Congress Opens the Door to Funding USCIS and Illegal Alien Legal Services, Indirectly Endorsing Biden’s Mass-Immigration Agenda
FAIR Take | March 2022
The House and Senate just passed a long-delayed $1.5 trillion spending package to fund the federal government through the rest of the fiscal year and provide $13.6 billion to respond to Russia’s invasion of Ukraine. Included in the spending bill were two novel and concerning appropriations: $275 million to fund USCIS, which, unlike most federal agencies, has historically been almost entirely funded by immigration petition and application fees; and $50 million to provide legal services to Violence Against Women Act (VAWA) self-petitioners. Make no mistake: both of these appropriations are causes for concern.
First, once Congress has started funding lawyers for alien petitioners and applicants, it will become extremely difficult to end the practice, no matter which party is in control. If history is precedent, it is much harder to roll back the issuance of benefits once they have been allowed. This has been especially true in the immigration benefits context, where the “temporary” in Temporary Protected Status, and the “deferred” (referring to deferral, not reprieve, from removal) in Deferred Action for Childhood Arrivals (DACA), no longer take on their legal or plain language meaning. The practice will also give mass-immigration advocates a basis to complain about the unfairness of not providing lawyers for other categories of asylum seekers, who may share similarities to VAWA self-petitioners.
Second, ending the model of USCIS as an almost entirely fee-for-service agency will almost certainly snowball. Congressional appropriations may start off relatively small, but the laws of nature dictate that it won’t stay small and it will be difficult to reverse.
Providing such funding to USCIS also provides financial cover for unlawful executive actions. It is important to understand that, significant pandemic-related revenue losses aside, USCIS is increasingly short on funding because it continues to add programs to its workload that are not authorized by Congress. Class-based deferred action adjudications (for DACA applicants, U-Visa applicants, and Special Immigrant Juvenile (“SIJ”) beneficiaries), employment authorization documents for aliens not provided for by the Immigration and Nationality Act (such as H-4 visa holders), and programmatic parole programs (such as the International Entrepreneur and the Central American Minors parole programs) all lengthen USCIS backlogs, divert resources away from legitimate immigration programs, and use up USCIS resources.
USCIS also does not charge a fee for screening and processing fear claims made at the border, although it tried to impose a nominal fee for certain aliens in its 2020 fee rule. This docket has skyrocketed as a result of the border crisis, significantly diverting Refugee, Asylum, and International Operations Directorate resources from both USCIS’s refugee and affirmative asylum responsibilities.
By providing USCIS with additional funding, Congress is indirectly supporting the administration’s larger agenda instead of demanding that USCIS focus its resources on the programs authorized by statute and update its fee rule to reflect actual costs to the agency today. This is the best Congress can do during the worst border crisis in history?