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
www.zwaik.com

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
www.zwaik.com

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
www.zwaik.com

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
www.zwaik.com 

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
www.zwaik.com 

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 www.zwaik.com

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 www.zwaik.com
 

H-2B Visas: Too Little, Too Late?

{2:54 minutes to read} The administration finally issued its regulations regarding the process for allocating additional H-2B visas during the late summer and early fall. H-2B visas are visas for seasonal or peak workers in the New York metropolitan area. They're most commonly used on Long Island and the East End for hotels or pool companies, for example, that do all or most of their business during the summer months. These workers come up, usually from the Caribbean or Central South America, work for up to 10 months, and then go back once the season is over. It's a win-win. The employers fill a need during the busy season and the workers are legal, paying taxes, and return home when the season is over.

The problem is, Congress has only allocated 66,000 visas, and most years 100,000 or more applications flood in. This year, in particular, a lot of companies were frozen out, but Congress allocated additional H-2B visas and now, finally, procedures have been issued that provide for these additional visas.

The process, however, is very cumbersome, requiring a new round of recruitment, which means additional newspaper advertisements in order to determine whether US workers are available. It also requires submission of an attestation that says that the employer's business will suffer "irreparable harm" if they can't hire these additional H-2B workers.

The total additional H-2B allocation is 15,000, which will certainly help those businesses that rely on these workers. But as a practical matter, by the time these applications can be submitted, approved and sent to the consulate, employers will be lucky to get workers started in mid to late September and on into the next fiscal year. They are not going to benefit very many people, including companies on the East End of Long Island where the season will be over before the additional workers arrive.  

Once again, we have another example of an administration that continues to drag its feet and erect roadblocks even to legal immigration. These are visas, by the way, which the President himself continues to use in order to help run his businesses.  

Mitchell C. Zwaik
Zwaik, Gilbert & Associates, P.C.

5014 Express Drive South
Ronkonkoma, NY  11779
www.zwaik.com 

300,000 Legal Immigrants Fear End of TPS

{2:24 minutes to read} Over 300,000 individuals from Haiti and Central America, living legally in the U.S. under TPS, are fearful of losing their status under the Trump Administration. U.S. immigration law provides for a special program called Temporary Protected Status also known as TPS. This program allows the DHS Secretary to provide temporary legal status and work authorization to citizens of a country, or countries, suffering through the devastation caused by a political or natural disaster. Currently, people from Haiti, Honduras, El Salvador and Nicaragua are benefiting from this program. These are people who were in the U.S. when these disasters occurred.

Some of these designations extend almost 20 years—Honduras first received TPS in 1999 due to Hurricane Mitch. The law requires DHS to review the TPS designation every 18 months and to announce its decision to extend or not, 60 days before the current expiration date.

TPS is set to expire in January 2018 for Haiti, Honduras, and Nicaragua, and in March 2018 for El Salvador. The TPS beneficiaries living in the U.S. are frightened that this administration, which has shown little humanitarian support for immigrants, may refuse any further extensions. Obviously, many of these people, living legally in this country for so many years, raising families, starting businesses, buying homes and paying taxes, are rightfully concerned.
 
Apply for permanent residency now!

I urge people who are from these countries and have TPS to begin the process of trying to get permanent residency as soon as possible. The federal courts have indicated that someone who is here with TPS can adjust status and get a green card without leaving the United States.
 
People who have certain family relatives and/or employer sponsors should begin the process of trying to get green cards through these sponsors immediately before the administration pulls the rug out from under them by denying the extension of TPS. 

Mitchell C. Zwaik

Zwaik, Gilbert & Associates, P.C.
5014 Express Drive South
Ronkonkoma, NY  11779
www.zwaik.com 

     

The Demise of DAPA

{3:18 minutes to read} Thursday, June 22, the President issued a policy directive that essentially extended Deferred Action for Childhood Arrivals (DACA), which is the program that granted safe status for young people who had entered the United States as children. At the same time, he terminated Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which is the executive action President Obama had announced that extended safe status for parents of US citizens.

The DAPA program is the one that had been held up in the federal courts for more than a year, and which was due to be decided by the United States Supreme Court. However. the Supreme Court “tabled” it last year when Justice Scalia passed away. At this point, that Supreme Court case is not going to go forward, and so the policy is not going to go forward either. In fact, the President has withdrawn the policy.

For people who are dreamers, the DACA is good news. They'll be able to remain in the United States legally for the time being. We assume they're going to be able to get work cards going forward, and hopefully, some of them can obtain legal status.

The loss of the DAPA program, however, is a huge blow to millions of people who have lived in the United States for years. Many now have no way of obtaining legal status, despite the fact that they have children who are US citizens.

This ties in with what we've been talking about the last several months. Although they have US citizen children, and although those children can petition for them when they turn 21, the parents who have been in the United States illegally for a year or more still have no path to permanent residency.

They would have to leave the United States and stay out for as long as 10 years before they could get their green cards. So again, we're talking about a situation that makes it virtually impossible for millions of undocumented immigrants to ever get their green cards.

There are waivers available that allow certain people to get around or waive the 10-year bar, but those waivers are not available to parents of US citizens. The citizen child is not one of those qualifying people that allows undocumented immigrants to apply for the waiver.

Although the President's action is good news for people with DACA, it's very bad news for millions of others who were hoping that, somehow, Donald Trump would change his mind and allow that program to go forward.

Mitchell C. Zwaik

Zwaik, Gilbert & Associates, P.C.
5014 Express Drive South
Ronkonkoma, NY  11779
www.zwaik.com 

The Supreme Court Allows a Limited Portion of the President’s Travel Ban

{2:24 minutes to read} The Supreme Court recently allowed certain parts of the President's travel ban to go into effect. That travel ban had been halted or stayed by lower federal courts that claimed it was discriminatory and unconstitutional. What the Supreme Court has said in effect is that they will deal with that issue in the fall, but over the summer, they are going to let a small part of the travel ban go into effect.

The Court didn't permit the entire executive order to be implemented. All it said was people from the six countries that are designated by the travel ban (Sudan, Syria, Iran, Libya, Somalia, and Yemen) can come into the United States freely if they have already been processed for a visa. If you are from one of these six countries and have not yet been processed, the government can prevent you from entering the United States.

The decision has a very limited effect. It does not apply to anyone from any country other than the six named and does not affect people who have green cards. The people most affected will be those who have been processed for refugee status or other visas but have not yet had visas issued to them.

The most important thing that I want to get out to people is: Do not be afraid to travel if you have visas, green cards, or advanced parole that has already been issued. We are getting hysterical calls from people in various countries, particularly Muslim countries, where visa applications are being processed. We are even getting calls from green card holders who are frightened that they will not be allowed to return to this country. To them, we say there is no reason to panic because it is safe for them to return.

As to the validity of the rest of the executive order? Stay tuned!

Mitchell C. Zwaik

Zwaik, Gilbert & Associates, P.C.
5014 Express Drive South
Ronkonkoma, NY  11779
www.zwaik.com 

Why is DHS Delaying the Additional H-2B Visas Authorized by Congress?

{2:06 minutes to read} A recent article in the New York Times has highlighted the fact that the Department of Homeland Security (DHS) has not yet extended, or increased, the number of H-2B visas, despite the fact that Congress authorized an increase. It seems logical that Congress would not have authorized it if they did not intend for DHS to issue these visas.  

These visas are for seasonal workers who typically come into the United States for periods of 6, 8, or 10 months in order to work for companies that have a high need for employees during certain periods of time. Here on the east end of Long Island, traffic in the Hamptons explodes during the summertime. If you travel to the Hamptons at this time of year, you will see "Help Wanted" signs everywhere you go.

We represent pool companies, restaurants, hotels, convenience stores, 7-11s and other types of convenience stores, and they're all suffering. The season hasn't even started, in the sense that the warm weather is just now beginning to arrive. These people are frantic because they cannot get U.S. workers to do these jobs, and the government has effectively prevented bringing in additional H-2B workers for the season, despite the fact that Congress has authorized DHS to issue those visas.

What is the holdup? These are people entering the United States legally, to take jobs that U.S. workers don't want. These are jobs that employers need to advertise, and begin the very difficult, time consuming and expensive recruitment process, in order to satisfy the Labor Department that they're not taking jobs away from U.S. workers.

It's hard to understand how putting these companies out of business is going to help the U.S. labor market. And it's going to cost American jobs when these businesses are forced to close or curtail hours and services.

It is really becoming an emergency that this administration doesn't seem to care about.

Mitchell C. Zwaik

Zwaik, Gilbert & Associates, P.C.
5014 Express Drive South
Ronkonkoma, NY  11779
www.zwaik.com 

Winning the H-1B Lottery — Part 2

{3:42 minutes to read} In Part 1 of this series, we covered the basics of the H-1B visa and the lottery used to randomly pick the 85,000 “winners.” In Part 2, we look at some of the controversy surrounding the H-1B.

Unfortunately, there are abuses in the system. These abuses generally focus on a relatively small number of companies that file thousands of visa applications in the hope that a certain number of those will be picked. These businesses are generally computer consulting companies who function largely out of India and provide computer programmers for US employers.

An even bigger concern is whether or not these computer programmers, and other H-1B workers, are taking jobs away from US citizens. The H-1B program, unlike green card applications, does not require employers to test the job market to determine if there are qualified US workers to do the jobs. It does, however, require employers to pay the prevailing wage so that they are not undercutting the salaries of US workers. There is nothing in the program that would prevent a US employer from hiring a foreign worker over a US worker, as long as the employer is paying the same wage or the prevailing wage. There are, however, numerous reports about employers who actually pay these foreign workers less than they are supposed to.

Suggestions to correct this problem are numerous and range from discontinuing the program in its entirety to requiring employers to test the job market, to imposing substantial penalties, possibly even criminal penalties for employers who replace US workers with foreign workers at lower wages.

From a different point of view, there are a lot of high technology employers, particularly in Silicon Valley, who say, correctly, that this generation of computers and the entire IT industry was largely built in this country by foreign workers. A generation ago, US kids had no intention of going into computer programming when they graduated from universities. They felt that sitting over a computer and typing code all day long was not the way they wanted to spend their lives. It wasn't as “sexy” as being a Wall Street tycoon and selling mortgages. Microsoft, Computer Associates, and then Nextel all relied on foreign workers in order to create the IT industry, which in turn, has created tens of thousands of jobs for US workers.

Ultimately the question is, do we still need H-1Bs in Silicon Valley in particular? The answer is yes, of course we do, because India and China are still producing some of the most qualified people in the world. But there is a pushback that says, "Now the US market has caught up and we don't need these workers any longer." That's the push and pull of the H-1B.

In April, President Trump signed an executive order which in effect requires the administration to begin assessing the possible abuses of the H-1B visas and look for ways to correct the system.

Mitchell C. Zwaik

Zwaik, Gilbert & Associates, P.C.
5014 Express Drive South
Ronkonkoma, NY  11779
www.zwaik.com 

Winning the H-1B Lottery — Part 1

{2:42 minutes to read} The H-1B program provides temporary work visas for professionals, largely in the computer programming field. IT professionals are the largest number of H-1B visas, but all professionals are covered by the H-1B, meaning people who have a bachelor’s degree or better; engineers, architects, et cetera. There are 85,000 visas allotted to the H-1B category, divided into two distinct groups: 65,000 for those with bachelor’s degrees and 20,000 for those with master’s degrees.

Every year there is a mad dash to file these applications on April 1st. The reason for that is the law allows us to file six months in advance of the beginning of the government’s fiscal year, which is October 1st. We are actually filing applications in April for employees to start work in October. We do that because, for the last five or six years at least, the government has been running out of H-1B visas, meaning more than 85,000 applications come in for these positions.

For the first five days of April, the government received 199,000 visa applications, which is actually somewhat less than last year when they received a little over 240,000. As a result, the government sets up a “visa lottery” which provides for a barcode to be affixed to each application as it comes in. A computer then randomly picks a certain number of barcodes in order to cover the 85,000 visas.

Despite the heating up of the economy, a significant number of employers are beginning to drop out of the lottery system. The reason for this could simply be because the amount of work that is required in order to file these applications is not worth the time and expense when you have less than a 50% chance of even being selected. It could also be politically motivated as a result of this administration’s concerns about H-1B visas.

The H-1B visa, however, is not without controversy. In part 2, we will look at some of the concerns and abuses of this important visa.

Mitchell C. Zwaik

Zwaik, Gilbert & Associates, P.C.
5014 Express Drive South
Ronkonkoma, NY  11779
www.zwaik.com