No, the Pandemic Did NOT Drive USCIS into Over $1 Billion Debt; the Trump Administration Did
On Friday, Hamed Aleaziz of BuzzFeed reported that the acting head of USCIS sent an email to staff stating that without an infusion of $1.2 billion from Congress and a 10% surcharge on all applications, USCIS “will exhaust its funding this summer, and… we risk not being able to make payroll and will have to take drastic actions to keep the agency afloat.” Michelle Hackman of the Wall Street Journal wrote on Sunday, “The Trump administration has adopted numerous policies, large and small, that have resulted in fewer immigrants coming to the U.S. and less revenue for the agency.”
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel:
This is no accident; instead, it is a well-calculated, step-by-step plan by the Trump administration to overspend on policies that limit the number of legal immigrants and new Americans without a single act of Congress. Trump’s anti-immigrant agenda has run USCIS into the ground. There are multiple policies that simply lock immigrants out from even applying, which decreases the amount of money coming into the agency. There are multiple policies that make it harder and longer for legal immigrants and naturalization applicants to be adjudicated, many with little or no justification, but requiring more resources and time to adjudicate. And then there’s USCIS using its resources — paid by customers for efficient processing of forms — to fund enforcement normally reserved for ICE and the Department of Justice. So it’s no surprise that with overspending on restrictive policies, fewer people able to access legal immigration and pay fees, and misuse of funds for enforcement, the agency is now broke.
From the point of view of those vehemently opposed to legal immigration, the long-term boon of this plan — going from $800 million in savings to $1.2 billion debt over three years — could be used as pretext to dismantle adjudications systems and lay off workers who keep the legal immigraiton and naturalization system running, causing damage for years to come, even beyond the Trump administration. Congress should bail USCIS out, but not to rescue this administration; instead, to save the legal immigration and naturalization system Congress and the American people built from forces inside the Trump administration that seek to lock immigrants and new Americans out. The opponents of legal immigration in the White House couldn’t care less, and even worse, see an opportunity to fully break the system beyond recovery. That bailout must include reversals of the very policies and actions that got USCIS into debt under President Trump and prevent them from similar action in the future.
David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association:
Since taking office, the Trump Administration has made it a priority to stymie, even kill, legal immigration. Trump, through his senior immigration advisor Stephen Miller, has taken numerous actions aimed at obstructing legal immigration, including instituting the so-called ‘public charge rule,’ which blocks working families from living together in the US; impeding business immigration by issuing burdensome requests for additional evidences; suspending premium (expedited) visa processing; and needlessly requiring in-person interviews where there’s no question about the applicant’s green card eligibility. It’s clear that the goal of the Trump administration is to extinguish legal immigration by starving USCIS of operating funds largely derived from immigrants and US businesses who pay the agency fees for immigration benefit applications. Congress must throw USCIS a lifeline so that legal immigration, as duly enacted by Congress, continues. At the same time, Congress must ensure that the Trump administration cannot continue to take actions aimed at breaking the legal immigration system.
Here’s a step-by-step explanation of how the Trump administration got here:
1. Issue policies that shut people out of the legal immigration and naturalization system.
From the moment the Trump administration walked in, they have been issuing policy after policy that makes it impossible or harder than ever to access legal immigration and naturalization. Within the first week of the new administration, they blocked millions of people from U.S. immigration through the Muslim ban, which was expanded earlier this year to millions more from Africa, and now the entire world. That means fewer people paying fees to USCIS because they are prohibited from even applying. Another major policy by the Trump administration was to redefine the term “public charge” in a way that, according to the Migration Policy Institute, “could significantly reshape legal immigration to the United States” and “[c]ould [p]otentially [h]ave [r]esulted in [g]reen [c]ard [d]enials for [m]ost [r]ecent [i]mmigrants.” There are many other policies that shut people out, including multiple new policies to make it harder for foreign students to maintain lawful status, to deny more petitions and applications without an opportunity to respond, multiple new H-1B policies that make it harder for high-skilled employees to access legal immigration, including restricting H-1B visas for computer programmers, third-party worksite changes, and many more. Even more restrictive policies are rumored in the near future that would lock more immigrants out, further decreasing fee funding to the agency.
2. Implement policies that have little to no justification other than to slow things down and cost more.
Early in the administration, USCIS reversed long-standing, rational policy that allowed the agency to waive interviews where there were no indicators of concern, thereby requiring time- and resource-intensive interviews in all cases without regard to tremendous cost concerns. USCIS has suspended premium processing repeatedly and longer than ever, which brought in a significant amount of extra resources, and is a service many companies have used for decades for faster processing of certain employment visas and to ensure basic protections for employees. Also early in the administration, USCIS rescinded long-standing, rational policy that allowed adjudicators to rely on prior determinations in certain extension requests, thereby requiring redundant work that slows the processing of simple extensions. Furthermore, USCIS readily admits that unnecessary “extreme vetting” ordered by the President has slowed processing and the public charge rule’s complex new analysis will most certainly require adjudicator training, more adjudication time, and resources. As a result of these policies and many more, processing times and backlogs have doubled since the beginning of the Trump administration.
3. A constant state of policy change makes it virtually impossible to efficiently adjudicate legal immigration and naturalization requests.
New policy usually requires retraining of adjudicators which requires adjudicators to stop processing under old policy, obtain training, and get back to adjudicating under the new policy. This takes time and money, and adjudicators usually don’t get back to their previous efficiency levels for months. If policies keep changing, this means continuous stops, training, and restarts with slower efficiency.
4. Raise fees, resulting in fewer applicants.
In November 2019, USCIS proposed to raise fees by exorbitant amounts without clear justification. The naturalization fee under the proposal would increase by 83%, from $640 to $1170. Fee increases like this create a vicious cycle — lock more and more out of the legal immigration and naturalization system, resulting in fewer applications, resulting in even more fee increases. On top of this proposed fee rule, BuzzFeed and the Wall Street Journal report that USCIS intends to raise fees even more with a 10% surcharge.
5. Spend service processing money paid by customers on duties normally reserved for enforcement agencies, such as ICE and the Department of Justice.
On top of starving the agency of applications, using more resources to adjudicate cases in wasteful ways, and making it harder for people to access legal immigration and naturalization services, USCIS has been busy over the last three and half years overspending on enforcement functions normally reserved for ICE and the Department of Justice. USCIS has dramatically shifted its policy and now requires immigration service processors, instead of ICE, to issue Notices to Appear (initiates deportation proceedings) in an unprecedented number of cases. Furthermore, without justification, USCIS has grown its fraud and national security staff by over 100% since 2016. And, unsealed emails show USCIS has been working with ICE to set deportation traps for spouses of U.S. citizens trying to follow the law. Traditionally reserved for the worst cases, such as war criminals and human rights violators, 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. Worse yet, although predicting major shortfalls in funding, USCIS continued its proposal to send $200 million to ICE, paid by customers to efficiently process their applications.
6. During the pandemic, do next to nothing to address the needs of people in the legal immigration and naturalization system.
On top of locking out immigrants, USCIS has done little to nothing to address many issues related to the Covid-19 pandemic that could be easily addressed and save the agency money or bring in additional funding, including virtual naturalization oath ceremonies, deadline extensions, automatic extensions, and deferred action for essential workers.