USCIS’s Cuccinelli Boasts Of Increasing Immigration Bureaucracy

Not something to boast about, normally:

In a new press release, USCIS Acting Director Ken Cuccinelli boasted that the Trump administration has increased red tape and bureaucracy for U.S. companies. It’s the latest example of administration officials lauding efforts to make it more difficult for employers to obtain what economists often consider to be a company’s most valuable resource – talent.

Since 2017, Trump administration policies have focused on restricting the entry of immigrants and foreign nationals, including scientists and engineers. “Denial rates for new H-1B petitions have increased significantly, rising from 6% in FY 2015 to 32% in the first quarter of FY 2019,” according to a National Foundation for American Policy analysis.

In addition, expensive and time-consuming Requests for Evidence (RFEs) reached an unprecedented level of 60% in the FY 2019 first quarter. The percentage of completed H-1B cases with a Request for Evidence has doubled between FY 2016 and FY 2019. Many companies have resorted to lawsuits in federal court against USCIS to gain approvals for employees they have identified as valuable.

However, Ken Cuccinelli and USCIS describe the increased bureaucracy facing businesses in positive terms and the fulfillment of a mission. “Consistent with President Trump’s call for enhanced vetting, USCIS plays a key role in safeguarding our nation’s immigration system and making sure that only those who are eligible for a benefit receive it,” according to the October 16, 2019, press release. “USCIS is vigorous in its efforts to detect and deter immigration fraud, using a variety of vetting and screening processes to confirm an applicant’s identity and eligibility. The agency also conducts site visits, interviews applicants, and requests evidence for benefits that offer individuals status in the United States.”

The meaning of the bureaucratic language used by USCIS is clear: USCIS has made it more difficult for employers to gain approval for high-skilled foreign nationals and others.

Here are examples of increased bureaucracy and added burdens on companies hiring foreign-born scientists and engineers:

•          Government documents reveal USCIS adjudicators were directed to restrict approvals of H-1B petitions without the legal or regulatory authority to justify those decisions. The documents became public following a Freedom of Information Act (FOIA) lawsuit filed by the American Immigration Lawyers Association.

•          A USCIS internal document – “H-1B RFE Standards” – encouraged adjudicators to demand more information of employers, leading to such requests being made in 40% to 60% of H-1B cases.

•          Another USCIS document changed the standard for what qualifies as a “specialty occupation” for an H-1B visa holder – without any change in the law or regulation. While initially used to deny H-1B status to computer programmers, this analysis explains that the USCIS document states the new USCIS policy is “Applicable to Many Occupations.”

•          USCIS adjudicators have taken the unusual step of approving H-1B status for periods of very short duration. In an ongoing court case, U.S. District Judge Rosemary M. Collyer cited the plaintiff’s example of USCIS granting one applicant an H-1B approval valid for only a single day – from February 1 to February 2, 2019. (See USCIS decision here.) Such actions force businesses to waste time and money filing repeatedly for the same employees.

•          A Trump administration decision to compel employment-based green card applicants to sit for in-person interviews contributed to “increased delays in the adjudication of employment-based benefits [that] undermined the ability of U.S. companies to hire and retain essential workers,” according to an American Immigration Lawyers Association report. It also caused increased backlogs in other types of applications.

•          USCIS now often requires – without a new law or regulation – a company to list every contract on which an H-1B visa holder will work during a three-year period to prove a “valid employer-employee relationship.” This was not done previously, and companies consider it unduly burdensome and out of touch with how businesses operate in a modern economy. The policy is a source of litigation.

•          USCIS also issued a memo instructing adjudicators to no longer defer to prior determinations when adjudicating extension applications for existing H-1B visa holders. That policy change has contributed to a significant increase in denials and Request for Evidence for continuing employment for H-1B petitions, resulting in a three-fold increase in the denial rate for companies trying to retain current H-1B employees between FY 2016 and FY 2019. Employees who spent years working in the United States have been forced to leave the country after being denied H-1B extensions.

“By increasing the many hoops and hurdles that employers and foreign-born workers must negotiate to work in the United States, USCIS is making it harder for American companies to recruit and retain global talent,” said attorney Vic Goel, managing partner of Goel & Anderson, in an interview. “It is doing this through trumped-up claims of increased workload and fraud referrals, when many of those challenges are the result of its own efforts to create more work for itself and further grow the immigration bureaucracy.”

The available U.S. domestic talent pool is limited in many key fields. Approximately 80% of full-time graduate students at U.S. universities in computer science and electrical engineering are international students who need a visa to work long-term in the United States.

Research by Britta Glennon, an assistant professor at the Wharton School of Business at the University of Pennsylvania, found the types of government restrictions applauded by the acting director of USCIS are not good for America. Glennon found H-1B visa restrictions carry the unintended consequence of pushing jobs outside the United States and lead to less innovation in America. “In short, restrictive H-1B policies could not only be exporting more jobs and businesses to countries like Canada, but they also could be making the U.S.’s innovative capacity fall behind,” concluded Glennon.

When USCIS Acting Director Ken Cuccinelli ran for and held public office in Virginia, he had the support of the Tea Party and advocated against overreaching federal bureaucracy, including by filing a lawsuit against the Environmental Protection Agency. As Bob Dylan once sang, “The times, they are a-changin.’”

Source: USCIS’s Cuccinelli Boasts Of Increasing Immigration Bureaucracy

USA: Immigration Head Says No Amendment Needed To End Birthright Citizenship

Stating it doesn’t make is so:

Ken Cuccinelli, the acting director of U.S. Citizenship and Immigration Services, said Wednesday that ending birthright citizenship does not need a Constitutional amendment.

“I do not think you need an amendment to the Constitution. I think the question is do you need congressional action or can the executive act on their own,” Cuccinelli said during a breakfast event hosted by Christian Science Monitor.

The discussion of birthright citizenship, which is citizenship conferred on those born in the United States regardless of the citizenship status of their parents, has been a topic of debate under the Trump administration.

In August 2019, President Donald Trump told reporters that his administration was “very seriously” looking at birthright citizenship “where you have a baby on our land, you walk over the border, have a baby,-congratulations, the baby is now a US citizen…It’s frankly ridiculous.”

In an interview with Axios in October 2018, Trump claimed that he intended to end birthright citizenship through an executive order, but received considerable push back on the legality of that approach.

Then-Speaker of the House Paul Ryan responded to the comments saying that birthright citizenship could not be ended by executive order because “the 14thAmendment is pretty clear.”

Despite strong rhetoric from the White House on pursuing the agenda, experts in constitutional law assert that an amendment would be required.

“Yes, it would require a constitutional amendment, and almost everyone else working on this topic would agree,” Ian Bartrum, a law professor at University of Nevada, Las Vegas told Newsweek.

Birthright citizenship is protected by the 14th Amendment of the Constitution which states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. ”

Bartrum mentioned that the 14th Amendment was created to overturn the Dred Scott case, which allowed states to deny citizenship to the descendants of former and freed slaves. He noted that overturning that amendment would be questionable.

A constitutional amendment can be proposed either by a two-thirds majority in both houses of Congress or by a call for a constitutional convention by two-thirds of the state. The proposed amendment would require ratification for three-quarters of state, making the possibility of such action quite low.

Ken Cuccinelli Wanted to End Birthright Citizenship and Militarize Border

Revealing background:

Former Virginia attorney general Ken Cuccinelli’s long-rumored role as a top coordinator of the Department of Homeland Security immigration policy finally has an official title. According to an email sent to staff at U.S. Citizenship and Immigration Services on Monday, the longtime border hawk has been named acting director of the agency, whose 19,000 employees orchestrate the country’s immigration and naturalization system.

“We must work hand in hand with our colleagues within DHS, along with our other federal partners, to address challenges to our legal immigration system and enforce existing immigration law,” Cuccinelli wrote in an email to his new colleagues. “Together we will continue to work to stem the crisis at our southwest border.”

The note also previews an escalation of Trump’s crackdown on the asylum system, with Cuccinelli vowing to “work to find long-term solutions to close asylum loopholes that encourage many to make the dangerous journey into the United States so that those who truly need humanitarian protections… receive them.”

As Virginia’s top law enforcement official and in his years serving in the Virginia state senate, Cuccinelli laid a long track of aggressive anti-immigrant policies intended to restrict access to public services, employment, and even citizenship from migrants and their families. That record, combined with his vociferous defense of President Donald Trump on cable news and in conservative media outlets, puts Cuccinelli firmly in line with an administration that has made combating undocumented immigration its top domestic policy goal.

In his new role at Homeland Security, Cuccinelli will be one of the Trump administration’s top bosses on immigration-related matters, a portfolio that has felled other senior administration officials in recent months as the president has grown dissatisfied with stubbornly high rates of illegal entry into the United States.

If his record on immigration issues is any indication, Cuccinelli will embrace that role with relish. While his support for President Donald Trump may be relatively newfound, his championing of hardline Trump-style immigration policies is more than a decade in the making.

Although Cuccinelli first drew national attention during his time as Virginia’s attorney general for his attempts to keep laws against oral sexon the books, he also became a staunch advocate on behalf of aggressive immigration policies in other states. In 2010, Cuccinelli filed an amicus brief in support of S.B. 1070, an Arizona law that allowed police officers to investigate the immigration status of any person arrested or detained by law enforcement based on a “reasonable suspicion” that they were in the country illegally. That same year, he released a legal opinionexpanding a similar policy to include any suspected undocumented immigrant stopped by law enforcement for any reason.

“Virginia law enforcement officers have the authority to make the same inquiries as those contemplated by the new Arizona law,” Cuccinelli wrote in the opinion. “So long as the officers have the requisite level of suspicion to believe that a violation of the law has occurred, the officers may detain and briefly question a person they suspect has committed a federal crime.”

Cuccinelli told reporters at the time that any police officer had the authority to question potential undocumented immigrants “so long as they don’t extend the duration of a stop by any significant degree.”

Those stances on illegal immigration appear tame compared to other proposals that Cuccinelli had backed before becoming attorney general. During his eight years in the Virginia state senate, Cuccinelli was the chief patron—the body’s version of primary sponsor—of a rash of bills targeting undocumented immigrants in the commonwealth.

One proposed law would have allowed employers to fire employees who didn’t speak English in their workplace, and stipulated that any employee so fired would be “disqualified from receiving unemployment compensation benefits.” Another bill would have allowed businesses to sue competitors that they believed to be employing undocumented immigrants for economic damages, plus $500 “for each such illegal alien employed by the defendant.”

In one case, Cuccinelli championed one of Trump’s most aggressive immigration policies before Trump himself did. In a 2008 bill, Cuccinelli urged Congress to call a constitutional convention to amend the 14th Amendment of the U.S. Constitution “to clarify specifically that a person born to a parent who is a U. S. citizen is also a citizen of the United States,” to the exclusion of the children of undocumented immigrants who are born in the United States.

Immigration advocates called Cuccinelli’s appointment as acting head of the nation’s top immigration agency “deeply troubling.”

“Whether Ken Cuccinelli’s appointment is lawful remains to be seen,” said Ali Noorani, executive director of the National Immigration Forum, noting that the appointment appears to sidestep the Federal Vacancies Reform Act. “Cuccinelli’s track record of anti-immigrant stances and statements is deeply troubling. In the end, we need unifying solutions and smart policy on immigration, not further polarization. Cuccinelli’s installation doesn’t bode well.”

Since losing a race for governor in 2013—during which he tried to obscure his record on immigration—Cuccinelli has become a mainstay in conservative media outlets, particularly after Trump’s election. Cuccinelli has called for militarizing the border, blocking all immigrants from Central America to discourage the formation of so-called “caravans,” and once came under scrutiny at CNN after a heated on-air exchange about immigration policy, in which he told contributor Ana Navarro that he was “sick and tired of listening to your shrill voice in my ears.”

Joining the administration in an official capacity is the final step in a long journey from the 2016 Republican primaries. Despite their like-mindedness on immigration, Cuccinelli backed Trump’s staunchest opponent, steering Sen. Ted Cruz’s longshot bid to unseat Trump as the party’s nominee by winning over delegates at the Republican National Convention. Cuccinelli famously threw his credentials to the convention floor in apparent disgust when the convention’s organizers refused to allow a floor vote to challenge Trump’s nomination.

“This is disgusting,” Cuccinelli said at the time.