Yesterday, the U.S. House of Representatives Immigration and Citizenship Subcommittee held a hearing entitled, “Policy Changes and Processing Delays at U.S. Citizenship and Immigration Services,” which highlighted a quiet, though insidious, issue brewing at the agency charged with timely processing of immigration requests paid for exclusively by fees charged to users. Like the refugee crisis at the border where Trump Administration policies are exacerbating the challenge, the unprecedented number and type of USCIS policy changes over the last two and a half years under the Trump administration has created in some cases and exacerbated in others an ever-expanding backlog and processing delays with no end in sight.
Growing Backlogs & Processing Delays
Using data published by USCIS, the American Immigration Lawyers Association found that USCIS adjudication of cases has dramatically slowed and backlogs have grown. The overall average case processing time surged by 46% from FY 2016 to FY 2018 and by 91% from FY 2014 to FY 2018. Moreover, case processing times increased by 19% in FY 2018 even though application rates substantially declined during that timespan and despite a large increase in agency budget and authorized staffing levels in recent years due to a 2016 fee increase intended to address these backlogs, not grow them.
Trump Administration Policies Causing and Exacerbating Backlogs and Processing Delays (a non-exhaustive list)
- USCIS Staff Doing ICE Work: One day after the House hearing, a report indicates USCIS, despite its own backlogs and processing delays, will lend its staff to ICE “to volunteer for ICE roles across the country — in field offices doing administrative work, helping process files associated with the Remain In Mexico program and assisting ICE w/ FOIA requests.”
- Buy American Hire American Executive Order: On April 18, 2017, Trump signed the executive order on Buy American and Hire American (BAHA). The order, which purports to “rigorously enforce and administer” the immigration laws, in effect converted USCIS from an immigration benefits agency to another enforcement arm of DHS.
- Transferring USCIS Processing Fees to ICE: In an unprecedented move, DHS has announced its intention to transfer over $200 million in fees paid by USCIS customers for timely processing to ICE to support enforcement.
- Expanding Required Interviews: After years of successful policy requiring interviews only where factual indicators suggest concern, USCIS instituted an inefficient and ineffective resource-intensive interview requirement for ALL employment-based green-card applicants and spouses and children of asylees and refugees, regardless of threat or concern.
- Deference: The Trump administration rescinded a long-standing policy that allowed adjudicators to rely on prior determinations in certain extension requests, thereby requiring new, redundant work that slows the processing of simple extensions.
- Notices to Appear: A new requirement was imposed that USCIS issue Notices to Appear (NTA) following application denials – which places an individual into deportation proceedings – a time and resource intensive endeavor once generally reserved for ICE in public safety or national security cases.
- Requests for Evidence/Notices of Intent to Deny: On top of an increasing number of requests for evidence, USCIS is now authorizing adjudicators to outright deny applications for errors, even simple ones, thereby denying due process and creating inefficiencies for the government and the applicant. Coupled with the NTA memo, this means many more applicants could find themselves mired in the deportation process for correctable issues.
- Premium Processing: USCIS has suspended premium processing for longer than ever, a service many companies have used for decades for faster processing of certain employment visas and to ensure basic protections for employees.
- Extreme vetting: USCIS readily admits that unnecessary “extreme vetting” ordered by the President has slowed processing.
- Information Sharing with ICE: Unsealed emails show USCIS has been working with ICE to set deportation traps for spouses of U.S. citizens trying to follow the law, instead of focusing on processing and reducing backlogs.
- Denaturalization: Traditionally denaturalization has generally been reserved for the worst actors – war criminals and human rights violators – and only a few hundred were denaturalized in more than two decades. However, USCIS is now engaged in an unprecedented effort to denaturalize potentially thousands, using fees paid by customers to set up a denaturalization office with several dozen lawyers and other staff, thus further draining resources.
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “The agency’s name, its statutory mission, the law, and even its own website suggest USCIS is charged with serving U.S. citizens, U.S. employers and immigrants with timely processing of citizenship and immigration requests. However, under the Trump administration, service for fee-paying customers has been slowly and methodically eroding due to a never-ending cycle of new, unprecedented and ineffective policy changes. USCIS was primarily enacted to be a services agency; so it should serve those who make requests of it, not delay them with ever-increasing, inefficient and ineffective policy changes that make it more and more difficult to not only receive an approval where it is authorized by law, but also a timely response.”
David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said: “Trump is engaging in a lawless strategy to stymie, slow-walk and deny visa applications by American families and businesses seeking to reunite with a loved one or compete in a global economy. Whether it’s a Central American child in need of protection, a U.S. citizen woman seeking to reunite with her husband, or a hospital in need of a pediatric cardiologist to save children’s lives, the Trump administration is hell-bent on closing the door to America.”