Could the U.S. immigration system come to a grinding halt shortly? There are concerns that’s exactly what could happen due to a budgetary crisis that has arisen at the U.S. Citizenship and Immigration Service (USCIS). The full impact of a shortage of money and a shutdown of service is hard to imagine, but it is likely to be huge. Congressional wrangling over what to include in the next major bipartisan pandemic response legislation – assuming Republicans and Democrats in Washington are able to eventually reach agreement – does not seem to include any reference to the USCIS problem so far.
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Background on the current problem
In May 2020, the U.S. Citizenship and Immigration Service (USCIS) notified Congress of a massive projected budget shortfall that was threatening the agency’s operations and the financial well-being of thousands of USCIS employees. The USCIS asked for a $1.2 billion bailout from Congress to keep the agency afloat. Without this funding, the USCIS claimed that it will not have sufficient funds to maintain its operations through the end of the fiscal year, or to fund its operations during the first quarter of FY2021. The USCIS fiscal year ends September 30th. The USCIS therefore began issuing furlough notices to its employees and anticipated that the agency would need to furlough approximately 13,400 employees starting August 3rd, 2020 if the agency did not receive funding from Congress. A new announcement delayed the furlough by one month, until August 31st. But the delay does not overcome the essential problem that a furlough of that magnitude would still shut down the agency’s operations through the end of the fiscal year and into the first quarter of FY2021, bringing the immigration system to a grinding halt.
Possible Budgetary Reprieve?
However, Senate Appropriations Committee Vice Chairman Patrick Leahy (D-VT) and Appropriations Subcommittee on Homeland Security Ranking Member Jon Tester (D-MT) sent a letter dated July 21st, 2020 to Department of Homeland Security Acting Secretary Chad Wolf and U.S. Citizenship and Immigration Services (USCIS) Deputy Director for Policy Joseph Edlow calling on the agency’s leadership to postpone plans to furlough 13,000 USCIS employees, after revised revenue estimates showed that the USCIS will actually end this fiscal year with a surplus, rather than the deficit claimed.
The letter said in part, “A surplus is certainly in stark contrast to the revenue forecast provided to Congress earlier this year that indicated a $571 million deficit for FY 2020. Yet, despite this welcome reversal in revenue estimates, USCIS has perplexingly chosen to proceed with furloughs of over 13,000 federal employees. During this pandemic with record unemployment, needlessly forcing these hardworking Americans into unemployment will crush the morale of the workforce and put an untold number of families into unnecessary financial distress.” The letter then called on the USCIS to reverse itself regarding the furloughs. This letter and Leahy’s intervention bought another month before the furloughs begin.
To Furlough or Not to Furlough
Normally, the agency is self-funding with revenues generated from application fees. The $1.2 billion emergency funding request made by USCIS to Congress in May, was to see the agency through the end of the calendar year (ie to December 31st, 2020), not just the fiscal year end (i.e. to September 30th, 2020). USCIS based their request on the extremely low receipts they received at the beginning of the COVID pandemic and projections that receipts would remain steady at that low rate through to the end of the fiscal year. However, their calculations were wrong and receipts have been higher than predicted. That at least allowed furloughs to be delayed from early July to August. With the most recent revised revenue estimates, the USCIS could in theory delay the furloughs again. However, the USCIS could still go forward with furloughs because the surplus may not provide a sufficient enough cushion needed to begin the new fiscal year (i.e. begin as at October 1st, 2020) given the fact that many contracts come due, in addition meeting payroll in the period beginning in October. So while the agency may have a surplus for the fiscal year (i.e. to September 30th,) they may still have a shortfall for the calendar year (i.e. to December 31st, 2020). As for how the deficit is to be paid off, the USCIS proposes to impose a 10 percent surcharge on most immigration-related applications and petitions to pay the funding back.
Commenting on this problem, American Immigration Lawyers Association (AILA) President-Elect Allen Orr said that “the USCIS budget is in dire straits because the agency has discouraged new applicants, doubled the amount of money it spends on fraud prevention, and tripled what it spends on vetting.” Indeed, as Orr’s organization points out, in recent years the agency has implemented various policies that have served to needlessly delay processing, such as: eliminating a USCIS deference memo that required respecting previous immigration decisions in cases, routinely suspending premium processing services, mandating unnecessary in-person interviews in many cases, adopting burdensome regulations such as the public charge rule, issuing Requests For Evidence documents for information already in the Agency’s possession and failing to re-use biometric data. The point that Orr makes is that the USCIS needs to be held accountable for their budget shortfall and there is a need to ensure that any funding provided by Congress is conditioned on key changes related to transparency, fiscal responsibility, and efficiency. However, it seems shortsighted to level criticism at the USCIS without mentioning the impact of new policies that were adopted by the White House that have added to the agency’s burden.
Solution Depends on Congress
A shut down of the immigration system would negatively impact: families, U.S. businesses, educational institutions, medical facilities, and churches. In addition, immigrants who are in the process of becoming naturalized U.S. citizens will not be able to complete the process in time to register to vote, DACA recipients will not be able to renew their benefits, asylum applicants will face increased delays, and businesses will be unable to hire or retain employees. In short, the full magnitude of a halt to immigration caused by budgetary problems has not yet been fully explored and could be quite shocking to America’s economy. Does America need a new shock to the economy like this? It is up to Congress to sort out this problem to keep the USCIS working. Time is running out.