USCIS Director Defends Agency’s Enforcement Role

Cissna sympathizes with employers but upholds controversial policies

Roy Maurer By Roy Maurer August 17, 2018

​U.S. Citizenship and Immigration Services (USCIS) will fully embrace its enforcement authority, said agency director L. Francis Cissna.

Critics say recently issued guidance memos move USCIS farther away from its role as a service provider and into an enforcement function.

Cissna pushed back Aug. 15 at the National Press Club in Washington, D.C. "We don't just adjudicate petitions, applications or benefit requests," he said. "If someone is not eligible for a benefit, and they appear before us and are denied, and have no status, they should receive a notice to appear [the first step in the deportation process]. That is the correct and natural consequence. For whatever reason that authority had not been fully exercised. Now it will be."

Aside from the disputed role of the agency, there is also controversy over the notice to appear (NTA) guidance itself, which some say will have a chilling effect on employers wishing to hire foreign talent. The guidance instructs USCIS officers to serve an NTA—a charging document that orders foreign nationals to appear in immigration court to begin the removal process—to anyone unlawfully present in the United States when an application, petition or benefit request is denied.

"If it plays out the way the memo reads, it will certainly discourage sponsorship of foreign national talent," said Anantha Paruthipattu, founder and principal attorney at Paruthipattu Law Firm, based in Herndon, Va. "Once employees begin receiving NTAs, losing work authorization and being put into removal proceedings, decision-makers will rethink whether they want to go through the trouble of hiring foreign national talent at all."

Cissna said he understands employers' frustrations, when, for example, they identify people that they want to hire with an H-1B visa but can't because the number of H-1Bs allocated each year is too low to accommodate all employers' requests.

"If Congress wants to address that problem they should," he said. "But if they do, any legislation should be directed toward ensuring that the truly qualified people that employers need in this country get the visas. At the same time, any reform should be mindful of possible adverse effects on U.S. workers."

One legislative fix he would like to see would be a ban on the ability of employers to fire U.S. workers and replace them with foreign workers at a lower wage.

Cissna added that "the idea that we don't want foreign workers to come here is false," in response to those who say that the agency's policy changes and interpretations restrict employers' ability to hire professional foreign talent.

"Asking officers to look more carefully at whether the wages proffered the worker correspond to the skill level of the job is rational," he said. "If it requires more evidence to substantiate the connection between the proffered wage and the skill level, then so be it. Let that evidence be produced to improve the integrity of the visa program." 

Increased Inspections, Vetting

USCIS has expanded employment site visits for H-1B and L visa guest workers to curb fraud and abuse, Cissna said. "That is an eternal problem with administering an immigration system—you will always have people trying to game it. We're mindful of that and to that end, we are checking to see if the worker really works there and if the business really exists."

The agency has also begun interviewing people in the United States applying for employment-based green cards. "It's a huge workload, thousands of additional cases we'll be handling every year," he said.

Consular officers perform that function overseas, but U.S.-based applicants for green cards were previously not interviewed. "I think it's remarkable that you could have someone come to the U.S. as a student, get a bachelor's degree, get a master's degree, change to a work visa, extend their work visa, and never be interviewed by USCIS," Cissna said. "They can be here a long time and never have physical contact with an immigration officer. Only if they leave the country and return would they be interviewed at a port of entry. I don't think that's prudent."

Per-Country Visa Caps

Cissna said that he also sympathized with employers who have sponsored foreign workers stuck in green card backlogs due to the per-country cap on employment-based visas. No more than 7 percent of the total number of visas available may be issued to citizens of any one country in a fiscal year.

He explained that if the worker is from a country that is oversubscribed in the immigration backlog—primarily workers from India and to a lesser extent, China—that leads to the employee having to continuously extend their temporary status until their priority date comes up. That "can lead to abuse and exploitation because the worker has no leverage," Cissna said.

He added that the legislative proposals he's seen that eliminate the per-country cap and instead grant visas to people in the order that petitions were received "would fix the problem, more or less, for people from India, because their wait times would be greatly decreased, but as a result, most of the flow of immigrants who come through employment visas would be from India almost exclusively for many years. There would be a lack of diversity and national representation among the employment-based immigrant pool."

H-4 Rule Rescission Still in the Works

Cissna said a long-anticipated draft rule to eliminate employment for the spouses of H-1B visa holders is "fighting for attention" with other regulations with higher priority but is "still being worked on."

The proposed regulation rescinding work authorization for H-4 spouses was originally forecast for publication earlier this year. Cissna said he supports eliminating the program, mainly because Congress didn't intend for the spouses of H-1B recipients to work.

The H-4 regulation was issued in 2015 by the Obama administration and allows dependent spouses of H-1B workers who are at certain stages of the green card application process to apply for work authorization. About 71,000 recipients—mostly women from India—have been granted work authorization since then.


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