Ken Cuccinelli, Acting Director of U.S. Citizenship and Immigration Services, was featured in an Immigration Newsmaker conversation hosted by the Center for Immigration Studies on September 26.
Center for Immigration Studies
U.S. Citizenship and Immigration Services
MARK KRIKORIAN: Good afternoon. My name is Mark Krikorian. I am executive director of the Center for Immigration Studies.
We’ve done a series of what we call newsmaker events where we interview important policymakers in the administration or from Capitol Hill on the immigration issue. And our latest newsmaker victim, I guess – or subject –
KEN CUCCINELLI: Uh-oh! (Laughter.)
MR. KRIKORIAN: – Ken Cuccinelli, who is acting director of U.S. Citizenship and Immigration Services, and I really appreciate your taking the time out –
MR. CUCCINELLI: Glad to do it.
MR. KRIKORIAN: – of your busy day. We’ve got – there should be three-by-five cards for people who have questions. We’ll take some at the end. But I’m paying for the room, so I’ve got a bunch of questions I want to ask first.
So the first thing I want to ask –
MR. CUCCINELLI: The Mark Krikorian-Reagan paraphrase.
MR. KRIKORIAN: Exactly.
MR. CUCCINELLI: Yes.
MR. KRIKORIAN: It’s my version of it. I’m paying for this microphone.
MR. CUCCINELLI: Yes. Yeah.
MR. KRIKORIAN: Now, you are head of USCIS, which is the part of DHS that does the green cards and work permits.
MR. CUCCINELLI: Legal immigration.
MR. KRIKORIAN: Exactly, citizenship and what have you. But you’ve been pretty up front in talking about other parts of the issue, too. You had a tour of the border, and all of that.
MR. CUCCINELLI: Yeah, I was in – I remember being in a meeting with me, Mark Morgan, Matt Albence, Kevin McAleenan, and Mark Morgan joked, yeah, nobody knows the difference between any of us.
Now, in this room you all probably know the difference between us, but the average American who just pays attention to the issue and doesn’t really care about the org chart –
MR. KRIKORIAN: Right.
MR. CUCCINELLI: – you know, just – when policymakers are talking, want to hear about the overall issue, you know. So you don’t say, well, that’s – that question isn’t for my agency; I’ll have to refer you to somebody else and make it difficult.
MR. KRIKORIAN: But that is a pretty common response from a lot of agencies, so my question is what is your role in the administration’s sort of immigration message?
MR. CUCCINELLI: Well, it is to help push it, and by push it, I mean to educate ordinary Americans about what the president is trying to do and why, and why it’s a good idea. And, you know, before I took this job, one of my jobs before was CNN commentator for a couple of years, and so I’ve done some of this before, and I did some of it before that. But it is important to have a unified message for clarity and for transparency, and to advocate; to make the case for what we are doing.
The president is doing a lot of good things right now in the immigration space, and there is no one big thing. It really makes more sense to look at it as a lot of little things that, together, form the administration’s forward-marching policies in this space. And it is not simple. And a lot of us wish it were a lot simpler. We have called on Congress to help us try to make it simpler, and Congress had said – (stretches out arms and yawns) – you know, or words to that effect.
MR. KRIKORIAN: Either that or they were chasing the impeachment squirrel or something like that, so –
MR. CUCCINELLI: Yeah.
MR. KRIKORIAN: But just to follow up briefly on that, one would expect that the DHS secretary, for instance, would be doing that. Is there any – I mean, have you come to sort of an understanding –
MR. CUCCINELLI: Well, he does is – he does it also.
MR. KRIKORIAN: – or has it been your – right.
MR. CUCCINELLI: I mean, look, there’s different ones of us that communicate different ways and have a different comfort level here, and Kevin McAleenan is the secretary – he’s the acting secretary and leads DHS, including the three immigration agencies. There are also five other agencies that, you know – that some of them people wouldn’t necessarily guess are in the Department of Homeland Security, but some of them are infrastructure, Internet protection – TSA, we’re all familiar with whether we like it or not.
MR. KRIKORIAN: Coast Guard.
MR. CUCCINELLI: Coast Guard, Secret Service, FEMA – so, you know, we just went through a series of storms or possible storms, and we’re not out of the season yet, and he has to deal with all that as well. So there’s an element of divided time. He has responsibilities beyond immigration, but he’s been very present. He has been traveling to Central America quite a bit, taking advantage of the opportunities the president has created in how he has dealt with other countries, which has been one of the major differences between this president and all his recent predecessors, of any party, in terms of his hard-charging approach isn’t just domestic, it isn’t just in the political area here; it is also on the international scene, and leveraging the advantages that America has for the benefit of our security and the policies we’re attempting to accomplish here.
MR. KRIKORIAN: You were saying the administration’s policy is sort of a lot of little things that add up –
MR. CUCCINELLI: Yeah.
MR. KRIKORIAN: – but the big thing really is the border, I mean, or at least it has been obviously.
MR. CUCCINELLI: Sure. Sure, it’s certainly omnipresent.
MR. KRIKORIAN: And the apprehensions – or apprehensions or inadmissibles reached a peak in May of 144,000.
MR. CUCCINELLI: Yeah. Yeah, an incredible number.
MR. KRIKORIAN: This is – this is – yeah, and it has been down – August it was down to 64,000 –
MR. CUCCINELLI: Right.
MR. KRIKORIAN: – which is obviously in the right direction though that’s still higher than any month in recent years.
MR. CUCCINELLI: Yeah, so – that’s right. If you take out the other 2019 horrific months, August is still higher than every single month in the last seven years except two.
MR. KRIKORIAN: Right.
MR. CUCCINELLI: So we are still at crisis level. The trend line is good – I agree with you, Mark – and the usual seasonal drop is about 6 percent. Well, that drop you just described from 8 August is 56 percent. And critically for us, the drop among unaccompanied children and families is closer to two-thirds, and they are logistically much more challenging for the system, both as a matter of just facilities and manpower, but also on the legal front because we had things like the Flores settlement. We have children who go to HHS so they are out of the hands of the Department of Homeland Security and so forth. So those are all just logistical complications that make things more difficult.
MR. KRIKORIAN: And so, as you suggested, some of that drop might be weather –
MR. CUCCINELLI: Not much, yeah.
MR. KRIKORIAN: – but presumably some or much of it is in fact policy changes that have –
MR. CUCCINELLI: Overwhelmingly policy-driven, yeah.
MR. KRIKORIAN: And so along those lines, one of the things that USCIS does, one of the parts of the role it has in what’s going on at the border – even though you would think there wouldn’t be – is the credible fear interviews –
MR. CUCCINELLI: Yeah.
MR. KRIKORIAN: – which is like the first cut. For people who don’t understand, the first cut in the asylum process, somebody comes, they say they fear return, and it’s people in your agency who do that initial interview. And the percentage who pass that used to be almost a hundred percent. It had come down to something like 75 percent.
MR. CUCCINELLI: Eighty (percent), yeah. It’s very high.
MR. KRIKORIAN: And my question is, has – what has happened to that? I mean, there’s a limit to how far it can go presumably?
MR. CUCCINELLI: Yeah, I mean, it’s a –
MR. KRIKORIAN: The statute –
MR. CUCCINELLI: First of all, it’s a terribly worded statute.
MR. KRIKORIAN: Right.
MR. CUCCINELLI: And it’s a standard of a standard. It’s a standard targeting another standard, which is a terrible way to write a law. And I dealt with this in Virginia on other things, but it’s just a terrible way to write a law. But there it is, and that’s what we have to implement.
It’s about – when you count us and the Department of Justice, where some of these that we reject go to, it’s about 80 percent.
MR. KRIKORIAN: Oh, it still is.
MR. CUCCINELLI: Now mind you, that 80 percent then becomes, when these cases are heard on the merits, it’s about 10, 12, 15 percent –
MR. KRIKORIAN: Of those 80 percent actually – right.
MR. CUCCINELLI: – of the total, and so you have this massive amount that is just clogging the pipeline that’s never going to get approved and is swamping the system. And look, let’s face it. The strategy on the part of the people coming illegally is a collective strategy. It is to swamp the border and to swamp the Border Patrol, and ICE, and our resources at the border.
MR. KRIKORIAN: Kind of a Cloward-Piven strategy for the border.
MR. CUCCINELLI: It is, and I will say going forward any “catch and release” is off now, so even families that come up know – or should know if they are watching Mark Krikorian live here –
MR. KRIKORIAN: (Laughs.)
MR. CUCCINELLI: – that there won’t be “catch and release” anymore. Between ICE’s detention, the Remain in Mexico program – which is a fruit of the president’s negotiation with Mexico – one of the fruits – and now we’ve changed ICE, got the Flores regulation put in place which will become effective in October, which expands our flexibility inside the border so we have a fallback plan.
MR. KRIKORIAN: So you can hold kids with their families, in other words, right?
MR. CUCCINELLI: With their families, yeah. We keep families together – more than 20 days, which was the issue, and we can’t run a process in 20 days. So that – all of those pieces allow us to avoid “catch and release” going forward. Hopefully that will deter people from making the dangerous – and for them – expensive trip up here because they’re just going to land back in their home communities, and it’s going to happen in a few months really.
MR. KRIKORIAN: One of the questions I had about the “catch and release” issue, the secretary just gave a speech on this saying “catch and release” is now over, so I assume that means pretty much everybody – what he said is if you don’t make a claim of credible fear, then you are going to be returned, which is the way it is now. If you do, you’re not going to be let go. Presumably you’re either detained –
MR. CUCCINELLI: You’re going to be detained –
MR. KRIKORIAN: – or you’re returned.
MR. CUCCINELLI: – which is, by the way, what the law says.
MR. KRIKORIAN: Right.
MR. CUCCINELLI: The only thing the law speaks of is detaining people through the course of their hearing. It doesn’t say anywhere that you can or should let people go –
MR. KRIKORIAN: Right.
MR. CUCCINELLI: – nowhere in American law. That just became a habit, and as much as Congress – some congressional reps were coming down to the border during the height of the crisis and complaining about overcrowding – and there was overcrowding – but whose responsibility is that? (Laughs.) The Border Patrol works with what they have. Well, who gives them what they have? Congress.
So, you know, instead of doing something about it, which they have the power to do – as they proved in June with respect to children when, after months and months of us, you know, nagging them basically, they finally took the experts’ advice, funded CARE for children, and in one month we went from overcrowded circumstances to having kids out of Border Patrol facilities in under three days with no overcrowding for children. In one month we solved that problem.
MR. KRIKORIAN: Once you got the money.
MR. CUCCINELLI: Once we got the money. Well, to put it in different terms, once they listened to the experts – and I say it that way because earlier in the year lots of the congressional reps who were complaining – said, well, you know, we want to hear from the experts. So the experts had been squawking at them for quite some time. If they will listen to the experts, we can solve even the facilities problems.
And realize, we have to be much more flexible than we used to be in the past because what’s going on on the southern side of the border we all – or here we look from the north to the south, but if you look from the south to the north, what you would see is a tollbooth for the cartels. And these smuggling organizations have to pay a cut to the cartels to even get to the border, and they steer the traffic. And they steer it in ways that advantage their other business. So they both take a cut, and they will, for instance, overwhelm Border Patrol manpower in one area so they can run drugs, guns, people – smuggle people across another part of the border – often relatively close by, but now you’ve drained the law enforcement resources to contend with that.
MR. KRIKORIAN: Right.
MR. CUCCINELLI: They are very strategic about it. They have intel. I mean, I’ve been down to the border many times, and on a couple of the helicopter rides you see guys literally sitting on the tops of hills with cell phones. Well, they work for the cartels – they’re spotters – and they’re just sitting there with the cell phones. So, you know, can you go rustle them off? Well, if you own the hill. But if you don’t own the hill –
MR. KRIKORIAN: They’re just sitting there, yeah.
MR. CUCCINELLI: – they’re just sitting there, you know, and they are sophisticated enough to alter their patterns of behavior and operations based on the weather. So we use balloons for spotting – basically small blimps that have observation platforms attached to them. The smaller ones can stay up up to about 15-knot winds, and the larger ones can stay to about 25-knot winds. But when you get storms that start approaching those thresholds, cartel behavior starts to change –
MR. KRIKORIAN: Interesting.
MR. CUCCINELLI: – because our opportunity to have more expansive intel is diminished under those conditions, and they know it.
MR. KRIKORIAN: One smaller last follow-up question on this border issue: It had been reported that in some places where the Border Patrol literally just couldn’t handle it, they were releasing people without even the credible fear interviews.
MR. CUCCINELLI: Yeah, that’s right.
MR. KRIKORIAN: And has that stopped yet?
MR. CUCCINELLI: Oh, that’s – yeah, that’s long over.
MR. KRIKORIAN: OK. OK, good.
MR. CUCCINELLI: Long over, yes.
And, by the way, over the course of the summer, my agency has been training a number of Border Patrol agents to themselves do credible fear interviews. It’s extensive training. It is the most extensive training these folks have had in their entire career since they left the academy, so very, very thorough.
And the reality is law enforcement agents make legal decisions every day. They make probable cause decisions, they make all sorts of decisions like that, and for the law enforcement folks in their law enforcement capacity, they’re always doing that with a priority on their own safety and the safety of others around them. So it isn’t like my officers, who may be on the phone interviewing somebody or sitting at a desk. We don’t have safety issues to contend with in our interviews.
So they are doing legal analysis, legal decision making literally while having to defend against the potential for threats to arise at any moment.
MR. KRIKORIAN: Is that changing the percentage of credible fear determinations done by Border Patrol agents as opposed to your CIS people?
MR. CUCCINELLI: Well, there is only small number so far. I want to say we’re up to 60 Border Patrol agents. And mind you, they are an organization of 60,000, so I believe it’s the largest law enforcement agency in the United States of America. And so they strategically place those folks –
MR. KRIKORIAN: OK.
MR. CUCCINELLI: You know, they’re not –
MR. KRIKORIAN: So you can’t really compare the stats one way or the other.
MR. CUCCINELLI: No, not really, but we can do these by phone. We do that frequently which gives us a lot of flexibility, and they can, too. So they can be placed in one place and call in to a border location and do some of these interviews, and they are doing that.
MR. KRIKORIAN: So to move in a little different direction, one of the other things – one of the main things CBP does – I mean USCIS does is all of these visa issues –
MR. CUCCINELLI: Yeah.
MR. KRIKORIAN: – and processing applications, and specifically fraud – or at least –
MR. CUCCINELLI: Policing it, yeah. Policing it, yes.
MR. KRIKORIAN: – one of the things is to root out fraud.
MR. CUCCINELLI: Yeah, policing, yes.
MR. KRIKORIAN: And recently there were a bunch of site visits of H-1B sites, and they found something like 40 percent of them had at least some evidence –
MR. CUCCINELLI: Some violation, yeah.
MR. KRIKORIAN: – some indication of fraud or a violation of one kind or another. So –
MR. CUCCINELLI: Lack of compliance in some way, yeah.
MR. KRIKORIAN: Yeah, and that’s inconsistent – that is consistent with all kind of past work on these visa things. I remember years ago, the State Department did some spot checks – I think it was in some posts in India, and they found massive – that was marriage fraud there, for instance. So there’s fraud throughout much of the – or attempts at fraud throughout much of the work that USCIS does.
MR. CUCCINELLI: There is.
MR. KRIKORIAN: So my question is, what – how are you guys addressing that?
MR. CUCCINELLI: Well, when I was attorney general of Virginia, one of my main foci was healthcare fraud, and we shattered all records for recovering dollars, and fighting healthcare fraud, and brought some of those tactics here. FDNS are the folks tasked in our agency –
MR. KRIKORIAN: Fraud Detection and National Security.
MR. CUCCINELLI: Yeah, and National Security – with dealing with fraud.
They aren’t the only ones. I mean, every officer is expected to play a role in vetting this, but they’re the experts, and cases get referred by an officer who suspects something to an FDNS employee. And we have expanded their numbers and their capabilities.
We are also shifting over to electronic filing which will give us the ability to do data analysis that we just can’t do now with a(n) overwhelmingly paper system. And you’d think, wait a minute, it’s the 21st century. Well, you know, if you round off, it’s still the 20th; we’re not at 2050 yet –
MR. KRIKORIAN: (Laughs.)
MR. CUCCINELLI: – so we’re still doing paper. But we are moving in that direction. I hope that by the beginning of calendar year 2021 we will have literally all our forms capable of electronic filing, and we’re going to move in the direction of mandatory filing is what I’d like to do so we can –
MR. KRIKORIAN: How does the electronic thing help as far as fraud goes?
MR. CUCCINELLI: Yes, because we can – we can screen patterns, behavior, and applications much faster. We can also use programs to assist our human eyes and brains in doing this as well. It will dramatically expand our capacity to detect suspected fraud. You know, you never trust a computer to make a conclusion necessarily, but you do want to optimize your people’s time, which is our greatest resource in investigating.
And I’m also working on positioning USCIS to be the source of many, many more prosecutions for fraud, something that we need more of.
MR. KRIKORIAN: That’s one thing – that’s one thing I was going to ask about because recently – we just wrote a blog post earlier today about a large Indian outsourcing company, and they were fined – so it was a large fine, it was like $2 million – but it wasn’t that big considering the size of the company – consistent fraud conducted by officials of the company, no jail time, no prosecution at all, and not even debarment from using these programs that they had attempted to defraud. So my question is, can USCIS goose Department of Labor or Department of Justice to do more of their role in fighting fraud?
MR. CUCCINELLI: Well, I hope that we can. We’re having those discussions now. I would say it seems like everybody in government defers to the Department of Justice, and I mean – I’ll say it publicly – I don’t know why. (Laughter.) And that’s not a disrespect to DOJ.
I was an attorney general, but one thing I learned as attorney general – and I wasn’t surprised – lawyers advise; clients decide. And in the federal government, there’s an awful lot of the lawyers deciding. And I don’t operate that way. Lawyers advise, and then they can deal with my decision as best they can, and we march happily forward. Well, I’m happy; they may not be. But we will go forward. And that’s an adjustment for me. (Laughs.) There are a number of adjustments to being a manager in the federal arena versus an at-will employment state like Virginia.
But you also have these cross-agency – they’re called equities in the federal government, one of my new terms; I thought equity was a stock – but apparently in the federal government it is something else. And in immigration, of course, parole is something else. We have done all sorts of things to the English language. But we are working in that direction.
And I would just point out for you all one aspect of it that I talk about internally. I manage, I lead 19,000 – roughly – employees at USCIS. Prosecuting fraud is about a lot of things. It’s about upholding the law. It’s about protecting America. But it’s also – for me, as a leader of an agency, about respecting the work my people do. If you were one of the folks adjudicating these cases, and you just know you are being lied to, and your bosses don’t do anything about it, well, how do you feel about that? What does that do for your morale? How do you feel about your job? How determined are you going to be to root it out if you don’t think anything is going to come of it?
So part of it for me is a matter of respect for the employees who I lead and the work they do. Overwhelmingly, the people at USCIS want to obey the law; they want to enforce the law. And they don’t want people gaming America and playing us. And unfortunately, in the past it has been the case that what I’ll call small cases – Mark you just described what amounts to a networked case where they are doing a bunch of different things. I want to go after individual fraudsters, and I want to put them in jail. And I certainly want to put the kind of people you are describing in jail.
Now, we won’t displace ICE and HSI in their role as sort of our lead prosecutor, but we also work with U.S. attorneys – you mentioned Department of Justice – and I want to expand those relationships and our capacity to conduct those cases because I think it is very important to both the rule of law, the protection of America, as well as the respect for my own employees that I lead that we be more vigilant about that.
MR. KRIKORIAN: Now, about tech workers – this is obviously a big part of what USCIS is this whole H-1B system and everything related to tech workers. There was a lot of news over the last couple of years of U.S. workers being replaced and having to train their –
MR. CUCCINELLI: I’ve seen that news.
MR. KRIKORIAN: – you know, train their replacements. Disney did this –
MR. CUCCINELLI: Yes, Disney is the most famous of all. Yeah.
MR. KRIKORIAN: And there was lots of companies. Disney was famous just because it was on The New York Times.
MR. CUCCINELLI: Yeah, and they’re famous – yeah.
MR. KRIKORIAN: But this happens all kinds of places. And it’s not illegal, at least they were claiming that, and I think they are right. A lot of congressmen were, you know, outraged, but they got away with it, and other employers are getting away with it, including getting away with – in this related thing, discrimination against U.S. workers instead of – I mean, against U.S. workers in favor of visa workers.
So my question is what can USCIS do to address this issue, if anything, without the law changing –
MR. CUCCINELLI: Right, yeah.
MR. KRIKORIAN: – of companies replacing U.S. workers with H-1Bs.
MR. CUCCINELLI: Yeah, you know, we start all these discussions with the assumption of the law not changing, which is a sad place to start a discussion. I mean, the right way to decide policy is for Congress and the president to decide policy. That’s the way the government was set up.
What we – in the alternative, we talk about what amount to workarounds to that. Of course, they have to be within the boundaries of the law, but I really wish – and I’m hopeful – that we’ll see some cleanup work done here because it is very messy, and it is concerning.
You know, I have a high regard – as does the president – for protecting U.S. workers, and the H-1B program has been controversial in this regard, and not just because of Disney and those sorts of situations, but the potential to not have the same financial obligations for H-1B employees that a company might have for a U.S. citizen employee doing the same work. And, you know, that’s the reverse of how it should be.
In the H-2A, which is, you know, temporary ag workers, there are transportation cost requirements and there are housing requirements for bringing in foreign workers. That almost – that automatically builds in costs added to the use of foreign workers versus U.S. workers. I like that. I like that. I want it to cost more to use non-American workers because if you are willing to pay that amount, that’s actually the truest test, to me, that in fact that particular market we really do need temporary foreign workers. Otherwise, why wouldn’t you just pay less and get someone who can stay here year-round? And that kind of built-in double-check doesn’t exist in the H-1B program.
So I have a number of ideas there that, as I hope legislative discussions move forward, will be included in that discussion because I do think the H-1B arrangement needs to be cleaned up. We are somewhat limited because of the legal history that has already gone by. We have to obey the law whether we like it or not. There are other people who just say, well, I don’t like that law so I’m going to do this. Well, I don’t do that. You know, if you are going to be a rule-of-law idealist, you start by following the law, and that includes court decisions that may not have gone a way I like but, you know, we still have to stick with them.
MR. KRIKORIAN: Along these lines – and this is something that doesn’t require statutory change but does relate – it’s sort of the feeder program for H-1B – is the – what’s called the Optional Practical Training program – OPT. It’s essentially – if you think about it, it’s one of the biggest guest worker programs –
MR. CUCCINELLI: It’s massive, yeah.
MR. KRIKORIAN: – where foreign students who graduate are still students for up to three years. And it specifically relates to what you were talking about, a difference in cost, because employers and the employees don’t have to pay a payroll tax, so it’s essentially a subsidy. And that is not something in statute. That was literally made up by the Bush administration, expanded by the Obama administration.
MR. CUCCINELLI: Yes.
MR. KRIKORIAN: Are there plans to get rid of it, or scale it back, or shrink it?
MR. CUCCINELLI: We are definitely looking at that subject. There are also national security concerns there. You know, whenever you have a fairly open-ended program like that you will see our strategic opponents on the world stage attempt to take advantage of it for their own purposes. That’s something that we have, you know, great concern about, and – which takes me to a basic point: I view USCIS, first and foremost, as a vetting agency, and this is a classic example. Now ICE runs the student visa program. They have more of the – they have the enforcement tools, but the raw numbers involved are so large that it creates problems for conducting thorough oversight and enforcement. And we are looking at how to – DHS-wide we are looking at how to manage that and bring it back under control, and really much more within more reasonable boundaries.
MR. KRIKORIAN: One – another H-1B-related question, smaller –
MR. CUCCINELLI: And actually, before we leave it, one, you know, unpleasantly surprising aspect of it that I don’t think a lot of people know is, for a lot of that program, it has been outsourced to the universities – you know, designated officers at universities essentially become little immigration officers. And there are schools that just game it, that the school itself is a joke; its purpose is to serve as a conduit to put people in the – to get them working, get them work permits. And if you are one of those potential workers, paying that school the amount –
MR. KRIKORIAN: Of tuition, yeah.
MR. CUCCINELLI: – to be in that circumstance was a good deal, but it’s not training. (Laughs.)
MR. KRIKORIAN: Right, right.
MR. CUCCINELLI: And my concern for the whole program is, even if you are going to have a training program, training has a particular meaning. It also has a history, and it isn’t how we’re seeing a lot of the use of those visas being played out.
MR. KRIKORIAN: Another sort of side issue to the H-1B issue is the H4 work authorization, which is to say the spouses of H-1Bs, there is no statutory basis for letting them work, and yet, the Obama administration, they created something which now people – is sort of a program, the H4 EAD program. There’s a reg, apparently, to change that –
MR. CUCCINELLI: And a lawsuit.
MR. KRIKORIAN: – a regulation that’s been drafted and – yeah, and a lawsuit against it. So, number one, where is the reg? Number two, why not just settle the lawsuit if the administration doesn’t want to have this program?
MR. CUCCINELLI: So the reg is currently at OIRA. Realize that –
MR. KRIKORIAN: It has been for a while, though, right?
MR. CUCCINELLI: Yeah, and it came out of USCIS. Just realize that we also put through the public charge reg, which was massive and a much higher priority; the Flores reg came out of ICE and, you know, there are things that, you know, where we sit here in the middle – actually the back end of 2019, where these priorities start to crowd up against one another.
And how the litigation plays out – mind you, there are interveners in the case, so it isn’t just the plaintiffs and the government, and it’s not run-of-the-mill interveners. They are large entities, can carry their own weight. And all those things interact. They also kind of limit the kind of things I can say because I’m in on the decision-making. So I really can’t comment too much except to say we’re not ignoring it. But I would also point out that when you look at some of the other things we are doing, you look at our unified agenda, you can see things that are a much bigger deal that we are working on. And they fight for attention and manpower.
And while a lot of people think of the federal government as this unlimited monolith, the reality is, in the regulatory space which I have a lot of experience in, we do not have anything like unlimited manpower. We have a very limited resource in terms of raw man hours available to do this work. So we are continually having to prioritize internally, and then you go up the chain – Office of General Counsel, DHS, does their owns prioritization, and the OIRA, on behalf of the White House, does as well. And so there is a natural filtering. And time is our opponent here. And, you know, we know that we have to, you know, get things done by the latter part of 2020 – you can’t assume anything going forward. We have a work window that we have to operate within, and I will say one of the disappointments in the federal government is what they think of as fast and what I think of as fast – (laughter) – are very, very different.
MR. KRIKORIAN: I have one last question on tech, and then we’ll take some – a few questions from the audience, and that’s on this legislation, S.386. It’s the per-country cap bill, and this is a bill that would change – would change the way we give out employment-based green cards. The practical result would be essentially India, for at least a decade would take – almost all employment-based green cards would go to Indians.
It doesn’t increase numbers, but it does do that, and it –
MR. CUCCINELLI: It gets rid of the 7 percent cap.
MR. KRIKORIAN: The 7 percent cap per country. But the question I have is sort a political dynamic one because if they get rid of that, Indians take over the whole, you know, employment-based – because that’s – I mean, that’s a practical matter. That’s what’s going to happen. Everybody else is going to be frozen out. There was a great quote from a businessman in Latin America – I mean, in Miami – excuse me, I didn’t mean to confuse them – saying something to the effect that this will kill Florida, basically end all future Hispanic employment immigration to the U.S. And there are other groups – Iranians and others – who are objecting.
My question for you is, is there a danger that creates a political dynamic to just increase numbers in Congress so as to satisfy everybody?
MR. CUCCINELLI: Well, first of all, I can’t pass up your example. It would have to be very particular Iranians for me to generate any sympathy.
MR. KRIKORIAN: OK, well, put that aside.
MR. CUCCINELLI: (Laughs.) But for those, I would have it. And look, India is a country of 1.3 billion people, and the 7 percent cap on the 1.1 million green cards overall – per country cap – naturally does not play out equally across the globe. Luxembourg doesn’t have any problems with the 7 percent cap, you know, because they start at such a low number and even if they had the enthusiasm to come here that Indians do, the numbers just don’t work that way and – you know, so this particular bill is – as you know, Mark – is only one of many different types of I’ll call them solutions. That’s assumes there is a problem which is question number one, and I won’t assume that. But if you want to change the system, this is one of really a number of alternatives that have been looked at – and just changing the percent, you know, shifting things around, et cetera.
But the other biggest country in the world is China. And, you know, unlike India in many ways, China is a strategic opponent in the world, and that factors into all of these discussions. Whenever we change our systems they alter their behavior to attempt to take advantage, and we have to be very cognizant of that. And I assure you there are many people in the House and Senate – and I’m often critical of Congress – but who do pay attention to those sorts of national-security-based concerns when looking at these kinds of questions. And you don’t always necessarily hear those discussed publicly because we don’t want to discuss them publicly. We – (laughs) – tend to do that behind closed doors in rooms we’re not allowed to bring our cell phones in, you know, and that’s the way it should be, candidly. But that does factor in.
And really, in the big scheme of things, I don’t see that bill moving –
MR. KRIKORIAN: OK.
MR. CUCCINELLI: – certainly not by itself.
MR. KRIKORIAN: And it isn’t today. They were going to bring it up for unanimous consent and they decided not to.
MR. CUCCINELLI: Yeah. Yeah, right. It isn’t going to get unanimous consent. I’d be astonished because in the immigration space, whatever change you want to make that is advantageous to position A, people in position B just aren’t going to agree to it right off the bat. They’re not going to make it easier.
MR. KRIKORIAN: Right, but my fear on that is that there is going to be pressure to increase numbers in order to satisfy both A and B and C.
MR. CUCCINELLI: Ah, the old government compromise: you get what you want, and I get what I want.
MR. KRIKORIAN: And the people don’t get what they want.
MR. CUCCINELLI: Right, right. That’s right. Well, and there – unlike budget questions, that pushback actually exists here, and of course, CIS plays a role in that – in doing a lot of the analysis that backs up intellectually the alternative position.
MR. KRIKORIAN: So we have some questions here. One is, can you explain the rule changes that impact immigration status of members of military and their dependents. That was an issue with the – that got a lot of coverage about kids. I mean, it was – it only covered a couple dozen people a year, but it really got way more press coverage than other issues that cover a couple dozen people a year.
MR. CUCCINELLI: Well, it got dramatic mistaken coverage –
MR. KRIKORIAN: Right, yeah.
MR. CUCCINELLI: – yeah, which is why it was such a big deal.
And I’ll tell it to you in the boring fashion. So here’s the radical maneuver we made in this space. Instead of – and I think I’ve got to – don’t hold me to the form numbers, but instead of filling out an N-600, now you have to fill out an N-600K. (Laughter.)
And so that turned into like we’re denying citizenship to the children of military members. Oh, my gosh. I mean, on our most creative, paranoid day, we didn’t come up with that one. And nobody bothered to call and ask, you know. And one mainstream media outlet just reports on somebody else’s headline. I’m not even sure they read each other’s stories.
MR. KRIKORIAN: It’s kind of like retweeting without reading the –
MR. CUCCINELLI: You know, we’re – yeah, I mean, we’re at the National Press Club, and one of my frustrations – there are reporters that do their homework, there are reporters who pay attention to detail, and then there are just some really lazy, lazy, lazy reporters. And there are, of course, the ones that aren’t very smart, either. (Laughter.) And, look, they exist.
But that’s when they come out of the woodwork. When you see something like that, when you see them just reporting on headlines that aren’t correct. And typically if you see some wild-eyed, anti-military headline and – that’s ascribed to this president, it’s probably wrong, you know? (Laughs.)
Does anybody in this room – whether you like the president or not – seriously think he is going to take citizenship steps that – within the boundaries of the law that are harmful to the military. That has not happened to this point in the administration. And it didn’t happen there either. I mean, that was very wild-eyed stuff.
All we were doing was aligning USCIS’ operations with the Department of State, and as between the two, the Department of State was in line with the statute, and USCIS’ operation wasn’t. And so people would go through the USCIS process for children who were not born U.S. citizens, so they’re coming from other countries; say a U.S. citizen military member marries a foreigner who has a child of that marriage – so to get that child in the country and to get them on the citizenship path. We treated residents on a military base like it was residents in the United States, and that is not what the statute says.
And so they’d get their paperwork from USCIS and go to the Department of State to get travel documents, and the Department of State wouldn’t give it to them because they didn’t qualify. And so people were getting things from us then thinking they qualified for X status, and they didn’t.
So we were bringing our process within the boundaries of the law, and the media – as I said, in our most paranoid, delusional, creative moments didn’t conceive that they would run with the story in that way.
MR. KRIKORIAN: You don’t have to give me specifics, but do you think – did you learn some communications messaging lessons?
MR. CUCCINELLI: Yes!
MR. KRIKORIAN: Did you get some from that?
MR. CUCCINELLI: As amazing as it is – I never thought I would say this about myself, we were utterly inadequately paranoid.
MR. KRIKORIAN: OK. (Laughter.)
MR. CUCCINELLI: So – of the media. And so we take a much more creative view of the potential things they could say. And the reality is, you know, you could put out a press statement that said, my favorite crayon is blue, and the headline could be anything.
MR. KRIKORIAN: Right, right. No, I understand that.
MR. CUCCINELLI: He’s anti-brown! (Laughter.) You know, but there’s only so much you can do other than be prepared to respond, but it was a lesson in nimbleness and cutting off a story faster that’s running away.
I will say that was one of the values of Twitter. I just jumped out and said, whoa, whoa, whoa, whoa. Hey, people are running away with a false story here. Statement to follow. By the way, that’s USCIS Cuccinelli – @USCISCuccinelli. Jump on in there; follow me. So it’s fun following and immigration chatting, so –
MR. KRIKORIAN: Another question is – this is something you all deal with. There is something called self-petitioning by spouses, so an American citizen marries a foreigner, and what we’ve seen is not a non-trivial number of examples where the foreign spouse lies about being abused because if you’ve been abused, you can get your green card without – I mean, you can get citizenship without having to wait for the right amount of time.
Often these are fake claims. The American citizen – and this where I’m – this is part of the question – the American citizen has never been afforded a chance to respond to those claims. Essentially the foreign person who is claiming abuse simply is believed automatically, and this has real implications for the American citizen who is being accused of abuse.
MR. CUCCINELLI: Of course it does.
MR. KRIKORIAN: So are there – do you anticipate changes in that where the American will be able to respond?
MR. CUCCINELLI: Well, look, the whole marriage visa arena is rife with fraud, and one of the things we find when I go visit a field office, for instance, where particular national communities have settled nearby so, you know, people coming in from Country A don’t scatter all over the country; there are communities that crop up. And when – what we see is when a couple of people start getting the idea of a new way to do marriage fraud, boop! All of a sudden, like that whole community is using the idea.
And so it’s those patterns we talked about – turning a lot of our system electronic so we can spot patterns more easily. This is one of the ways, one of the opportunities for advantage on the fraud detection side because, Mark, you are absolutely right. The American citizen has an awful lot at stake in that accusation. These are not things that go away, right, and we take them very seriously in this country. I certainly do as an employer when this exists for people in my office. And to just blithely provide no due process and not require a court proceeding behind an accusation like that is an inadequacy that is also just screaming for fraud. And it’s one of the areas we need to address.
MR. KRIKORIAN: Have you met with tech workers? Because a lot of them were concerned when your predecessor was replaced – that’s not your – you had nothing to do with that, obviously, but they were concerned that there was going to be, you know, sort of less focus on their concerns. Have you met with tech workers to try to kind of – MR. CUCCINELLI: Yes.
MR. KRIKORIAN: – alleviate the – assuage their concerns?
MR. CUCCINELLI: The short answer is no. That’s more a function of still being on a learning curve and trying to drive regulation speed.
MR. KRIKORIAN: Right.
MR. CUCCINELLI: You know, more speed and more communication are probably a major difference people who pay close attention to USCIS have noticed since I arrived. And you can’t do everything.
We have, as an organization, stayed in touch with tech organizations and employee organizations, but that’s coming. I mean, that’s not something I’m avoiding. It’s just a matter of trying to drive my primary responsibilities with as much speed as I possibly can manage.
MR. KRIKORIAN: One last question that isn’t directly related to your work but is kind of – the public charge rates came out –
MR. CUCCINELLI: Yeah.
MR. KRIKORIAN: – and basically the point, in a sense, was to restore some reality to the meaning of what self-sufficiency was by –
MR. CUCCINELLI: Actually put meat on the bones, yeah.
MR. KRIKORIAN: Right, because it exempted all non-cash welfare from considering whether someone can support themselves.
MR. CUCCINELLI: Well, they were operating on guidance that said, hey, there’s a rule coming, and the rule never came.
MR. KRIKORIAN: Right, right.
MR. CUCCINELLI: That was 1999.
MR. KRIKORIAN: Right.
MR. CUCCINELLI: Literally we’ve been through two entire two-term presidential administrations without that rule ever coming. So we put out that rule in August, you know, to much fanfare.
MR. KRIKORIAN: My question related to that is –
MR. CUCCINELLI: (Laughs.)
MR. KRIKORIAN: – there is a similar fake definition of self-sufficiency with regard to refugees where the groups that – the non-government organizations that are contractors, that are paid to resettle refugees get to claim they are self-sufficient even though they’re in public housing, and on food stamps, and what have you. So is there any effort to sort of coordinate and rectify the new public charge definition for refugees, as well, so we get a better sense –
MR. CUCCINELLI: Well, first of all, in the never ending battle to avoid confusion, let me make it very clear: the public charge rule does not apply –
MR. KRIKORIAN: Right, but it’s – yes.
MR. CUCCINELLI: – on the humanitarian space, doesn’t apply to refugees, asylees, U/T visas, blah blah, et cetera.
But the short answer to your question is this is an area that I’m just digging into as it relates to refugees and these NGOs, and as you know, Mark, this also involves the Department of State –
MR. KRIKORIAN: Right.
MR. CUCCINELLI: – who pays a lot of the bill.
MR. KRIKORIAN: And Health and Human Services.
MR. CUCCINELLI: It involves HHS, who pays a lot of the bill. We do a lot of the vetting and processing for folks to qualify them as refugees, and I think you might see some other entities that get to play a role in making decisions about refugees and resettlement here in the near future as well. And we’re looking at how to alter those relationships.
And the notion of self-sufficiency, where it is set as a goal in American law, is something we’re serious about. This president has made it very clear, I think, that he’s very serious about that. The idea isn’t to bring people in and have them on welfare.
Frankly, we’re already bankrupt. As generous a country as we are, we are also the most indebted entity in the history of the world. Hey, there’s a record you want to hold, right? And –
MR. KRIKORIAN: USA. (Laughs.)
MR. CUCCINELLI: Yeah. And that’s not a – that’s not a path that contributes to our financial sustainability. So it is something that I’m looking at in terms of being more particular with what we require and expect in those relationships.
There is a certain amount of leeway I think expected in the humanitarian space. That’s why public charge doesn’t apply in that space directly. At the same time, if we’re going to be saying people are self-sufficient, that needs to mean something consistent with the English language as in you can support yourself.
And, you know, the statistics belie that with a lot of the refugee population which is – the numbers I saw very recently, over 50 percent receiving one form of welfare or another.
MR. KRIKORIAN: I know you have to run, but I just want to shoehorn one last question in. USCIS gives out employment authorization documents which, in English, we would call work permits.
MR. CUCCINELLI: Work permits, right.
MR. KRIKORIAN: And there are huge numbers of them that go to people who aren’t visa workers; in other words, they don’t really seem to have any reason to be here, but they were paroled in or what have you, and they’ve got work permits.
Is there some kind of consistent examination of whom we are giving these work permits to? Is there a way to rein that in? Because you are let in legally and have a work permit, what difference does it make whether you are on track for citizenship?
MR. CUCCINELLI: Well, work permits aren’t forever.
MR. KRIKORIAN: Right.
MR. CUCCINELLI: And those durations are – with the exception of some that have statutes and court orders as well – those are discretion of the agency, something we are also taking a look at. So the short answer is yes, since I arrived, I’m definitely reviewing that. Those work permits are a major pull factor, and in many instances they are not required to be given at all, much less the terms and duration of them that have been used in the past.
So we’re reviewing that. I accept no standing assumptions of, you know, why are we doing it that way? Because we’ve always done it that way. That’s not a good answer for me.
Now, there may be a reason it’s done X way. Well, tell it to me. Is it still valid? You know, I’ll give you an example. So the benchmark times for processing of certain forms were set like 12 years ago. Well, it’s a brand-new world – speaking of Disney – and, you know, we’re not in the circumstance we were before. We don’t have 5,000 credible fear claims; we have a hundred thousand credible fear claims.
Well, what does that do to our other workloads? And nobody pays to have a credible fear interview. They don’t pay to be asylees, they don’t pay to be refugees.
MR. KRIKORIAN: But they do pay for the other applications.
MR. CUCCINELLI: They pay for the others. I mean, one interesting factoid about USCIS is, unlike the rest of government, we are fee funded. We operate much as a business does. With the exception of 4 percent of our budget, we run a balanced budget. Now that doesn’t mean every year is zero every year because we carry dollars forward to keep doing the work, but – just like businesses carry money forward – but we do not get the running of the credit card by Congress. One of the good things Congress did a long time ago is say the immigrants have to fund our immigration system. That was a great policy decision, and we have stuck to that.
Now, we’re struggling now. You know, it’s public that we’re reviewing our fee structure, and particularly with the humanitarian burden we are bearing in our agency for which we are not compensated. You know, if you come and apply for a green card, if you apply for citizenship, you pay a fee that, in the aggregate, covers the average cost of processing that, plus some amount to help us cover the costs of the things that no one is charged for like all the humanitarian work that we do – again, so that the immigrant community that is seeking to come to this country or seeking to change status in this country is carrying the costs of this whole system. And I think that’s an excellent policy position to be in.
We run – you know, if you look at the numbers per application, we’re pretty darn cost effective. You can’t really look at us on a budget standpoint like the rest of government, and I’m perfectly happy with that. I’m proud of that fact.
That does mean that, as burdens go up, we’ve got to raise – we’ve got to raise prices. We also have this sort of expected biennial review of the fee structure, and that’s all – you know, that’s all under analysis now, and you can expect to see those costs go up to help us handle a lot of the burden that we’re bearing that – as, you know, you all at CIS know how the numbers have – they haven’t gone up linearly – or for you on television, up.
MR. KRIKORIAN: (Laughs.)
MR. CUCCINELLI: But they’ve gone “woo!” in some areas for which we get no compensation.
MR. KRIKORIAN: So you’ve got to cover the cost somehow, right.
MR. CUCCINELLI: We’ve got to cover the cost, and so when I say we set a price for a particular visa, it’s that price plus a consideration of how the cost of all the things we have to do within our agency under the law –
MR. KRIKORIAN: Overhead if you will.
MR. CUCCINELLI: – fit.
And also, when you see things like this whole deferred action hullabaloo that has popped up in the last month, there’s no fees charged for that. There’s not even a form. There’s no program; there’s nothing. That is the – that is the undertaking of doing nothing. That’s what deferred action is, but there is no money coming in for that, and there’s no system in place to deal with it.
MR. KRIKORIAN: But it costs money to do nothing.
MR. CUCCINELLI: Of course it does! Of course it does; it’s government. It costs money to do nothing.
But anyway, it would – you know, it’s helpful for people who operate in this space to understand how we have to operate, and that’s different from all of our partners – ICE, CBP, and so forth – and who we endeavor to support as they are pressed, even harder than we are, with the crisis that still lingers at the border. We are not out of this yet. We’ve got a long way to go. And frankly, we’re going to be doing it with duct tape and tin foil, MacGyver style, unless and until Congress actually gets in, simplifies the system, clarifies a lot of the legal ambiguity we’ve talked about here today that creates difficulty in managing the system. Clarity is good; unclarity, bad. (Laughs.) And we’d like to see a lot more clarity in what is really a very messy system. It needs to be simplified a lot.
MR. KRIKORIAN: Well, thank you. I know you have to run.
MR. CUCCINELLI: Got to run, yes.
MR. KRIKORIAN: You’ve got a lot to do. I appreciate –
MR. CUCCINELLI: Good to be with you.
MR. KRIKORIAN: – your coming. It was –
MR. CUCCINELLI: It was a pleasure.
MR. KRIKORIAN: Thanks for coming. (Applause.)
MR. CUCCINELLI: Thank you all very much.
MR. KRIKORIAN: Thank you to everybody. Hopefully you’ll be joining us for our next event. We have a couple of newsmakers lined up, and the video of this will be on our site within a couple of days, I think.
MR. CUCCINELLI: Super. Thanks.