Wednesday, October 11, 2017

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

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

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

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

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

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

Thursday, September 28, 2017

DACA and the Sacrificial Lambs

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

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

Thursday, September 14, 2017

The Demise of DAPA Wasn’t Enough?

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

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

Thursday, August 31, 2017

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 

Wednesday, August 16, 2017

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 


Friday, July 28, 2017

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 

Wednesday, July 19, 2017

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 

Thursday, July 6, 2017

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 

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