One of the most important presidential appointments and Senate confirmations is that of U.S. Citizenship and Immigration Services Director Lee Francis Cissna. On Tuesday, December 12, he took the podium at the White House press briefing and demonstrated why he is a great pick for that important job.
Cessna said that if you have a visa program that has minimal or low eligibility requirements, it opens the door for terrorists and others to defraud the process and enter our country. He knows this is happening daily with the B1/B2 visa program.
The good news is, the first step to the solution does not require any new legislation. It merely requires a policy change — all we need to do is enforce the laws that are already on the books, stop issuing ten-year multi-entry B1/B2 combo visas, and stop stamping them for a default six-month entry.
Once those policy changes are in place, a coordinated effort among the State Department, Department of Homeland Security, Citizenship and Immigration Services, Immigration and Customs Enforcement, and Customs and Border Protection will be necessary.
That, of course, will require direction from their boss — President Donald Trump.
And that is the better news because we already know President Trump is aware of and attuned to the problems in our immigration system.
A B1 visa allows a foreigner to enter the country for pleasure and limited work purposes — for example, to negotiate contracts, supervise or train U.S. workers in a specialized skill, or attend a conference — but it broadly bans the holder from performing hands-on jobs that U.S. workers can do. The visa allows workers to stay in the U.S. for up to six months at a time.
A B2 visa, by contrast, is a tourist visa that allows a person to enter the country for tourism, to visit family, get medical treatment, participate in amateur sports, and related activities.
These are separate visas, but the State Department, as a matter of practice, issues them as a combination B1/B2 visa. This combination visa typically is then valid for ten years.
According to USCIS, “The B-1 visa is intended only for business activities that are a ‘necessary incident’ to your business abroad. You cannot engage in any activity or perform a service that would constitute local employment for hire within the United States.”
In practice, though, “It’s the wonderful world of unregulated visas,” says Daniel Costa, an immigration law and policy researcher at the Economic Policy Institute.
In 2014, the U.S. issued 6.2 million of these visas. These visas are owned by the individual and not a company. They cost $160 and are good for ten years. The visas are stamped for six months at a time
That raises an obvious question: What meeting last six months? Why are we stamping these visas for six months?
What this means is that an individual is vetted one time, and he or she is then able to come and go from the U.S. every six months for ten years — and NEVER BE VETTED AGAIN.
They can, and do, leave the country to become radicalized — and when they return to the U.S., they are not trackable unless they are on a terrorist watch-list.
The American Airlines Flight 77, Washington Dulles to Los Angeles International, that departed on September 11, 2001, had on board Khalid al-Mihdhar (or Almidhar), a citizen of Saudi Arabia. He obtained a U.S. tourist visa in Jeddah, Saudi Arabia, in April 1999 and Malaysia in January 2000. He arrived at Los Angeles Jan. 15, 2000, with Nawaf al-Hamzi on a B2 tourist visa from Malaysia. They lived in San Diego, where they took flight training together in May 2000. They left the U.S. in June 2000 and obtained new B1 visas in Saudi Arabia.
According to the February 2004 Staff Report of the National Commission on Terrorist Attacks, Khalid al-Mihdar’s application falsely indicated he had not previously traveled to the United States, and it contained “suspicious indicators.” It also revealed that he had more than one passport. He returned July 4, 2001, and lived in New York. He was put on the Watch List for terrorists in August 2001 after entering the U.S. one last time. He was in a legal non-immigrant status at the time of the 9/11 attacks.
Potential terrorists and criminals are just the tip of this ugly iceberg. B1 workers in the U.S. are already taking away jobs from U.S. workers while avoiding taxes and damaging the economy by helping to move jobs out of the U.S. This while stuffing the coffers of the foreign out-sourcing firms to the detriment of U.S. companies, who can’t compete with the fiscal advantage of paying a foreign worker $6,000/year. That is one of the great ironies of the B1 visa — by regulation, they cannot and should not be paid in the U.S. These B1 workers earn their third-world salary instead.
If we believe that the B1 visa is not valid for work, and yet it is being used for work, here’s a solution:
Separate the B1 from the B2 visa and stop issuing B1 visas for “meetings and discussions” for weeks and months at a time. We all know there are no meetings that go on for months at a time. Holders of B1 visas are coming to the U.S. to work. It doesn’t matter if the employer is breaking up a “job” into six-week segments and calling it “knowledge transfer” and telling the U.S. government it is a “business meeting.” Everyone knows that these B1 visa holders are working. There are “employment” contracts covering these B1 visa holders’ efforts, and there is money being exchanged for these efforts. Who wouldn’t call that work?
Let’s get the Department of State on board. They issue the visas, after all, so they are the first line of defense. They would have to stop issuing B1s for such activities, which complicates the process, as they typically issue B1/B2 combo visas for a ten-year duration. As our culture has changed due to terrorism, we need State Department culture to change in the issuance of visas. Segregate out the B1 visa from the combo, and vet B1s more thoroughly and more often. Also, we need to issue the B1 only for the time needed and maybe even only for single entry.
Additionally, we need to get Customs and Border Protection (CBP) on board. They are the ones who admit the visa holders at the U.S. ports of entry. They assume that State has done its part to make sure that the visas are properly issued. As CBP officers inspect a plane full of hundreds of passengers, they adjudicate each entry in seconds, waiting to hear the applicant say the right keywords: “business meeting,” not “work” or “contract labor.” They glance at invitation letters; they do not read them thoroughly; they take them at face value. There’s not enough time to grill each applicant for admission. Big business counts on this; they write their letters and coach their employees on how to defraud the system.
On August 1, 2017, CBS News demonstrated how easy it is to exploit this explicit visa loophole. This was an explosive news piece, as the workers admitted to fraud.
If we accept that many B1 visa holders are working in violation of their visa status, we need to get Immigration and Customs Enforcement (ICE) on board and take these administrative violations seriously and see them as worthy of our attention and efforts. We’d need a coordinated effort to apprehend these folks and put them into removal proceedings.
Currently, we have 26 Special Agents in Charge ICE offices, but each has his own philosophies and marching orders. We need a unified direction, which would have to be set from the top, with orders from the Secretary of Homeland Security. This is not happening.
None of these suggestions would require legislative change. All this could be done with a few policy memos. President Trump, U.S. Attorney General Jeff Sessions, Homeland Security Secretary Kirstjen Nielsen, Secretary of State Rex Tillerson, and USCIS Director Lee Francis Cissna, you can do this with the stroke of a pen. Close the door on terrorist and illegal workers coming into our country. We have the utmost confidence in you.
Jay Palmer is a consultant and expert on visa fraud.