A Conversation with Francis Cissna (USCIS)

Immigration Newsmaker: A Conversation with Director of USCIS Francis Cissna

By Francis Cissna and Jessica M. Vaughan on August 16, 2018
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Francis Cissna, Director of U.S. Citizenship and Immigration Services (USCIS), was featured in an Immigration Newsmaker conversation hosted by the Center for Immigration Studies on Wednesday, August 15, at 9:30 a.m. at the National Press Club.

Cissna leads the agency which “administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.” On an average day, the 19,000 workers at USCIS welcome nearly 2,000 new citizens at naturalization ceremonies, grant lawful permanent residence to approximately 2,100 people, issue approximately 7,000 new and replacement Green Cards, and verify the employment eligibility of more than 80,000 new hires through E-Verify.

Date: Wednesday, August 15, 2018, at 9:30 a.m.

Location: National Press Club, 529 14th St, NW, 13th Floor, Washington, D.C.

Introduction and Moderator

Jessica M. Vaughan
Director of Policy Studies, Center for Immigration Studies

Participant

Francis Cissna
Director, U.S. Citizenship and Immigration Services (USCIS)

JESSICA M. VAUGHAN: Good morning. Thank you for coming this morning to our third newsmaker interview. This morning I’ll be speaking with Francis Cissna, who is the director of U.S. Citizenship and Immigration Services. And we’ve got lots and lots of questions this morning, and we’re so glad you’re here.
My colleague Marguerite Telford is now passing out cards for you to write a question if you have one. We’ll have a section at the end for those questions to be read. I apologize in advance that we won’t have time to get to everyone’s questions, but I’ll do my best to find some of your questions that are of general interest and that we can ask Director Cissna. I’m going to speak for about 45 minutes for our conversation and then move to your questions.

So I’m glad you’re all here today and I’m looking forward to this. So please join me in welcoming Francis Cissna. (Applause.)

I’m Jessica Vaughan. I’m director of policy studies at the Center for Immigration Studies.

Director Cissna, you’ve been with – involved in the immigration issue for a long time, and I think everyone is interested in hearing how you got involved in the immigration issue. What was your path to becoming director of U.S. Citizenship and Immigration Services?

FRANCIS CISSNA: Well, it took a long time. I think I first began working in immigration back in the mid-’90s, when I was at a law firm and I represented – did a couple pro bono asylum cases back in the mid-’90s. And then the law firm I was at from time to time would pick up immigration cases from clients that had other matters before the firm. So in that way I slowly but surely began acquiring experience – rather, expertise in the field. Eventually I left the practice of law and entered the Foreign Service in 1999. And there, during the time that I was a consular officer overseas, I truly learned the field because –

MS. VAUGHAN: Where did you serve?

MR. CISSNA: I was temporarily assigned to Haiti for about a couple months, but then my real assignment was – about three years I was at – I was the visa section chief in Stockholm, in Sweden. And there, you know, I interviewed people every day. We handled every conceivable – as is the case with any consulate, every conceivable type of visa. So in that position, that’s where I really learned.

And it was also while I was at the embassy overseas, I was there before, during, and after 9/11. So all of that changed everything in the immigration field, as you well know, and all of us who were, you know – particularly those of us who are overseas in the State Department, because of all the different aspects of – visa-related aspects to the 9/11 atrocity, we were of course very much interested in that and affected by it. And I was, of course, like everybody else.
After that, I left the Foreign Service in 2003. I returned to the United States. I then went to a law firm in Virginia for a couple of years where I practiced only immigration law. And then it was – it was a larger firm and it was a part of it that did immigration law, so I did immigration law there.
And then, in –

MS. VAUGHAN: So you’ve seen it from both ends.

MR. CISSNA: Yeah, I’ve been in the State Department. I’ve been at private law firms. And then, of course, in 2005 I came to the then – the new DHS. I came to USCIS at the end of 2005 as an attorney in the counsel’s office. And – (coughs) – excuse me – I have been at DHS ever since, since 2005. So that’s the path –

MS. VAUGHAN: With a brief time on Capitol Hill, so you’ve seen both ends of that as well.

MR. CISSNA: Yes, I saw that. You’re right, Jessica. That’s right. I did – that was towards the end. In 2015, I was detailed to the Senate Judiciary Committee and I spent two years as DHS detailee to the committee. And then I returned to DHS – to DHS headquarters, where I’ve been working for the last 10 years, on – in early 2017. So, yeah, I’ve seen it from all different angles: the private bar; you know, the – working at one agency, the other agency; I’ve been a lawyer; I’ve been a policy person. I’ve been all over the place.

MS. VAUGHAN: Well, that’s got to be helpful to you in your job now. USCIS is the agency that processes all of the – most of the immigration benefits with the exception of some of the temporary visas, short-term visas that are issued by the State Department, and handles most of the initial petitions. I mean, things have changed a lot since we were Foreign Service officers. When I was a consular officer, we routinely processed the initial step in the immigration process, the petition that people submit. Those were often done at consulates overseas. Now most of them I think are done by USCIS.

MR. CISSNA: Mmm hmm.

MS. VAUGHAN: And as Americans we cherish our tradition of immigration, and you’re now really the guardian of that legal immigration system.

MR. CISSNA: Mmm hmm.

MS. VAUGHAN: What is your vision? You know this issue so well? And you hit the ground running when you took your job. We’ve seen a lot of action at USCIS. Can you give us an idea of what your vision is for the agency?

MR. CISSNA: Well, I think my vision for the agency is best expressed in the much-misunderstood mission statement that I came out with very shortly after coming into office. In fact, that was perhaps the first thing I did, first thing I wanted to do, was redefine/clarify what the purpose of the agency is, and I looked at the old mission statement and I concluded that it didn’t really do that. And I started from scratch. So the entire mission statement, not just the nation of immigrants but the whole thing I put aside. I started from scratch. I wanted to think of how would – if we had to describe what the agency does and what its mission is and what its relationship is with the people that we – whose applications we process is, how would we say that?

And the mission statement that we have now I think does that. I don’t remember it verbatim, but I do know that – I do recall that basically what we say in the mission statement and what my vision for the agency is is USCIS, its job, its mission, is to adjudicate. That is the service that we provide. We adjudicate. We adjudicate petitions. We adjudicate applications and requests for immigration benefits. That’s what we do. And we should be doing this lawfully, so in compliance with the will of Congress, because this mission that we have to adjudicate is something conferred upon us by the people acting through Congress, through the law, to carry out this function, to administer the legal immigration program. So we must act lawfully.

We must act efficiently and fairly. The last one is important, I think. I believe I did include that in the mission statement as well because I don’t think – I have always believed this just as a – as a citizen, not just as an immigration professional – that all immigration benefit applications or petitions or requests of whatever they are should be treated the same. Some rich guy can’t come in and get a special, you know, deal on an – you know, a special courtesy or favor. You know, somebody’s connected. Everybody should be treated the same. Everybody should get the same level of quality handling of their case or matter. So what we do should be fair.

And the reason I spelled those things out in the mission statement was to signal to the public, the people whose applications and petitions and requests that we’re processing and handling, that that’s what they can expect from us. That’s what I would want if I were filing a petition. I would want to know that the government agency that I’m dealing with is acting lawfully – in fact, many immigrants come here for that very reason, because we are a nation of law, and they respect that and they want that – they want us to fulfill that – but also that we’re treating people fairly. And that’s why I put that in there.

Related to that, I think, is the issue of who do we serve. Who does the agency serve? And I think there’s been misunderstanding of that over the years. I think it’s a natural – people kind of naturally fall into the belief that the individuals that we serve are the people that we interact with every day when we take applications or petitions. I don’t think we serve them. We serve the people. We serve the American people, who have conferred upon the agency a special mission through the Congress to administer these immigration laws. We owe the people that we interact with, the people who are applying to us, the people who are – the companies and the people that are applying to us and seeking benefits, we owe them every respect and courtesy, and we owe them the things I discussed before: fair, lawful, and efficient handling of their cases.

MS. VAUGHAN: Predictable.

MR. CISSNA: Yes. But we serve the people. And that is what I tried to and what I have been telling the employees of USCIS in all of the many town halls that I’ve had in the past eight or nine months, however long it’s been since last October. I always reinforce this, and – because I think it’s an important point.

MS. VAUGHAN: I’m glad to hear the word “adjudications” again because us old timers remember when that was the name of the bureau within the Immigration and Naturalization Service, the old INS, that handled this work. Before that it was called Examinations, then it became Adjudications, and then it became Services. And I think it is important to remember what this is all about.

Now, in recent years the agency had developed a reputation as being susceptible to cronyism, vulnerable to fraud, and really the image that was evoked was a giant rubber stamp where there was – much of the emphasis was on the quantity of applications that would be adjudicated rather than the quality of the adjudication, the right decision being made. How in particular have – and what things have you been able to do so far to try to reverse that reputation and, in fact, result?

MR. CISSNA: Well, first I would say I don’t think that reputation was merited, even in the past. The adjudicators who work at the agency are all civil servants. They’re not political hacks. They follow the law, and they adjudicate whatever matter is before them in an honest and correct fashion.

I think, though, that there has been a misunderstanding of the way the agency does its business. And to that end I have tried to – I have initiated some, I guess, changes in understanding of the way we do our work and certain other reforms to try to correct that.

For example, we – for a long time I think people have lost sight of the fact that USCIS is, like it or not, part of a cycle of – that involves our other sister components in immigration, both ICE and CBP, and the State Department to a certain extent. We’re part of that family of agencies that together – the Department of Labor, too – adjudicate/handle/administer the lawful immigration program. To that end the USCIS has a role in enforcement, too. We don’t just adjudicate petitions. We don’t just adjudicate benefit applications or requests. If someone is not eligible for a benefit and they appear before us and they’re denied and they have no status, they should receive a notice to appear. That is the correct and natural consequence, and is the – it is the appropriate place of CIS to fulfill that part – its role in the – in the enforcement process. We are –

MS. VAUGHAN: That’s why the officers have that authority under the law.

MR. CISSNA: Well, of course they do. And the – for whatever reason, that authority has not really been fully exercised. Well, now it will be. And that is appropriate and correct. It is – it is proper for the agency to do its part in the enforcement cycle.

There are other things. I mean, we’re talking about, you know, just generally restoring the integrity of the immigration system. And it’s kind of a bigger issue, but it does affect everything we do, that I want – as I said earlier, I want the agency to always act lawfully, to always act within the law, more than anything. That’s why I put this book here. This is – this is the most important thing we have, the law. And everything we do at the agency should be guided by that, not by, you know, any other thing. That’s our Bible.
So if the way that we’re administering the lawful immigration programs does not comport with that, with the law, then we’re not doing our mission. And all the different reforms that we’re going to talk about in our conversation, everything – everything, if you understand it through the filter of that – the law – you will understand why we’re doing things. Things that may look difficult or controversial because such-and-such benefit is being looked at with greater scrutiny or the other, it’s not – we’re not doing that for any other reason than to comport the actions of our agency with the law. That’s what it comes down to.

MS. VAUGHAN: Well, some of the special interests that benefit from relatively lenient rules on adjudications have said that the changes that you’re making have stifled their ability to, for example, bring in skilled workers that they say our country needs and made it hard for people coming through the legal process, just how Americans want immigration to happen legally, and that the things that you’re doing are getting in the way of that, things like requiring interviews or additional evidence to support an application. Do you think that’s fair?

MR. CISSNA: No. I mean, I think – well, there’s two points. First, what these employers and these organizations are saying, I want to address the merit of their – of their – of their complaint. And then I want to talk about what we are doing.
First, with respect to what they’re saying, I don’t disagree. I think that it is – it is almost certainly the case that employers who – I mean, it – I was an undergraduate at MIT so I’m a STEM guy and I know what these employers want and what they’re looking for. I remember, they would come on campus, they interview all these people, you know, they would interview 50 or 60 people, they would identify 20 or 30 that they want to offer jobs to. Many of those, especially at a place like MIT, are foreign nationals; it was the case in my day, it’s the case now. And I can totally understand if an employer has identified an individual person that they interviewed on campus and they want to give a job to that person and that person then maybe they do a PT, you know, so they can start working for them, but then they can’t get an H-1B because the program is oversubscribed, the cap is not sufficiently high to guarantee that person getting a work visa. I can completely understand how frustrating that would be to the employer.

And I think, you know, if Congress wants to address that problem – because that’s not something really we can do in the executive branch, I can’t change the criteria for getting an H-1B, I can’t change the cap, you know, it is what it is – but if Congress were to ever touch that, I would suggest that whatever they do it be done in such a way that that problem is addressed, that specific problem of employers not being able to get the highly qualified, highly educated people, the specific people that they want –
MS. VAUGHAN: The specific people.
MR. CISSNA: – the specific person that they want for that job. And there are a number of bills out there that kind of get at this. But the main point would be we need to – whatever we do on that point, it should be directed towards ensuring that the truly, truly most qualified people that we need – that we need – in this country get the visas, whatever the limited number of visas is. That should be the goal. And whatever legislative approach is taken to address that problem should be well-calibrated to address that problem.
At the same time, clearly, any reforms, anything, any touching of that program should be mindful of the effects, the possible adverse effects on American workers. A simple fix, for example, just banning the ability of employers to fire American workers and replace them with H-1Bs, it should not be permitted.

MS. VAUGHAN: Right. And that has actually happened.

MR. CISSNA: Of course it’s happened.

MS. VAUGHAN: That’s not theoretical.

MR. CISSNA: Well, we all know it’s happened. And it’s – I’m not talking about non-displacement, I’m talking replacement. I’m aware of the provisions in 212 about displacement and the window and all, but this – I’m talking about prohibiting replacement of American workers, intentional replacement of American workers with foreign workers. Things like that need to be taken into account. We need to look at the wages, all these issues.

But I do believe there is a way, there is a sensible way to reform programs like that to ensure that these employers can get the workers that they truly need. And I don’t disagree, I mean, I’ve seen it, I know and it’s hard. But at the same time, we do need to be mindful of the adverse effects on the American labor market and particularly tech workers these days. So I am not unsympathetic to their complaints.

I would say more generally on the things we’re doing on H-1Bs and all that, the worker visas, we haven’t really done that much yet. I mean, it’s – you know, the types of things that we’ve talked about at the agency in the past year, some of them even before I came there, have been relatively small things, you know, asking adjudicators to look more carefully at whether the wages that are being proffered to the workers correspond to the skill level of the job.

MS. VAUGHAN: That seems like common sense.

MR. CISSNA: That is a completely rational thing to do. And if it requires more evidence to substantiate the connection between the proffered wage and the – and the skill level, so be it, let that evidence be produced. And there is absolutely nothing malevolent about that. That is a normal, rational thing for the agency to ask for to improve the integrity of that particular visa program.

So, you know, I just – you know, the idea that we are intentionally, mischievously, impishly, malevolently trying to build an invisible wall on purpose because we don’t want foreign workers to come is false. Everything that we do, again, is guided by the law – the law. That’s all we’re doing. Everything is guided by the law. There’s no, you know, nefarious intent or design behind the things that we do.

MS. VAUGHAN: Isn’t it also guided by experience in that there really are employers who are trying to abuse our immigration programs and hiring people for a different purpose than they’re saying or at a different wage, or maybe it’s not even a company asking for workers?

MR. CISSNA: No, you’re right, there’s all sorts of fraud and abuse, and not just H-1B, but across all these programs. And that is an eternal problem with administering the immigration system. You’re always going to have people who are going to try to kind of game it and get the benefit, potentially unlawfully, and, of course, we’re mindful of that.

And so to that end, the agency has increased and expanded its program of site visits. So we do have a cadre of officers who will go and visit employment worksites to see if the worker is really there, to see if the business really exists, you know, all these common-sense types of checks that we would make on businesses to see that their petitions are kosher.

We have expanded not just H-1Bs, we’re always – we’re doing religious worker employer site visits, H-1Bs now, intercompany transferee, workplace site visits. Now we’ve expanded to E investor visa, trade investor program site visits, so when someone invests in American enterprise and they come to develop and direct that enterprise, they may even bring over some essential workers, so-called essential workers. We will go visit those places, too. So this is all rational and appropriate. These are – it’s the right thing to do.

Additionally, Jessica, as you – as you indicated, we’re interviewing a whole lot more people now. This is – this comes under not just antifraud, but the president’s general directive to all the immigration entities to just vet and screen people better. So in that – under that umbrella at the agency, as USCIS, we have started interviewing people who are getting green cards based on employment. Before, they didn’t have to be interviewed. We would interview, you know –

MS. VAUGHAN: Which is amazing.

MR. CISSNA: – a lot of – a lot of, you know, marriage-based green card cases and then, you know, some – we always had the authority to interview people whenever we wanted. But as a matter, as a general matter, we would – we would only go after – interview, you know, marriage cases and things like that and, of course, people seeking naturalization. But now we’re interviewing all the people that are getting green cards based on employment. So it is a huge workload, it’s thousands and thousands and thousands of additional cases that we’ll be handling every year. And these are done at the field offices around the country.

And it’s generating results. You know, not everybody is going to get the same interview. You know, we will triage cases. We determine that some cases are going to be more complicated. You know, when I was interviewing cases – and as you probably know when you were in the State Department – you’re standing at the window, you don’t interview everybody the same. Some interviews are short, some interviews are long. It all depends on the facts of the case at hand.
Same with the USCIS interviews for green cards for these people getting employment-based immigrant visas, or rather green cards. Each interview is different, but we’re going to interview them and that’s the point.

MS. VAUGHAN: What about adjustment? If somebody is here as a student and an employer petitions for them for an H-1B and they are able to get one, are those adjustment cases – a change of status I guess it would be in that –

MR. CISSNA: Well, so what I was just talking about was so-called adjustment cases. That means someone who’s here in the country already and is applying for a green card as opposed to somebody who’s overseas and getting the immigrant visa at an embassy.

What Jessica is talking about would be someone who shows up, say as a student, they’re here for X number of years, they get their degree, then they change to a work visa of some sort, maybe an H-1B and then they work at that place for a while.

I guess your question is, are we going to interview them at that point? Well, not yet. I mean, that’s – right now, given the amount of people that we have and the resources that we have, that would be a tall order.

But I don’t see why in the future we wouldn’t consider interviewing somebody at any stage. I mean, it’s kind of remarkable that you could have somebody come to the country, get a student visa – say they come over as a tourist. Then they change to a student visa. Then they study for four years. Then they get a master’s degree. So they’re six years. Then they get an H-1B, and that’s another three years. Then they get another extension and another three. Oh, and I forgot the OPT. There could be OPT in the middle.

MS. VAUGHAN: Optional practical training.

MR. CISSNA: You could have a whole year. Under current regulations, for better or for worse, they can get up to three years if they’re a STEM person. So you could have a person here for a dozen years and we never talk to them.

MS. VAUGHAN: Never laid eyes on them. Never – other than their fingerprints.

MR. CISSNA: No. That could be.

MS. VAUGHAN: Yeah.

MR. CISSNA: And so I don’t think that’s prudent. And that is one of the reasons why – I mean, the – I think the administration is focusing on vetting and screening because you have things like that, where people could be here a long time and they have no physical contact much less an actual interview with an immigration officer. Maybe if they leave and they come back, yeah, they’re interviewed at the border, at the airport. But if – conceivably they could just never leave. They could just be here the whole time.

I don’t think that’s a prudent way to run the immigration system. So we’re starting small, you know, with the resources that we have. We’re interviewing the people that – in addition to the people we were already interviewing anyway – (coughs) – excuse me – we’re interviewing the people that are getting green cards based on employment. And in the future, the scope and number of people that we interview will, indeed, almost certainly expand in accordance with our resources and abilities.

MS. VAUGHAN: Mmm hmm. Now, we still – many people would like to see our immigration system reformed so as to make sure that it does facilitate employers being able to hire those specific individuals – very talented individuals, if they want, or in general to be more weighted toward a merit-based system. The president himself has talked about this and pushed for this. And we still hear advocates and special interests call for this idea of practically stapling a green card to the diploma of someone who graduates from an American institution. Is that a good idea? Or how would that work?

MR. CISSNA: Well, I’m – first, I mean, only Congress could do that. I mean, we in the executive branch can’t do that. But I would just – I mean, I’ve seen many, many bills over the years that propose that or attempt to do that, where there’s a direct path from student status to a green card. The criteria are always different, but generally it’s – you know, you have to get a degree from a U.S. school and then satisfy certain criteria. Maybe it’s a STEM degree. Maybe it’s this. Maybe it’s a Ph.D., whatever. And then you get a green card.

I would just caution that, you know, other countries have tried this. Australia, most notoriously, a few years ago tried it and they ended up with these kind of fly-by-night sham schools popping up like mushrooms all over the country to confer quickie degrees on people so that they can get into the Australian version of a green card. As I recall the story and the history of that – of that initiative – or, I guess it was their law – the Australian government realized what was going on and they changed their law, and that is not a problem for them anymore.

But it shows how you have to be very careful with something like that, because if the law’s not very carefully drafted to avoid possible, you know, landmines like that or ways to exploit that type of thing, such a program could turn into a fiasco. Now – so I guess I would say my opinion on whether it’s a good idea ultimately boils down to what’s the proposal? What’s the bill? What does it look like? Was – you know, if it’s well-written and it takes care of all these potential pitfalls, OK, if that’s the will of Congress, so be it. But it’s got to be done well to avoid the pitfalls.

I would say also I think – you know, I am not unsympathetic, again, as we were talking earlier, to the issue of the – you know, of highly skilled in particular U.S.-educated foreign students who are here who a U.S. employer wants to hire. There are maybe a few ways that we could administratively, though regulation or – probably only through regulation – kind of get at that through side doors. You know, maybe there’s little tweaks we could make to the way we administer, say, the H-1B program to possibly, you know, make – improve the chances of U.S. educated students getting a better shot at an H-1B visa, maybe. Maybe there’s ways we could do that. But it would not – whatever we could do, I think, would not solve the problem the way Congress could, I mean.

MS. VAUGHAN: Well, we have two employment-based categories – first and second preference in the employment-based categories that allow people to self-petition based on the fact that they extraordinarily talented and have great credentials. Those people – I mean, we were already taking in, what, 20,000 green cards – people a year in those categories. So, you know, we are still able to attract very highly skilled people. But, you know, people have suggested there may be some types of individuals who aren’t currently covered under those, maybe people who want to startup a company or something like that?

MR. CISSNA: Yeah. That’s another thing about the startups. I mean, the – again, I am not unsympathetic to the desire to create a mechanism by which foreign nationals can come here and, you know, take venture capital money and start a – start a business. I would remind people, though, that there already exists a visa for doing that. It’s the E2 investor visa. And it’s been on the books for decades, at least since 1952. And I think it goes beyond that, maybe back to the ’24 Act. But that is the visa that exists for people who want to invest in an American company and – or, an American entity, maybe even start one, and come over to direct and develop it.

That could be anything from, you know, a couple in London sells their pub and then buys a bed and breakfast in Vermont and comes over to run the business, and they hire a bunch of Americans to work at the business, or it could be on the other end a multinational company that purchases a subsidiary in the United States for billions of dollars and then they send over a bunch of engineers and managers and executives to direct and develop their new subsidiary. This visa exists. It’s already there. All the talk about startup and – it’s – that’s a separate thing that relates to people who want to create a new mechanism for foreign nationals, most of whom would already be here, who are taking VC money to start a business.

That’s a different kettle of fish. I would just suggest that if you want to do that, Congress needs to do that. If you want to come over and start a business, you can do that now. If you’re from a country that is qualified for E visa status, and most countries already are –

MS. VAUGHAN: Through a treaty.

MR. CISSNA: For so-called treaty investor status. You can do that. So, that’s my two bits on that.
MS. VAUGHAN: Others have suggested that, you know, the way to really open up and move toward a merit-based system would be to remove the caps that are currently in the law that limit the number of visas that can go to citizens of any one country – so-called per country cap – and that that’s – you know, that’s stifling our ability to bring in talent that we need. Is that going to solve the problem?

MR. CISSNA: Well, again, this kind of goes back to the same issue we’ve now talked about twice, which is if an employer has identified a specific foreign national that they would like to retain forever – you know, it’s someone who maybe – who works for them on an H-1B, and they want to give – sponsor to them for a green card so that that individual can go on working forever for them, I can completely understand how frustrating it would be. First, they had to get them the H-1B. And that was probably a battle, you know, to succeed in that.

But then if you’re from a country – if the – if the worker’s from a country that is oversubscribed in the immigration queues – so, like India or China, but particularly India – where no one country under the law can get more than 7 percent of the immigration visas in a particular category in a particular year, then it’s going to take someone from such a country many years longer than someone who is not from such a country to get a green card. Naturally, that will be not only frustrating to the worker, but to the employer also because, you know, the person’s H-1B status just has to keep being extended and extended and extended until the person’s priority day comes up.

So that is not a good situation. It also leads to abuse and exploitation because if the worker has no leverage, the employer could, you know, underpay them or abuse or exploit them. They could promise that they’re going to sponsor them for a green card and not do it. The group Immigration Voice has talked for many years about this type of exploitation and abuse. And they’re not wrong. They are right about that.
But the proposal to take out that per country cap – and usually it’s only about the employee-based, and in the family-based they increase the cap a little bit – I think, you know, it would – it would – it would fix the problem, more or less, for people from India, because then their wait times would be greatly decreased. But it would also have the effect of – as I’ve seen some analyses that suggest that if they were to do that, if that were to become law – and the versions that I’ve seen were to become law, I think most of the flow of immigrations in the employment-based category – green card categories would be from India almost exclusively for many years, because they are the ones who, in the order in which they filed, would be getting the visas first.

MS. VAUGHAN: Which means no one from Nigeria, no one from Cameroon, no one from Malaysia, no one from Russia.

MR. CISSNA: That could be. That could be. And so what I would just say is if this is something Congress is considering, yes, it would indeed ameliorate the situation of Indian nationals in particular, and to a certain extent Chinese nationals, who are waiting for their green cards for many years. And to the frustration not only of the worker, but of the employer. But it would also have other effects on the diversity or flow more generally – and national representation amongst the employment-based immigration pool. And –

MS. VAUGHAN: Which is one of the more diverse –

MR. CISSNA: It is. I mean, you have people from all over the world getting employment-based visas. So I mean, that’s an issue. And I think if we as a country, through our representatives in Congress, want to do that, we need to be aware that that could happen, so.

MS. VAUGHAN: Well, let’s change direction a little bit. There’s been a lot of buzz lately about the administration’s plan to more rigorously enforce the requirement that exists in the law that immigrants and visa holders be self-sufficient, be able to support themselves, in order to qualify for either an immigrant visa or a non-immigrant visa. Again, it’s been characterized as a back-door way to reduce legal immigration or penalize people for taking food from a food bank or something like that, deporting people for, you know, taking services that they need. Is that what the goal is of this proposal that’s been talked about, the so-called public charge proposal?

MR. CISSNA: No. The goal is not to reduce immigration or, in some diabolical fashion, shut the door on people – family-based immigration or anything like that. The goal – and now I’ll actually read it out. The goal is simply to enforce – or, I should – to enforce a ground of inadmissibility to this country that’s been on the books for about 100 – well, more than 100 years. It’s been on the books in one form or another since the 1880s. And this is the provision in question. And let’s see – public charge. This is Section 212(a)(4) of the Immigration and Nationality Act.

It simply states: An alien who in the opinion of the consular officer at the time of application for a visa or in the opinion of the secretary of homeland security at the time of application for admission or adjustment of status – getting a green card – is likely at any time to become a public charge is inadmissible. Likely at any time – likely. So it’s prospective. You’re looking, is the person, who’s appearing before me now seeking to adjust status or overseas applying for a visa, is that person likely to become a public charge? And if so, they shouldn’t get the green card or they shouldn’t get the visa.

So like it or not, that’s been on the books for – since the 1880s. It was one of the three bases upon which people were – people’s admissions was adjudicated when they showed up at Ellis Island. Basically, you could ask people – you determine if they were going to be a public charge, you determine if they were sick, you know, in some way that would make they excludable, or you determined if they were coming in violation of the contract labor law to take a pre-arranged law. Those were the big three.

And in one form or another, that language – indeed, the term “public charge” has been unchanged in all those years. And the whole phrase, “likely to become a public charge” has also more or less been unchanged in many, many decades. That’s all on the books. There has never been, as far as I know, any regulation interpreting that ever. There was an attempt back in the ’90s, under the Clinton administration shortly after the passage of the Welfare Reform Act in 1996 which brought these issues to a head, to put out a regulation that would define that and define what that meant. And it was dropped. And in its place, a memo was issued that kind of just – you know, a very short memo that basically said adjudicators were looking at this to determine of someone is a public charge should only consider – I’m generalizing – should only consider cash benefits – whether they received cash benefits. Everything else is off the table.

What we want to do is issue proper regulations open to full public comment, the full gamut – you know, the full proper, regulatory process to, at long last, interpret what that means. Congress passed that, you know, forever ago. It’s been sitting on the books. It’s hardly ever been enforced. And if the law is to mean anything, and the will of Congress is to mean anything, we should enforce it. So it should not be a dead letter. We should enforce it. I think that the regulation we’re working on is very rational and reasonable. And when you all in the public see it, and I said you’ll have the full opportunity to comment on it. It’s going to be a multi, multi month-long process of the – you know, we’ll publish the reg, the comments will come, we’ll review the comments. It’ll be – you know, like any other big regulation it’ll take a long time to get to the end. But I think that’s the way to do it. And it’s an important provision of our laws. It’s been on the books, as I say, for ages.

MS. VAUGHAN: 1882 is what I was told.

MR. CISSNA: Yeah, that’s when it first came up. You know, the other thing to keep in mind is we are, of course, well-aware, as were my predecessors in the agency during the Clinton administration, of the Welfare Reform Act, which does say that certain aliens, or so-called qualified aliens, are able to receive certain federal benefits . That is lawful. The question is – we’re not saying that they can’t receive public benefits, that the particular aliens covered by the law cannot receive benefits. We’re just saying that Congress simultaneously is saying that there comes a point – and the regulation seeks to define what that point is – when we at the agency determine that someone has become so dependent or reliant, or whatever the appropriate term is, on public benefits that we have – we now deem to be a public charge, and accordingly inadmissible.
That’s something that has to be done. It’s – the Clinton administration acknowledged that. I mean, everyone knew that something had to be done about 212(a)(4) and the public charge provisions. And it’s about time we do it. But, as I say, do it properly.

MS. VAUGHAN: With a regulation process.

MR. CISSNA: With a regulatory provision, lawfully, everybody can comment on it. I’m sure we’ll get thousands and thousands of comments, but that’s fine. This is a big deal. And it – I welcome the comments that we’re going to get on this. When the reg comes out you’ll see it. It’s – again, there’s nothing malevolent or diabolical in it. It’s just – it is a sincere, good-faith attempt to interpret what that provision means. And you’ll all see.

MS. VAUGHAN: Now, once an immigrant becomes a citizen, can their citizenship be stripped by USCIS?

MR. CISSNA: Of course. I mean, there’s this – what is it – Section 340 of the – oh, well, not by CIS. I mean, people can be denaturalized. I mean, that’s a provision of the law. I think it’s 340. There’s civil denaturalization and there’s criminal denaturalization. Those are tools that the government has had for ages. And the agency itself, USCIS, can’t do that. But if want to denaturalize somebody –

MS. VAUGHAN: And not for public charge either. (Laughs.)

MR. CISSNA: Well, no. I mean, public – I just read it. If that public charge arises at the inadmissibility public charge. Public charge inadmissibility arises at the visa window or at the application for adjustment here in the country.

MS. VAUGHAN: Not naturalization.

MR. CISSNA: Right. Now, on that point thought, Jessica, of the denaturalization, this is something that drives me crazy. And there’s been a lot of press recently that completely misunderstands what the – what my agency has been doing on denaturalization. Some months ago, I think it was in April or May, USCIS announced that we would be hiring more people – lawyers and immigration officers – to review this bunch of cases that have been identified as cases where potentially someone came into the country under one identity years ago, and then got deported, and then came back again unlawfully under identity number two and somehow, over the subsequent years, became a U.S. citizen.

That’s outrageous. And the – this came up because something like 10 years ago an officer at CBP was researching these issues and discovered that there were a lot of people who were either fugitives or criminals or other mala fide actors who fit that description, who had come in under one identity, got deported, came back, and, you know, we knew who they were. But that their fingerprint cards from 1977 or whenever they came in the first time, when we took ink fingerprint cards – or the ’80s or the ’90s – those had not been scanned into the system. So those people were able to then just go on under identity number two and get, in many cases, ultimately citizenship. And we didn’t know, because the – when we did their fingerprints when they applied for citizenship the old fingerprints that were taken when they got deported the first time were not scanned in the system.

When this was discovered, an attempt – an initiative was begun – this was called Operation Janus, the two-faced god for the two identities – to scan all those old fingerprint cards. And it was something like 200,000 cases were identified where this could be the case. So those cases are being scanned. Contactors are working even as we speak to just scan all these cases into the system.

MS. VAUGHAN: Which is good for our system anyway to have them.

MR. CISSNA: Well, yeah. That should have been done some – I mean, I’m glad that that CBP officer, whoever he was, should have – or she was – should have received a prize for even thinking of this. But as we scan those files in, those fingerprint cards, it is becoming apparent that there are indeed thousands of people who potentially fit that description who became citizens and lied about their previous deportation.

MS. VAUGHAN: And they can be denaturalized because of the fraud and –

MR. CISSNA: Of course they can. Of course they can. In fact – well, I’m not even going to read it. But they – you know, they misrepresented, or they lied about something that was – that was a material element of the adjudication. They lied about the fact that they had been deported or committed a crime, or whatever it was they did. But in most cases they were deported, probably because they committed a crime.

MS. VAUGHAN: But it’s not that you yanked their passport. You go through a process –

MR. CISSNA: No, no. And so these cases – there’s a whole process. These are cases that are reviewed. (Coughs.) Excuse me. The lawyers and officers that we have working on these cases will review them. They’ll determine whether a certain case – whether it really is true, that they misrepresented themselves. They look into all the facts of the case. And the ones they think truly, truly fit this description will be referred to the Department of Justice for onward referral to a U.S. attorney. A U.S. attorney needs to accept the case and then prosecute the case in front of a federal district judge to make that person – to cause the person to be denaturalized.

So out of all those hundred thousands of cases, we’re looking at, like, 2,000-3,000 cases or so. And so far we have referred about 100 – something like 100 cases to the Department of Justice. And of that 100, I think as of today something like a half-dozen have actually been denaturalized. And from time to time, you’ll see a press release from the Department of Justice that talks about these cases, when we have a successful denaturalization. So that’s what’s going on. The other term for this is called the historic fingerprint enrollment initiative – HFE, Historical Fingerprint Enrollment. It’s kind of the follow-on to what we used to call Operation Janus.

This is totally rational and appropriate. It is ridiculous to suggest that we’re running around ripping open banker’s boxes of old naturalization applications and trying to find people who left a comma out or – you know, or we’re looking to just denaturalize people at random. This is about people who lied about having been deported, and then faked that identity – and then came in under identity number two and became a citizen somehow. This is outrageous. Those people should be denaturalized.

MS. VAUGHAN: Absolutely.

MR. CISSNA: And as I said in previous press engagements, they know who they are. It’s – we’re not going after people who are just – you know, who have done nothing. That is the universe of people that we’re going after with this at USCIS. That is what we’re doing. We are not going around like some, you know, little roving denaturalization taskforce. I hope that my remarks today finally put this to bed forever. And just to clarify that once and for all, though I have no faith.

MS. VAUGHAN: (Laughs.)

MR. CISSNA: Somehow it’ll – but I tried – tried again.

MS. VAUGHAN: Well, while I’m going through these last few questions to select some of the many questions – good ones – for you, give us quickly your wish list, a couple of things that Congress needs to take up?

MR. CISSNA: A couple of things. I would say – well, I mean, right off the top off my head, I mean, given the urgency of the – of the situation, indeed the crisis, at the southern border, there are a number of fixes that would really, really help us – and not just us at CIS but our sisters and brothers at CDP and ICE. I mean, we really, really do need – there’s a fix that was in the Goodlatte bill that clarifies the standard of proof in assessing credible fear claims. That would be really helpful. Fixing the TVPRA so that we can expeditiously remove aliens from all countries, regardless of country of origin, if they have no indicia of trafficking or, you know, no asylum claim. That is critical.

There is a raft of asylum-related provisions that I really would wish Congress would look at including clarifying what qualifies – what constitutes a frivolous asylum claim. One issue we haven’t talked about much is, you know, just asylum generally. Not only are we – as my agency – experiencing just a deluge of work at the southern border processing credible fear claims, we have regular asylum work, so-called affirmative asylum claims where we have a backlog of over 300,000 cases.

We’ve started practicing last-in, first-out on some of those – on those cases, and we’ve kind of gotten the flow under control, but if we could get some help from Congress in better defining what constitutes a frivolous claim that could weed out a lot of the flow of people who are just filing claims to just get an employment document.
I would really love it if Congress would just pass a one-sentence provision that would just prohibit American workers in being replaced by H-1B workers. I could draft it myself, you know, probably right now, you know? It’s – those are the things off the top of my head. I mean, the most critical, critical ones right now are the ones that address the situation on the southern border that give us the tools we need.

The last one is my agency needs access to state criminal databases. I would love it if Congress would give us access to state criminal databases when –

MS. VAUGHAN: It is shocking to me that you don’t have that.

MR. CISSNA: No, we do not. It would be good if we had that, then we could vet people – not just against federal criminal databases and, you know, international stuff that we may have access to, but state databases, too.

MS. VAUGHAN: We’ve got too many – a lot of great questions; unfortunately not enough for our time, but I’m going to – maybe we can do this kind of like a lightening round type of thing.
Would you be willing – taking into account confidential concerns – to work with any state that wishes to match voter registration lists with USCIS records of non-citizens to make sure that there are no non-citizens registered to vote?

MR. CISSNA: I think there are – the agency has been approached kind of informally by a number of states that have been asking about potentially using SAVE, which some of you may know about as – it’s a tool we have that is available to state and local government entities, federal entities, any government entity that wants to check the immigration status of an individual.

There are ways that we could – we could consider working with states to try to do that. The problem with that is that typically the states do not collect the type of information that we need when they register people to vote – that we need to use SAVE to verify – or not verify, but to determine what a person’s immigration status is. Some states just collect, you know, biographical information. There’s just the minimum biographical information. We need specific identifiers that connect to our systems. Lots of DMVs do that because they’ve worked with us for many years, but I think a lot of voting agencies do not, and that could be problematic and may prevent us from really helping them.

MS. VAUGHAN: Given the agency’s adjusted mission, is the funding scheme still adequate, or should USCIS receive funds other than fees?

MR. CISSNA: No, I think it is appropriate for USCIS to be fee-funded. I mean, it’s – the whole policy idea behind that – and this is congressional; I mean, this is in Sections 286(m) and (n) of the Immigration Act – say that the agency should be fee-funded. I think, if I recall rightly, the policy reason behind that was that Congress doesn’t want the American taxpayer funding immigration. Each person, each immigrant, or each worker, each company – whoever is seeking the benefit should pay for the service themselves on a cost basis. So I think that the policy is right, and the law is OK.
We are, of course, as we should at the agency, is every couple of years going to putting out a new fee regulation. We’re in the process of working on that, and we’re assessing whether we need to change our fees, move them up and down, or make any other needed fixes. But I think the system that we have does work.

MS. VAUGHAN: There’s another visa that USCIS primarily administers which is the U visa, which was set up for people – benefits mainly people in the country illegally who have said that they’ve been a victim of a crime. And the purpose is to assess – or to assist in the prosecution of that offender. It’s – there are about 50,000 people a year who apply for those – through my research I’ve learned that – which makes it the size of an immigration program really, 50,000 people a year getting protection. Even though only 10,000 visas can be approved, and those people are put on the path to a green card, there are 50,000 people a year roughly who apply so that there is now a backlog of 200,000 of them.

Do you have any sense of how – is this program living up to its purpose of assisting law enforcement? Do you have any way of knowing that?

MR. CISSNA: Well, you are right. The program – the cap was set by Congress at 10,000, but clearly many more people than 10,000 are interested in the program. And as I recall what the statute says is that if someone files a bona fide application, even though we’re not going to get to it for some time, they can get a work authorization. It’s in the law. So there’s a large population of people that are waiting for final adjudication of their benefit application, which is a congressionally created program. And so we administer it faithfully. I think that whether it is living up to what Congress intended for it to be with respect to helping law enforcement, I can’t really say. We’d have to ask law enforcement agencies about that.

MS. VAUGHAN: Maybe we should.

MR. CISSNA: Well, but my agency, at least our role is to administer this, and I guess to the extent that the program has departed in any way from what is in the law, what is required of law enforcement agencies to present to us in terms of certifications or anything, if we’ve gotten off the rails on that, then that should be examined. I don’t know that we have, but there are certain elements – you know, the law enforcement agency certification, the assessment of the initial claim to determine if it’s bona fide – you know, I – there may be some places where we could look at determining whether any kind of clarification needs to be done. I don’t rule that out, but it is what it is.

MS. VAUGHAN: Uh-huh. Yeah, USCIS has been mightily impacted by the new – and participating in implementing new vetting and integrity measures. How has this played out with respect to the refugee program? Was more fraud or unqualified people detected? I should say were – was more fraud detected? Were there unqualified people who were detected that would not have been detected otherwise? And how does that play into the determination going forward for the refugee program?

MR. CISSNA: Well, I mean, all those changes came into place this fiscal year, so last calendar year – last summer, last fall you recall that there was an executive order directing us to suspend the refugee program for 120 days, so we did that. Then there was a subsequent suspension for 90 days for people from certain other countries. We did all of that. We did the reviews that were required of us.

I think that the array of checks that we are now doing on refugees truly, truly are very good. They are truly the maximum that we can do right now within the law and within our capacity to vet refugees. But as a consequence of that, though, I mean, the number of refugees that are going to be coming in this year will be below the ceiling, for sure. And remember, it is a ceiling; it’s not a quota. It is a ceiling. The ceiling was 45(,000); we’ll be coming in below that, I’m sure, by the end of the fiscal year. And, you know some of the reasons for that are – well, first of course, the program was suspended for several months during the middle of the fiscal year, so that naturally reduced the number of people that we interviewed or processed into the program. To get back up to speed after the suspensions, it – I mean, it takes a while to be sending refugee officers out again to interview people.

But additionally, the checks take time. The checks that we’re doing take time, and that’s appropriate. That’s fine. I mean, if we’re going to be doing these checks, then we’re – if we’re going to be doing them right, they take as long as they take. There is no reason we should speed up the checks, you know, to get people – for the sake of getting people through. They take as long as they take, they take time, and in the next fiscal year, when we determine what the number is going to be – or when the president determines what the number is going to be for next year, that fact that the checks take time, and that my agency only has a certain number of people available to do this type of work needs to be factored in. And I’m sure it will be. These are facts on the ground that need to be taken into account when determining what the number is.

MS. VAUGHAN: We probably have time for one more quickie. When will the H-4 regulations – spouses of temporary guest workers – be finalized?

MR. CISSNA: Well, I mean, that regulation is still being worked on, and there are – I definitely want that regulation to get out. That regulation, though, is fighting for attention with a number of other regulations, some of them much bigger, probably more important, and not all of them from my own agency within DHS. There are a lot of regulations from different components that I think deserve priority.

But that doesn’t mean the H-4 reg is not being worked on; oh, it certainly is, and on that point I would say, again, this kind of gets to the thing I opened up with at the beginning of our discussion. A lot of people have criticized us for even venturing into that and proposing to – talking about proposing to rescind the H-4 regulation. If we are talking –

MS. VAUGHAN: It is work permits for spouses of temporary guest workers.

MR. CISSNA: Yeah, this is – if you have an H-1B skilled worker, the regulation – there was a regulation issued a few years ago that said that the spouse can work, and we’re proposing to rescind that.

For me, one of the main reasons for proposing to rescind that – not the only reason, but one of the main reasons – is because I don’t think it’s appropriate. I don’t think that Congress intended for the spouses of H-1Bs to work. If you look at – Congress, when it touched this issue, gave spousal employment to the spouses of intercompany transferees and to the spouses of E Investor visa and Treaty Investor visa workers to their spouses in 214(e)(6) and 214(c)(2)(E). And if you look at those provisions, Congress spoke. They said that those two categories of people, the spouses, should get to work. They didn’t talk about H-1Bs. And –

MS. VAUGHAN: Or students or –

MR. CISSNA: No, you know, and I – this is just me, you know, but I think that is an important reason why we should propose rescinding it. There are other policy reasons which will be adduced when you see the regulation, but to me, that’s a big one. And, you know, again, first and foremost, the law – the law – we may not like the law, but it is the law, and it’s – the law reflects the will of Congress, and that is paramount. And that’s what we strive to do.

MS. VAUGHAN: All right. Well, thank you. I want to be respectful of everyone’s time. Thank you all again for joining us, and thank you, Director Cissna, for all your efforts on behalf of the integrity of our legal immigration system and your efforts to improve our system and make it work for everyone. So I thank you for that.

MR. CISSNA: Thank you.

MS. VAUGHAN: And thank you for joining us. (Applause.)

(END)

https://cis.org/Transcript/Immigrati...Francis-Cissna