Cuts to immigration have been happening since Mr. Cissna was in charge of the USCIS. The real question is how much harder can we expect someone like Mr. Cuccinelli to be, besides all the way to zero?
Cuccinelli’s hardline stance on immigration, amongst other things, is stirring up controversy.
David Kelso: Hi, welcome to OnlineVisas.com, The Immigration Show. I'm your host, Dave Kelso. Here with OnlineVisas.com, CEO Jon Velie. Now we're streaming this live on the Facebook page. So if you get a chance, swing over to Facebook.com and like the OnlineVisas.com page for more information like this, more shows like this, and more up to date, factual and accurate immigration information.
David Kelso: Jon, how are you today?
Jon Velie: Doing great, Dave.
David Kelso: I have a lot of questions because there has been some immigration things pop up in the news, some stories I'm very interested in. And I'm happy to be able to sit and talk to you about it.
Jon Velie: Sounds great.
David Kelso: The USCIS, US Citizenship and Immigration Services, has recently lost a director, and gotten a new nominee. President Trump has put forward a nominee for the position. This is causing a little bit of controversy I understand. Now Lee Francis Cissna, was asked to resign?
Jon Velie: He was.
David Kelso: And the new guy, Kenneth Cuccinelli, is being considered as a possible replacement. Now this guy's pretty hard line on immigration.
Jon Velie: On lots of things.
David Kelso: What do you know about Mr. Cuccinelli, and what does his nomination mean for immigration in our country.
Jon Velie: Don't know a lot about him. He is the Virginia attorney general. His stances have been against homosexuality, homosexual marriages, or same sex marriages. He has, he's just kind of hard line on lots of issues like that. He's against immigration in general. And what we know, the most telling thing is that the labor union that represents the adjudicators, the people that we file our petitions for, have said that if this guy is appointed it's going to be the end of immigration as we know it. So I think that's a tell tale sign.
David Kelso: Her name is Danielle Spooner, she is the president of the American Federation of Government Employees, which covers all government employees, including USCIS. And she said it has become clear that the goal of this administration is to end immigration altogether she said.
David Kelso: Now honestly how much of that is hyperbole and how much of that is policy?
Jon Velie: It's not hyperbole at all. I know Francis Cissna, good guy, reasonable guy. He's been in policy and immigration for years. We sat on a panel at the Sports Lawyers Association a number of years ago talking about sports and immigration. And pretty much a straight shooter. He came out of Chuck Grassley's office though. And Chuck Grassley vowed in 2007, started launching a bill to reform the H1-B visa and the L1 visa. And for 10 years he couldn't get it through.
Jon Velie: And when Donald Trump took office a lot of the Grassley folks left either Grassley's office or his committee. And then went in immigration systems, is already in immigration. And we saw some really intense things happen in immigration. H1-B's were under attack. The H4, which employment authorization document, allows thousands of H1-B's to work, is now up to be removed.
David Kelso: Let's talk about that for just a second. Because there was an article recently, just last couple of days, that said that there is a work ban. Explain to me what the H4 is right quick, and then we can talk about the work ban that could go into effect as early as this summer, that could affect 100 thousand mostly Indian women, apparently.
Jon Velie: Well they're not all women, but they're Indian spouses. So the H1-B is the visa for folks with university degrees. And because our tech industry is really hot, and because we don't really teach the STEM skills in the United States to the amount that we need to lead to world in technology, we have to import that talent. And then that talent has come primarily from India, but other places interestingly. Iran, China, lots of places where math is more prevalent than it is in the United States.
Jon Velie: Well the H4 allows certain H1-B spouses to work. It's a very small group of people, by definition meaning that their green cards have been in the process. The underlying visa has been approved. But they haven't been able to change their status because of backlogs, or [crosstalk 00:04:20]
David Kelso: That backlog is as much as a decade I've read.
Jon Velie: Yeah, it's very long. So those people, spouses get to work also. And look a lot of them are Silicon Valley. I mean it's an expensive place. And two incomes are necessary. And these are people that are in the middle of their work life. They don't want to sit out, they want to do things. And many of them are very smart.
Jon Velie: So some of them have started companies, right? I know a lot of H4, EADs whose spouses are working at a company, start their own companies, create lots of jobs for people. It's really a non-thinking mean spirited thing to do to cut these ability for these spouses to work. There's only 100 thousand of them anyway, should be expanded, not retracted. What that means is that the spouses are going to leave, or they're going to go through divorces or whatever. It's going to be disruptive to companies and things like that.
Jon Velie: But my point I was going back to is, Francis Cissna was in charge of immigration and was asked to resign by Donald Trump. And now they're bringing a guy that is so hardcore that the immigration practitioners, the adjudicators of this are like, "What are we supposed to do now, just deny everybody?" And that's really where we're talking about.
Jon Velie: It's like this is the invisible wall.
David Kelso: We're talking with Jon Velie, the CEO of OnlineVisas.com. Drop him an email at jon@velielaw.com. The cutbacks in the H1-B have been happening since Mr. Cissna was in charge of that organization. How much more hard, besides all the way to zero, can we expect somebody like Mr. Cuccinelli to be?
Jon Velie: I think what we need to expect is that the whole system may change. We've already heard that there's a Kushner plan, that what Donald Trump has talked about, his immigration plan, in broad strokes-
David Kelso: His merit based immigration plan.
Jon Velie: The merit based immigration plan. And we don't know what it is yet. All we know it that the term merit based immigration has been used in Canada and Australia, there's pros and cons to that. It's based on a points system, you get certain points for certain things. And they decide what these points are going to be.
Jon Velie: We can guess that they might be for advanced degrees or if you're going to invest an amount of money, you get so many points. If you invest more maybe you'll get more points. And they can cross all different immigration instead of the variations that we have today. It can be a complete reform.
Jon Velie: Now we've tried immigration reform a number of times. Obama tried immigration reform, George W. Bush tried immigration reform, George Bush and Ronald Reagan did amnesty that brought in a lot of people that really created the backlash against immigration, resulting in these reforms. The Donald Trump situation and Mr. Cuccinelli, their way is to just say, "Here's what we're going to do." Just like, got you, here it is, and then let the courts tell you if it's constitutional or not.
Jon Velie: So I don't know what's going to come of this. I don't think anybody really does. What we know is that the labor union for the adjudicators are upset about it. And if they're upset and they've been the ones that have been adjudicating these cases with a much higher level of negativity, more denials, more requests for evidence, that it's going to get worse.
David Kelso: If looks like Mr. Cuccinelli is getting some push back for more than just the adjudicators and the unions involved. In fact Mitch McConnell has even said that he plans to oppose this. So-
Jon Velie: I don't think that's because of immigration.
David Kelso: But it looks like he might not get the position. And the point I was trying to get to is that president Trump has said that if he doesn't get this position, he's going to appoint to somewhere in DHS anyway. So what does this say about the future of immigration to the United States, or at least in the next couple of years?
Jon Velie: Nothing new from here. We've had Mr. Miller, who is-
David Kelso: Steven Miller, the White House adviser.
Jon Velie: Steven Miller and Steve Bannon, that were really the architects of Trumps' anti immigration mentality. I don't know that Donald Trump has a philosophical bone going in about anti immigration other than there's been elements of whether or not he's racist. But the point is that there are architects to this. And Steven Miller, and Steven Bannon, we've seen pictures in the past of, here's what they want to do that's going to eliminate immigration. Well I think they're just bringing in another like minded person and I think what we're going to see is an administration that doesn't go through the proper channels, but just makes these kind of bold assertive-
David Kelso: Tweets.
Jon Velie: Well these people are going to make bold, assertive changes in immigration. And I don't know that they're going to get any feedback from obviously the people that are adjudicating the cases, the lawyers that process the cases, or stakeholders. They're just going to go through with an agenda that might just be red meat, to try to get reelected, or just another mean spirited situation that hurts people trying to come into this country.
David Kelso: Well according to this article at bizjournals.com, there will be a public comment period. So hopefully people who are interested in this can make public comment.
David Kelso: Now we're talking with Jon Velie the CEO of OnlineVisas.com. Speaking of communities speaking out against this, there have been I think 40 lawsuits filed against the Trump administration about the reductions in the H1-B under Mr. Cissna. What can you tell me about those lawsuits and their expectation of success or failure?
Jon Velie: I know a lot about these lawsuits. I was involved, the organization that is behind these lawsuits, which is called the ITServe Alliance. And ITServe is a wonderful organization, about 11 hundred American technology companies across the country, founded in Dallas, Texas. A lot of the people in there are of Indian descent and a lot of them are, the companies that provide staff or staffing types of employees to other American companies. So they are identifying, training, and bringing in talent, to help American companies keep jobs in America, right?
Jon Velie: And they've done an excellent job, and they've been doing it since Y2K. And really what I would identify as the world's most educated and mobile workforce are these Indian programmers. And I've seen them come in various waves. One wave comes over student visas and IH1-B's, another wave goes back and opens companies in India and trains people. Another wave come back as investors. They've just been really helpful to our economy growing that way. And really the stats show that for every, I think across the board for every H1-B that's hired, 1.8 Americans get jobs. And if you think about it, when the tech is brought here, then the managerial staff is in America, the sales, the marketing, the executives are here. What's been happening is because these visas are hard to get now, that the tech is staying in India, and the managers are Indian, and the American with the six figure job, doesn't have a job anymore.
Jon Velie: So we're kind of killing ourselves. We've complained as a country, that all of our, what do we call it, manufacturing jobs have left, well our technical jobs are leaving. They're leaving because our government is making it harder for American companies to bring that talent in. So as of Francis Cissna being the director of USCIS, he has been the named official in 40 lawsuits that have been brought under the ITServe alliance.
David Kelso: Because the changes in immigration are making it very difficult for the ITServe alliance to do anything.
Jon Velie: And really anybody with H1-B's. But these guys are standing up. Because they're getting ... the real battle lines have been on what they call third party placements. Remember when we did the podcast the other day about how to get the H1-B-
David Kelso: The H1-B, yes. Find the H1-B video by the way, in our podcast here at the YouTube page.
Jon Velie: Well we talked about the five ways immigration has been denied in those cases. And what I did for ITServe Alliance on their law and policy committee and helped in the decision making for picking the attorneys that are doing this, is we took denials from a series of the companies and other law firms, and mapped out about how USCIS is denying those cases. And it was a lot of arbitrary, capricious decision and arbitrary and capricious is the term that if an agency acts that way, it can be held liable and lose a lawsuit.
Jon Velie: So we got a couple cases. One of them, it's called Integras Professional Solutions versus the United States Citizen and Immigration Services and L. Francis Cissna. And that is a complaint for declaratory and injunctive relief in review of agency action under the Administrative and Procedures Act. So they're going to try and make a decision whether this agency and under the leadership of Mr. Cissna, which will be now under Mr. Cuccinelli, he will actually replace him on this lawsuit, and they're looking that ... because the agency denied substantial evidence that the job qualified for a visa, that's one of the lawsuits, the other one, and we talked about besides substantial evidence being one of the reasons. Another one is that the specialty occupation of a job.
Jon Velie: That's whether or not a job is an H1-B job. And this case, which is called Anub Hab Shan Delah and Balfore Beatty Construction LLC versus USCIS and Francis Cissna. This is a denial of an improper reading of the occupational outlook handbook. Now the occupational outlook handbook, called the OOH, is a database of jobs that immigration is now exclusive looking to. It's not their database, it's Department of Labor's.
Jon Velie: But in that they're taking some language and they're bending it to create denials. They're knocking jobs out that were always H1-B jobs as long as any of us have ever practices. And they're saying that this is an improper reading of that. So that's the situation that we're seeing in that.
David Kelso: That's Jon Velie, he is CEO of OnlineVisas.com. There is an enormous amount of information out there about immigration. Finding factual and accurate information can be tricky. Please subscribe to the YouTube page, there are regular updates to this podcast. And if you'd like a copy of Jon's bestselling book, H1-B Visas, Applications, and Approval, drop him an email at jon@velielaw.com.
David Kelso: Jon, thanks so much for your time today.
Jon Velie: Thank you Dave, good work.
David Kelso: Next time.