Thursday, June 22, 2017

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 

Thursday, June 8, 2017

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 

Wednesday, May 24, 2017

The Budget Reconciliation Bill Significantly Increases H-2B Visas

{2:12 minutes to read} The budget reconciliation bill that was recently passed through Congress has an important immigration provision in it, which allows for significantly increased H-2B visas for this fiscal year.
An H-2B is a visa that allows people to enter the United States legally in order to perform work for seasonal businesses. A perfect example in Long Island is people who work in the restaurants, hotels, motels, pool companies, coffee shops, et cetera on the Eastern End and South Shore of Long Island during the holiday/summer season.
Employers depend on these workers. They can't run their businesses without these people. There are not a whole lot of Americans who are desperately searching for a job digging swimming pools in the summertime. These are jobs which go begging. We have an employer who has a 7-Eleven on Long Island, and he can't get workers. His business triples in the summertime. Without these workers, he can't keep his business open.
Congress usually limits the number of H-2B visas significantly, and the number has already been capped and brought out. The new fiscal legislation, which just passed, significantly increases the number of H-2B visas which are available.
What the bill actually does is allow the Secretary of the Department of Homeland Security to authorize these additional visas, which hopefully he will do within the next few days. That should allow for about 69,000 additional workers.

This is an important piece of legislation, which nobody is going to notice because all of the conversation surrounding the fact that the government did not shut down. That may be all anybody is talking about, but it is important to know about the H-2B provision contained in that legislation.

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

Wednesday, April 26, 2017

American Immigration Lawyers Association — National Day of Action 2017

{4:18 minutes to read} On April 6th, I was in Washington DC as part of a contingent of immigration lawyers from the American Immigration Lawyers Association (AILA). This was our National Day of Action, the purpose of which is to meet with members of the House and the Senate, in order to work with or at least discuss the issues in immigration law that we feel are most important. Attendance this year numbered over 550 members, which is far and away the largest group that's ever appeared for the National Day of Action.

Members of my local group split up in order to meet with the local congressmen on Long Island. We didn't meet with the actual congressmen or women themselves, but we were able to meet with representatives of Lee Zeldin, who is the congressman representing Suffolk County primarily. We also met with Kathleen Rice, who is the House member representing a large section of Nassau County. Congressman Zeldin is a Republican, while Congresswoman Rice is a Democrat.
We found that Congressman Rice's office was with us and, in some cases, ahead of us in terms of promoting the rights of immigrants and trying to calm the fears of the immigrant community. We also had good rapport with Kevin Dowling, who is the legislative director for Congressman Zeldin. We hope that, moving forward, we will be able to work with them to promote the rights of immigrants and the employers who need immigrant services on Long Island.

H-2B Visas
There were a couple of issues that are particularly important to members of Suffolk County, one of which is the H-2B visa.
The H-2Bs are the semi-skilled or unskilled workers who come in seasonally to work in the restaurants on the East End. They also pick grapes, work in the hotels as maids, cooks, and landscape people and work at the marinas. These people come primarily from Central South America and the Caribbean to work during the summer season, which is a critical season on Long Island, particularly in the East End.
The problem is that we run out of H-2Bs every year. The earliest day we could file was January 1st, and quite literally, I was in my office on New Year's Day to file these applications electronically. Unfortunately, we still got frozen out in many cases. They just ran out of visas before the paperwork could get approved.
We are trying to get Congressman Zeldin to help us change the rules to allow returning workers on these H-2Bs, which would increase the number of people who could come into the United States during the summer season to work for US employers.
In the past, returning workers were included without being in the cap, meaning additional people could effectively come in. There would be returning workers plus new workers coming in under the cap. We are asking Congressman Zeldin to join with us in helping to get these returning workers included in the budget resolution.
The other thing we discussed with Mr. Dowling is, of course, the problems that we have on the East End with undocumented immigrants, documented immigrants, and in some cases, US citizens as well, who are terrified of the Trump deportation threat.
The National Day of Action was successful for us. We had good meetings and are going to follow through with our Congressional representatives on all the immigrant issues that affect Long Island.

Mitchell C. Zwaik

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

Monday, April 17, 2017

What Constitutes “Extreme Vetting” for Visas?{3:36 minutes to read} As part of his executive order on immigration, President Trump announced extreme vetting for visas. As usual, the announcement made very little sense, because there was no explanation in terms of what he means by “extreme vetting” and what he's trying to do.

The announcement promised new security checks for virtually everybody coming into the United States, including tourists, students, business travelers, and relatives of American citizens; virtually everyone who is not a permanent resident.

  1. There is no explanation of what extreme vetting entails.
  2. It seems to apply to virtually every country other than those under the visa waiver program.
The visa waiver program allows visitors from certain countries to come to the United States without requiring a visa. People from visa waiver countries need to complete an Electronic System for Travel Authorization (ESTA) application online. Assuming that there are no security problems, no arrests, and no prior immigration violations, they can come to the United States without a visa. Just as an American citizen can buy a ticket and get on a plane to Italy, Italian citizens, for example, do not need visas to come to the United States.

The point is that the visa waiver program countries include most of Europe and Australia, and other countries like Japan and South Korea. Everybody else in the world, which includes virtually every country in central South America, Asia, and Africa, who need visas are going to go through extreme vetting.

But what does that mean and how much longer is this going to take? There are people who have vacation plans. Universities throughout the country have students from China, India and central South America. What about business people? Companies bringing in their employees? We're talking million and millions and millions of dollars. It turns the whole world on its head.

The President issues edicts without explaining what it is he's talking about and apparently without any idea or thought to the ramifications of what he's proposing. All he does is scare the heck out of everybody. He has no concept of the world as it exists in terms of immigration, none at all or at least he pretends not to. There are terms of art; extreme vetting is not a term of art, it's a term he made up.

The general public has no understanding of the current visa process and the layers and layers of security screening that go into the issuance of a visa for anyone coming to the United States. These have been in place since shortly after 9/11. Anything and everything that is technologically permissible and available is in place now in order to screen people coming to the United States.
I don't know how much more extreme you could be other than anything and everything. I mean what exactly is extreme?
Mitchell C. Zwaik
Zwaik, Gilbert & Associates, P.C.

5014 Express Drive South
Ronkonkoma, NY  11779 

Wednesday, March 29, 2017

Are You in One of Immigration’s Targeted Groups?
{4:54 minutes to read} Among the many “hot topics” surrounding immigration these days, one is about people being rounded up and detained. There is an old cliché: When everybody's a priority, nobody's a priority. There are a lot of people who are priorities, but within that priority system, there are certain people in particular who are being targeted by immigration and need to be careful.

People with a Criminal Record
Anybody who has any kind of a criminal record is a target. The Administration talks about deporting drug dealers, gang members, rapists and child molesters, but the people they are picking up are people who have relatively minor offenses, such as DUIs or driving without a license.
People with Deportation Orders
People who have deportation orders are being picked up. Sometimes, these people don't even know they have deportation orders, they get stopped at some point in time and handed a piece of paper, which some can't even read. They are supposed to show up for court, but they don't. Ten years later, they get stopped by immigration.

One of the biggest problems with people who have deportation orders is that it is often impossible to get legal representation to them in time, meaning people who have existing deportation orders can be very quickly removed from the United States. In most cases, they do not have an opportunity to see a judge or speak to an attorney.
People Accused of Fraud or Misrepresentation
The government says they are going to target people who have any kind of fraud or misrepresentation to any government agency. This would include people who have used false green cards, who have gotten their driver’s licenses and Social Security numbers improperly, and perhaps, even people who applied for jobs when they shouldn't be working, making misrepresentations on I-9 forms or using different types of fraudulent documentation in order to get the jobs.
We have numerous reports of immigrants who are just traveling being stopped. People are being picked up outside their homes. They go to work or they take their kids to school in the morning, and they get stopped by immigration and detained.
If you are in any of these groups, you need to be very careful. Speak to an attorney to find out how to protect yourselves in the event you get picked by immigration.
If you are picked up, first and foremost, do not say anything to an immigration officer without first speaking to an attorney. You should have legal representation before you sign anything, say anything or agree to anything.
A lot of people are intimidated when they see an immigration officer, but there is no reason to be. Obviously, if you are stopped, you should have some form of identification, but if questioned about your immigration status, your answer should be, "Speak to my attorney." And you should have an attorney, a business card or a G-28, which is the immigration form that designates an attorney.
What If They Are Undocumented?
Many people don't understand that just because they are undocumented or illegal, doesn't mean they don't have any legal rights. There are legal options, Asylum-type applications and similar forms of relief available to them.
Some people have real opportunities to obtain residency or some kind of legal status in the United States, so they should get copies of all of their documents and go see an attorney.
Emergency Legal Services
We offer emergency legal services 24/7, so people who retain us to help them know that they can contact us at any time. We have an emergency line set up in English, another in Spanish, and another in Urdu. If someone gets picked up, a friend or relative should have our business card and call us, so we can have somebody there as soon as possible.
Mitchell C. Zwaik
Zwaik, Gilbert & Associates, P.C.

5014 Express Drive South
Ronkonkoma, NY  11779 

Tuesday, March 14, 2017

Bar or Ban: The Impact Could Be Devastating

Note: Since we created this article there have been numerous developments. Last week, President Trump issued his “reworked” Executive Order effective March 16. This order is substantially the same as the first one. Its legality is being challenged by a number of states.

{4:30 minutes to read} Although there is currently a nationwide stay in effect that blocks President Trump's Executive Order of Friday, January 27, the administration is said to be considering a reworking of the legislation that would allow individuals from the seven “banned countries” to enter the US if they had visas that were issued before the ban went into effect. The ban would impose a 90-day bar to non-immigrants from seven designated predominantly Muslim countries, including Iran, Iraq, Syria, Somalia, Sudan, Libya, and Yemen. It also bans all refugees from anywhere in the world for 120 days, so you essentially have two bans or bars.
What we've come to learn since President Trump issued this Executive Order is that the ban does affect people who have certain types of temporary visas and who would normally be allowed to travel home and re-enter the United States; for example, students who are at the end of the semester and want to go home for the holidays or semester break.
Initially, there was some question as to whether it affected people traveling on green cards. The Department of Homeland Security (DHS) has since clarified that it does not affect people on green cards. For example, if you're an Iranian citizen who's a permanent resident of the United States, it apparently does not apply to you if you leave the United States and attempt to re-enter on your green card. Apparently.
The problem, of course, is that there is no way of knowing how and when Trump is going to affect these changes. For example, we have many clients from Pakistan. They are terrified. They have no way of knowing, if they leave the United States, whether he's going to change the rules while they're out of the country and make it difficult to impossible for them to come back.
When you can change the rules with the flip of a coin or with a tweet, there are no rules.
The second ban bars all refugees, many of whom have spent years in refugee camps, from entering the United States for 120 days.
Refugees are people seeking asylum from outside the United States. Their applications are generally processed through certain types of governmental organizations like United Nations sanctioned organizations. The ban does not affect people seeking asylum in the United States, but we are hearing that the DHS is in the process of tightening regulations to some extent, even for people in the United States.
At the present time, under an Obama order, people applying for asylum in the United States who were children get special preferences in terms of time. They go to the top of the list; however, we understand that is no longer going to be true. The administration has issued new directives to officers who are reviewing the asylum cases of people recently stopped from entering the US. The law requires these individuals to demonstrate a “credible fear” of returning to their native country. The administration is moving to significantly tighten the criteria for demonstrating a “credible fear” that is likely to result in many more applicants being turned away.
H-1B Visa
As my last blog explained, the President wants to change the regulations relating to H-1B visas, which may discourage technology professionals from coming to the US. If your goal is to stop US employers from exporting jobs abroad, and then you make it impossible for them to hire the professionals they need, where are we going?

There's no rhyme or reason to any of this. It's just crazy.

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

5014 Express Drive South
Ronkonkoma, NY  11779 

Thursday, March 2, 2017

Is the H-1B in Danger From the Trump Administration?

{2:48 minutes to read} H-1B season is upon us. H-1Bs are visas for professional workers. They are used primarily for high-tech companies bringing in computer programmers, engineers, etc.
The start date for the new visas is October 1st, the beginning of the government's fiscal year. You can apply for the visas six months before the start date, which is April 1st.
The limit on H-1B visas is 65,000 for people with bachelor's degrees, plus 20,000 for people with master's degrees. This limit is exhausted every year. Last year there were about 240,000 applications filed on April 1st for the 85,000 visas.
So this means applications have to be prepared, ready to go, and sent overnight mail on March 31st so they arrive on April 1st. In all likelihood, there will be a quarter of a million visa applications received on April 1st. This creates an intense scramble in the month of March to prepare these applications and have them ready on the very first day because if you send them late, you will get frozen out.
H-1B visas are a little controversial because the employer does not need to test the job market in order to hire someone on an H-1B visa. If the employer, for whatever reason, prefers a foreign worker over a US worker, he has the right to do that. The employer has to pay the foreign worker at least the prevailing wage—the wage he would otherwise be paying a US worker—or higher, so it's not a question of wages per se. It is, however, sometimes a question of preferring foreign employees whom the employer believes are more talented than competing US workers.
For the employers point of view, these high-tech companies argue that they need to be able to hire the best and brightest throughout the world without regard to whether they're Americans, etc. Because of this controversy, the Trump administration has been talking about changing the H-1B visas.
All the more reason why there is going to be an intense competition this year, to get those few visas, before Congress has a chance to change the law.

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

5014 Express Drive South
Ronkonkoma, NY  11779 

Tuesday, February 14, 2017

Will the Actions of the President be Counterproductive to His Goals?

{4:00 minutes to read} Within a few days of his inauguration, the new President threw more than sixty years of US immigration policy into the shredder. He began with a war of words with Mexico and ended with a Muslim ban he later claimed was neither a ban nor directed at Muslims. This offensive is not only counterproductive in terms of cooperation with other countries in the general sense of the word, but it may very well become counterproductive in terms of his immigration policies. It sent a signal to the rest of the world that the US no longer welcomes immigrants.
The confrontation with Mexico was destructive on its face. We rely on Mexico to take back people that we deport. What happens if Mexico decides that they're going to abrogate treaties (much like President Trump has threatened to do) and just stop taking back deported Mexican citizens? For years, Cubans who committed crimes in the United States could not be deported to Cuba because Cuba refused to take them back. What if Mexico won't take back their citizens who commit crimes or even non-immigrants who have overstayed their visas? The US can't just start dropping them over Mexico like CARE packages.
If Mexico or other Central and South American countries refuse to accept deportees, we can't keep people locked up forever. The United States Supreme Court says that is unconstitutional, so you wind up deporting less people, which means we have more immigrants, not less.
And now we have an Executive Order that, for 90 days, bars people from seven predominantly Muslim countries from entering the United States: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. It also bans ALL refugees for 120 days and bans Syrian refugees indefinitely. The administration says other countries can be added to the list as well[1]
What will all this accomplish? Will it make America safer? That seems unlikely. None of the people who committed terrorist attacks in the US are from those 7 countries, and the fact that the ban is entirely limited to Muslim majority countries will certainly be regarded as an insult by Muslims around the world. How likely will they be to cooperate with us in the war on terrorism if we signal our disdain for Muslims?
And the wall with Mexico? Few people who have studied the issue think it will do much to halt the flow of undocumented people who come into the United States illegally. A physical wall will cost $15-$40 billion and accomplish little. It’s an expensive project, much of which would be built over water, which we would then have to maintain and patrol.
The current situation is horrible, and not just on a human level but on a very practical level as well; not just on a policy level, but in terms of accomplishing his goals. International terrorism and the flow of undocumented people across our borders are real problems that need real solutions, but what Trump is setting in motion is only going to inflame the situation.
Can the President accomplish what he wants to accomplish? So far, the outlook is not promising.
[1]Since we created this article there have been some developments. Last week, the 9th Circuit Court of Appeals suspended President Trump’s key immigration executive order. The issue will ultimately be decided by the Supreme Court at some point in the future.
Mitchell C. Zwaik
Zwaik, Gilbert & Associates, P.C.

5014 Express Drive South
Ronkonkoma, NY  11779 

Tuesday, January 24, 2017

The Unfolding Story of Immigration in the U.S.{3:00 minutes to read} What is going to happen with regard to immigration when the new administration takes office on January 20th? The simple answer is, we don’t know.

Many immigrants in the United States, including some who have green cards, are experiencing a feeling of angst and fear. This is particularly true with undocumented Hispanics and many Muslims, including those in legal status in the US. The level of fear and concern is the highest I've ever seen. In many respects, it's worse than immediately after 9/11 when Muslims living in this country, legally and illegally, were terrified of what was going to happen.

This atmosphere of angst and fear is not just affecting the Muslim population but is also causing concern with the Hispanic population, including hispanics who've been living in this country for 10-15 years. Moms who were brought into this country as children are concerned that they're going to be deported and separated from their husbands and their children.

The uncertainty is fostering a sense that the United States is not welcoming to immigrants, with the result that even legal immigrants and the businesses that employ them may take their business and their money elsewhere. Immigrants from all over the world fill positions in the United States, not just from obvious places like China, Pakistan, etc., but Indonesia and India.

Even people living here legally are feeling the pressure. There are racial and ethnic attacks on synagogues and other houses of worship. As I said, the level of fear and concern in this country is very high right now.
Business Immigration
I’m waiting to see what happens with business immigration. Will there be a noticeable decline once Trump comes into office? My point is that he is creating a sense that America no longer welcomes immigrants. This doesn’t just affect kids in Guatemala but affects international companies and corporations, including American companies, because they have key people that they want to bring to the United States from abroad.
If people get a sense that America is no longer welcoming to immigrants, these key people will no longer want to come here, which will definitely have an adverse effect on everything. Much of the IT industry in this country was built by immigrants, particularly Indian and Chinese. If they are going to get a better deal in Germany, where they are more welcoming to immigrants than the US, then that is where some of the top people in the world are going to go.

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

5014 Express Drive South
Ronkonkoma, NY  11779

Friday, January 13, 2017

Immigration: 2 Things to Do Before the New Administration Takes Office

{3:36 minutes to read} What is going to happen with regard to immigration when the new administration takes office on January 20th? The simple answer is, we don’t know. There are 2 things I’m recommending that people do ASAP.

Deferred Action for Childhood Arrivals (DACA)
There's a bill pending in the Senate, which would extend DACA. DACA is the Obama Executive Order that provides employment authorization for individuals who came to the U.S. under the age of 16, have lived here since June of 2007, and graduated or are attending school in this country.
Will that continue into the next administration? Who knows.

What do people do who are eligible for DACA, or have DACA? Should they renew it or not?

Our advice is to renew DACA as soon as possible if you are eligible. We see 2 possibilities:

  1. Trump cancels the DACA Executive Order which will stop everything in its tracks.
  2. Trump will allow the Order to go forward for those who have filed before he comes into office.

Already filed? What do you have to lose? The worst that can happen is the loss of the filing fee. The best could be a 2-year extension of your work authorization/card.

Filing for a new application at this time is not advised without speaking to an immigration attorney.
Family Based Petition (Form I-130)
U.S. immigration law provides that certain individuals who are U.S. citizens or permanent residents can sponsor close family members. Form I-130 allows the sponsor to establish the relationship to certain alien relatives who wish to immigrate to the United States.
If you are in a situation where you planned to file a Form I-130 on behalf of a relative, we recommend you do that now. The reason is that there is a regulation currently in effect that allows people who have these family ties to apply for a waiver of the 10-year bar. The 10-year bar is a rule that says if you have to leave the U.S. in order to obtain your green card, you cannot come back for 10 years. The regulation allows people to apply for a waiver of that 10-year bar while they are still in the United States.
We don’t know when or if the Trump administration will move to amend that regulation. Amending a regulation is not at all the same thing as removing an executive order. A president can cancel an Executive Order on Day 1, but a regulation requires the government to go through procedures. Getting your Form I-130 filed now, and trying to push these things through before the government has a chance to amend the regulation, can be critical.
Again, we have no idea what the new president is going to do. He may never amend the regulation, but obviously, the safe thing is to take advantage of it now if you can.
Mitchell C. Zwaik
Zwaik, Gilbert & Associates, P.C.

5014 Express Drive South
Ronkonkoma, NY  11779