Tuesday, December 23, 2014

Obama’s Executive Action on Immigration: How Employers Need to Prepare

Despite the Republican takeover of the Senate in the midterm elections, President Obama moved forward with his executive action, providing relief from deportation for up to five million undocumented immigrants who have lived in the United States for more than five years, and either have a U.S. citizen or permanent resident son or daughter, or themselves entered the U.S. before the age of 16.

Although employers may not be directly affected by this change in policy, the collateral responsibilities and opportunities for many employers will be significant. With that in mind, here are some issues employers need to start thinking about and preparing for:
  • The need to establish internal policies in order to decide how to treat employees who show up to work one day with new names, new government issued IDs and new Social Security numbers. If the decision is made to continue their employment, procedures must be put in place as to how to treat these employees without ostracizing or penalizing them.
  • If employees come into work with new identifications, new I-9 forms are going to have to be filed with this new information included. The way this is expected to work is that each worker would essentially have to be rehired with an I-9 form being filled out for each “new” employee.
  • Employers should decide whether they want to be proactive by encouraging their work staff to seek legal counsel to assist in preparing their applications and avoiding unscrupulous “notarios.”
  • An employer may want to sponsor certain workers for permanent residency through labor certification. An employer that wants to keep a stable, loyal work force may find it advantageous to sponsor their workers in this way. Some employers, however, may want to shy away from this option for various reasons.
Employers should consider these options carefully so they are fully prepared to make the best decision for their business.


Mitchell C. Zwaik
Long Island, NY
Brooklyn, NY
(631) 588-4040

Wednesday, November 26, 2014

Investment Visas: Win-Win Propositions

Investor Visas serve as an important vehicle for foreign nationals and their spouses and minor children to enter the United States with the chance of gaining permanent residence and possibly U.S. citizenship - while at the same time stimulating the U.S. economy as a result of their investment.
The EB-5 Visa results in the holder getting a green card upon acceptance.
The 3 main requirements for this visa are that the investment must:  
  • Be a minimum investment of $500,000
  • Create 10 or more jobs for U.S. workers
  • Be utilized to create new jobs in a "targeted [geographic] area" of high unemployment.

Note: There is a separate classification, which covers investments of $1 million or more. These also have to create 10 or more American jobs but, because of the higher threshold, they do not have to be located in high unemployment areas, meaning the funding can be invested anywhere in the United States.

Many of the investments that occur are conducted through a "middle man" known as a regional center. This is an organization approved by U.S. immigration officials that essentially serves as a bank. It takes an individual investor's money and incorporates it into part of a larger investment vehicle, thereby creating a much greater number of jobs at one time.

For example, a regional center may have been given a project to build a hotel in Manhattan which will create hundreds of jobs, and may take in dozens of investors. Rather than having an investor create his or her own small business (which would have to create only 10 jobs) an investor can work through the regional center. This makes it easier for investors by taking a lot of the pressure and the logistical work off of their shoulders.
Our firm attracts interest from people from all over the world looking to receive U.S. residency through investments. It's a win-win situation because these foreign nationals are getting a way to come here and live in the United States, and Americans are reaping the significant benefits of increased capital and new job creation.


Mitchell C. Zwaik
Long Island, NY
Brooklyn, NY
(631) 588-4040

Monday, October 27, 2014

Immigration Reform: Obama Undeterred

Immigration Reform: Obama Undeterred By Mitchell C. Zwaik
Many immigration reform advocates feared that this summer’s influx of thousands of unaccompanied minors from Central America - and the resulting news coverage - would jeopardize President Obama’s announced plans for Executive Action and eventual immigration reform.

Fortunately, this does not appear to be the case at all. In fact, all indications from the White House point to the anticipated announcement of a comprehensive reform plan, one which could see up to half of the approximately 11 million undocumented immigrants in the country finally be granted some form of legal protection.
Given this expected good news, we are reminding all undocumented people to make sure they begin collecting and preparing their identification documents. They will need to be able to show 2 separate things:

1. Proof of identity: These government-issued documents include passports, driver’s licenses and birth certificates.
2. Proof of how long they have been residing in the United States: These can be as obvious as bank statements and employment records that go back several years, but they can also be less obvious items, such as store receipts, printouts from pharmacies or supermarkets, or even e-receipts from websites such as Amazon.com.

Tip: If you have a membership anywhere, like a CVS or Duane Reade Rewards card, every time you make a purchase at that store, there is a record kept of it. This can be accepted as proof of how long you have been shopping, and therefore residing, in the country.

Since locating all of these papers can take significant amounts of time and effort, it is imperative to start working on this now, so that you will be ready to submit your papers when the President announces his new immigration policy shortly.


Mitchell C. Zwaik
Long Island, NY
Brooklyn, NY
(631) 588-4040

Thursday, October 9, 2014

2 Major Changes President Obama May Soon Make to Our Immigration Laws

President Obama is being pressured by the business community to soon use his executive authority to make major changes to assist legal immigration. He is taking these steps in the absence of any congressional action on immigration reform, and they are likely to have a major impact on our country’s immigration policy going forward. 

1. The President would “recapture” extra visas that went unissued in the past. Current law provides that most individuals seeking green cards in the U.S. must be sponsored by a family member or prospective employer. These sponsorship petitions are further subdivided in various “preferences” based on the nature of the job or the family relationship. There are annual numerical limits or caps for each preference category. When all of those visas in any category are not used up, they are simply canceled.
President Obama is considering changing this policy so the unused visas will be reallocated to other visa categories that are currently backlogged rather than being canceled. The Congressional Budget Office estimates that would open up about 250,000 visas, which would obviously have quite an impact.

2. The U.S. now issues 140,000 employment-based permanent visas or green cards each year, half of which go to dependants. The President would change the way visas are allocated so that only the primary beneficiary would be included against the visa cap, not the beneficiary's spouse or children.

Presently a primary applicant with a spouse and 3 children takes up five visas. If such a change was implemented, the dependants would still get green cards at the same time as the primary beneficiary, but only one visa would be allocated for cap purposes. This would create thousands of additional visas for people waiting “in line.”

Although the White House has been increasingly vague about the timing of the promised Executive Action, we hope to know soon which actions the Present will take. In the interim, it is important that we pay close attention to any reforms and how they will affect us, particularly with regards to the employment-based visa categories and their new regulations.


Mitchell C. Zwaik
Long Island, NY
Brooklyn, NY
(631) 588-4040

Thursday, July 31, 2014

What is Next for DACA?

Frustrated by Congress’ unwillingness to move forward with any meaningful immigration reform, President Obama promised to issue an Executive Order to make changes to our immigration laws unilaterally. What new provisions this Order will include is still uncertain, but the President has stated he plans to announce these new procedures in September. He wants to provide additional benefits for undocumented immigrants and correct some of the injustices present in our current laws.
There has been a good deal of speculation as to what steps he might take to accomplish these goals. Some of the most likely possibilities:

  • Expand eligibility for the DACA program: Instituted 2 years ago, DACA  (Deferred Action for Childhood Arrivals) gave temporary authorized status to young people who would have qualified under the previously proposed DREAM Act. In order to benefit, immigrants must first have:

- Been in the country on June 15, 2012;
- Entered into the United States before the age of 16;
- Continued to reside here continuously, for at least 5 years; and
- Completed high school or obtained GED degrees.

The President may try to expand this program in some way, possibly by approving this same authorized status for close relatives of current DACA recipients, such as their parents and siblings.

  • Make it easier for immigrants to apply for certain benefits: Some foreign nationals applying for green cards who have violated immigration laws in the past must apply for waivers. Many times, current law requires these applicants to leave the country in order to seek these waivers. The President may make the administrative process much easier by allowing them to apply while still remaining in the country.

  • A bolder approach: President Obama could go even further than expected and issue a broader form of parole for those in the country unlawfully, which could allow millions of people who have been living in the United States for some significant period of time to obtain an officially authorized status, and stop having to constantly worry about the looming threat of deportation.

The President is expected to make the public announcement of his plans after Labor Day. Until then, we are advising all those who may benefit from these types of programs to begin to accumulate the documents which may be required when applying.

These include all documents establishing a person's identity, proof of residency in the United States over a period of years, including bank and financial statements, employment records, insurance papers, marriage certificates and school records. Anyone with a criminal arrest should obtain certificates of disposition. As the gathering of such papers could be an onerous task, it is best to start now to be ready for submission when the President announces the new policy.


Mitchell C. Zwaik
Long Island, NY
Brooklyn, NY
(631) 588-4040

Wednesday, July 9, 2014

Announcement: Immigrants to Receive Government-Issued ID Cards

New York’s City Council is finally being proactive and showing initiative by enacting some new and important measures to improve the city’s immigration policies. There are an estimated half a million undocumented people living within the New York City area and they deserve to be treated humanely and fairly.

1. The City Council just passed a bill to give undocumented immigrants a government-issued ID card
. To receive one, an applicant must simply prove his or her identity by producing documents such as a birth certificate or a valid passport from any country. Applicants must be able to prove they currently reside in New York, and can accomplish this through the display of utility bills, pay stubs or other such documents.

The ID is important because it will allow undocumented immigrants to go about their daily lives in a much safer and more secure manner.
They will now have the capability of opening personal bank accounts to write and cash checks, and be able to prove their identity if stopped by police for any reason.

New York City is going to be the very first municipality in the United States to provide free legal services for individuals facing deportation. In the criminal courts, free legal services are a constitutional right, but in immigration proceedings they are not, and most undocumented immigrants simply cannot afford the high legal fees often charged by attorneys. Once the bill is passed, indigent persons will be able to obtain meaningful representation to help prevent their deportation back to their countries of origin.

New Yorkers should be proud that the City Council is taking these two new steps to make life just a little bit easier on those undocumented immigrants who are currently living in the city and working hard every single day, but are too often forced to hide in the shadows because of their unlawful statuses. 


Mitchell C. Zwaik
Long Island, NY
Brooklyn, NY
(631) 588-4040

Thursday, June 19, 2014

Are You Prepared to File for Your DACA Renewal?

Are You Prepared to File for Your DACA Renewal? By Mitchell C. ZwaikThose who are currently living and working in the United States in DACA (Deferred Action for Childhood Arrivals) status should be aware that they may be required to renew that status well in advance of the expiration of their current status. The United States Citizenship and Immigration Services (USCIS) has announced it is preparing a new dual-use document (Form I-821D) that will replace both the existing initial application and renewal forms. Those who do wish to renew should remember that it is recommended they submit their applications 5 months before their current status expires.

For those who have not signed up for DACA yet, remember that you must meet each of the following criteria to be eligible:
  • You must have arrived in the U.S. before turning 16 years old. 
  • You must have continuously lived in the U.S. for at least 5 years immediately prior to June 15, 2012 and must have been present in the country on that date. 
  • You must currently be in school, have graduated from high school, obtained a general education (GED) certificate, or be an honorably discharged veteran. 
  • You must not have been convicted of a felony offense, significant misdemeanor offense, multiple misdemeanor offenses, or pose a threat to U.S. national security. 
  • You must have been under the age of 31 as of June 15, 2012.
DACA does not grant any actual legal status or give the privilege of permanent residency or citizenship, but those who qualify gain the ability to legally work and reside in the United States as long as their work cards remain active. They also do not have to fear being deported at any moment.

If you are currently a DACA recipient, check your work card’s expiration date and make sure you know when you must submit your renewal application. Allowing your status to lapse can have disastrous consequences for you, possibly including deportation. It is important that you consult with an experienced immigration attorney if you have any questions or concerns about how to file for renewal.

When does your work card expire?


Mitchell C. Zwaik
Long Island, NY
Brooklyn, NY
(631) 588-4040

Tuesday, June 3, 2014

What Can You Do If Your Visa Petition Is Literally Taking Years to Process?

Visa petitioners are not powerless over their languishing applications.

What Can You Do If Your Visa Petition Is Literally Taking Years to Process? By Mitchell C. ZwaikSome foreign nationals experience an unfortunate side of the U.S. immigration process when their visa petitions get held up for seemingly no reason, for months or even years. What can someone do in that situation?

He or she can sue the federal government to compel it to take action. These are the steps we take to remedy such a situation:

1. We determine whether the situation is far enough outside of the normal processing times as to warrant further investigation. There are general guidelines about how long it should take for immigration officials to review your application. If the normal “processing time” for your application is 6 months, and your application is still pending after 2 years, something is wrong.

Usually we will not take a case unless it has reached at least 1 year beyond the normally processing time.
2. Before taking legal action, we will first try to determine the reason the application is so far in excess of the normal processing times. This involves “due diligence” on our part, such as writing letters and sending emails to immigration officials and the State Department to try and pinpoint the problem. Sometimes we also contact members of Congress to see if they can assist us in getting answers.

Often, the reasons for delay can be resolved and the processing sped up, without resorting to a lawsuit. And in some cases, there are legitimate issues, such as marriage certificates that don’t match, fraudulent or lost documents, or criminal background red flags. Any of these can easily delay adjudication of a case.

3. If we are unable to find a reasonable explanation for the delay, a lawsuit against the Department of Homeland Security or U.S. State Department in federal court may be necessary. Such an action is known as a mandamus action, meaning that it is used to compel or mandate the government to take action; in this case, to process the application in question.  

There are a several key reasons why we excel in this situation as opposed to other immigration law firms:

  • Many firms are simply reluctant to sue the federal government. As our record clearly shows, we have no such reluctance.

  • Some people, including attorneys, seem to be under the impression that one cannot sue the State Department for improper delays in adjudicating cases abroad. This is incorrect. The State Department does have a good amount of leeway in terms of the amount of time it needs to process cases, as well as discretionary decisions it makes - but it still has a legal obligation to move forward and not unnecessarily delay the processing of applications. We just brought a case against a consulate that had been pending for over 6 years. Due to our mandamus action, the case was adjudicated within 6 weeks.

Some clients are initially concerned that if they sue the federal government, it will somehow result in retaliation by the government against them, and that their petitions which would otherwise have been approved, will instead be red-flagged for denial. Those who share this worry can put their fears to rest. In the past 5 years, we have brought over 130 cases in federal court to resolve these situations and not once has anything of this nature occurred. Please do not be afraid to come forward and contact us if you think your immigration petition appears to be taking longer than normal to go through the system.

How long have you been waiting for your case to be adjudicated?


Mitchell C. Zwaik
Long Island, NY
Brooklyn, NY
(631) 588-4040

Thursday, May 15, 2014

Immigration Law is in My Blood

Immigration Law is in My Blood By Mitchell C. Zwaik

Even as a student in law school, I always had an interest in immigration, primarily because my uncle was an immigration attorney. He really seemed to love what he did.

Many lawyers seem to spend most of their time complaining about how much they hate their jobs, and some wind up so unhappy that they get out of the field altogether to pursue alternative professions.

My uncle always seemed so satisfied and fulfilled by his work. That was one of my primary motivators when I chose my career path. But it wasn't so easy. 

When I first started my immigration practice on Long Island in 1980, I called the Suffolk County Bar Association to inquire about how I could start up an immigration law committee within the Bar. I was told that they would be happy to help me set up the committee, but I was going to be the only member. That’s because, at the time, I was the only lawyer in Suffolk County who focused on immigration law.  

Since that beginning almost 35 years ago, we have grown steadily to the point where we now have a thriving practice, along with a great team of support staff. Our success is mainly due to these reasons:

  • Unlike some immigration firms that only handle very specific problems, we have made it our priority to be knowledgeable and skilled in a very broad range of immigration related issues. We take cases ranging from representing those petitioning for political asylum to immigration-related marriage cases to those seeking investor visas. Really, we are able to successfully take on almost any immigration matter.

  • We have built a strong reputation among our clients. They know they can trust us and rely on us for guidance. That’s why over 90% of our business comes from referrals from our existing clients.

We want anyone who has immigration-related worries to be as educated and knowledgeable as possible about how to resolve them. If you take a look at our website at http://www.zwaik.com, you can find lots of helpful links that may answer your questions without having to see a lawyer. If you still have any questions about your situation, just give us a call at (631) 588-4040, and we’ll do our best to help you out. 


Mitchell C. Zwaik
Long Island, NY
Brooklyn, NY
(631) 588-4040

Friday, May 9, 2014

Immigration Issues for HR Professionals

Acme Pools Inc. is in the business of installing and maintaining custom designed pools. The business was started by Harry Acme with a shovel and a pickup truck in January of 1980. Last year, the corporation reported earnings of $25 million. The shares of the corporation are owned equally by Harry and his wife, Wanda. Harry runs the day-to-day operations and Wanda is the part time bookkeeper. Sam, their son, supervises the pool installations. Although the company maintains a year round staff of seven employees, its payroll swells to 27 full and part time workers between March and October. Of the 20 additional employees who are hired during the busy season, 15 are returning workers and five are new hires.


1.      Assume Harry has been working continuously for the company since 1980, what are his personal I-9 requirements?

a.      He does not need any I-9 because he began working before November 6, 1986

b.      He does not need an I-9 because he is the owner/shareholder of the company.

c.       He will need an I-9 because every employee, including the owner, needs an I-9.

2.      Assume Wanda began working for the company in 1980, worked for three years and then left to raise a family, returning to the business in 2007.

a.                  She will need to complete an I-9 when she returns to the business in 2007

b.                  She will not be required to complete an I-9 because she started working before November 6, 1986

c.                   She will not be required to complete an I-9 because she is a shareholder in the corporation and her husband has actual knowledge that she is a US citizen

3.      Their son, Sam, began working part time for the business in 2000 during his junior year in high school and then full time after graduation.

a.      He will need an I-9 when he begins part time employment

b.      He will only need an I-9 when he starts full time employment

c.       He will not need an I-9 because he is the son of the owners/shareholders who have actual knowledge of his citizenship status.

4.      Assume ACME had three full time workers on its payroll in 1990 when Harry incorporated the business, changing its name from Acme Pools to Acme Pools Inc., and obtaining a new tax ID number.

a.       ACME will need to complete I-9s for its employees because the corporation is a new employer with a new tax ID number

b.      ACME will not need new I-9s because it is a successor employer

5.      Harry hires Helen Roth to serve as a part time Human Resources Manager in 2000. Helen works part-time from October to May and full time from May to October.

a.      Helen can prepare and sign the I-9 forms of all employees as a representative of the employer

b.      Helen can prepare the I-9s but not sign them because she is not a full time designated representative of the employer

c.       Helen can prepare the I-9s and use a company stamp to substitute as her signature

6.      Which of the following documents are satisfactory to comply with the I-9 requirements?

a.       An expired U.S. passport alone

b.      A Driver’s license alone

c.       A Driver’s license and US passport

d.      A social security card and US passport even if the social security card says “Not Valid for employment”

e.       A driver’s license and a social security card

f.       A receipt from USCIS showing the applicant has applied for a work card

g.      A ”pink” green card with no expiration date

h.      An I-94 endorsed with the words “Employment Authorized”

i.        A foreign passport with the stamp “I-551” and the words “temporary proof of permanent resident”

j.        A green card with a misspelled name

7.      If ACME rehires the same 15 employees every year,

a.      ACME will not need to complete a new I-9 but can merely complete the “rehire section”

b.      ACME will need a new I-9 every year

c.       ACME will need to determine if the prior qualifying documentation is still valid

8.      Jose shows up at ACME in January of 1995 with a “green card” with no expiration date. The photo is clearly Jose although the birthdate on the card says he is 23 and Jose barely looks 17.

a.       ACME cannot accept the “green card” because it has no expiration date

b.      ACME can accept the green card for up to 90 days while Jose applies for a current version of the form

c.       ACME can accept the card only if it can confirm Jose’s date of birth by another means

d.      ACME should accept the green card, complete the I-9 and start Jose’s employment

9.      Jose becomes ACME’s most valuable employee. Within 5 years, he is supervising the work crews while Sam sleeps in the truck. He comes to Harry on December 1, 2000 and asks Harry to sponsor him for a green card.

a.       ACME can start the sponsorship process because Jose is legally employed with a valid I-9

b.      ACME may be liable for civil penalties if it starts the process because Jose has already presented a green card and now ACME has actual knowledge that the card is invalid

c.       If ACME does sponsor Jose it may be liable for criminal sanctions if Jose turns out to be working without authorization

d.      The Dept of Labor will cross check Jose’s I-9 and social security number and reject the application of Jose is not authorized to work.

10.  Assume an ICE agent drops by ACME and demands all current I-9s. What should Harry do?

a.       Offer the ICE agent a cup of coffee and get the I-9s

b.      Tell the ICE agent to come back later and call a lawyer

c.       Review his current I-9s and correct, date and initial any errors

11.  If the ICE agent discovers the following deficiencies in the I-9s, which will likely result in fines?

a.      The employer has made a photocopy of the employees US passport and attached it to the I-9 but not filled in the information on Section 2, List One

b.      Helen has affixed a company stamp tot the certification but not signed the form

c.       The employee has indicated she is a permanent resident but not provided the A# in Section 1

d.      The employee has completed section one, provided the A# but not provided a green card (providing instead a driver’s license and social security card)

e.       ACME routinely destroys I-9s one year after an employee leaves or is terminated from employment

12.  Assume the ICE agent charges ACME with $1000 in fines for each violation, totaling $95,000 in fines, what should Harry do?

a.       Blame it on Helen and fire her

b.      Pay the fines and sign a consent order that acknowledges liability and promises to refrain from future such actions in the future

c.       Retain an attorney and negotiate the fines

d.      Retain an attorney and fight the fines in an administrative proceeding

e.       Agree to use E-Verify in the future to mitigate fines.

13.  Assume the ICE agent notifies ACME that Jose is working without authorization

a.       ACME will be subject to criminal penalties

b.      ACME will be subject to civil penalties

c.       ACME can likely escape any penalties by discharging Jose

14.  Jose leaves ACME and starts his own pool installation service. He comes to Harry and asks Harry to hire his crew as independent contractors to install pools during the busy season.

a.       Harry cannot hire Jose or his employees because he has actual knowledge that Jose is working without authorization

b.      Harry can hire Jose’ people as an independent contractors because he is not responsible for nonemployees

c.       Harry can hire Jose’s workers if Jose provides Harry with properly completed I-9 forms

15.  Debbie is a graduate student in architecture at SUNY Stony Brook. She comes to Helen with her Bachelor’s degree in Civil Engineering from Canada and her class schedule for the current semester along with an Employment Authorization Document (EAD, work card) which is valid for six more months.

a.      ACME can hire Debbie because she has an EAD

b.      ACME cannot hire Debbie as a Civil Engineer but they can hire her as an Architect

c.       ACME cannot hire Debbie as an architect but they can hire her as a civil engineer

d.      ACME cannot hire Debbie because they really do not need an Architect or a Civil Engineer

e.       ACME can hire Debbie as an architect or a Civil Engineer as long as they pay her the prevailing wage.

16.  Debbie wants to work for ACME after her EAD expires in 6 months. Can she get an extension of her EAD?

a.       No because she is not working in a STEM field

b.      No because ACME does not use E-Verify

c.       No because Debbie is studying Architecture which is not a STEM field

d.      Yes because she qualifies for a 17 month STEM extension

e.       ACME is wasting time with the EAD card when she is eligible for a TN visa if she is a Canadian citizen

17.  Assume ACME files an H-1B on April 1, a month before the EAD expires, how long can Debbie work?

a.       Until the expiration date of her EAD

b.      Until October 1, the start date of her H-1B, assuming the application is accepted and not denied.

c.       Debbie cannot be sponsored by ACME for an H-1B until she has received her Masters degree in Architecture

18.  Assume ACME hires Debbie as a Civil Engineer on an H-1B, which of the following are TRUE?

a.       ACME will have to hire Debbie on a full time basis

b.      ACME will have to pay Debbie the prevailing wage

c.       ACME will not be able to hire Debbie if other qualified workers US workers apply for the job

d.      ACME will not be able to sponsor Debbie for a green card since the H-1B is only for temporary workers.

e.       If ACME sponsors Debbie for a green card they may be able to extend her employment indefinitely.

19.  If ACME elects to hire Debbie as a permanent employee, which are the following are TRUE?

a.       ACME will need to undergo a “supervised recruitment” process to confirm to the satisfaction of the Department of Labor that Debbie that there are no qualified US workers for the job at the prevailing wage in the intended area of employment.

b.      If any qualified US workers apply for the job, the Labor Certification application will be denied.

c.       If ACME terminates Debbie’s employment, it will necessarily stop the Labor Certification process

d.      The Labor Certification process will take longer depending upon Debbie’s country of origin.

e.       After the Labor Certification process is complete, Debbie will be able to extend her period of authorized employment

20.  Which of the following are TRUE about E-Verify

a.      It only applies for employees who are hired after the employer joins the program

b.      The employer may include any employees hired prior to joining E-Verify provide it includes all present employees.

c.       E-Verify allows employees to dispense with the completion of I-9s

d.      E-Verify is required for all employers who are federal contractors.