On the Path to Reform

A few weeks ago, this blog highlighted the need to reform our current immigration laws.  This week we have seen concrete steps taken to reach that goal.  On Friday, November 30th, the U.S. House of Representatives voted and approved the STEM Jobs Act of 2012.  The bill now goes to the U.S. Senate for consideration and, if approved, will be presented to the President for his signature.

The STEM Jobs Act is not a new proposal.  It was presented for a vote in September, but had failed to receive the necessary 2/3 votes that it required at the time under a special voting procedure.  Now, under a more simplified majority vote, it has passed.

If enacted the STEM Jobs Act would make available 55,000 immigrant visas a year for individuals who obtain a doctorate degree in a field of science, technology, engineering, or mathematics ("STEM") from a U.S. university.  Any immigrant visas not allocated under the aforementioned criteria, will then be made available to those holding a master's degree in a STEM field from a U.S. university.  

This blog previously stated in the November 9, 2012 post, entitled "Immigration, Innovation, Stability and Confidence", that:

Innovation is the key to long-term economic sustenance. Innovation is powered by bright minds, who working for themselves or for companies, come up with life changing products, which are then marketed around the world. Therefore, the country that has the greatest control of economic and trade matters will be the one that can attract the best work talent in the world. 

The STEM Jobs Act is an effort  to achieve this goal.  It is a move to attract the best work talent in the world and to ensure that innovation continues to propel domestic job creation. 

Holders of STEM degrees are not the only ones that would benefit from the bill.  The STEM Jobs Act  would also revive the V visa program, which was first implemented under the Legal Immigration Family Equity ("LIFE") Act in 2000.  The V visa was created to allow spouses and minor children of lawful permanent residents to live in the United States in valid non-immigrant status and travel to and from the United States while they waited to obtain their permanent residence.   However, under strict requirements, the number of individuals who qualify for a V visa has drastically diminished over the years.  In order to qualify for a V visa under the LIFE Act, the individual must have been a beneficiary of a Petition for an Alien Relative filed on or before December 21, 2000 and have waited at least three years after the filing of the Petition.  Now, if approved, the STEM Jobs Act would relax the requirements of the V visa program to allow a spouse and minor children of a lawful permanent resident, whose Petition for an Alien Relative are pending for at least one year as of October 1, 2013, to apply.  This modification in the law would benefit countless number of individuals whose petitions were filed after the December 21, 2000 deadline set by the LIFE Act.   Doing so would alleviate the hardship associated with the long wait-times many have to currently endure in order to receive their permanent residence.  

Yet, despite its potential benefits to the U.S. economy and to individuals wishing to immigrate to the U.S., the STEM Jobs Act is not without controversy.  If enacted, the STEM Jobs Act would eliminate the Diversity Visa program, a lottery system administered by the U.S. government which grants 50,000 immigrant visas annually to individuals from countries with low rates of immigration to the United States.  The Diversity Visa program, established under the Immigration Act of 1990, has been heavily criticized in the past few years.  Many individuals interested in the Diversity Visa program have ended up the unfortunate victims of scams.  Although, there is no fee to apply for a Diversity Visa and no guarantee of approval, many companies charge exuberant fees and falsely promise the individuals that they will be granted.  

Finally, in the face of the so-called "financial cliff" and the need for Congress to focus its major energies to avoid it before the end of the year, it may be too late at this point for the STEM Jobs Act to be properly considered this year.   Yet, if not approved, parts of the STEM Jobs Act could possibly be used as building blocks for a more comprehensive immigration reform in the next year. 
   

The above information is provided for information purposes. It should not be construed as legal advice or the formation of an attorney/client relationship   

       

Immigration, Innovation, Stability and Confidence

It is days after the presidential election, and the president has been re-elected. In the next few days and weeks, he will set out his agenda as to what he wishes to accomplish during his second term. One of those items should be immigration reform. The future economic prosperity of this country depends on whether we can reform the nation's immigration reform to reflect current and future realities.

The United States is in a race to determine which country will be the economic superpower of the next hundred years. This is very important since economic power often translates to military power, which leads to dominance over global affairs.  Right now, the United States and China are the front-runners in that race to economic dominance. The United States is winning, but China has good momentum. What hinders China is that its economy is based primarily on replication as opposed to innovation. China is currently the biggest manufacturer in the world. However, it manufactures products that can be found in other parts of the globe. Its comparative advantage lies in pricing. China's products are competitive in the world market based in their prices being generally lower than its competitors. Yet, China lags behind its competitors, such the U.S., Japan, South Korea and the E.U. in innovation. Innovation is the key to long-term economic sustenance. Innovation is powered by bright minds, who working for themselves or for companies, come up with life changing products, which are then marketed around the world. Therefore, the country that has the greatest control of economic and trade matters will be the one that can attract the best work talent in the world.

For more than a century, the United States has not had a problem attracting many of the world's best and brightest. It is a democracy that protects many basic human rights that are enshrined in the U.S. Constitution. It has some of the best universities in the world. And, it is a country where opportunity to succeed is available to all and not just a select few. It is an obvious magnet for foreigners from around the world. However, current U.S. immigration law no longer accommodates the innovation needs of our country.

One of the clearest examples of such deficiency is in the H-1B professional work visa program.  The H-1B program is the mechanism by which U.S. companies can petition to bring into the country highly qualified professionals to work in such occupations as computer programmers, engineers and physicians.   In 1999, the U.S. government had a yearly quota of 65,000 H-1B work visas.  The U.S. Gross Domestic Product ("GDP") for that year was $11 trillion.   The yearly quota of H-1B visas was then tripled to 195,000 for the next few years, until it returned to 65,000 visas in 2004.  Yet, the U.S. GDP for 2004 stood at $12.39 trillion, a 12.6% increase since 1999.  The H-1B visa program had not been allowed to continue to grow along with the U.S. economy.  Even in light of what many call the Great Recession, the U.S. economy continues to grow overall.  Yet, the H-1B program has not continued to develop to adapt to such growth.  In 2005, another 20,000 visas were added to the H-1B program, which were reserved for individuals with an advanced degree from a U.S. institution of high education.  However, this did little to mitigate the massive 67% drop in visas allocation the prior year. 

It is essential that the U.S. expand its H-1B program if it wishes to continue its economic dominance.  Let's use a hypothetical to illustrate the point. "Company W" is a U.S. medium sized company that employs about a thousand U.S. workers. Its R&D department is working on the "next big thing", a product that will revolutionize how we do things or how live our lives. Think of such products as the iPhone, Facebook or the electric lightbulb. With this product Company W will grow 20 times its current size and will create thousands of more jobs. Company W is halfway in its timetable to create a prototype of its  product, test it, make a final product and then finally market it. It is still many years away from finishing the process. However, the executives of Company W have become aware that there are three foreign students at one of America's top universities, "X", "Y" and "Z", who on their own are working on developing a similar product. However, since their current immigration status is expiring X, Y and Z must soon return to their respective countries. Company W knows that with the help of X, Y, and Z, it can cut its timetable for its product by half, thereby mass-producing and marketing it years ahead of schedule. However, if the executives of Company W came to consult with us about the possibility of petitioning X, Y and Z for H-1B work visas, our answer would be that it is currently not possible. The quota of H-1B visas has been exhausted for the current fiscal year. Therefore, Company W could only employ X, Y and Z in H-1B status in the United States beginnning October 1, 2013. Of course, depending on the facts, there could also be other means of employing X, Y, and Z. However, without other facts, H-1B would be the only viable option.    October 1, 2013 is too long to wait for Company W. To do so, would be to lose one year in their path to develop their big product. Furthermore, Company W would run the risk that some foreign company in China or India would hire X, Y and Z and develop the product before Company W can, thereby making years of R&D obsolete and wasting millions of dollars invested. Such a decision, could bankrupt the company. In order to avoid this, Company W might decide to relocate its operation to another country thereby laying off nearly all of their thousand U.S. workers and extinguishing the future possibility of hiring thousands of U.S. workers.

The case of Company W happens in real life. In 2007, Microsoft opened an office in Vancouver, Canada because it was unable to petition in the United States the necessary amount of foreign programmers for its projects. The current state of U.S. immigration law is forcing companies to consider outsourcing in order to remain competitive in the world market.  This, in turn, leads to massive layoffs in the United States.   Without comprehensive immigration reform, the layoffs will continue, further affecting the U.S. economy and risking the possibility that the United States could cede its dominance in innovation to a country like China.   

The U.S. federal government must get serious about immigration reform.  The Obama Administration implemented Deferred Action for Childhood Arrivals (DACA) several months ago, which is aimed at providing temporary relief to a little over one million undocumented immigrants.  However, DACA is not immigration reform.  As was stated in the September 5, 2012 post on this blog, entitled "The Future of Immigration Reform":

Immigration reform would strengthen our nation's economy and put it in a better position to compete globally.  DACA does neither. While DACA provides protection from the fear of being removed from the country and in most cases can lead to work authorization, it does little to change a person's life. DACA, itself, does not lead to permanent residence. It is simply a temporary measure that provides a benefit that can disappear at any time. A person cannot plan his future based on DACA's instability. Likewise, DACA does little to attract and retain foreign talent.  

The Obama Administration must look beyond DACA in its second term in order the reform the immigration system in the United States.  However, the Obama Administration is unable to do so on its own.  It needs the cooperation of the U.S. Congress. 

There are several things that the Obama Administration and the U.S. Congress can do to fix our immigration system.  First, replace DACA with a permanent system that provides stability for those that would apply for it.  One option is the DREAM Act.  The Obama Administration and Congress last pushed for the approval of the DREAM Act during a lameduck seesion two years ago when other more pressing issues were on the agenda.  Congress is now about to begin another lameduck session where it will tackle the so-called "fiscal cliff", a set of draconian measures set to go into effect next year that has the high probability of crippling the U.S. economy.  This is not the time to present any major immigration legislation, such as the DREAM Act.  A more optimal moment would be early next year when Congress will begin a brand-new session. 

Another fix to the immigration system would be to increase the quota of H-1B professional work visas so as to reflect the needs of U.S. companies, large and small.  This will allow for innovation to continue to grow in the U.S., which in turn will lead to greater job creation domestically. 

The U.S. government should also shorten the wait-times for persons who wish to immigrate to the United States.  Currently, some of these cases are taking more the twenty years to process.   The long delays cause confidence in the system to erode, thus contributing to the undocumented immigrant phenomenon.  There is currently a bill in Congress, entitled the Fairness for High-Skilled Immigrants Act (H.R. 3012) that if approved would, in fact, shorten the wait time for many employment-based and family-based immigration cases.  It is doubtful that the bill could be approved before the end of the year.  However, Congress has the option to reintroduce the bill and enact it next year. 

If President Obama and congressional leaders are serious about wanting to ensure the U.S. economy remains dominant in the decades to come, they should tackle comprehensive immigration reform in the next two years.

The above information is provided for information purposes. It should not be construed as legal advice or the formation of an attorney/client relationship

The Citizen's Almanac Part I

This past Monday, September 17th, was the 225th anniversary of the signing of the U.S. Constitution. A federal law, passed in 2004, designates September 17th as "Constitution Day and Citizenship Day". The purpose of the law, which can be found in 36 USC § 106, is to "commemorate the formation and signing on September 17, 1787, of the Constitution and recognize all who, by coming of age or by naturalization, have become citizens."   The U.S. Citizenship and Immigration Services (USCIS) commemorates the day by hosting a variety of naturalization ceremonies across the country.  However, the ceremonies are not the only way that USCIS celebrates the spirit of that day, nor is it limited to that day.

One of the best ways that USCIS tries to promote the importance of U.S. citizenship is by giving every new citizen a publication entitled, The Citizen's Almanac.   Many new citizens never even open the book to look  at it.   Natural-born citizens do not even know of its existence.   It is unfortunate because all citizens would benefit from reading it.  "The Citizen's Almanac" published in 2007 by the Office of Citizenship of USCIS, includes a variety of information on the U.S., such as "Patriotic Anthems and Symbols of the United States", "Fundamental Documents of American Documents" and "Landmark Decisions of the U.S. Supreme Court".

One of the most important discussions in "The Citizen's Almanac" is that regarding the "inalienable rights" found in the Declaration of Independence.   The Declaration of Independence was an announcement to the world that the United States was independent.  It also provided the political philosophy that it would put into practice.  These are the "inalienable rights" discussed in the Declaration of Independence.  According to the Declaration of Independence, "All men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness" (emphasis added).   

Unlike the rights found in the Bill of Rights of the U.S. Constitution, the rights in the Declaration of Independence are not actionable. In other words, a person cannot sue the government claiming that the government is violating his rights under the Declaration of Independence.  However, studying these rights is as important, if not more important, than anything else in the comprehension of why the United States was created and in the understanding of many of the today's debates.  

Merriam-Webster Dictionary defines "inalienable" to mean "incapable of being alienated, surrendered or transferred."   Therefore, an inalienable right is one that no one, not even the government, can take from someone else.  The Declaration of Independence states that we have the inalienable right of "life".  However, the question of how far this right extends has created much debate in our country.  Does the right to life mean that the state and federal governments should never execute a person, no matter what crime that person may have committed?  Is abortion a violation of the right to life? 

Another inalienable right is the right of "liberty".  Can a person who commits a crime and is incarcerated, ever reclaim his liberty, or does the government have a right in certain cases to keep that person imprisoned for the rest of his life?  Does a person have the right of liberty to create a cartoon or movie that will knowingly offend others and lead to violence and even death?   Can a woman and her doctor terminate the life of an unborn child under the right of liberty?  Does a person have the right of liberty to hire whomever he wishes, regardless of immigration status?

Finally, the Declaration of Independence announced the inalienable right to the "pursuit of happiness".  This is probably the most debated of the inalienable rights.  Is the right related more to the pursuit or to the happiness?  If it is the former, then our country should focus on equal opportunity for all.  If it is the latter,  then national policy should aim at equal results for everyone.  Many argue that the pursuit of happiness means that our country should support small businesses through low taxes and limited regulations.  Others believe that the pursuit of happiness requires the distribution of wealth from the affluent to the disadvantaged.  

These are very important discussions that have existed and continue to permeate through our society. To further comprehend the arguments, it is essential to recognize their origin-- The Declaration of Independence.  Part of that study can be The Citizen's Almanac.   It is available for purchase from U.S. Government Printing Office at bookstore.gpo.gov.

 The above information is provided for information purposes. It should not be construed as legal advice or the formation of an attorney/client relationship.

The Future of Immigration Reform

Election season is a great time to discuss current immigration law and the possibility of immigration reform.  In the past few years there has been a lot of talk about immigration reform, but very little action. Some may confuse DACA (Deferred Action for Childhood Arrivals) with immigration reform. It is not immigration reform. Immigration reform would transform people's lives forever. Immigration reform would strengthen our nation's economy and put it in a better position to compete globally.

DACA does neither.  While DACA provides protection from the fear of being removed from the country and in most cases can lead to work authorization, it does little to change a person's life. DACA, itself, does not lead to permanent residence. It is simply a temporary measure that provides a benefit that can disappear at any time. A person cannot plan his future based on DACA's instability. Likewise, DACA does little to attract and retain foreign talent. 

Many times in discussions of international commerce a large focus has been on the exchange of goods and services. Yet, the core of commerce is made up of workers, executives and investors. Without them, there would be no goods and services to power the national economy. In order for the United States to remain the largest economy in the world it must have the best workers, the brightest professionals and the wealthiest investors. This can only be done with more compatible immigration laws and policies. What is needed is immigration reform. 

Unfortunately, neither political party has actively pursued immigration reform since the Comprehensive Immigration Reform Act of 2007 was drawn up and presented in the U.S. Congress with the help and support of senators of both parties and President Bush.  That proposal failed to receive enough votes to be approved. Afterwards, members of both parties have used the issue of immigration for political purposes. The Democrats controlled both houses of Congress and the presidency for two years, but waited until the last month of the 111th Congress, one of the busiest lame-duck sessions in U.S. history, to finally push for some type of immigration reform when they put the DREAM Act up for a vote. Yet, the urgency of other issues, such as the avoidance of an automatic massive tax hike, the ratification of the New START treaty, and the approval of a 9/11 healthcare bill, made the proper consideration of the DREAM Act unrealistic. Its presentation was made solely for political theatrics. The Republicans, on the other hand, have opted for an anti-immigration posture during most the last few years. 

However, there is hope for immigration reform. The implementation of DACA could signal that a second Obama presidential term would finally push for immigration reform. Republican nominee Mitt Romney has stated on several occasions during the presidential campaign that if he is president he would "staple a green card to the diploma of someone who gets an advanced degree in America". Of course, the Obama move and the Romney assertion may simply be attempts to garner additional votes in this election and might not be indicative of future presidential priorities. On the other hand, it may be a sign that both men understand that long-term national economic prosperity is tied to reforming our immigration laws to make the U.S. more attractive to the world's best and brightest. 

There is a possibility that we may not need to wait for next year to see some reforming of our nation's immigration laws. There is currently a bill in Congress, entitled the Fairness for High-Skilled Immigrants Act (H.R. 3012) that if approved would shorten the wait time for many employment-based and family-based immigration cases. Currently, some of these cases are taking over twenty years to be granted. The bill has been approved in the House of Representatives and if currently pending in the Senate. If ratified and signed by the president, it could become law before the end of the year.

The future of immigration reform is bright.  For the sake of our nation and its future, it has to be bright.  

The above information is provided for information purposes. It should not be construed as legal advice or the formation of an attorney/client relationship

DACA, DREAM Act and the hope of tomorrow

This past Wednesday, August 15th, signaled a new chapter for over a million individuals in our country. Beginning on that day they were able to apply for Deferred Action, for which if their cases are approved, will give them temporary status in this country and the chance to obtain employment authorization. Many will then exercise their right to seek an advanced parole in order to travel outside of the country.

August 15 was certainly a good day for those that the media call "DREAMers"-- undocumented individuals between the age of 15 and 30, who entered the U.S. before their 16th birthday. Unfortunately, "DREAMer" is a misleading term created by news organizations, who feel the incessant need to lasso together groups of people with catchy labels, and a disregard for facts. The term derives from the DREAM Act, a congressional proposal that has been unsuccessful in different versions during the past decade. Most of the versions of the DREAM Act provide temporary residency to those who attend college or join the Armed Forces and permanent residency if they finish a college program or continue in the Armed Forces. The DREAM Act, if it ever were approved, would be a permanent federal law. In contrast, Deferred Action for Childhood Arrivals (DACA) is not a law and is simply a temporary measure. It does not provide any sort of legal residency nor lead to it. DACA does not require that the person attend college, much less graduate from it, in order to qualify. In light of DACA's distinct differences with the DREAM Act, the term "DREAMers" to describe those eligible for DACA is an unfortunate and improper one.

Another difference between the DREAM Act and DACA is that some versions of the former extended eligibility to those up to 35 years old. DACA, on the other hand, requires that the applicant not have been older than 30 years old on June 15, 2012. I am reminded of the story of "Rodolfo".

"Rodolfo" graduated summa cum laude from high school. He went on to college where he excelled in his classes. His future would look bright except for the fact that he is undocumented. His parents brought him to this country illegally when he was just two years old. It was not his choice to come to this country. It was not his decision to be an illegal alien. But, these are the circumstances that he finds himself in. "Rodolfo" graduated college, once again with honors. It took him longer to finish than his classmates. The international student tuition that he had to pay limited the number of classes that he could take at one time. But, he found a way to continue his studies and persevere until he reached his goal--graduation. After college "Rodolfo" dreamed of finally putting his knowledge to work and finding lawful employment. However, he continues to bYe imprisoned by his reality-- he is an undocumented immigrant. On August 15, tears filled "Rodolfo's" eyes. They were not tears of joy. They were of continued frustration. "Rodolfo" turned 31 years old on May 16, 2012, one month too early to be eligible to apply for DACA. There will not be employment authorization for "Rodolfo" under DACA. He will have to continue to wait. Shouldn't a person of "Rodolfo's" caliber and education achievement have a chance to succeed in our country? For "Rodolfo" and others like him, DACA is too little, too late.

The above information is provided for information purposes. It should not be construed as legal advice or the formation of an attorney/client relationship.

Caveat Advena

Three days ago I wrote about two groups of extremist attorneys. One group, what I termed the "extreme pessimists", was advising that individuals avoid applying for Deferred Action at all costs. The other group, who I called the “extreme optimists", advocated mass applications without regard for qualifications or consequences. In that post I explained how I felt it was unwise to follow the advice of either group.


Today, I wish to discuss another group. Their position is far more dangerous than the extreme pessimists or the extreme optimists. Let us call them the "caveat advenas." You have probably heard of the phrase, caveat emptor. It is Latin for "let the buyer beware." The phrase is a warning to buyers to be cautious about the quality of merchandise that they are buying. In U.S. property law, caveat emptor tends to apply to the sale of a residential home where the homeowner is selling to another buyer. The homeowner-seller is generally not liable to the new buyer for defects on the property so long as the seller does not actively conceal latent defects or make material misrepresentations about the property. In other words, the buyer is warned that he has virtually no protection against a bad purchase.


I present to you another phrase, caveat advena- "Let the immigrant beware". The group that I mention here is advising against anyone getting any sort of advisement as to their rights to apply for Deferred Action. What would they have the individual do who wonders if he qualifies for Deferred Action? Apply blindly, as the extreme optimists would advise? Avoid Deferred Action as the extreme pessimists would suggest? The decision is irrelevant to the caveat advenas, so long as the decision is made without consulting about one's rights.

The idea sounds as absurd to me as it probably does to you. Is obtaining information bad? Should consulting about one's rights be discouraged? The idea goes contrary to everything that this country stands for. The preamble of the Declaration of Independence includes the word "rights" 5 times in a span of just 202 words. The U.S. Constitution was first amended in 1791 to include a Bill of Rights. Anyone who is arrested is informed of his rights- he has a right against self-incrimination and he has a right to counsel. The right to counsel in criminal cases is so paramount that if the individual is unable to afford an attorney, he has a right to have one appointed for him at no cost to him. As you can see, the ability to know one's rights is a centerpiece of our republic.


The caveat advenas do not want immigrants to know their rights.  They discourage potential Deferred Action applicants from becoming informed about their particular situation.  At this point, you are probably thinking that I am describing some group of individuals who stand on the street corner proclaiming insanely that immigrants are the cause of problems ranging from unemployment to the summers becoming increasingly hotter.  It would be easier if that was who I was speaking of, because then we could spot the mad man in the crowd.  He would be the one with the dirty clothes, unkempt hair and long beard waving his arms frantically in the air as he proclaims that the world is going to end. 


The fact is that many of the caveat advenas are indistinguishable from you and I.  Some were immigrants and others children of immigrants. Some of them are even members of Congress.  Most of them claim to be in favor of immigrant rights.  Yet, none of them want immigrants to know their rights. Let the immigrant beware.

What would cause them to claim to be on the side of immigrants, while advocating that immigrants wallow in the waters of ignorance and risk getting caught in the cataracts of failure?

What could be their rationale for causing harm the very people they say they want to help?  I do not know.  The answer must dwell in the deepest reaches of their minds, where malevolent thoughts find fertile ground.


The U.S. Citizenship and Immigration Services (USCIS), fortunately does not share the sinistrous view of the caveat advenas.  On its website, USCIS states, “Not sure what immigration benefit to apply for or which USCIS forms you need to file? Then you may need immigration legal advice.” 


Finally, I write these words after meeting a lady who came into our office in tears.  Her immigrant husband is detained and runs the risk of being removed from the country, for filing for the wrong benefit at the wrong time.   They did not seek legal advice before applying.   They went into the process blindly as the caveat advenas would have them do.  Now their dreams of being together forever have turned into a nightmare of separation and incarceration.

The immigrant should not have to beware. Unlike in the case of caveat emptor, the immigrant does have protection against a bad process. He, along with anyone else on this land, has rights and one of those rights is the right to seek counsel.

The above information is provided for information purposes.  It should be construed as legal advice or the formation of an attorney/client relationship.

Deferred Action: Two Extremes and the Real Way

Today’s post involves Deferred Action.   On June 15, 2012 the U.S. Department of Homeland Security (not the White House or President Obama, as has been erroneously reported) announced that undocumented immigrants (or illegal aliens), between 15-30 years could apply for a temporary legal status valid for two years if they could show that they entered the U.S. before turning 16 years of age, have resided in the U.S. for at least the last five years since June 15, 2012, pass a background check, and have a high school diploma/GED/honorable discharge from the U.S. military.

This post is not about the requirements for Deferred Action.  You can find out about the requirements on our facebook page, facebook.com/calderinoliva.  Rather, I want to discuss the reaction that I have heard from some immigration attorneys, who are in what I would consider two extremes. 

The first extreme is a group of attorneys that are advising that individuals not apply for Deferred Action.  Their rationale can be summed up as such:  A person is in this country illegally and therefore is removable (or deportable).  However, this person is cloaked by the millions of illegal aliens in the country.  The U.S. government will never find him, unless he does something that causes himself to be identified, such as get arrested or file for an immigration benefit.   This group of attorneys argues that by applying for Deferred Action, the individual is identifying himself to the government.  Although, Deferred Action protects the individual from removal, it only provides protection while the person is in status.  Since Deferred Action is only valid for two years and there is no guarantee that the government will extend the status for a longer period of time, then these attorneys allege that after the two years have expired the individual runs the high risk of being removed from the country.

I do not agree with this argument.

There is another group that is in the other extreme.  They advocate that anyone and everyone who remotely appears that they could qualify should apply for Deferred Action.   Their rationale is that the benefits of Deferred Action are so great that anyone who is an undocumented immigrant who does not apply is a fool. 

I do not agree with this argument either.

The first group is the extreme pessimists, while the second is the extreme optimists.  The proper place to be is with a third group, the realists.  You must be a realist to get ahead in life.   Realize the obstacles and dangers, yet seize opportunities when they present themselves.  That is what makes life worth living!

If the guidance of the first group were to be followed then nothing would get done.   Fear of what could happen would freeze the individual in a permanent state of inertia.  The truth is that if a person is given status under Deferred Action, that status is valid for two years. During those two years, he will have many of the same rights that a Legal Permanent Resident has.  He can work with a work permit, he can travel with a travel permit, and while remaining in valid status, he cannot be removed from the country.  After the two years have elapse, he might have a right to renew his status for an additional two years.  There are also other possibilities.  Some of the Deferred Action applicants can become Permanent Residents in the future under family petitions filed over a decade ago under INA 245(i). Others can obtain their residency if their relevant waiver is granted.  There is also the ever-present possibility of immigration reform.  The DREAM Act proposal has existed for nearly a decade in one form or another.  The STARS Act was presented in Congress this year and there have been rumors of the possibility that a so-called "DREAM Act 2.0" bill could be introduced next year, which might have a better chance of enactment than the DREAM Act.  Hence, there is a lot of hope for Deferred Action applicants.  I remind the reader, it is okay to hope for the "what if", so long as you recognize the possibility of "what if not".   That is what it is to be a realist.

The extreme optimists are also wrong.  They ask that you conveniently ignore the "what if not".   Perhaps that is acceptable to the irresponsible lawyer who only charges the client for representation regardless of whether such representation is to the benefit of the client.  But, it is not acceptable for the individual who has worked hard most of his life for the opportunity to be on the right side of the law.   And it definitely does not work for the attorney who takes pride in the integrity, competence and honesty of his practice.    Many will qualify for Deferred Action.  However, not everyone who hopes to obtain Deferred Action, will, in fact, be granted.   That is the realist perspective.   The extreme optimists, on the other hand, will take advantage of the hopes of many, to enrich themselves selfishly and immorally.  Do not fall into their trap.     

So there you have it, two schools of thought that can either get you into trouble or make you miss all of the fun.   Stay away from them.  You're better off simply following the quote from Theodore Roosevelt-- "Keep your eyes on the stars but keep your feet on the ground."


None of the above information should be construed as legal advice or the formation of an attorney/client relationship.

Welcome to Mundus Migrationis

Welcome to the first post of the Mundus Migrationis blog.  It is a blog that furthers the vision of Calderin & Oliva, P.A.  The firm's Latin motto is Advocatio pro mundo migrationis (Attorneys for a world of immigration).   We live in a world of immigration. This world or mundus migrationis affects national and global politics, economics, and laws.  In turn, politics, economics and laws also influence and shape the mundus migrationis.  The goal of this blog is to discuss these forces and, in the process, create some clarity.

Before I go on, there is a small matter of grammar that must be clarified.  You may have noticed that there is discrepancy between the title of the blog and the firm motto.  The former uses the word, mundus and the latter the word mundo.  There is a reason for this and it has to do with Latin grammar.  In Latin, there are several cases for each word, depending on where the word is in a sentence.  The nominative case (subject word) for the Latin word for world is mundus.  Therefore, it is Mundus Migrationis.  However, when the word is placed after a preposition such as, in this case, pro or "for", then the case changes to the dative.  The dative case for mundus is mundo, as in pro mundo migrationis.  That is the reason for the discrepancy.   Of course, I do not claim to be an expert in Latin grammar and  some of the greatest minds in history have published works that contain incorrect Latin.  However, we, at Calderin & Oliva, continue to strive to reach the goal of being correct and complete in all that we do. 

I invite you to join us here and to comment when you like.  The world of immigration is extensive and fascinating.  There should be plenty of opportunities to discuss some interesting issues on this blog.