anything more?
  • Will it be more like Temporary Protected Status that at least opens the possibility of permanent residency in the future?
  • Will it be a path to a new form of permanent residency that will never lead to citizenship or will it be an eventual path to citizenship?
Finally, what happens to the parents and spouses of Dreamers? Are they to be sacrificed as well?
Optimism is nice, but details are critical.
Mitchell C. Zwaik Zwaik, Gilbert & Associates, P.C. 5014 Express Drive South Ronkonkoma, NY 11779

Thursday, September 14, 2017

The Demise of DAPA Wasn’t Enough?

{1:54 minutes to read} The decision by the Trump administration to end the Deferred Action for Childhood Arrivals (DACA) is a nasty, mean-spirited act that does nothing to:
  • Increase US security;
  • Support the rule of law; or
  • Help the US economy.
And the fact that the Attorney General mentioned in his announcement that these Dreamers were taking jobs away from US workers was the vilest lie of all.
So, let's be clear. That's what it is. A lie. It’s not a difference of opinion or a mistaken interpretation. It’s a lie by people who want to curtail immigration for racial and social reasons.
  • The US economy is growing by 150,000 to 250,000 jobs per month; the Dreamers feed this growing economy.
  • Dreamers pay taxes.
  • Dreamers often take jobs that US workers don't want.
  • When illegal workers become legal, employers can no longer pay them substandard wages, and it, therefore, raises the wages for all workers.
So, let's at least put an end to that lie.
People with DACA, Take Immediate Action!
Perhaps more importantly, people with DACA need to take immediate action. If their DACA will expire on or before March 5, 2018, they only have until October 5 of this year to file to extend DACA. Filing for your extension in December, January or February will be too late.
Contact an Immigration Attorney
Finally, if you have DACA or TPS, you need to speak with an immigration attorney immediately to know your rights before these programs expire and you lose these rights forever.

Mitchell C. Zwaik Zwaik, Gilbert & Associates, P.C. 5014 Express Drive South Ronkonkoma, NY 11779