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. 



http://www.zwaik.com/aboutus.html

Mitchell C. Zwaik
Long Island, NY
Brooklyn, NY
(631) 588-4040
info@zwaik.com

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.

 THE CORRECT ANSWERS ARE IN BOLD.

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.