The Office of the Citizenship and Immigration Services Ombudsman (USCIS Ombudsman) recently issued a damning report on the effect the Biden administration’s policies have had on the U.S. Citizenship and Immigration Services (USCIS)’s ability to administer the nation’s legal immigration system. The report confirms that the administration’s priorities, abuse of parole, and expansion of Temporary Protected Status (TPS), in particular, have significantly drained agency resources and affected a broad swath of immigration case types.
Background
The USCIS Ombudsman is an independent office within the U.S. Department of Homeland Security (DHS) that serves as a liaison between the public and USCIS. The office, while typically led by a political appointee, is not a part of USCIS and is required by law to issue a report each year detailing systemic issues affecting the agency. The USCIS Ombudsman also provides recommendations to remedy these problems, usually informed by feedback it has received from the public (typically aliens, their representatives, their employers, or alien advocate organizations).
This year’s report, issued on June 30, 2023, outlines how the Biden administration’s immigration policies have diverted USCIS resources away from its mission. While the USCIS Ombudsman provided numerous recommendations to alleviate certain administrative hurdles that directly affect the agency’s applicants and petitioners, it overall failed to suggest reforms that would redirect the agency resources to focus on congressionally authorized programs or otherwise curtail fraud and abuse in the immigration system.
Abuse of Parole
The USCIS Ombudsman, throughout its 2023 report, emphasized the negative impact the Biden administration’s use of parole has had on the agency’s ability to manage its workload. Since 2021, the Biden administration has created at least eight new parole programs and expanded at least three existing parole programs to facilitate the entry of inadmissible aliens into the United States. These programs allow inadmissible aliens to remain and work in the United States for periods of at least two years, and include the Central American Minors program and parole programs specifically designed for nationals of Afghanistan, Colombia, Cuba, El Salvador, Guatemala, Haiti, Honduras, Nicaragua, Venezuela, and Ukraine. Recent reports indicated that, as of January 2021, the Biden administration has allowed at least 541,000 inadmissible aliens to enter the United States and receive work authorization via parole, despite not possessing visas.
The Biden administration’s expansive use of “programmatic” parole is not only unprecedented, but also violates the language and history of the parole statute. Congress has only conferred to DHS narrow authority to parole aliens into the United States on a “case-by-case” basis for “urgent humanitarian or significant public benefit” reasons. Parole is explicitly not meant to circumvent the caps or mechanisms set by Congress, or otherwise to be used as a supplement to immigration policy as they are currently being employed to do.
USCIS has finite resources, and must divert immigration officers from existing workloads to adjudicate parole and related work authorization applications. While not commenting on the lawfulness of these programs, the USCIS Ombudsman explained that USCIS’s “growing humanitarian workload has tested the agency’s technologies, its human capital, and its leadership to not only do more with less, but to identify new capacities and new processes ... . The populations, moreover, will present challenges to the immigration system for some time. Parole populations, those afforded Temporary Protected Status, those seeking asylum, and others will continue to impact USCIS workloads for potentially years to come.” Distressingly, DHS has also indicated a willingness to renew or approve additional periods of parole for aliens whose parole expires, signaling that parolees are likely to not only remain in the United States indefinitely, but continue to add to the agency’s workload.
Expansion of TPS
The USCIS Ombudsman also cited “increased demand” for TPS as a significant challenge for USCIS, stating, “Processing work authorization for these populations in itself is a never-ending task for the agency.” The USCIS Ombudsman noted that this growing population means “that the agency carries a larger and more complex workload with each new designation or extension”. The office, however, failed to identify this demand as a creation of the Biden administration’s own making, and instead opted to refer to this expansion as an “event outside the agency’s control”.
TPS provides temporary protection against deportation and work authorization to nationals of designated countries. Under section 244 of the Immigration and Nationality Act (INA), the Secretary of Homeland Security may only designate a country for TPS if he or she determines the country is experiencing an armed conflict such that requiring the return of nationals would pose a serious threat to their personal safety, a natural or environment disaster resulting in substantial but temporary disruption, or “extraordinary and temporary” conditions that prevent nationals of the state from returning safely. Statute limits TPS periods to no longer than 18 months and provides the DHS secretary options to extend or terminate a country’s designation given specific conditions. It is clear that Congress designed TPS to be a temporary benefit, to be terminated when the conditions that inspired the TPS designation improve.
The Biden administration has expanded the TPS population to historic levels by extending or re-designating TPS for every country that had current designations at the time President Biden took office, as well as by designating new countries for TPS. Many of these countries, however, were designated decades ago, and some were premised on years-old or decades-old storms, such as 24-year-old Hurricane Mitch, which has protected nationals from Honduras and Nicaragua from deportation since 1998, despite no longer posing disruptions in these countries. Today, 16 countries hold current TPS designations, and almost 700,000 people hold TPS benefits in the United States.
Costs and Processing Times Increased for Case Types that Are Not Prioritized
The USCIS Ombudsman also accredited some of the agency’s growing backlogs to USCIS’s priorities. Specifically, the Biden administration has prioritized employment-based immigrant visa adjustments and naturalization applications over the adjudication of other case types, notably tasking itself with ensuring that “every available employment-based immigrant visa was made available to fill employment shortfalls”. In the summer of 2022, USCIS also created an online portal to expedite the processing of employment authorization documents for humanitarian parole recipients ahead of all other EAD applicants, who must file using the agency’s standard (and slower) paper-based application process.
The USCIS Ombudsman correctly noted that, “these [prioritization decisions] came at a price”, stipulating that “USCIS is a fee-based agency with finite resources. The determinations to prioritize certain applications and petitions meant that other workloads could not be addressed as robustly as the priority programs.” The office referred to the Biden administration’s strategy as “drifting processing times”, which means that case types that were deemed lesser priorities continued to be worked at a slower pace, with fewer adjudications being completed, while applications of the same type continue to be received, increasing backlogs in those areas.
While the agency has taken measures to address processing times, such as developing and opening the Humanitarian, Adjustment, Removing Conditions, and Travel Documents (HART) Service Center, the USCIS Ombudsman clarified that the “majority of [USCIS’s] actions address only the symptoms and not the root causes of backlogs themselves.” In the Center’s opinion, and perhaps in the USCIS Ombudsman’s as well, the administration’s failure to implement effective fraud deterrence policies while simultaneously creating unauthorized immigration benefit programs to allow hundreds of thousands of additional (and often inadmissible) aliens to receive immigration benefits from USCIS on an annual basis has dramatically impacted USCIS’s ability to administer the legal immigration system fairly or efficiently.
USCIS Fee Rule
The USCIS Ombudsman’s 2023 report also identified that USCIS’s inability to collect adequate fees to cover costs of operations is another major, self-inflicted hurdle preventing the agency from efficiently administering the legal immigration system. The USCIS Ombudsman explained that because the agency is still operating under a fee schedule promulgated in 2016, “the money that is paying for current expenses, from facilities to salaries, is based on fee calculations (specifically, what it cost the agency to administer immigration benefits adjudication) made almost a decade ago”.
What the 2023 USCIS Ombudsman report did not mention, however, is that USCIS did in fact finalize an updated fee schedule in 2020 to reflect current costs and limit fee waiver eligibility where inappropriate or unnecessary. The Biden administration, however, chose to scrap this fee schedule in favor of a proposal to suppress fees for case types the administration is prioritizing (i.e. naturalization) and largely abandon a “beneficiary-pays” model to collect fees. In order to suppress fee increases for certain categories, the Biden administration proposed drastically increased fees for others, such as on forms filed by U.S. employers who petition for foreign workers. The Biden administration also chose to keep USCIS’s 2016 fee waiver policies in place, which will require additional costs to be distributed to fee-paying applicants and petitioners.
To make matters worse, DHS indicated earlier this month that it is delaying finalizing its proposed fee schedule update until March 2024. This decision will force the agency to go another eight months with inadequate income to support its operations. This is significant because USCIS is a primarily fee-funded agency. Less than 5 percent of its annual budget is sourced by congressional appropriations. Applicants and petitioners cover the rest of all costs by paying these fees. In 2020, USCIS estimated that the agency will lose approximately $1 billion annually until it finalizes a new fee rule.
Spike in the Affirmative Asylum Backlog
The USCIS Ombudsman confirmed that the Biden administration’s policies have caused USCIS’s affirmative asylum backlog to grow at a record-setting pace. The USCIS Ombudsman reported that this backlog has grown to an astounding 842,000 cases, doubling in just two years, and estimated that application processing times are now “likely approaching a decade”. (The affirmative asylum process refers to asylum applications that have been submitted to USCIS proactively for adjudication rather than as a defense to removal (i.e. deportation) from the United States in expedited removal proceedings or immigration court.)
While officials from the USCIS Asylum Division have attributed the administration’s expansive use of prosecutorial discretion to cancel large numbers of cases in immigration court as a significant factor in the increase of affirmative asylum filings, the USCIS Ombudsman specifically highlighted the Biden administration’s expansive use of parole as a factor. The USCIS Ombudsman explained that the creation of the Biden administration’s parole programs has resulted in higher volumes of affirmative asylum filings and concluded that the USCIS Asylum Division “does not have the capacity for additional prioritization of asylum applications filed by all noncitizens paroled into the United States” under these new programs.
The USCIS Ombudsman also cited the Biden administration’s interim final rule, “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers”, as another factor challenging the USCIS Asylum Division’s ability to adjudicate cases. This rule transfers asylum cases from immigration courts’ dockets to the USCIS Asylum Division by allowing asylum officers, rather than immigration judges, to make final asylum decisions for claims submitted defensively in the credible fear process. While USCIS has paused implementation of this new process because of “resource constraints”, USCIS has estimated it may cost the agency over $426 million annually to implement. The Center believes that this rule alone has the power to break the back of the USCIS Asylum Division.
Least surprisingly, the USCIS Ombudsman also attributed the crisis on the Southern border as a significant force causing the affirmative asylum backlog to swell. Since 2021, the Biden administration transferred asylum officers who typically handle affirmative asylum cases to instead conduct credible fear screenings for recent border-crossers. The USCIS Ombudsman acknowledged 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”.
Downstream Impacts on the USCIS Ombudsman
Finally, the USCIS Ombudsman repeatedly stressed the “downstream” impacts that USCIS’s policies have had even on their own office, which does not have the authority to approve or deny cases or provide legal advice to the public. The USCIS Ombudsman reported that in calendar year 2022 it received record high numbers of requests for case assistance, which constituted a 4 percent increase from calendar year 2021 and an 86 percent increase from 2020. The office was forced to implement what it called a “new triage process” to identify priority cases and manage its own backlog.
USCIS Ombudsman’s Recommendations Miss the Mark
The USCIS Ombudsman stressed that the USCIS needs to increase its staff size, use of technology, and need for appropriations to address the “long-lasting challenges for the immigration system” that the “immigration events of 2022” have caused. These types of solutions, however, merely address symptoms and not the actual causes of these systemic issues. If the USCIS leadership is serious about bolstering the legal immigration system and maintaining reasonable processing times for immigration services, it must focus its resources on programs that have been authorized by Congress.
It is also clear that the USCIS Ombudsman tried, throughout its report, to give Biden administration cover by describing the creation or expansion of these programs as “events out of the agency’s control”. Understanding the policies that the Biden administration has put in place since 2021, however, shows that they are anything but.
Conclusion
The legal immigration system must operate efficiently and with integrity in order to maintain (or for some, earn) the nation’s trust. As civil rights leader and chair of the U.S. Commission on Immigration Reform, Barbara Jordan wrote to the New York Times in 1995, “A well-regulated system of immigration is in the national interest.” But, she continued, for immigration to continue to serve the national interest and be valued by the American people, “it must be lawful”. In her testimony before the U.S. House of Representatives, Jordan concluded that, “Credibility in immigration policy can be summed up in one sentence: those who should get in, get in; those who should be kept out, are kept out; and those who should not be here will be required to leave.” These words are still important today.
The policies and programs the Biden administration has put in place within USCIS, however, misguidedly often prioritize inadmissible aliens over lawful visa holders, and take advantage of loopholes in law, such as the INA’s narrow parole provision, to conflate lawfulness with unlawfulness. The USCIS Ombudsman’s 2023 report, while using more supportive phrasing, could not avoid highlighting the detrimental effects these policies have had on the legal immigration system. These effects, the USCIS Ombudsman signaled, will take the agency years to overcome.