December 22, 2010

Op-Ed Article

The “Right” DREAM

For years, many well-meaning people from widely diverse backgrounds and organizations have encouraged Congress to pass the Dream Act, branding it a “Pathway to Citizenship”.

As an Immigration attorney, my personal opinion is that the repeated failure of the Dream Act to pass Congress lies in that de facto and demanding phrase. This “Pathway to Citizenship” may be seen by many as a way to pave a future for minors who had no control over their fate in being brought to the United States. Alternatively, this may be perceived by others as simply asking for too much from our Federal Government at a time when it has so many crises to resolve.

I have heard and seen thousands of stories of how brutal life is for undocumented minors and young adults. Doors for military service and higher education remain closed. The opportunity to gain even meager employment remains tenuous or impossible. Doors have never slammed shut on these young people, because the doors were never open. More often than not, these people are borderline illiterate in the language of their birth country, and often they do not even have any memories from their country of birth. The stories of these boys and girls are simply heart wrenching. They are preoccupied about arrest, detention and potential removal to a land they don’t even remember. Depression and anxiety grow annually as tens of thousands of people come to understand they cannot realize their dreams in the United States. I have heard from a few undocumented adolescents that have said they would kill themselves rather than live outside of the United States, the only country they know.

What is preventing the DREAM act from passing? The most progressive lobbyists and politicians, with the best of intentions, have altogether missed the beat of many American people who are against this pathway to citizenship. I have heard both sides of the story for many years as conservatives often tell me their perspective. Are conservatives being heartless or impractical on this topic? I think not. Most conservatives want these productive young people to be able to serve in our military, to pay their way in higher education, to help maintain their stable families and communities, to be employed legally in our workforce and to contribute billions to our tax base. But not at the cost of being placed on the pathway to citizenship. This usually seems to be one of the strongest points of debate.

The “Pathway to Citizenship” has become a point of hostile national gridlock instead of productive national debate and compromise. The following is a proposed solution to this vexing problem that has stymied our Congress for so long. Let’s drop the demand for a “Pathway to Citizenship”. Instead, let’s call it a “Pathway to Compliance” and give undocumented youth the ability to stay in the United States, to work in the United States and to travel in and out of our country, forever being barred from acquiring Permanent Residency, save for an exception for those who earn honorable military discharges.

Once and for all, we could put to rest the angst of conservatives regarding perceived “amnesty” for those who entered the United States without authorization. Would this prohibition against permanent residency, and therefore, ultimately, a prohibition against Citizenship be fair? Probably not. But life is not entirely fair and this compromise could satisfy perspectives from both the left and from the right. Most immigrants who entered the United States as minors, through no choice of their own, and who do not yet have legal status, would be able to live productive lives and come out of the shadows. Certainly, everyone would be subject to criminal background checks and other tests of attributes of good moral character, such as compliance with annual tax filings. The very nature of being in this new temporary and indefinite visa status would give the Federal Government the tools to deal pragmatically with so many young people who are not yet in status, and to monitor more closely many of those people who are here.

The real benefits to the United States, to many frustrated military recruiters, to our reeling national tax base, to our educational institutions, and to the emotional and legal stability of hundreds of thousands of families are within reach. This debate should be re-kindled. Lobbyists and Congressmen should compromise on DREAM in order to realize benefits for all and to avoid a future national nightmare.

Daniel L. Weiss, Esq.
Freehold, New Jersey

*** The contents of the above OP ED are not necessarily the opinions of the Visaserve Team but they are the opinions of Daniel Weiss, Esq., an Immigration Lawyer and a friend of our Law Office.

Why We Need The DREAM Act Now
by Victoria Donoghue

Why We Need The DREAM Act Now For some time now, lawmakers have insisted that immigration reform, if it is to happen, must be comprehensive, dealing with all of the problems with our broken system at once. A piecemeal approach, they say, is not acceptable. Suggestions that certain pressing issues be dealt with separately have been flatly rejected.

However, efforts at so-called Comprehensive Immigration Reform (CIR) have gone nowhere for years. Lobbying efforts in March 2010 by the American Immigration Lawyers Association (AILA) made it clear that CIR is not going to pass anytime soon.

Given this state of affairs, perhaps now is the time to address separately our most pressing immigration issues. And nothing could be more pressing than the one facing many talented young people in our country. In his July 1, 2010 remarks on CIR, President Obama pointed out that many of the 11 million illegal immigrants amongst us came to the US with young children in tow. These children grew up as Americans; they were educated in our schools, speak English fluently, and have embraced American culture as their own. As President Obama stated, many “only discover their illegal status when they apply for college or a job.”

College applications require a social security number, and illegal immigrants do not have one. While a few academic institutions have a policy of accepting illegal immigrants (on the theory that they are not in the business of enforcing U.S. immigration law), most do not. Even if a young illegal alien is lucky enough to obtain a college degree, he or she will face an even more serious problem upon getting an offer of employment. Accepting a job offer leads to the need to complete an I-9 form for the employer, a form that requires an employee to produce documents evidencing authorization to work in the U.S.

In 2009 the DREAM Act (Development, Relief and Education for Alien Minors Act) was introduced as a way to address this problem. If passed, the DREAM Act would make it possible for 1 million young undocumented immigrants to become lawful permanent residents. The bill would permit immigrant students who graduate from US high schools, are of good moral character, arrived in the US as children, and have been in the country continuously for at least five years prior to the bill’s enactment, the opportunity to earn conditional permanent residence. The students would obtain permanent residence for a six year period. Within the six year period, a qualified student must have acquired a degree from an institution of higher education in the US or have completed at least 2 years, in good standing, in a program for a bachelor’s degree or higher degree in the U.S., or have “served in the uniformed services for at least 2 years and, if discharged, have received an honorable discharge.” Members of Congress have introduced several forms of this bill in both the House and Senate over the years, but it has yet to pass.

But the DREAM Act could be considered by the Senate again next week. In a blog entry on September 14, 2010, Senate Majority Leader Harry Reid announced his intention to include the DREAM Act in the major defense bill scheduled for floor action next week.

A real-life story of a young illegal alien that would benefit from the passage of the DREAM Act is the best way to illustrate the realities of what these young people face. What follows is such a story (the name is fictitious):

Maria San Gabriel

Maria San Gabriel was born in Columbia, the daughter of a doctor and flight attendant. Their lives in Columbia were comfortable, but changes in the health care system in that country were making it increasingly difficult for Maria’s father to make a living. Seeing their way of life threatened, Maria’s parents set their sights on the U.S.

When Maria was 7 years old, she and her parents entered the U.S. in tourist status. They moved in with relatives and searched for work. Maria’s father found work as a parking attendant in a garage in New York City, where he still works to this day. Her mother went to work in a factory that manufactures cosmetics. Maria started school in the second grade, struggling to learn English.

As the years passed the family of three settled into their new life. Eventually, Maria’s parents were able purchase a small apartment. Maria not only learned English, she became a star student graduating from high school with straight A’s. Despite this progress, the family was never able to adjust their status; they remained undocumented. Maria’s parents put a great emphasis on education and were determined to see their only daughter go to college. Maria felt this pressure. But without lawful immigration status, it seemed like every avenue was closed. Many colleges were interested in her, but she was undocumented.

While working on her computer one day early in her senior year of high school, Maria typed “undocumented” and “college student” into a google search. The search results included an article by a conservative commentator, critical of colleges and universities that had made a policy decision to accept undocumented students if they were academically qualified. The article identified a school in the Northeast that Maria knew was an outstanding institution. Maria and her parents went to visit the college on a rainy overcast day. Notwithstanding the weather, they fell in love with the school. Maria applied to the college and waited anxiously, checking the mailbox daily. When the thick acceptance letter arrived, she cried tears of joy. When she phoned her parents at work to share the news, their reaction was the same.

Maria is about to start her sophomore year. During her freshman year, she earned top grades. She is studying Education and DREAMs of being a teacher. But her future is not bright. As an undocumented alien she is not work authorized. With a change in the law, she will never be able to work legally in the U.S.

There are countless more stories like Maria’s all across the U.S. Regardless of one’s personal feelings about illegal immigration, there can be no doubt that young people caught in Maria’s circumstances are valuable members of our society who, given the opportunity, will make their own unique contributions. It’s time for Congress to overcome political inertia and provide the children of illegal immigrants who have grown up in America with the opportunity to fully participate in the life of this country. We will all be better off for it.

About The Author

Victoria Donoghue received her J.D. from St. John’s University School of Law in 1992, after having received a Masters of Science in Industrial and Labor Relations from Cornell University in 1989. From 2003-2007 Ms. Donoghue was the Assistant Director of Human Resources at the Research Foundation of the City University of New York, a 5000 employee nonprofit corporation that administers the $360 million in research grants that flow through the City University system each year. In that capacity, she oversaw the Foundation’s immigration program, supervising the processing of nonimmigrant visas and serving as a resource both to the Foundation’s foreign national employees and to outside counsel in petitions for permanent residence. In addition, she regularly delivered presentations to colleges throughout the CUNY system about immigration matters and is a member of the American Immigration Lawyers Association. In 2007 Ms. Donoghue entered private practice as an immigration attorney, becoming Of Counsel to the law firm of Nachman & Associates. Since then she has taught and published widely on a variety of immigration related issues. She is currently an Adjunct Professor in the Immigration Law Program in CUNY’s School of Professional Studies. She has given presentations at the 2008 NAFSA Annual Conference, Fairleigh Dickenson University, Vassar College, Hunter College, City College, New Jersey Institute of Technology, the National Business Institute, and the University of Medicine and Dentistry of New Jersey, among others. Her publications include a chapter in The PERM Book, 2008-2009 Edition and a chapter article entitled “A Program to Promote Scientific Research at the City University of New York” to be published in NAFSA’s International Students: Strengthening a Critical Resource, due out in 2009.

Americans across the country are familiar with Wal-Mart for their “roll-back” prices and friendly service. What most people don’t know is that, after their immigration scandals in 2001 and 2003, Wal-Mart has lead the country in enforcing employer compliance with requirements of the Immigration Reform and Control Act of 1986 (“IRCA”). Since paying a record-setting $11 million to the United States Department of Homeland Security, Immigration and Customs Enforcement Division (“ICE”), Wal-Mart has become the reluctant leader in employer compliance programs. As anyone trying to sign a contract with Wal-Mart will tell you, it’s no walk in the park to meet their strict demands, but it is the way of the future for employment verification procedures.

By way of history, in 2001, 100 illegal immigrant janitors were arrested at Wal-Mart stores in Pennsylvania, Ohio, Missouri and New York, and an additional 245 were arrested in October 2003 at 60 stores across 21 states. The allegation that Wal-Mart knew the janitors were illegal was denied by Wal-Mart’s top executives; nevertheless they admitted that they should have been keeping a more watchful eye over what their sub-contractors were doing. In a statement from Washington, federal officials announced that 12 janitorial contractors that worked for Wal-Mart had agreed to forfeit $4 million to the government and to plead guilty to criminal charges of employing illegal immigrants. The workers came from nearly 20 countries, including Mexico, Brazil, the Czech Republic, China, Poland and Russia.

As part of the $11 million settlement, Wal-Mart was permanently barred from hiring illegal immigrants and was ordered to establish a mechanism to make sure that its contractors “are taking reasonable steps to comply with immigration laws” within 18 months from the settlement date. Wal-Mart has since pledged to train all of its store managers to avoid “knowingly hiring” or “continuing to employ” illegal immigrant workers. Wal-Mart also agreed to continue cooperating with federal officials investigating its contractors. It’s no surprise that the regulations Wal-Mart has since built into their sub-contractor agreements are very rigid.

If you’re unfortunate enough to have seen the addendums to the Wal-Mart contracts, you are aware that there are stipulations which require all sub-contractors and sub-sub-contractors to follow the ICE “10 Best Practices for Employers”, which is a component of ICE’s IMAGE (“Ice Mutual Agreement between Government and Employers”) Program. Such practices include registering with the E-Verify Program, conducting training programs for all staff related to I-9 compliance, annual internal and third party I-9 audits, implementing an internal tip line, and full cooperation with government officials from the Department of Homeland Security. Not only are these required for the general contractor, but also for all sub-contractors and sub-sub-contractors. Needless to say, it has become burdensome for many small employers who wish to partner with a company such as Wal-Mart.

Nachman & Associates, P.C. is a Global Immigration Law Firm that has successfully helped companies become compliant with the regulations pushed down by Wal-Mart. In fact, other large employers such as Verizon have also been adopting the Wal-Mart compliance plan and requiring it for their own contractors, sub-contractors and sub-sub-contractors. In this era of compliance, it is important that employers can not only be in compliance with the law (as it will most likely only get tougher on violators), but also be able to handle the demands of both the government and large corporations who are pushing down these mandates. As Managing Attorney David H. Nachman says, “when we look into the crystal ball, we can see what’s coming down the pike and it means that employers need to be more vigilant.”

Mr. Nachman and his staff have been training employers about proper employment verification procedures for over a decade and most recently, pursuant to a federal training grant from the US Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”), the Nachman & Associates team has been traveling across the tri-state area, and across the country via webinar, to help employers overcome the confusion in this “age of enforcement.” To contact Nachman & Associates for more information on compliance programs or to attend or schedule free training on employment verification procedures, anti-discrimination, E-Verify and IMAGE, please feel free to visit the website at www.visaserve.com. You can also feel free to call us at 201-670-0006 (x107).