On January 3, U.S. Citizenship and Immigration Services (USCIS) finally published a new proposed fee schedule for immigration benefits—which is to say, it took an important step to becoming a solvent, functional federal agency that can adjudicate applications in a timely manner again.
The fee rule (which will be open for comment for 60 days, and finalized only after the government has read and responded to public input) is important not just because it determines how much it will cost to get or maintain legal status, work permits, and (for some) permanent residency over the next few years. It’s also the best shot USCIS, as an agency, has to get itself somewhere closer to the right track.
Two years into the Biden administration, USCIS is still creaking under the weight of backlogged applications and revenue shortfalls. In its new fee proposal, the agency estimates that if it kept fees at the 2016 level through 2023, it would end the year $1.8 billion in the red. While there are plenty of other reasons why USCIS has struggled to regain functionality after the one-two punch of the Trump administration and the COVID-19 pandemic, the insufficient funding hasn’t helped.
Unlike most federal agencies, USCIS is funded almost entirely by user fees—the application fees paid by would-be immigrants and nonimmigrants and their employers. That makes it hard to fix backlogs and other issues, since the fees coming in each year are only enough to cover processing that number of applications – not the new applications and the older, backlogged ones.
The USCIS funding problem is actually two distinct problems. First, while USCIS is supposed to update fee rates every four years, it’s still using the fee levels set in 2016 under the Obama administration. The Trump administration put out a fee rule of its own in 2019, but its implementation was blocked by a federal judge.
The other issue with USCIS funds won’t be so easy to address—how to handle humanitarian immigration benefits. These benefits, such as refugee status, asylum, and Temporary Protected Status, make up a growing workload that USCIS gets little or no money to process.
Director Ur M. Jaddou told Congress last year that when USCIS became a standalone agency in the early 2000s, its humanitarian workload took up less than 5% of its budget.
By 2022, USCIS’ humanitarian workload had grown to nearly 20%. That shift may not seem enormous, but when you consider that asylum applications and refugee processing charge no fees—and that application fees for TPS are capped at $50 by federal law—that’s a large share of the budget being taken up by work that doesn’t generate revenue.
With each promise the Biden administration makes to expand humanitarian immigration, that gap gets even wider. In its proposed regulation, USCIS points out that the $87 million appropriated by Congress in emergency funds for USCIS processing in 2023 is barely a tenth of what the administration estimates it would need to reduce backlogs and meet the refugee target.
The Biden administration’s ultimate hope is that Congress will step in to fund the humanitarian mission, rather than asking some immigrants to pay for other immigrants. But hope alone has failed before. In 2010, the Obama administration didn’t factor refugee and asylum processing into its new fee estimates, because it assumed Congress would fulfill its request to appropriate money for them. That never happened.
The Biden administration isn’t making that mistake again. Instead, it’s simultaneously asking Congress for funding while using the fee rule to make the cost of burden-sharing clear. Instead of just increasing overall fees across the board to cover the humanitarian budget, the agency is appending a special $600 surcharge for asylum processing to employer petitions for immigrant and nonimmigrant workers.
USCIS says the additional fee will cover the costs of implementing its new system of quicker asylum adjudication, which it codified in a regulation last year but has been slowly rolling out at the U.S.-Mexico border. But it acknowledges that the money may go to asylum processing more generally—presumably including the backlog of affirmative asylum cases (applied for by people after their arrival in the U.S.) that has seen many applicants who applied before 2019 stuck in limbo for years.
Shifting costs is a standard part of USCIS fees. USCIS has to balance the need to take in enough money overall with the reality that not everyone has the same ability to pay. In general, the agency assumes that a business or organization petitioning to hire an immigrant or nonimmigrant on a work visa can afford to pay a little more than the application itself costs, so that, say, a green card holder applying for U.S. citizenship can pay a little less.
Individual applicants can also get fee waivers and exemptions – USCIS estimates that this year, 1 million out of the 8 million fee-based applications it gets won’t actually need to pay fees. That’s even more money that has to come out of other applicants’ pockets.
Notably, USCIS is making the burden-shifting explicit this time, by labeling the new Asylum Program Fee as an additional surcharge. USCIS notes not-too-subtly in the fee rule that if Congress steps in and appropriates money to implement the new asylum regulation, employers will be spared the additional $600 cost.
It’s unclear whether the pressure tactic will work in a divided Congress where humanitarian immigration enjoys less bipartisan support than it did in 2010. If it doesn’t, some of those inclined to think of “legal” and “illegal” immigration as a zero-sum game may have more evidence to bolster their case.
“Humanitarian” immigration is intended to serve higher collective interests—America’s moral commitment and heritage—rather than the applicants’ own. But unless and until the American government steps in to put some real money behind its promises, the misaligned funding structure at USCIS may mean that someone else will have to pay that cost.
FILED UNDER: processing times, USCIS
