Statutes of Liberty: Brother, Can You Spare a Dime? USCIS Seeks a Bailout from Congress

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

Immigrating to the United States is expensive.

A company petitioning for a worker or a U.S. citizen petitioning for a spouse will spend thousands of dollars on processing fees alone. United States Citizenship and Immigration Services (USCIS) is responsible for accepting and processing all immigration applications, along with the checks that come with them.

Historically, USCIS has supported itself using the filing fees people pay to have their applications processed. According to the USCIS website, 97% of USCIS’s Fiscal Year 2021 budget stems from those filing fees. But recently, USCIS announced that it is on the brink of running out of money. The agency is now seeking a bailout from Congress.

Why does this (heretofore) financially independent government agency suddenly need a bailout? We’d posit a couple of reasons.

The first reason is that the Trump Administration has increased the adjudicative burden on USCIS. In-person interviews are now required in almost all green card applications. Requests for evidence are now sent routinely, for even the most trivial errors or omissions. Demanding that USCIS put every application under a microscope increases the cost, as measured in staff time and resource demand, of doing business. That isn’t the agency’s fault.

The second reason is incompetence. The majority of USCIS applications are filed on paper by mail. Many attorneys are reporting that USCIS is improperly rejecting applications, and when USCIS rejects an application, they return the filing fee check back as well. We have seen it all: USCIS rejects applications stating that the fee amount is incorrect, despite the inclusion of the correct fee. USCIS rejects applications saying the application was incomplete, when in fact, it was complete.

Sometimes they say “You forgot the other form that goes along with your green card application,” and — you guessed it — that “other form” was submitted. Pro tip from a local small business: If you want the money, accept payments. Many applicants, understandably, choose not to refile.

The third reason is ballooning expenditures. USCIS’s annual budget has increased from $3.3B in FY2016 to just over $4.8B in FY2020. This is a generous rate of growth. Advocates are understandably focused on what USCIS is charging immigrants. As citizens, though, we’d also like to know why USCIS can’t both adjudicate applications at a reasonable speed and prevent fraud at the same time, given the resources at its disposal.

The fourth reason — which USCIS, understandably, leans on in its bailout request — is plummeting application numbers. USCIS says that numbers are down thanks to COVID19, which we believe is likely to be only a small part of the story. (Remember: the checks come in the mail.)

The real story, in our view, is that legal immigration to the United States is a less attractive proposition than it used to be. Between travel bans and the new public charge rule, immigration to the United States has become more difficult and complex. If you increase the price, you’ll sell fewer widgets.

We believe that these policies have stymied potential immigrants from filing benefit applications in the first place, perhaps because they think it unlikely that USCIS will approve the application, or maybe they cannot afford to hire an attorney.   These policy changes and their effects are decreasing USCIS’s incoming funds.

USCIS now requires that many immigrants show that they will not become reliant on government benefits. But now, USCIS is running to Congress asking for heaps of taxpayer money it never needed before. USCIS is on the verge of becoming a public charge itself. The irony is regrettable.

As always, we welcome any comments and will do our best to respond.