CIR response to a Republican Dream Act


Glenn Martin Miller, Esq.

The McCain-Kennedy bill, which geared H1Bs to employer demand; closed all deport orders/pending EOIR cases except for fraud/criminal matters, would be a much better place to START. . . such should include vacating the draconian 3/10 year bars and the consequences of overstay for voluntary departure. One may argue that harsh laws breed more desperation than compliance. The system now sets up the Catch -22 of penalizing those who have the temerity to appeal by back dating unlawful status/overstay. The benefits of permission to travel, permission to work, and an expectation of social integration through employment, English, and taxes are worthy features of this bill.

Gearing one's legality solely to relationship/employment does not solve the undocumented problem. The accident of birth and the incidence of employment, while significant, do not make anyone less a human being - entitled therefore to full membership in human society.

The presence tests proffered in most CIR may continue to pose problems for those whose lives are under the paper radar of our society.

The policy goal should not be a creation of second-class status with years of waiting in limbo. The overriding goal should be the inclusion of all, in recognition that unleashed talent will kick-start our meritocracy. Pent-up savings, pent-up ambitions and consumer demand, and new millions paying taxes and social security will have a positive effect on our short and long term national economics.

Moreover, any reform should include a re-vamp of the priority date system. The Menendez bill would have permitted recapture, roll-over, and counting only principals while still granting 203(d) status to derivatives. The Child Status Protection Act should be simplified - parents of adult children know that the relationship transcends age 21.

There should be a grand-parents visa, permitting dual intent so that grand parents could visit their grand children easily. Most do not want to remain in America, yet the presence of children and grandchildren, ironically, often compels permanent resident petitions where a visitor's visa is sought because the consular official must presume immigrant intent.

The never-proved and fundamentally flawed notion ensconced in DOL regulations and officious hostility, that a Labor Cert somehow "takes" a job from an American rather than representing a new American in an American job, should also be rethought.

Additionally, a record number of deportations have occurred since Bush, all in the name of "enforcement". It is primitive legal thinking - ala the punishment of death in Hammurabi's Code for all offenses whether major or minor- to insist on banishment without a gradation of remedy/retribution/ rehabilitation assessments within a due process procedural framework with checks and balances. We have not asked ourselves, if Deportation is the "Solution" whether it is solving " The Problem", because few have had the mental or political courage to ask or define either. Clearly, the object of justice is to make us whole as a society. Does deportation achieve this?

The over $11 billion per year Agri-business has a vested interest in PREDICTABLE and legal labor supply. Society has a vested interest in a safe workplace, and fair wages. At the upper end of immigration, the free market of capitalism should permit employers to seek the best qualified, in their best business judgment, who can produce a good or service at a profit for the company. Perhaps Labor Certs, if they need exist at all, should adopt the Special Handling rules whereby the most qualified personnel are offered jobs. That is the reality of the modern workplace worldwide. "Dumbing down" requirements in expectation that "Americans" will come forward is sadly, not very American !

Finally, the end-time of all statuses needs review. H1b's need a realistic "grace period" because employment is often "at will". Extensions for tourist and business visas should be freely granted, with an object to encourage compliance.

Student and graduates will become the diplomats for the U.S. to their home countries. Insofar as possible, the tenor of UCIS relations to them should reflect how we would like our children to be treated as invitees or visitors elsewhere.

We have much work to do as a society and as an immigration bar. Recognition of our status not only as Americans but as world citizens is the beginning. Recognizing that what exists now does not necessarily have to be may be as important in this national dialogue as the parsing of what is politically expedient or momentarily possible. While it should be our duty to advance principles of access, fairness, and human dignity through compromise, we cannot and will not do so without questioning the lack of compassion, obstructionism, and infidelity to both progressive and traditional ethical values which are all too often hallmarks of our current system.

We can and must do better if we are to remain vital in the world of commerce, arts, letters, and science. Xenophobes tell me that the "problem" is that "everyone wants to come to America". Part of a truer immigration dialogue would include a foreign policy debate to assist countries where home poverty compels the poor to vote with their feet for survival; part should be a recognition that places like Mexico and the Philippines have earned an integral alliance and inclusion within our culture. My standard reply to the xenophobes: "We are in real trouble when the world no longer sees us as the place each may live the America dream". To quote the poet Archibald MacLeish:

"There are those who will say that the liberation of humanity, the freedom of men, women and mind are nothing but a dream. They are right. It is a dream. It is the American dream."

About The Author

Glenn Martin Miller is an immigration attorney practicing in New York.

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.