Partner Aaron Hall’s Comment to the Department of Homeland Security in Opposition to Proposed USCIS Fee Increases

On January 4, 2023, the Department of Homeland Security published a proposed rule which would change United States Citizenship and Immigration Services (USCIS) fees.  The rule, if implemented as proposed, would see drastic increases in application fees.  For example, currently a marriage-based application for a green card, including the I-130 petition, I-485 application, I-765 work permit application, and I-131 travel permit application, costs a total of $1,760.  Under the proposed fee schedule this same application package will increase over 200% to $3,530.  For a U.S. citizen filing for a spouse and three stepkids, the new rule would require $14,120 in government filing fees.

The agency is accepting comments on the proposed rule until March 6, 2023. Under the Administrative Procedure Act, USCIS is legally required to review and consider substantive comments before implementing the rule. In recognition of the hardships that these fee increases will cause noncitizens and the inefficient procedures and culture that has led USCIS to its current historic backlogs, Joseph & Hall partner Aaron C. Hall submitted the below comment to the Department of Homeland Security. To submit your own comments for agency consideration, click here.

Comment in Opposition to Proposed Rulemaking

I am an immigration attorney in private practice writing in opposition to the proposed fee increase.  The NPRM does not show any substantive commitment or plan to address the wasteful, inefficient, and at times unlawful adjudication practices that have led to today’s unprecedented adjudication backlogs at the agency.

In my 15 years of practicing immigration law, I have seen the length of forms increase exponentially. I have seen the agency implement or attempt to implement wasteful policies such as the “no blank spaces” policy and the elimination “prior deference” for H-1B adjudications. The agency at local offices for years took the atextual position that the unlawful presence bar at INA 212(a)(9)(B) could not be served in the United States subsequent to a procedurally lawful entry. This position resulted in countless unnecessary I-601 waiver applications and denials.  When asked to defend the indefensible interpretation of the statute in federal court, the agency invariably issued an NTA to moot out the court proceedings.  Once in immigration court, the noncitizen almost invariably adjusted without issue as the immigration judges and DHS counsel almost universally recognized that the agency interpretation was untenable.  The amount of agency resources, along with resources of the immigration courts and noncitizens, needlessly wasted on this policy is incalculable.  Ultimately, under pressure from a class action lawsuit, USCIS finally announced a policy change in June of 2022.  INA 212(a)(9)(B) Policy Manual Guidance, PA-2022-15 available at https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220624-INA212a9B.pdf.  The BIA then cemented the clear correct interpretation in Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023), finding there was no ambiguity in the statute and that the plain text dictated that the unlawful presence bar at 212(a)(9)(B) could be served in the U.S. subsequent to a procedurally lawful admission.  While that issue is now off the table, it is just one example of a culture of attempting to interpret the law in the harshest manner toward the noncitizen, creating unnecessary (and in this case plainly unlawful) RFEs, denials, and delay.

From observing agency adjudications over the years, undoubtedly the largest issue the agency has is its adjudicators inability or unwillingness to apply the standard of proof dictated by law for the vast majority of its adjudications—the preponderance of the evidence standard. Despite surface acknowledgment of the standard of proof in the USCIS Policy Manual and at times in decisions, in practice far too many adjudicators delay a case until they are satisfied that the legal requirements are met beyond any shred of doubt.  As one illustrative example, we have seen naturalization applicants file with their applications proof that they had been making child support payments, including bank statements and an affidavit from the ex-spouse saying they have been paying.  But officers are unsatisfied until they have a piece of evidence (a bank statement, copy of a check, etc.) for every single month during the five-year period.  The officers refuse to adjudicate the applications at the interview and instead take the time to issue a request for evidence showing child support payments for each of the 60 months of the statutory period.  While applicants can and do succeed after such RFEs, cases suffer months of delay as the officer spends unnecessary time on the RFE and adjudication where the initial filling should have satisfied the officer on a preponderance of the evidence standard.

Unsurprisingly, this culture of an unspoken (and unlawful) elevated standard of proof has seen adjudicatory efficiency suffer.  The agency’s data show that from 2010 to 2023, the number of adjudicator hours used to process applications has spiked:

-200% increase for form I-751;

-163% increase for form I-485;

-179% increase for form I-130;

-140% increase for form N-400.

Source: USCIS Adjudicators Have Grown Less Efficient for 82% of Forms, David Bier, Cato Institute, Jan. 4, 2023 available at https://www.cato.org/blog/uscis-adjudicators-grew-less-efficient-82-forms.

Cases have not become more complex. With increased capability in technology and automation, adjudications should be taking less time as the years go by, not more.  But USCIS’s culture, where too many officers apply their own elevated “beyond a shred of doubt” standard of proof and seek to find a way to “get to no,” has seen adjudications become less efficient and seen backlogs skyrocket.

There are many fine public servants at USCIS, including adjudicators.  And from time to time, I recognize that fees will be adjusted.  But this NPRM does not address systemic issues that have put USCIS in this hole. There is no analysis of how adjudicator performance is evaluated and incentivized (referrals to FDNS, RFEs, denials, etc.) or whether changes to training, evaluation, and incentive structures can bring USCIS adjudications in line with the legal standard of proof and increase efficiencies.  Without fundamental changes to the agency culture, training, and evaluation standards, more funding, whether it comes from Congress or increased fees, will simply continue to fund and encourage increasingly wasteful and unlawful policies and behaviors.

Sincerely,

Aaron C. Hall