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    •  Mitchell's Message
    •  Immigration Legislation
    •  Immigration News
    •  Did You Know?
    •  Employer News


  In this month's newsletter, we discuss a variety of important matters, including the passage by the Suffolk County Legislature of a bill that will require contractors to comply with federal rules regarding the verification of immigration status for all employees. Noncompliance could result in the loss of the contractor's license. The problem is not with the law itself -- contractors need to comply with the law like everyone else. The problem is with the enforcement of the law. Apparently, the enforcement mechanism calls for the county to respond to "complaints" that will likely be made against employers with Spanish speaking workforces. The potential for discrimination is real. Other, less volatile issues we discuss below include Senate immigration amendments, the H-1B lottery completion, the extension of OPT and TN status, and the ongoing battle over delays in approving naturalization applications.

If you have comments or suggestions about this newsletter, call me at
631-588-4040 or e-mail me at mczwaik@zwaik.com.   Thanks.

Mitchell Zwaik


H-1B Lottery Completed
The U.S. Citizenship and Immigration Services (USCIS) completed its H-1B selection process in April, conducting two random lotteries -- one for candidates with master's degrees from U.S. institutions and the second for applicants with a bachelor's degree from a U.S. or foreign university. Approximately 163,000 applications were received during the first week in April for 85,000 visas. This was a far cry form the 250,000 applications that many immigration professionals had estimated. The relatively low number can probably be attributed to two factors -- the economic downturn that has greatly impacted on the foreign labor force and the growing frustration with an immigration system out of control.

USCIS has "wait-listed" some H-1B petitions, meaning they are holding them in abeyance in the event already selected petitions are denied. Most employers who submitted applications should already have receipts from USCIS. Adjudications of the petitions will likely take another eight to ten weeks. Those applications which were not chosen in the selection process will be returned to the employer (or their representatives) along with the full filing fees.

USCIS Proposes Extension of TN Visas
USCIS announced in May that it was proposing a change in the regulations to permit TN professionals to stay in the U.S. for as long as three years on each visit. Under current rules the TN visa is valid for a maximum period of one year and the foreign national must then leave the U.S. and re-enter with a new visa. The TN visa is issued in accordance with the NAFTA trade agreements with Canada and Mexico and permits certain professionals to enter the U.S. to work. The decision extending the authorized stay takes on increased importance because of the scarcity of H-1B visas (see above story). Citizens of Canada and Mexico who might otherwise qualify for H-1B professional visas will usually qualify for the TN.

Some employers however have been reluctant to utilize the TN because of the shorter approval period.

Litigation on Naturalization Delays
Two permanent residents ("green card" holders) filed a class action lawsuit on behalf of themselves and all permanent residents whose applications for naturalization have been pending with USCIS for more than 180 days. The action is part of a nationwide effort to force USCIS and the FBI to expeditiously complete security checks and adjudicate pending applications. Many applicants for citizenship are experiencing delays of two years or more while awaiting interviews.

The government has recently moved to eliminate delays caused by pending security checks involving applicants for green cards. In a February 4, 2008 USCIS memorandum, USCIS announced a major shift in the agency's approach to FBI name checks of pending applications. According to the memo, after a FBI fingerprint and IBIS check have been completed, and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve the application and proceed with the card issuance. This new procedure will apply to Applications for Adjustment of Status (I-485); Applications for Waiver of ground of Inadmissibility (I-601); Applications for Status as a Temporary Resident Under Section 245A of the Immigrant and Nationality Act (I-687), or Applications to Adjust Status from Temporary Permanent Resident (Under Section 245A of Public Law 99-603) (I-698).

USCIS however, has not approved the new procedures for naturalization applicants. Last July, USCIS received 460,000 applications for naturalization. That was three times the record for any previous month. For the year, USCIS received 1.4 million naturalization applications, almost double the normal annual volume.

In a related matter, USCIS announced last week a settlement agreement in a class action filed by naturalization applicants who had lost or were about to lose their eligibility for Supplemental Social Income (SSI). Under the settlement, USCIS will expedite green card and naturalization applications of current or former SSI beneficiaries, if the application has been pending more than 6 months.

CIS Issues Guidance for Extension of OPT for Science Students
In furtherance of its earlier announcement that Optional Practical Training (OPT) would be extended for foreign students majoring in the "hard science", USCIS issued a Q & A that should prove valuable for the affected individuals. OPT is a program that permits foreign students to obtain work authorization in furtherance of their studies. Until recently, OPT was limited to a period of one year for all foreign students at the completion of the study. In April, USCIS announced that certain student will be eligible to receive a 17-month extension of OPT (resulting in a total of 29 months). To be eligible, a student must received a degree in one of the designated sciences including computer science, engineering, mathematics and statistic, physical sciences and science technologies, among others. For a complete copy of the CIS Q & A go to: www.zwaik.com/PDF/news_805_Q&A.pdf


Worker Verification Bill Passes Suffolk County Legislature;
New Rules for Contractors
When the Suffolk County legislature passed a bill last week requiring 17,000 contractors to verify the immigration status of their employees or risk the loss of their license, it created an enforcement nightmare. As County Executive Steve Levy noted the day after the bill's passage, the enforcement will largely depend on complaints and random checks. In the real world, this likely means that contractors with Spanish speaking work forces can expect to come under closer scrutiny. Levy threatened to tighten the screws further by suggesting that contractors might be required to use the E-Verify system, an on-line employee registration system.

Suffolk County is part of an ever growing trend of more than 100 communities around the U.S. that have tried -- with limited success -- to enforce immigration laws that the federal government is unable to enforce itself. Most of these enforcement measures take the form of penalties on employers who knowingly hire undocumented workers. Since 1986, federal law has required all employers to verify that new workers are eligible to work in the U.S. by reviewing certain specified documents. However, there has been little enforcement of the rules on the federal level. Now, the problem is out of control. With estimates of at least ten to fifteen million undocumented immigrants nationwide and a Congress that is stalemated on immigration reform, the U.S. Immigration and Customs Enforcement (ICE) has made a show of stepping up enforcement efforts. On May 15, 2008, for example, ICE issued a press release announcing it had arrested 18 undocumented immigrants at a restaurant in San Diego. The press release further notes that "Today's worksite enforcement action is part of ICE's ongoing nationwide effort to shut down the employment magnet fueling illegal immigration." ICE statistics for 2007 show that "more than 4,900 arrests were made in connection with worksite enforcement investigations." How the apprehension of 18 undocumented Mexican workers in the latest effort or 4,900 through all of 2007 will significantly accomplish the goal of removing 15 million undocumented workers is hard to understand.

But the growing frustration is easy to understand. The federal courts initially reacted to these local laws with skepticism and outright disdain. But that too is changing. In February, a federal judge in Arizona upheld a state law that imposed severe penalties on employers who knowingly hire illegal immigrants. In December, a judge in Oklahoma threw out a lawsuit brought by contractors and immigrant groups seeking to stop enforcement of a state statute much like the one passed by the Suffolk County legislature. The judge made it clear he had no patience for the litigation, bluntly stating, "This Court is convinced that the proper remedy for the injuries alleged by the remaining Plaintiffs -- all of whom are in willing violation of federal immigration law -- is not judicial intervention, rather, it is simple compliance with federal immigration law."

The Suffolk County bill -- yet to be signed by the county executive -- will almost certainly result in protracted litigation of its own. It will also be difficult to enforce. Many contractors will simply resort to paying workers "off the books" or designating them as independent contractors. Others will think twice about sending Spanish speaking employees to certain job sites. Our best advice? First, and most obviously, all employers should follow the law. Every employee must complete an I-9 form and must present the appropriate documentation to show he or she is eligible to work in the U.S. Secondly, employers must be very clear about the law regarding subcontractors. Although employers do not have the same requirements to verify the immigration status of independent contractors as they do with employees, calling an employee a subcontractor to avoid immigration and tax requirements is illegal and can result in criminal prosecution. Finally, no contractor should put up with discrimination. A customer, competitor or co-worker who threatens to complain to the county Labor Department regarding non English speaking workers at a job site may themselves in violation of the law.


Senate Committee Adds Immigration Amendments
On May 15th, the Senate Appropriations Committee held a mark-up session for the emergency war supplemental bill. Among the various amendments added to the bill were several immigration-related measures which passed, including:
  • A scaled back version of AgJobs, introduced by Senators Craig (R-ID) and Feinstein (D-CA);
  • A 3-year returning worker extension for the H-2B program, introduced by Senator Mikulski (D-MD);
  • A recapture of employment based immigrant visas, and early adjustment filing, introduced by Senators Gregg (R-NH) and Murray (D-WA);
  • A reauthorization of the EB-5 program introduced by Senator Leahy (D-VT); and
  • A border security grant funding program, introduced by Senator Hutchison (R-TX).
Ultimately, the prospect of these measures surviving debate on the Senate floor is very slim, because they will all likely be subject to points of order on grounds of germaneness, which are extremely difficult to overcome for a variety of reasons.


It's a myth that the U.S. spends billions of dollars on welfare
for undocumented immigrants

Here are the facts (note 1):

To the contrary, undocumented immigrants are not eligible to receive any "welfare" benefits and even legal immigrants are severely restricted in the benefits they can receive.

As the Congressional Research Service points out in a 2007 report, undocumented immigrants, who comprise nearly one-third of all immigrants in the country, are not eligible to receive public "welfare" benefits --ever. Legal permanent residents (LPRs) must pay into the Social Security and Medicare systems for approximately 10 years before they are eligible to receive benefits when they retire. In most cases, LPRs can not receive SSI, which is available only to U.S. citizens, and are not eligible for means tested public benefits until 5 years after receiving their green cards.

A 2007 analysis of welfare data by researchers at the Urban Institute reveals that less than 1 percent of households headed by undocumented immigrants receive cash assistance for needy families, compared to 5 percent of households headed by native-born U.S. citizens.

A 2007 analysis of U.S. Census data by the Center on Budget and Policy Priorities makes clear that it is the U.S.-born, U.S.-citizen children of undocumented immigrants who are eligible for programs such as Medicaid and the State Children's Health Insurance Program (SCHIP). The analysis found that between 1995 and 2005, the share of low-income, noncitizen immigrant children (either undocumented or legally present) who received Medicaid or SCHIP dropped from 36 percent to 30 percent. In comparison, there were increases in the Medicaid or SCHIP participation of low-income citizen children, whether they lived in immigrant-headed households or households headed by native-born citizens (rising from 45-47 percent In 1995 to 53-54 percent in 2005).

Note 1: Excerpt from "Top 5 Immigration Myths from this Campaign Season" from the American Immigration Lawyer Association

Copyright(c) - Mitchell C. Zwaik & Associates. P.C. 2008