USCIS head weighs in on visa issues, propose to rescind H4 EAD

Among other things, Francis Cissna said that a presidential order permitting those on H4 visas to work went against law because Congress had not explicitly allowed that group to do so


Ritu Jha


Lee Francis Cissna, director of US Citizenship and Immigration Services (USCIS), made a strong argument against letting spouses on H4 visas continue to hold jobs.

Cissna was speaking at the Immigration Newsmaker conversation hosted in August at the National Press Club by the Center for Immigration Studies, a non-profit group that effectively argues against immigration as still practiced in the US. It describes itself as “pro-immigrant, low immigration.”

Cissna touched on a series of hot-button immigration topics other than that involving working dependents – the green card, whether Immigration Voice is right to advocate removal of a country wise cap, reliance on public aid, the U and E2 visas and students’ use of Optional Practical Training to work.

He specifically argued for quick implementation of the order to not let letting dependents on H4 visas work.

“I definitely want that regulation to get out,” said Cissna in response to a question from Jessica M Vaughan, director of policy studies, at CIS.

Last month the DHS had sought 90 days’ time from the court to review the matter.

Cissna said the decision has not yet been made because it is not a high priority.

“That regulation, though, is fighting for attention with a number of other regulations, some of them much bigger, probably more important…..But that doesn’t mean the H-4 regulation is not being worked on; oh, it certainly is…”

He also said that people have criticized USCIS for proposing to rescind the H-4 regulation.

“For me, one of the main reasons for proposing to rescind that … is because I don’t think it’s appropriate. I don’t think that Congress intended for the spouses of H-1Bs to work,” said Cissna. He said that while Congress permitted spouses of intercompany transferees, and those on the E Investor visas and Treaty Investor visas workers to work in certain cases, but had not discussed spouses of those on H-1B visas.

“I think that is an important reason why we should propose rescinding it,” he said. “There are other policy reasons which will be adduced when you see the regulation, but to me, that’s a big one. And, you know, again, first and foremost, the law… We may not like the law, but it is the law… The law reflects the will of Congress, and that is paramount. And that’s what we strive to do.”

The Employment Authorization for Certain H-4 Dependent Spouses was an executive order made by former President Barack Obama. However, Save Jobs USA, an organization comprised of IT workers who claim they lost their jobs to H-1B workers has filed a lawsuit against DHS asking it to quickly terminate the program.

Muzaffar Chishti

Muzaffar Chishti, director of the Migration Policy Institute at the NYU School of Law told indica that it was likely that those on H4 visas would no longer be able to work.

He said that the Trump administration was looking for weaknesses to exploit in the immigration law, whether it be about the use of public benefits to deny someone a green card, or focusing on the specifics of the specialty occupation to deny visas.

He said Trump was the only successful presidential candidate in history whose campaign was based on stopping immigration. Unlike many others he implemented everything he promised, Chishti said, adding that this had surprised some people.


Pointing to the Cissna talk on ‘public charge’, where he said the goal is not to reduce immigration but to enforce grounds of inadmissibility to this country that’s been on the books for about 100 years.

Cissna had indeed pointed out that his predecessors in the agency during the Clinton administration had raised the issue of letting foreigners use federal benefits.

But he had added, “That is lawful… We’re not saying that they can’t receive public benefits…We’re just saying that Congress simultaneously is saying that there comes a point – and the regulation seeks to define what that point is – when we at the agency determine that someone has become so dependent or reliant, on public welfare.

“That’s something that has to be done… The Clinton administration acknowledged that. I mean, everyone knew that something had to be done about … the public charge provisions. And it’s about time we do it.

Chishti told indica, “Look, they (DHS) have been ready for a very long time. Trump, in many ways, is just the messenger of that philosophy. That has been sharpened for quite some time by people who were generally considered to be on the margins and are now in charge. That’s what is different.

“They are looking at every department. They are looking every regulation, every executive action and bureaucratic process to influence the agenda in the absence of Congressional approval. They know they cannot get things passed in Congress. So, they are doing whatever they can to implement their agenda.”

Cissna had acknowledged the problem of a green card backlog, but explained it as a function of the workload.

“If you’re from a country… that is oversubscribed in the immigration queues – so, like India or China, but particularly India – where no one country under the law can get more than 7 percent of the immigration visas in a particular category in a particular year, then it’s going to take someone from such a country many years longer than someone who is not from such a country to get a green card.”

He said this was naturally frustrating for the worker, but also for the employer who had to extend the worker’s visa status again and again until the green card was issued.

He said this led to abuse and exploitation of the worker, who had no leverage.

“The employer could, you know, underpay them or abuse or exploit them.” Cissna said. “They could promise that they’re going to sponsor them for a green card and not do it. The group Immigration Voice has talked for many years about this type of exploitation and abuse. And they’re not wrong. They are right about that.

He said that removing the per country cap could reduce the wait times for people coming from India.

“But … if that were to become law,” he said, “the flow of immigration in the employment-based category … would be from India almost exclusively for many years, because they are the ones who, in the order in which they filed, would be getting the visas first.”

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