This past June, the U.S. Department of Homeland Security (DHS) published its new “Securing the Border” interim final rule (IFR). One statistic the agency cited that stood out to me was USCIS’s backlog of affirmative asylum cases. Affirmative asylum applications are those that are filed directly with USCIS, rather than as a defense to removal. Often, these applicants are present in the United States lawfully.1
In the preamble of that IFR, DHS reported that this backlog — for the first time ever — is now above 1.16 million cases and rising. While I, and many others, have already reported that this backlog has been drastically on the rise since the Biden administration took office in January 2021, the administration has been relatively quiet about the true causes of this increase and the agency’s lack of progress with dealing with this backlog.
How Dramatically Has This Backlog Grown?
The affirmative asylum docket and corresponding processing time estimates have grown alarmingly since President Biden took office. At the end of FY 2020 (September 30, 2020), about four months before the change in administrations, the affirmative asylum backlog stood at 336,053 pending cases. By December 31, 2021, the USCIS asylum backlog climbed to 438,500 pending cases, and by December 31, 2022, just one year later, the agency logged 667,040 pending cases (a 57 percent increase from the year prior and a 98.3 percent increase from September 30, 2020). Six months later, in June 2023, the USCIS Ombudsman reported to Congress that the affirmative backlog stood at approximately 842,000 pending cases.
By the end of that year, however, sources from USCIS told me that the backlog had already exceeded one million pending cases. It wasn’t until DHS issued the “Securing the Border” IFR in June 2024 that the public received official confirmation of this data point — and it is almost certainly already out of date.
 |
Why Has This Backlog Spiked Under the Biden Administration?
While USCIS has been unwilling to publicly share timely updates of the affirmative asylum backlog, the agency’s leadership has consistently blamed the portfolio’s dramatic increase on the pandemic, the border crisis, staffing shortfalls, and Congress’ refusal to provide USCIS more funding.2
There is some truth to this explanation. The pandemic’s effect on USCIS operations and budget cannot be understated. At this time, USCIS was unable to collect sufficient fees to maintain normal operations, instituted a hiring freeze, and lost approximately 10 percent of its asylum officer staff. The Asylum Division is also entirely funded by fees that the agency collects from other non-asylum immigration benefit applicants and petitioners. Of course, receipts from other immigration benefits plummeted along with international travel during this time.
While the Trump administration, in 2020, tried to amend USCIS’s fee schedule to both increase fees across the immigration system as well as impose a nominal (and waivable) fee to the Form I-589, Application for Asylum and for Withholding of Removal, the Biden administration canceled these changes upon taking power in 2021 and continues to charge no fee at all for the adjudication of an asylum application. In 2024, however, the Biden administration created a new “Asylum Program Fee” to offset the costs of the Biden administration’s new asylum processing rule, titled “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers”, update in 2024. This fee imposes a surcharge of $600 to be paid by employers3 who file worker-related petitions, for each Form I-129, Petition for a Nonimmigrant Worker and I-140, Immigrant Petition for Alien Workers they file.4 This fee is estimated to provide the Asylum Division an additional $313 million in revenue annually.
With regard to staffing shortfalls, while it is true that just 74 percent (760 out of 1,028) available asylum officer positions were filled as of September 2023, the denominator reflects the Biden administration’s doubling of asylum officer positions — not the historic status quo.
Between 2018 and 2019, USCIS employed an average of 500-550 asylum officers. However, the Biden administration, after issuing its asylum processing rule, endeavored to increase the number of asylum officers by 800 to meet the burden the new process would impose on the Asylum Division. The number of vacancies, therefore, grew specifically because of the number of newly authorized full-time employee (FTE) positions.
What Does USCIS’s Explanation Leave Out?
USCIS leadership’s narrative ignores the role that Biden administration policies have had on this dramatic increase in the backlog. First, USCIS sources have hinted that its massive expansion of parole has also caused USCIS’s affirmative asylum docket to swell. The creation of numerous parole programs, such as Operation Allies Welcome; Uniting for Ukraine; and new parole programs for certain nationals from Columbia, Cuba, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Nicaragua, and Venezuela have allowed hundreds of thousands of inadmissible aliens to enter the United States annually via parole.5 (This number does not include the administration’s new “parole in place” scheme for spouses of U.S. citizens, which is estimated to make another 1.1 million people already living illegally in the United States eligible for parole and associated immigration benefits.)
Because parole is merely temporary permission to enter the United States and parolees are generally not subject to removal despite their lack of a lawful immigration status, parolees who wish to remain in the United States beyond their period of parole have a strong incentive to file an asylum application. If they are not in removal proceedings, that application must be filed affirmatively with USCIS.6
Second, as I mentioned above, the Biden administration issued a rule in March 2022 (in the form of an IFR) that would allow USCIS to take on credible fear workloads that are typically handled by EOIR immigration courts. The regulation, titled “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers”, allows asylum officers to make final asylum decisions for claims submitted defensively during the credible fear process.7 While USCIS was slow to use this new regulatory authority broadly (citing resource constraints during the lifting of the Title 42 public health order), the agency has since resumed and expanded its implementation.
Third, the border crisis itself, of course, has affected the affirmative asylum backlog. Since 2021, USCIS has been forced to surge resources to the U.S.-Mexico border, which has primarily involved transferring asylum officers who typically handle affirmative asylum cases to instead conduct credible fear screenings for aliens in expedited removal proceedings (i.e., recent border-crossers). Again, even the USCIS Ombudsman acknowledged last year that the “depletion of resources to the Southern border” has “continued to impact the affirmative caseload and the agency’s ability to chip away at it.”
Moreover, the DHS OIG reported that in June 2023, just 3 percent of USCIS asylum officers were devoted to processing affirmative asylum applications, with 90 percent processing credible fear claims for border-crossers. In FY 2023, “USCIS also prioritized [Operation Allies Welcome (OAW)] and Asylum Merits Interview applications [i.e., final credible fear adjudications] because of the processing timeframe requirements”, notwithstanding the statutory timeline for affirmative asylum adjudications.
While both USCIS and the USCIS Ombudsman repeatedly refer to the border crisis as a circumstance outside of the agency’s control, the Biden administration’s refusal to enforce immigration laws in the interior of the United States has been a documented primary pull factor for mass illegal immigration.
Finally, missing from the discussion is the significant role that the Doyle memorandum has played in the massive increase in affirmative asylum filings. The Doyle memorandum (named after the U.S. Immigration and Customs Enforcement (ICE) Principal Legal Advisor Kerry Doyle) is a 17-page policy directive that instructs ICE attorneys to terminate or cancel removal proceedings for removable aliens who do not meet Biden administration leadership’s extremely narrow (and extra-statutory) enforcement priorities.8 As my colleague Andrew R. Arthur recently reported, this policy “led to ICE tanking nearly 92,000 pending cases” in FY 2022 alone. In short, the administration’s expansive use of prosecutorial discretion to cancel large numbers of immigration court cases has resulted in the transfer of asylum claims to USCIS that would have ordinarily been considered by an immigration judge.
USCIS Is Failing to Meet the Statutory Adjudication Deadline for Almost All Affirmative Asylum Applications
USCIS’s historic affirmative backlog is unsurprisingly being met with longer processing times, and the agency is no longer able to meet the INA’s statutory deadline for affirmative asylum adjudication. Last year, I reported that the USCIS Ombudsman reported to Congress in its 2023 report that USCIS’s affirmative asylum backlog had doubled in just two years and estimated that processing times were “likely approaching a decade”. In June 2023 (when the report was issued), the affirmative asylum backlog was marked at 842,000 cases, just 72.8 percent of the current 1.16 million backlog.
More recently, however, the Office of Inspector General (OIG) for DHS confirmed that USCIS “did not adjudicate affirmative asylum applications within the mandated timeframe”. The INA requires that USCIS make a final adjudication of an affirmative asylum application within 180 days of filing, absent exceptional circumstances (INA § 208(d)(5)(A)(iii)). The DHS OIG reported that at the end of FY 2023, USCIS had more than one million pending affirmative asylum, with at least 786,000 of the one million (or approximately 78 percent) pending for over 180 days. Of these, 388,000 cases had been pending for more than two years. Notably, USCIS failed to adjudicate an astounding 97 percent of the affirmative asylum claims received in FY 2022 and FY 2023 within 180 days of filing.
 |
Will This Backlog Create Another Pull Factor for Illegal Immigration?
It is imperative that USCIS’s Asylum Division maintain its “last in, first out” adjudication schedule to prevent the affirmative asylum backlog from turning into a new loophole that enables illegal immigration.9 Affirmative and defensive asylum applicants are eligible for work authorization after 180 days of submitting an asylum application and are immune from accruing “unlawful presence” while they wait for a decision. Decade-long processing times, therefore, could undermine the overall integrity of the immigration system — both by encouraging the submission of fraudulent or frivolous claims and by preventing legitimate asylum seekers from obtaining reasonably timely decisions on their cases.
The goal of a “last in, first out” adjudication system is to reduce the likelihood that an alien will file a fraudulent or frivolous asylum application for the sole purpose of obtaining work authorization. In the case of the affirmative asylum portfolio, USCIS first prioritizes applications that were already scheduled for an interview, but had to be rescheduled, above all other cases. USCIS’s second priority are applications that have been pending 21 days or less. Its last priority are all other pending affirmative asylum applications, starting with new filings and working back toward older filings.
The downside to this prioritization system, of course, is that applicants who filed their applications years ago may have to continue waiting in a legal limbo significantly longer for a final decision on their cases. While these applicants may obtain work authorization after 180 days and do not accrue “unlawful presence” while they wait, applicants may be impeded from making important life decisions because of the lack of certainty regarding their future in the country.
USCIS does assign a small portion of its asylum officers to complete affirmative asylum applications, starting with the oldest applications and working forward. “This permits some of the oldest pending applications to be completed in chronological order,” the USCIS website explains.
Who Is Applying for Asylum Affirmatively with USCIS?
USCIS has not made public data to understand clearly what the population of affirmative asylum applicants looks like and how they differ from the defensive asylum applicant population (i.e., how did they arrive in the United States, where are they arriving from, and what types of persecution claims are they submitting?).
What we do know is that the Immigration and Nationality Act (INA) generally requires aliens who intend to apply for the asylum to submit their applications within one year of entering the United States. Because of this statutory filing deadline, most affirmative asylum applicants are recent arrivals to the United States and may have entered via parole, the visa waiver program, on visitor or tourist visas, or nonimmigrant visa categories for students or workers. Less frequently, an applicant may be granted asylum even if they apply after the one-year deadline if they are able to demonstrate “the existence of changed circumstances which materially affect the applicant’s eligibility for asylum”.
To better understand how and why this backlog has grown so quickly, the Center has filed a Freedom of Information Act (FOIA) request with USCIS to obtain non-personal identifiable information (non-PII) demographic and immigration status information for recent affirmative asylum applicants. We will update this report if and when the Center receives a response to our request for more information.
End Notes
1 There are two main types of asylum cases. Affirmative asylum applications are those that are filed with USCIS. Defensive asylum applications, in contrast, are filed in response to DHS initiating removal proceedings by filing a Notice to Appear (NTA) in immigration court. The immigration court system is handled by the U.S. Department of Justice (DOJ) Executive Office for Immigration Review (EOIR). Unsuccessful affirmative asylum applications filed by aliens who are in the United States illegally may be referred to an EOIR immigration court by USCIS with a Form I-862 Notice to Appear. These cases are still considered affirmative asylum applications, but are not counted in USCIS’s affirmative asylum backlog while they are pending in immigration court.
2 USCIS is, by design, primarily a fee-funded agency. In 2023, 96 percent of operations were supported by the fees the agency collects for services it provides to petitioners and applicants for immigration benefits. In the FY 2022 continuing resolution, however, Congress appropriated $250 million to USCIS for application processing and the reduction of backlogs across USCIS directorates, which was superseded by $275 million in annual appropriations. These appropriations included include $26 million to the Asylum Division for “hiring asylum officers, increasing overtime, and funding other related costs”. See “USCIS Faces Challenges Meeting Statutory Timelines and Reducing Its Backlog of Affirmative Asylum Claims”, Office of Inspector General, U.S. Department of Homeland Security, July 2024.
3 In its final fee rule, DHS exempted the Asylum Program fee from nonprofit organizations and reduced the fee to $300 for employers that have 25 or fewer employees.
4 These petitioning employers have no connection to the Asylum Division, asylum applicants, or the division’s services, but are intended to fund the asylum processing rule.
5 With exception to the Cuban and Ukrainian parole programs, these parole programs have never been authorized by Congress and may exceed DHS’s limited parole authority, found at INA § 212(d)(5).
6 An asylum application by a parolee would only be considered by an immigration court rather than USCIS if, for some reason, the parolee found themselves in removal proceedings. This could happen if the parolee committed a serious crime, for instance.
7 A credible fear claim is a “fear of return” claim made by an alien who has been put into expedited removal proceedings. These generally encompass recent illegal border-crossers who have been encountered by a U.S. Customs and Border Protection officer in the border region.
8 See memorandum to Tae D. Johnson, acting director, U.S. Immigration and Customs Enforcement, et al., from Alejandro Mayorkas, secretary, U.S. Department of Homeland Security, “Re: Guidelines for the Enforcement of Civil Immigration Law”, September 30, 2021.
9 A “last in, first out” adjudication schedule means that the agency generally prioritizes completing the most recently filed applications first.