USCIS Slapped with Class Action Lawsuit, Accused of Taking Fees and Skipping Background Checks
Last November, a class action lawsuit was filed against U.S. Citizenship and Immigration Services (USCIS), the agency within Homeland Security responsible for legal immigration, for unlawfully charging aliens millions of dollars for biometric fees but never conducting the biometric screenings. The plaintiffs, naturalized citizens who paid the fees, claimed that the agency charged them $85 each for biometrics and background checks, in many instances more than once, in contravention of its statutory and regulatory mandates. Now, the agency is ready to settle.
USCIS typically charges an $85 biometric fee to applicants and petitioners to “pay for background checks and have biometric information captured” (8 CFR 103.7(b)(1)(i)(C). The information is collected during scheduled biometrics appointments at a USCIS contractor operated facility across the country where the aliens submit digital fingerprints, photos and signatures. According to the complaint, this information is submitted to the FBI for a full criminal background check. According to the complaint, USCIS says the $85 biometric fee covers four services: (1) FBI Name Checks; (2) FBI fingerprints; (3) Application Support Center (ASC) contractual support; and (4) Biometric service management overall, including federal employees at the ASC locations.
“Because the naturalization process generally requires applicants to submit at least a few different types of applications requiring the biometrics fee (e.g. for permanent residence, for renewal of permanent residence, and for naturalization), most applicants pay $85 fee multiple times,” say the plaintiffs.
While it is concerning that those seeking immigration benefits from the U.S. government are not obtaining the services that they are paying for, what is more concerning is that the agency is simply reusing prior biometrics and background checks and not requiring new ones when aliens are seeking new benefits.
Why would the agency cut corners? Dating back to March 2016 and during the COVID-19 pandemic, the agency found ways to reduce the frequency within which applicants and petitioners needed to appear in person for a biometrics appointment. Thus, they invented a new but temporary policy of “reusing” the last set of biometrics USCIS collected from certain aliens to help the agency keep adjudicating applications during COVID closures. However, under the Biden administration, this temporary relief became permanent and was expanded to more applications and petitions. The plaintiffs allege that the biometric reuse policy has resulted in a reuse of approximately 1.9 million biometric sets every year.
The plaintiffs claim, “In addition to reusing biometric information, USCIS also reuses background checks.” They allege that the FBI background checks could not have been conducted in the short time while their application was pending.
This class action lawsuit should lead Congress to demand more transparency with regard to how USCIS is using the fees it collects from applicants and petitioners. This is especially timely as the President recently asked Congress to provide $265.2 million in taxpayer funding for the agency. Of that amount, $145 million would be used to support the refugee and asylum programs. Typically, the agency is funded by fees from those who seek benefits, but the border crisis and increase in asylum cases has led the agency to look to Congress for a financial handout.
It should also be a wake-up call for policymakers who are concerned with the lax vetting of those seeking to live and work permanently in the United States. If the agency is cutting corners in vetting applicants, what other changes are being made in the name of “backlog reduction”?
Finally, it’s a sign of how this administration has tackled difficult policy issues — using the “sue and settle” scheme to advance their agenda. As noted by the Immigration Reform Law Institute, “whenever those in favor of erasing America’s borders find that they lack legal authorization for their preferred course of action, they wait for a sympathetic administration to take power. Then they file a lawsuit. The plaintiff and the government settle that lawsuit by negotiating an agreement that contractually obligates the government to pursue whatever policies the plaintiff favors.”
The Biden Administration is attempting to settle this class action lawsuit on July 10 of this year. FAIR will continue to follow this case as it advances in court.