To Fix Our Immigration System, Start With USCIS

What is U.S. Citizenship and Immigration Services?

USCIS is a federal agency under the U.S. Department of Homeland Security. It was created after the terror attacks of September 11 and replaced the Immigration and Naturalization Service, or INS. USCIS is one of the most important agencies within the patchwork of federal agencies that handle immigration matters. It is responsible for adjudicating immigration benefits that people apply for.

For example, if you are an employer who wants to petition for a foreign employee to work in the U.S., you will likely file an application with USCIS. If you want your foreign spouse to become a permanent resident (green card holder), you will need to file an application with USCIS. If you want to become a U.S. citizen (a process called “naturalization”), you will need to file an application with USCIS.

USCIS is the prime agency that approves immigration benefits. Although there are other agencies that approve immigration benefits, USCIS is the one that you are most likely to encounter. In the 2021 fiscal year, USCIS received about 9.1 million different kinds of applications. Because it is the main agency approving (or denying) immigration benefits, it effectively functions as a gate keeper to most of the legal immigration system. Dysfunction at USCIS causes a wide range of harms, including family separation, unfilled job openings, depressed economic activity, brain drain from the U.S., mental and emotional stress, unnecessary cost, and more.

Below, I will identify two specific problems with USCIS and how they can be addressed. The first change I am identifying will need to come from Congress, and the second from the president.

Congress Should Adequately Fund USCIS

USCIS is badly underfunded. On its website, USCIS explains that its funding primarily comes from fees they charge when people file applications for immigration benefits. If you’ve ever applied for any kind of immigration benefit, you know that each type of application has a filing fee associated with it that you must pay. For the 2021 fiscal year, approximately 97% of USCIS’s funding came from these fees.

USCIS operates like a business instead of a public service, which I believe is by design. I would guess that it is set up this way to ensure two outcomes:

1. USCIS’s funding does not impact the budget deficit because it generates its own funding;
2. USCIS never has enough funding.

The effect of insufficient funding is that USCIS has a severe backlog of applications, and it processes them at a snail’s pace. If you’ve ever had the misfortune of dealing with USCIS, you know that once you file your application, it essentially goes into a black box with no way to predict when it will be approved. This is because the USCIS fee-for-service funding structure creates an incentive for USCIS to accept applications with no incentive to approve them. USCIS collects money from you when you file your application, but it rarely has any specific deadline by which it must make a decision on your application, unless you pay thousands of dollars for Premium Processing.

USCIS’s processing time results in people being separated from their loved ones. It results in companies not being able to hire the workers that they want to.

I have been a practicing immigration attorney since 2017. During my time in this field, I have seen USCIS processing times continue to get slower and slower. If you are lucky, you may get a decision on your application within a few months, but most people will be waiting several months, or over a year. USCIS’s processing time results in people being separated from their loved ones. It results in companies not being able to hire the workers that they want to. I can tell you from firsthand experience that this creates a lot of mental and emotional anxiety for people. Just imagine how much human suffering we could relieve if we simply funded USCIS adequately.

The fee-for-service funding model is a tool that conservatives use to cripple federal agencies. We have seen this most notoriously with the U.S. Postal Service and Social Security. In 2020, former President Donald Trump and his anti-immigration adviser Stephen Miller enacted a rule that would see USCIS raise its fees astronomically to address budget shortfalls. This was really a backdoor attempt to make immigration unaffordable and thus impossible for all but the wealthiest individuals. Fortunately, this rule was enjoined by the court, and the Trump administration withdrew its appeal, effectively killing the fee hike.

If the USCIS fee-for-service funding structure remains in effect and another Republican administration comes to power, I suspect we will see this same tactic used to break the legal immigration system. The solution is for Congress to fund USCIS adequately and recognize that a functional immigration system is a public good that benefits us all.

President Biden Should Reform USCIS

The other major problem with USCIS is the way it operates. The adjudication process is not just slow, but it is opaque, arbitrary, and needlessly hostile. USCIS adjudicators frequently throw up roadblocks to applications that are pointless and can only be construed as trying to deny benefits that people are otherwise qualified for.

This practice of highly adversarial adjudication came to a fever pitch during the Trump Administration. USCIS officers were going out of their way to deny applications for all but the most airtight of cases, which effectively made several kinds of immigration benefits almost impossible to attain. This is illegal. When Congress passed legislation setting up the various visa categories, it became incumbent on the executive branch to faithfully adjudicate applications and approve those that meet the eligibility requirements that Congress has set.

One of the worst examples of this is the so-called “blank space” criteria enacted by Trump and Miller. USCIS began rejecting applications if any box on the application form was left blank. This was primarily targeted toward people applying for asylum, and was an obvious attempt to make asylum impossible to get.

Fortunately, the president has substantial legal authority to reform the way USCIS operates without Congress lifting a finger.

When President Joe Biden took office, I was hopeful that he would reverse this culture of hostile adjudication, but so far, I do not see much change. USCIS officers are still issuing the same kinds of frivolous challenges they were issuing during the Trump years. USCIS is the recipient of numerous lawsuits every year, yet it still continues to operate the same way instead of reforming itself. However, I should note that the “blank space” criteria policy was ended by the Biden Administration in April 2021. President Biden did end some of the more odious practices enacted by Miller and Trump, but many hostile practices remain in place.

Fortunately, the president has substantial legal authority to reform the way USCIS operates without Congress lifting a finger. There are several technical reforms that Biden should implement, as well as change training protocols, and a push to try to change the overall culture at USCIS. USCIS should not be a barrier to immigration. It should be a fair adjudicator of immigration benefits. Direction will need to come from the top in order to make this happen, but I do not see any evidence that anyone in the White House is talking about USCIS reform.

The next time you hear someone complain about our “broken immigration system,” ask them if they have even heard of USCIS. This agency continues to operate poorly because it flies under the radar, and because the anti-immigration Republicans who complain about the “broken system” are not serious about identifying the problems and creating solutions for them.

As Bruce Lee wrote in the Tao of Jeet Kune Do, “We shall find the truth when we examine the problem. The problem is never apart from the answer. The problem is the answer—understanding the problem dissolves the problem.” I am not arguing that this is the only problem we have with our immigration system, but fixing USCIS would have a major impact on the lives of immigrants, their families, and our economy.