U.s. Citizenship And Immigration Services (uscis)

U.S. Citizenship and Immigration Services (USCIS) is the agency tasked with administering the legal immigration and certain temporary visa programs.

Needed Reforms

Since January 2021, USCIS’s priorities have been misaligned, and this has trans- formed it into an open-borders agency, ignoring the critical role that it plays in national security, public safety, and safeguarding the integrity of our immigration system. USCIS should be returned to operating as a screening and vetting agency. Regulatory efforts have focused on easing asylum eligibility in a manner that is guaranteed to exacerbate asylum fraud as people surge at the border. Emphasis also has been placed on removing legal barriers to immigration, such as the use of public benefits. These actions violate statutes, erode congressional intent, and provide a significant magnet for continued illegal immigration.

Additionally, USCIS resources have been misappropriated to focus more on creating and expanding large-scale parole and temporary status programs that violate the law and are otherwise contrary to congressional intent instead of focus- ing on a more secure and efficient process for those who are seeking benefits. The ever-increasing number of applications filed has made it difficult to vet applica- tions adequately for eligibility, fraud, and specific national security and public safety problems.

The Fraud Detection and National Security Directorate (FDNS) is currently a small directorate with assigned officers reporting through the chain of command in the field, and this has led to stovepiping, lack of coordination in national policy, and inconsistencies throughout the agency. To prioritize vetting and fraud detection, FDNS should undergo a structural shift focused on direct reporting from the field to headquarters, reclassification of leadership, and FDNS directives taking prece- dence over those of other component entities. Correcting the current misalignment of agency priorities and resources should begin with this primary shift in focus to vetting and fraud detection. These actions would reform the agency, returning it to its screening and vetting mission in protecting the homeland.

Other structural changes should include reimplementation of the USCIS denat- uralization unit—an effort to maintain integrity in the system by identifying and  prosecuting criminal and civil denaturalization cases, in combination with the Department of Justice, for aliens who obtained citizenship through fraud or other illicit means. Additionally, USCIS should create a criminal enforcement compo- nent within the agency to investigate immigration benefits fraud under Title 8 (perhaps requiring additional legislative and regulatory authorities for the offi- cers themselves) and to prosecute cases through Special Assistant U.S. Attorneys (SAUSAs) with substantive knowledge in the field. Particular attention should be given to addressing increasing incidents of forced labor trafficking in temporary work visa programs.

While the Biden regulatory agenda has focused on at least two major rules—the credible fear rule and the public charge rule—USCIS has utilized other policy and internal procedural mechanisms to extend employment authorization to large groups of people who are in the country without legal status. The agency has taken quiet steps to cut corners and lessen adjudicatory standards. During a tran- sition period, a complete audit of agency policies, memoranda, and management directives issued during the Biden Administration should be completed, and rescis- sion documents should be prepared for issuance within the first few days of the incoming Administration. Additionally, regulatory documents should be drafted to review or reverse all regulations promulgated during the Biden Administration.

New Policies

To advance the national interest, the three core immigration agencies—USCIS, ICE, and CBP—should remerge and have immigration elements outside of DHS (such as ORR of HHS) included. The fragmented immigration enforcement frame- work that developed in the wake of the Homeland Security Act has weakened each agency and should be remediated. Combining these critical agencies would strengthen their capabilities, ensure cooperation, and promote information-shar- ing. Agency responsibilities and the delineation of authorities, such as inconsistent use of deferred action and issuance of NTAs by each agency, have long been a point of contention that would be addressed much more easily if they were recombined into a single entity.

Alternatively, new policies for USCIS as it currently exists should focus on mat- ters that can be addressed through administrative action.

The workforce should be realigned and, as necessary, retrained on base eligibility and fraud detection rather than speed in processing. Training should be returned to Federal Law Enforcement Training Centers (FLETC), which would underscore the enforcement role of USCIS as a vetting agency, and be rebranded accordingly.

Management Directives and policies should realign to ensure that the workforce, while adaptable and able to handle the bulk of the USCIS mission, is not allowed to be pulled off mission work to focus on unlawful programs (DACA, mass parole for Afghans, Ukrainians, Venezuelans, etc.), which divert resources away from nuclear family and employment programs. lImprove the integrity of the temporary work visa programs; lRepeal Temporary Protected Status (TPS) designations;

The regulatory agenda should include the immediate submission of notices of proposed rulemaking for the Trump Administration’s public charge rule (includ- ing aspects from its original notice of proposed rulemaking), temporary work visa reform, employment authorization reform rules, asylum bars rule, and a third-country transit rule. At a minimum, an enhanced regulatory agenda should include rules strengthening the integrity of the asylum system, parole reform, and U visa reform that prioritizes relief for victims of heinous crimes and ensures that we protect the truest and most deserving victims of crime.

Not all policy changes require formal rulemaking, however, as internal guidance documents are generally exempt under the Administrative Procedure Act (APA).7 In this subregulatory space, USCIS policy memos and operational guidance should reduce the validity of employment authorization documents and end the COVID flexibilities, including the reliance on biometrics reuse. USCIS should also enforce existing regulations by rejecting incomplete applications and petitions, ensuring both that they are completed before accepted for filing and that FDNS signs off on all approved applications and petitions before approval notices are sent to the alien or petitioner. Other efforts should be focused on adjudication standards returning to nearly 100 percent interview requirements for all appropriate cases.

The incoming Administration should spearhead an immigration legislative agenda focused on creating a merit-based immigration system that rewards high- skilled aliens instead of the current system that favors extended family–based and luck-of-the-draw immigration. To that end, the diversity visa lottery should be repealed, chain migration should be ended while focusing on the nuclear family, and the existing employment visa program should be replaced with a system to award visas only to the “best and brightest.”

Internal efforts to limit employment authorization should be matched by con- gressional action to narrow statutory eligibility to work in the United States and mitigate unfair employment competition for U.S. citizens. The oft-abused H-1B program should be transformed into an elite program through which employers are vying to bring in only the top foreign workers at the highest wages so as not to depress American opportunities. Additionally, Congress should: lPermanently authorize and make mandatory E-Verify; and lEnd parole abuse by legislating specific parole standards.

USCIS should make it clear that where no court jurisdiction exists, it will not honor court decisions that seek to undermine regulatory and subregulatory efforts. Finally, USCIS still requires access to all relevant national security and law enforce- ment databases in the same vein as any other agency in the intelligence space. This is a key concept that should be addressed as USCIS is returned to functioning primarily as a vetting agency.

Budget

USCIS is primarily fee-funded, operating on revenue derived by those who are seeking immigration benefits, work permits, and naturalization. The total agency budget requested for fiscal year (FY) 2023, including both fees and a small appropri- ation, is slightly less than $6 billion.8 The bulk of funds are derived from application fees through the Immigrant Examinations Fee Account. As a general principle, adju- dication of applications and petitions should be paid by applicants, not American taxpayers. It is critical that any changes in the budget, even in the wake of a realigned agency combined with ICE and CBP, should retain a fee-funded model.

Given the Obama and Biden Administrations’ lack of will, fees should be increased agencywide to keep in step with inflation and the true cost of the adju- dications. The incoming Administration should immediately submit a fee rule that reflects such an increase. Aside from an increase in all fees, the rule should drastically limit the availability for fee waivers and should implement a fee for asylum applications. Additionally, Congress should allow for a 10 percent across- the-board increase in all fees for all fee rules to account for the fact that new fee rules always lag behind budget requirements.

USCIS should strive to increase opportunities for premium processing, a ben- efit by which applicants can expedite their processing times. While this places time burdens on adjudicators, it provides an opportunity for a significant influx of money into the agency, which is not currently available. While simply raising fees to the necessary levels to make the agency run efficiently would be prefera- ble, without the need for expanded premium processing, this short-term measure should be utilized, particularly if longer-term fee rules are unsuccessful. At least until USCIS is caught up on all case backlogs, all applicants rejected for any benefit or status adjudication should be required to leave the U.S. immediately. Ordinary process can resume once all case backlogs have been adjudicated. Finally, USCIS should pause the intake of applications in a benefit category when backlogs in that category become excessive. Once USCIS adjudicators can decrease that caseload to a manageable number, application intake should resume.

Personnel

USCIS should be classified as a national security–sensitive agency, and all of its employees should be classified as holding national security–sensitive posi- tions. Leaks must be investigated and punished as they would be in a national security agency, and the union should be decertified. Any employees who cannot accept that change and cannot conform their behavior to the standards required by such an agency should be separated. USCIS’s D.C. personnel presence should be skeletal, and agency employees with operational or security roles should be rotated out to offices throughout the United States. These USCIS employees should live and work in the communities that are most affected by their daily duties and decisions.