Who is U.S. Citizenship and Immigration Services actually supposed to serve?
This isn’t a rhetorical question. Both the first and second Trump administrations have viewed USCIS as an agency not meant to serve the immigrants whose applications for legal status and work permits it approves or denies — and whose application fees fund the agency.
Instead, the attitude has been that USCIS is supposed to serve existing American citizens, who must apparently be protected from undesirable immigrants being given legal status or work authorization in the United States.
In Trump’s first term, this fight played out mostly over rhetoric — there was a big brouhaha over the agency revising its mission statement, for example. But over the last few months, it’s become clear that Trump’s USCIS feels it has the discretion to simply refuse to process whole categories of applications — in the name of protecting the “integrity” of the immigration system from people it deems too poor or too suspicious to settle here.
In addition to the abrupt “pause” on processing of whole categories of immigration applications for people from dozens of countries, the agency is now moving forward with a plan to stop giving work permits to asylum seekers for as long as 173 years.
Yes, you read that correctly. One hundred and seventy-three years.
That number comes from the official Federal Register notice, which proposes new rules around work permits. The Trump administration is acknowledging that its plan could prevent people from legally working while waiting for their asylum applications to be processed until 2199.
The absurdity of their estimate gives the game away. The administration is less interested in reducing the backlog of asylum applications by directing more resources to adjudicating them – which would reduce the number of people whose applications are pending long enough to be eligible for while-you-wait work permits. Officials are more interested in directing resources away from the kinds of immigrants it doesn’t want in the country.
But if the job of USCIS is to carry out the president’s vision of which kinds of immigrants should be allowed to come and stay in the U.S., why is its budget still being funded by immigrants’ application fees?
Like so many things in the immigration system, the issue of work permits for people whose asylum applications are pending is a long-standing problem. But it’s become impossible due to years of alternating neglect and panic.
Here’s the issue, which first arose under the Clinton administration: people who have applied for asylum might not have legal status while they wait for the government’s decision. They may never have had legal status at all, or they may have been on a temporary status that runs out while the asylum application is pending. All of this means they can’t work legally — and since asylum isn’t supposed to depend on existing ties in the United States, someone with a very strong asylum application might not have an economic support system here.
So there’s a strong incentive to allow people to work legally if their applications have been pending for a while. The law allows asylum-seekers to get a work permit six months after the asylum application is received — and regulations specify that the government needs to decide on their work permit applications within 30 days.
But the government doesn’t want to incentivize people who have weak asylum cases to file a short-term work permit application. And furthermore, the more people file nonviable asylum applications, the longer the backlog becomes, and the longer pending asylum-seekers can work legally before losing their cases — making it even more attractive for others to file weak applications.
To stop things from spiraling out of control, the government started processing asylum applications “last in, first out” in the 1990s — allowing them to reject weak applications within six months, before the applicant became eligible to work. But that switcheroo only works when the government is processing applications at the same rate they’re coming in, or faster — otherwise, you end up with people living in limbo forever.
But the asylum backlog has ballooned over the last 15 years. Part of this is because of the rise of people seeking asylum by turning themselves in to Customs and Border Protection (CPB) agents – the USCIS officials who are supposed to process applications for asylum are the same ones whose job it is to conduct screening interviews of people who ask for asylum when apprehended by enforcement. But more fundamentally, the problem is that asylum applications haven’t traditionally had fees – because, again, how much money you have is irrelevant to whether you’d been (or would be) persecuted in your home country. The more that asylum processing took over USCIS’ workload, the more unfunded work they had to do.
At any point, Congress could have re-evaluated its decision to fund USCIS (mostly) through immigrant application fees. But instead, both Congress and the agency insisted they could make it work by charging more for other kinds of applications.
You know the rest. The worse backlogs get, the harder it is to reduce them without additional funds. Today’s applications end up funding not their own approval, but the approval of an application filed months or even years ago. And the people deciding which kinds of applications get prioritized – increasing the number of employees who work on a given application type, by taking them off other types of applications — are agency leadership themselves.
Applicants waiting an unreasonably long time can go to federal court for an order to force USCIS to act. But “unreasonable” is defined, in part, as longer than the average processing time for that specific application. In other words, if everybody’s stuck in an infinite backlog, nobody can use a lawsuit to hold USCIS to account.
Because of the 30-day deadline that the government has to process work permits for asylum seekers – and the Biden administration’s decision to make certain work permits valid for a longer period of time in an effort to reduce the need to process renewal after renewal — the infinite backlog hadn’t kept people out of work. Now, the administration is using it as an excuse to do just that.
你知道吗？非公民办理驾照时的这个错误可能会导致选民欺诈
But it’s not promising to take officials off work permit processing and redirect them to fix the asylum backlog.
It all raises a lot of questions about how much leeway, legally, USCIS really ought to have to decide which applications can be processed in a timely fashion, which are backlogged, and which cannot be accepted at all. And it throws into awfully sharp relief the fundamental problem with seeing USCIS as an agency that doesn’t serve immigrants: immigrants are literally paying those officials’ salaries.
Here’s the worst irony of all. Last summer’s reconciliation bill allowed USCIS not only to levy a fee for asylum applications, breaking with tradition, but to charge applicants every year that their application is still pending – making them pay to stay in the backlog. With this proposed work-permit rule, an asylum-seeker could have to pay $100 a year — for, theoretically, the 173 years it will take to eliminate the backlog — with money they are never legally allowed to earn.
