As hard to spot as a well-camouflaged Waldo or surreptitious Carmen San Diego, Francis Cissna, Director of U.S. Citizenship and Immigration Services (USCIS), is almost nowhere to be found. The exception – aside from mandatory appearances at congressional oversight hearings and the occasional press interview – is among the pols he deigns to address who staunchly oppose a functioning and welcoming legal immigration system, or who are sure there’s fraud in every request for immigration benefits. In gatherings of that sort, he’s as ubiquitous as Zelig.
Regrettably, no Cissna sightings have been reported among immigration stakeholders who yearn for a just immigration system founded on due process, one that is simply functional, albeit with tolerable case processing backlogs that people and businesses can anticipate and act upon. Their importunings that he speak at their national conferences or meet with them in liaison discussions have been spurned or ignored (including my own).
Despite his public absences from all but his fawning admirers, Mr. Cissna has been busy. He’s occupied himself with the task of dismantling the legal immigration system. His machinations make omnipresent the fears, tears and dashed American dreams that this director and his antifraud minions engender every business day.
Unlike his many predecessors who rightly viewed themselves as leading and inspiring the primary federal agency tasked with deciding eligibility for legal immigration benefits and charged with protecting our country’s hallowed tradition as a nation of immigrants, Mr. Cissna has a new mission, one which — as the passing months confirm — demonstrates that he is apparently oblivious to the benefits that a reasonably functioning immigration system have long conferred on American citizens and the U.S. economy.
At a time when willing U.S. workers are few and jobs go begging, Mr. Cissna sees a zero-sum game where a job filled by an immigrant worker means one stolen from an American. Apparently, he is blind to the virtuous law of abundance, widely reported in scholarly research, where productive noncitizens create more and better jobs and higher standards of living in the homeland.
Mr. Cissna has been in situ long enough now to cause law-abiding noncitizens and their sponsors — American employers and close relatives — to tremble with understandable foreboding as they try to play by the rules and work within a heretofore roughly functioning system that he has caused to devolve into chaos and dystopia.
Balderdash, you say. This blogger’s rants, you’re sure, are but the Cassandra cries of an embittered, hyperventilating immigration lawyer who can’t accept that no means no. Think so? Let’s look at the evidence of Mr. Cissna’s baleful misdeeds:
- Planning to Eliminate Spousal Work Permits. As recently as August 20, 2018, the Justice Department confirmed that USCIS is moving forward with rulemaking to eliminate the Obama Administration regulation, which I dub the “freedom-from-vegetating” rule that currently allows the spouses of H-1B specialty-occupation workers who are far advanced in the employment-based green card process to pursue independent careers. No less an authority than The Economist predicts that elimination of the regulation “will have a considerable social and economic cost, particularly for women.” Citing scholarly research, it notes:
Beyond the psychological and physical costs, taking away [the right of H-4 spouses on the path to a green card] to work is likely to reduce the economic returns of the H-1B programme itself. . . . [Researchers] found that restrictions on spousal employment were associated with financial concerns, lower satisfaction at work and lower overall life satisfaction—in turn significant factors in both worker employment and retention. . . . If it is reversed, the most skilled migrant workers may go to jurisdictions with more generous policies. Reversing the programme will also directly remove skilled employees from the workforce. [Other researchers found that H-4 spouses] were employed at similar levels to immigrants with the same demographic and educational characteristics but who already have the legal right to a job, . . . 46% of the spouses would be working. In aggregate, they would be earning about $2.1 [billion].
- Expanding “Public-Charge” Ban on Immigration Benefits. According to a leaked draft DHS regulation, DHS, presumably with the approval or acquiescence of Mr. Cissna, in tandem with similar actions by the State Department, will propose a rule change that rivals in malevolence the DHS family-separation policy and the caging of children apprehended at the border. If promulgated, the change would deny eligibility for an immigrant visa, green card through adjustment of status, nonimmigrant visas, and entry to the United States by broadening a statutory ground of inadmissibility for a noncitizen who is “likely at any time to become a public charge.” Even before promulgation, as reported here and here, these changes are already hurting law-abiding citizens, noncitizens, and lawful residents. According to the Henry J. Kaiser Family Foundation, these changes would:
[Allow] the federal government to take into account use of health, nutrition, and other non-cash programs when making public charge determinations, . . . [Thus,] use of these programs, including Medicaid, CHIP [the Children’s Health Insurance Program], and subsidies for [Affordable Care Act] Marketplace coverage, by an individual or family member, including a citizen child, could result in the federal government denying an individual a “green card” or adjustment to lawful permanent status or entry into the U.S. These changes would likely result in reduced participation in Medicaid, CHIP, Marketplace coverage, and other programs by immigrant families, including citizen children, even though they would remain eligible. . . .
If the public charge policy change leads to Medicaid/CHIP disenrollment rates ranging from 15% to 35%, an estimated 875,000 to 2 million citizen children with a noncitizen parent could drop Medicaid/CHIP coverage despite remaining eligible, and their uninsured rate would rise from 8% to between 14% and 22%. (Emphasis in original.)
- Reviving A Formal Denaturalization Program. According to Columbia University History Professor, Mae Ngai, not since the McCarthy Era, some 75 years ago, has the federal government systematically tried to denaturalize citizens (other than alleged Nazi war criminals). The sense of permanence and acceptance that comes with naturalization is now replaced by a sense of vulnerability as Mr. Cissna has established a newly hired USCIS cadre of several dozen lawyers and immigration officers to examine circumstances warranting referral to the Justice Department to initiate proceedings to yank U.S. citizenship. It’s cold comfort to grizzled observers of bureaucracy that the first targets are individuals who naturalized despite having received prior orders of deportation, for once a program is authorized and financed, its mission and scope will inevitably expand.
- Rescinding the Deference policy. For all prior administrations, immigration stakeholders could reasonably expect – based on a well-reasoned “Deference Memorandum” – that a time-limited grant of immigration benefits, once conferred by USCIS, would endure and be approved again if the employer, the job duties, and the work location remained the same. The Deference Memorandum was appropriately based on a long-established “presumption of regularity” of official government actions, as reaffirmed by the U.S. Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 US 402, 415 (1971) (decision of the Secretary of Transportation comes with a “presumption of regularity” concerning “the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties”), and United States v. Chemical Foundation, 272 U. S. 1, 14-15 (1926)(“The presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties”). Resting on a thatch-work of nonsense, Mr. Cissna caused USCIS to repudiate this reliance interest ostensibly because accessing the agency’s own prior case files is just too hard. No more deference, he announces, despite the presumption of regularity and correctness of official acts that the U.S. Supreme Court has conferred on an agency’s prior decisions. Instead, backlogs clog the constipated system by virtue of the Cissna-induced presumption of irregularity. His adjudicators now take as a foregone conclusion the insulting notion that virtually all prior USCIS adjudicators were too incompetent, oblivious or gulled to have made the correct call on an immigration-benefits request.
- Start-Stop, Assembly-Line Injustice. Although USCIS regulations at 8 CFR § 103.2(b)(8)(iii) allow applicants and petitioners who’ve submitted cases to be given the chance to provide additional, preexisting evidence of legal eligibility, Mr. Cissna has okayed a policy that allows no second-chances in America, the land of second chances. Rather, his adjudicators have recently been instructed to deny cases if the initial evidence submitted seems unconvincing, and issue a Notice to Appear (NTA) which summons the unfortunate “beneficiary” to come before an immigration judge for a removal (deportation) hearing. Fortunately, that policy has been suspended, perhaps, as many prophesied, because USCIS’s draconian leaders belatedly realized that it had not yet devised a process to issue NTAs in volumes apace with their denial rates, and even if it had one, the deluged immigration court system, flooded with asylum applications of individuals and torn-apart families fleeing the strife and violence in Central America, would have no choice but to schedule these USCIS-referred cases for hearing in 2020 and beyond.
- Extend and Expand Suspension of USCIS Premium Processing Expedite Service. For many employers, the ability to get a response from USCIS in 15 days for an extra $1,225 filing fee was a safety valve. Premium Processing allowed firms and individuals to plan and execute alternative business and life strategies within a known timeframe if a submitted case were ultimately delayed or denied. It also gave USCIS — a user-fee funded agency perennially starved of financial resources with virtually no appropriations from Congress — mucho extra moulah with which to hire more adjudicators and whittle away at their growing unexpedited backlogs. Yet, ala Archie Bunker, USCIS deciders in the Cissna era are wont to prejudge people and businesses seeking legal immigration benefits as suspect classes, take unnecessary time to write up unconvincing and undeserved denial notices and NTAs, and quite foreseeably, cause both the expedite process and the “normal” system of adjudications to collapse under the weight of the agency’s ill-conceived follies. Unsurprisingly to immigration cognoscenti, USCIS recently announced that it will extend and expand its suspension of Premium Processing of H-1B visa petitions, while also proposing to increase the filing fee by 14.92 %, to $1,410.
- BAHA Brouhaha. Like Scrooge spouting “bah, humbug!” in the early scenes of A Christmas Carol, Mr. Cissna and his jaundiced adjudicators have dispirited many would-be revelers rejoicing in our current low-unemployment/high-stock-market economy. As reported in an earlier post, USCIS has grossly expanded the modest instructions in BAHA, the Buy-American, Hire-American Executive Order (which did no more than ask for ideas on how to rework the H-1B program), and used it to assault all varieties of employment-based visas. From his mentor, patron, and former employer, Sen. Chuck Grassley, Mr. Cissna has sought an “Attaboy” for his BAHA bad acts. But from immigration stakeholders seeking a fair and workable immigration system, for his BAHA buildout, he’s received a full-throated “BOO.”
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Now that Labor Day has marked the official run-up to the mid-term elections, immigration stakeholders await a message from the voting public and the results of exit polling. Do Mr. Cissna’s actions warrant plaudits or plum tomatoes? Time will tell.