13 million cases and counting: Immigration backlog result of rewarding inefficiency

United States Citizenship and Immigration Services (USCIS) has a backlog of around 5.2 million immigration benefit requests, with an additional 8.5 million pending requests that are not in the backlog yet because they aren’t ready for adjudication. This means that USCIS has 13.7 million benefit requests to do — in addition to the new applications it is receiving.

USCIS plans to hire 4,000 additional employees by the end of this calendar year, but the agency has been overwhelmed by a backlog crisis that wasn’t caused entirely by an employee shortage, and its backlog won’t be brought under control just by adding more employees. 

The Office of Citizenship and Immigration Services Ombudsman describes systemic problems in USCIS’s application-fee-based funding system that are preventing it from fully utilizing its personnel and resources and suggests ways to improve the situation in recommendations submitted to USCIS on June 15, 2022.  

The Ombudsman seems to have overlooked a systemic problem that I think should have been addressed.

The application-fee-based system USCIS is using rewards inefficiency.

USCIS requests for an increase in application fees are based to a great extent on how much time is being spent on processing the various applications it adjudicates. The more time it takes to adjudicate the applications, the higher the fees USCIS can charge. The higher the fees, the more money the agency will have to meet its budgetary needs.

Conversely, if USCIS reduces the time it takes to do the applications by becoming more efficient, the fees will be lower and the agency will have less money for meeting its budgetary needs.

This is a problem for all of the applications USCIS processes — new, backlogged, and pending.

USCIS isn’t going to be able to keep up with its caseload and get its backlog under control until all of these problems have been eliminated.

Highlights from the recommendations

Approximately 97 percent of the USCIS’s budget is funded by the filing fees it collects, but the agency is not permitted to charge fees for all of the applications it has to process. For instance, fees cannot be collected when the applications are for specified types of humanitarian relief, such as affirmative asylum applications. With some exceptions, the cost of paying for these applications is borne by USCIS’ fee-paying customers.

The agency’s funding model was developed to be consistent with the Chief Financial Officers Act (CFO Act) and Circular No. A-25 from the Office of Management and Budget (OMB).  

This requires USCIS to (1) review their user fee rates every two years; (2) determine the full costs of providing services; (3) review new programs to identify potential new user fees; and (4) report the results of these reviews in their annual CFO reports.

USCIS uses the Activity-Based Cost (ABC) methodology to assign costs to specific benefit requests in a manner consistent with OMB guidance (Circular A-25). The main ABC considerations are employee staffing, workload volume, adjudication completion rates, and utilization rates for each of the immigration benefits services it provides.

Completion rates are based on the number of hours it takes to fully process a specific application. The more time spent adjudicating a request, the higher the fee that USCIS can charge to recover the cost of processing it.

Procedural requirements

The agency’s fee-for-service funding model requires it to comply with the Administrative Procedure Act’s (APA) rule making procedures to adjust the amounts of the fees. This includes extensive fact gathering, analysis, negotiations, and navigating through multiple reviews conducted by various offices in USCIS, DHS, and OMB. Then it must provide notice and a meaningful opportunity for the public to offer comments on proposed fee changes. When the public comment period closes, the agency must consider and draft responses to the unique comments.  

Then, except for the initial fact-gathering phase, the review process is repeated, with the final rule similarly requiring the USCIS director, DHS, and OMB to review and approve it.

This takes a long time.

It took approximately two and a half years to move the Aug. 3, 2020, rule through the entire process, from the initial fact-gathering to publication of the final version in the Federal Register.

By the time USCIS issued that final rule, the data on which it was based was outdated.   

What’s more, the backlog is not considered. USCIS staffing models reflect the cost of adjudicating future benefit applications. They do not include the costs of the additional staffing and associated resources the agency needs to reduce its backlogs, or its pending caseload.

USCIS’s almost exclusive reliance on a fee-for-service funding model has left it chronically underfunded and unable to keep up with its caseload.

Conclusions

The Ombudsman says USCIS should:

• Re-engineer the agency’s biennial fee review process and associated staffing models to ensure that they proactively project the amounts needed to meet targeted processing time goals for future processing and backlog adjudications;

• Seek public appropriations to cover the cost of delivering humanitarian-based immigration benefits;

• Consider seeking congressional authority to establish a new financing stream through the Federal Financing Bank or through some other mechanism to provide funds as needed at its discretion;

• Request annual appropriations specifically earmarked for eliminating backlogs; and

• Resume the use of its authority to adjust fees annually on the basis of the salary/inflation factor calculated by OMB under Circular A-76.

These recommendations would improve USCIS’s funding system, but it would make more sense to fund the agency with congressional appropriations instead of trying to make its application-fee-based system work.

That said, the people who use USCIS’s services should continue to contribute to the cost of providing them by paying application fees. 

Also, I don’t think USCIS should have to go through a time-consuming labyrinth of procedural steps to justify fee increases. It would make more sense to make annual fee adjustments on the basis of the U.S. Bureau of Labor Statistics’ Consumer Price Index.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at https://www.blogger.com/blog/posts/2306123393080132994