U.S. Citizenship and Immigration Services (USCIS), the agency charged with administering the nation’s legal immigration system, published a report on January 27, 2023, laying out its “Strategic Plan” for fiscal years (FY) 2023-26, the remainder of President Biden’s first term and then some. USCIS adjudicates over 32,500 requests for immigration benefits per day, including applications for employment, humanitarian, and family-based visa programs. The agency also administers the country’s naturalization process, which allows eligible green card holders to become citizens.
USCIS listed “Strengthen the U.S. Legal Immigration System” as a primary goal, which it defined as developing “immigration policies, regulations, and guidance to support and expand legal immigration pathways, improve access to immigration benefits, strengthen the asylum system and effectively support the resettlement of refugees”. USCIS also included plans to update the E-Verify program, a web-based system that provides employers with a quick and free way to verify the work authorization of their new employees — but laid out no details regarding how it intends to do so.
USCIS’s plan, like other Biden administration initiatives, leaves a lot to be desired. Here are some suggestions USCIS can use to bolster its own purported agenda — while also remaining true to the limits of its legal authority and the interests of both American citizens and applicants for immigration benefits.
1. Increase High Skill Workers' Access to Immigration Benefits
USCIS has the authority to ensure the true “best and the brightest” foreign workers have access to employment-based visas. It’s just not using it.
USCIS could implement a reform, similar to those created under the now-vacated “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions” regulation, that required USCIS to prioritize higher-paid and higher-skilled foreign workers for H-1B cap-subject visas, thus ensuring U.S. businesses access to the best pool of foreign workers while also discouraging wage suppression and unfair competition for U.S. workers. Current DHS policies require USCIS to select registrations on a purely random basis, utilizing a lottery system, when demand for H-1B visas exceeds the numerical limit set by statute.
Prioritizing wage levels in the registration selection process incentivizes employers to offer higher wages, or to petition for positions requiring higher skills and higher-skilled aliens that are commensurate with higher wage levels, to increase the likelihood of selection for an eventual petition. Similarly, it discourages abuse of the H-1B program to fill lower-paid, lower-skilled positions, which is a significant problem under the present selection system. In addition to increasing the highest-qualified aliens’ access to immigration benefits, this policy change will benefit American workers as well, who often must unfairly compete with foreign workers who are paid less than their American counterparts for the same jobs in the same locations.
2. Strengthen and Improve Access to the Asylum System by Deterring Fraud
USCIS can strengthen the asylum system and improve access to it by legitimate asylum seekers by implementing policies to deter fraud. USCIS’s plan, however, was silent on how the agency plans to address this massive problem. According to the latest available data, the asylum backlog totals over 1.6 million cases, meaning that unless the U.S. government places an alien on an expedited path, most asylum-seekers wait years in order to have their cases fully resolved by an asylum officer or immigration judge. The vast majority of these applicants, however, are ultimately determined to be not eligible for asylum.
U.S. asylum laws provide protection only to aliens who are able to establish that they have a well-founded fear of persecution on account of a protection ground (race, religion, nationality, political opinion, or membership in a particular social group). Importantly, this excludes claims based on generalized violence, such as domestic- or gang-based violence, and most forms of economic hardship.
Additionally, aliens who have been convicted of certain crimes are barred by statute from receiving asylum. Regulations also bar asylum eligibility from applicants who are reasonably able to relocate to safety in their home country. Moreover, asylum is a discretionary benefit — not a legal right — and therefore may be denied if an immigration judge or asylum officer determines that the alien does not warrant a positive grant of discretion.
In the absence of faithful adherence to the INA’s mandatory detention provisions, a renewed commitment to enforce immigration laws in the interior of the United States, or a revival of the Migrant Protection Protocols (MPP), which has a proven track record of reducing illegal entry and related fraudulent or frivolous asylum claims, there are many actions USCIS can take to deter the submission of fraudulent or frivolous asylum claims. (MPP, interior enforcement, and detention operations are executed by U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE), USCIS’s sister agencies.)
First, USCIS can require asylum officers to consider the mandatory bars to eligibility for asylum and withholding of removal when making credible fear determinations. The credible fear process serves as a screening function for asylum applicants who arrive in the United States illegally. USCIS’s refusal to require asylum officers to consider as a preliminary matter whether an applicant is in fact barred from protection (and therefore, does not have a credible fear of persecution) is both wasteful and inefficient, and undermines the very purpose of conducting screenings in the first place.
Second, USCIS should also raise the standard of proof for consideration of Convention Against Torture (CAT) claims in credible fear screenings. Aliens who may be barred from asylum or statutory withholding of removal may nevertheless be allowed to remain in the United States by submitting fear claims that establish a “significant possibility” (a notably low standard of proof) of eligibility for CAT. The availability for release into the United States is a primary pull factor for illegal immigration and the low standard asylum officers currently apply to CAT determinations in credible fear claims could negate the Biden administration’s forthcoming third-country transit rule’s intended deterrence effects.
Third, USCIS must amend its regulations to end its practice of reconsidering negative credible fear determinations that have already been concurred with by an immigration judge. The practice of filing requests for reconsideration has become an overwhelmingly popular tactic to delay the removal of aliens without meritorious fear claims.
Such tactics only serve to further drain USCIS resources and divert resources away from aliens with legitimate and unresolved fear claims. While total time to review a reconsideration request varies, USCIS reported that requests that require new asylum officers to conduct new interviews often take more than five hours per request to process. The Biden administration considered terminating the practice in 2021, but scrapped the plan in 2022, deciding instead to limit how many reconsideration requests one individual alien can submit.
Fourth, and importantly, USCIS should implement a regulation to define what it means to be a member of a “particular social group” in order to mitigate asylum abuse. Membership in a particular social group, as I noted above, is a protected ground that is covered by asylum and withholding of removal. The problem, however, is that it is an ambiguous term, not defined by statute, that has been the subject of considerable litigation and is the product of evolving case law.
By reining in what can be considered valid particular social groups for the purposes of asylum or withholding of removal eligibility, USCIS can ensure that the ground is not an “omnibus catch-all” that renders the statute’s limits meaningless. A clear definition would also likely shorten screening and adjudication times, saving considerable agency resources and therefore also reducing wait times for applicants.
3. Eliminate Unlawful Programs that Divert Agency Resources from Legitimate Visa Programs
Perhaps the most effective way USCIS can reduce administrative barriers to immigration benefits is to eliminate programs USCIS has created that are not authorized by statute. The creation of ultra vires and unappropriated programs diverts agency resources from the adjudication and administration of legitimate visa programs, for which many applicants and beneficiaries experience significant wait times and processing delays — even when USCIS charges fees for their applications.
First and foremost, USCIS should terminate its recently created parole programs, which have been designed to allow aliens who have no lawful immigration status to enter and work in the United States absent any authorization from Congress. Since January 2021, DHS has used parole as its primary “Band-Aid” to address the border crisis, and with it has created an alternate immigration policy for aliens who have crossed the border illegally or even for prospective migrants from certain countries to apply for parole from home. These unauthorized programs all usurp agency manpower and resources, which in turn increase fees and wait times for applicants and petitioners of bona fide visa programs.
In addition to draining agency resources, USCIS’s parole programs are unlawful. Congress has not delegated DHS authority, through section 212(d)(5) of the INA, or any other provision in law, to permit the limitless admission of classes of aliens, defined solely by DHS’s interpretation of “significant public benefit”. No provision in law exists that permits DHS to parole classes of aliens into the United States on the basis of pre-determined eligibility criteria. It would be unreasonable to conclude the Congress regulated the employment of aliens as carefully and explicitly as it has, but also intended DHS to have the authority to parole an indefinite number of additional aliens into the United States, in its sole discretion, and grant them work authorization.
The Deferred Action for Childhood Arrivals (DACA) program, which uses deferred action instead of parole to grant lawful presence and work authorization eligibility to certain aliens in the United States illegally, is subject to similar criticisms. USCIS officers must also process DACA applications along with their EAD applications, which only increases costs and delays for legitimate visa programs.
And like USCIS’s new parole programs, DACA is legally defective. Recently, the Fifth Circuit Court of Appeals held that the DACA program violated both procedural and substantive law, stating that, “Congress determined which aliens can receive these benefits, and it did not include DACA recipients among them.” The court is likely to conclude in the upcoming year that the Biden administration’s new DACA regulation, which makes very few changes to the framework of the program, is subject to the same legal deficiencies.
4. Strengthen the E-Verify Program
In the Strategic Plan, USCIS announced that it will be developing what it called an “E-Verify ‘Next Generation’ Proof of Concept (POC)” to “reduce data reproduction” and “streamline” the verification process — without giving any detail regarding how it plans to do so. USCIS should make the following reforms:
First, USCIS should reform the verification process by only allowing employers to accept driver's licenses and identification cards from states that provide DHS access to data sources that will allow them to validate the authenticity of the document. Making such a policy change would ensure DHS is able to increase E-Verify’s photo-matching capabilities and weed out document fraud and identity theft.
Second, DHS should require any employer who uses an “alternative verification process”, such as remote document verification, to use E-Verify. DHS has permitted such Form I-9 flexibilities since the beginning of the Covid-19 pandemic when millions of Americans were forced to take on remote employment. Requiring E-Verify participation would be a common-sense safeguard given the reality that few employers are trained to identify fraudulent or forged government documents and must generally accept what their employees present during the Form I-9 process as valid.
Third, USCIS’s POC should take the shape of a reform known as “G-Verify” (for “government verification”), which imposes a single online filing requirement to replace employers’ Form W-2, Form I-9, and E-Verify obligations. By simply requiring employers to submit the same information already required for these forms to the government electronically, G-Verify would relieve employers of the need to store the paper copies of the forms for future audits and, like E-Verify, would provide employers with nearly instant confirmation that a new hire may lawfully be employed in the United States. G-Verify reforms could also deter identity theft and make unlawful employment schemes easier for DHS to uncover.
While administrative reforms are sorely needed to promote efficiency within USCIS, these reforms should not come at the expense of the American public, who are the primary stakeholders in their country’s immigration system. USCIS can expand applicants’ access to immigration benefits by ensuring that its resources are focused on congressionally authorized programs and reducing fraud in the immigration system. Efforts to maximize agency resources and eliminate redundancies, however, should not be used as a justification to facilitate illegal immigration into the United States.