Due to the coronavirus pandemic and the Trump Administration’s harsh anti-immigration policies, USCIS–the agency that oversees much of the nation’s immigration and asylum system–expects that “application and petition receipts will drop by approximately 61 percent” through the end of the current fiscal year (September 30, 2020). As a result, the agency is seeking a “one-time emergency request for funding” from Congress for $1.2 billion “to ensure we can carry out our mission of administering our nation’s lawful immigration system, safeguarding its integrity, and protecting the American people.” The agency plans to pay back this money by “imposing a 10 percent surcharge to USCIS application fees.” Presumably, this is on top of the dramatically increased fees the agency announced late last year (but which have yet to be implemented).
Unlike most government agencies, USCIS is largely user-funded. Indeed, the agency derives 97% of its budget from fees paid by its “customers” (immigrants and petitioners). These fees also largely cover the cost of the asylum system, which is currently free to applicants (though USCIS’s recent fee proposal includes a $50 fee for asylum). According to a USCIS spokesperson, without the injection of cash from Congress, the agency “would be unable to fund its operations in a matter of months.” This could result in “drastic actions,” which might include staff reductions. Already, USCIS employees have been notified that the agency is “severely strapped for cash due to the low number of new applications being filed,” and overtime, travel, and purchases have been put on hold.
In short, things don’t look good for USCIS. So what can be done?
USCIS is seeking additional funding from Congress and plans to pay back the money by increasing fees. But it seems to me there are better and more equitable ways raise money.
One idea is to expand the use of premium processing. Currently, certain forms for employment-based immigration allow the petitioner to pay an additional fee ($1,440) and have their case processed more expeditiously. Cases that ordinarily take many months are processed within 15 calendar days (this is the equivalent of strapping a warp drive engine to a Conestoga wagon). Paying for premium processing does not necessarily mean you receive a final decision in 15 days, but at least you get a response–either an approval, a denial or a request for additional evidence. In my experience, even if you receive a request for evidence and your case takes longer than 15 days, it is still adjudicated much more quickly than if you did not use premium processing.
I have long advocated that premium processing should be available to asylum seekers, but why limit this service to certain types of cases? Why not make it available to all USCIS applications and petitions? The agency does not have to stick with its 15-day time frame or the current fee. Maybe there could be different levels of premium processing with different time frames and different fees. Maybe some types of applications are simply not amenable to premium processing. It seems to me that these things are knowable and could be explored.
The broader use of premium processing would benefit not just those aliens who can afford it (though they would benefit the most). The injection of additional money into the system would ultimately benefit everyone. Also, by removing premium-processing cases from the mix, USCIS would have fewer “regular” cases to deal with, which would presumably allow them to move more quickly through those cases.
The way I see it, premium processing is an all around win: It helps those who pay for it, provides an option for those who need it (since some people have very good reasons to expedite their cases), improves processing times even for those who do not pay for it, and brings more money into the system, which could help keep costs down for all of USCIS’s customers.
Another idea to raise funds would be to create an online legal aid service within USCIS. There are currently private, internet-based organizations that provide fee-based assistance filling forms, filing applications, and in some cases, providing legal advice. Lawyers (such as myself) tend to be wary of these organizations, as some seem less-than legitimate and because they often cannot provide the comprehensive help needed to identify problems and resolve complex cases (also, of course, they undercut our fees, which most of us find less than endearing). But for ordinary cases, without undue complications, such services can provide cost-effective assistance to people who otherwise might not be able to afford a lawyer or secure pro bono counsel.
If private organizations can provide this type of limited legal assistance, why can’t USCIS? They certainly have the expertise. Also, it is not unprecedented for government agencies to provide help to their constituents. For example, the Department of Veterans Affairs maintains a list of accredited representatives who help veterans and their family members for no fee or a low fee. If the VA can offer this service for free, why can’t USCIS offer a similar service for a reasonable fee? The assistance could take the form of “smart” fill-able forms that provide comprehensive advice about how to do it yourself, and maybe a hot-line or in-person office, where the applicant could obtain help. Fees would vary–automated assistance might be inexpensive (or at least comparable to the existing private agencies that provide this service), while “live” help would be more expensive. If this model is economically viable for private organizations, I imagine it would turn a profit for the federal government as well.
Like premium processing, an in-house legal aid program would benefit everyone. It would directly help the people who could afford it, but it would also help reduce the burden on existing non-profit legal aid organizations, and so they could serve more people in need.
There are plenty of other ideas as well. For example, USCIS could re-instate adjustment of status based on INA § 245(i), where a person who entered the U.S. illegally can pay a penalty and obtain their residency based on a family or employment petition (currently, and with rare exceptions, people who entered illegally need to leave the U.S. to obtain residency). Also, USCIS could also stop wasting manpower and postage by arbitrarily returning applications for minor mistakes (which previously were addressed at the interview).
As you can see, USCIS has different options for increasing revenue. But given the Administration’s hostility towards immigrants, it is not surprising that they are choosing to raise fees, which is the least equitable and most damaging path available to them. With a minimum of creativity, they could come up with alternative solutions that would raise money, improve efficiency, and benefit migrants. Unfortunately, the primary concern of USCIS is not really the agency’s economic well-being. Rather, USCIS wants to weaponize fees in the same way it has weaponized bureaucratic procedures–to reduce immigration and prevent eligible people from obtaining status in the United States.