The cost of becoming American

New federal fee structure is the latest barrier to immigration

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Susan France

On July 31, United States Citizen and Immigration Services (USCIS) announced significant fee increases for most naturalization and benefits requests. While the agency justified the increase as an effort to address budget shortfalls, immigration lawyers and advocates decry the move, arguing it will not only discourage applications for citizenship and other legal immigration benefits, but also further the Trump administration’s anti-immigrant agenda. 

“The entire tone of the Trump administration is essentially to convey that lower income people are not welcome in this country,” says Violeta Chapin, who runs the Criminal and Immigration Defense Clinic at CU-Boulder. 

The new fee structure, set to take effect Oct. 2, will increase costs by a weighted average of 20%, meaning that while a few categories will actually see a cost decrease, others will increase by more than 500%. 

USCIS is almost entirely funded by administrative fees, which account for 97% of its budget, and handles all immigration applications and renewals including legal permanent residency, Deferred Action of Childhood Arrivals (DACA), work authorization, travel permission and asylum. The agency was created in 2003 under the newly established Department of Homeland Security (DHS), which also includes Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). It was part of the post-9/11 dismantling of the Immigration and Naturalization Service (INS), which had been responsible for citizenship services and border patrol since 1933. 

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The last time the agency raised its fees was in 2016, with a similar 21% weighted average increase. USCIS estimates that current rates would leave the agency underfunded by $1 billion annually.  What’s more, USCIS anticipates a 61% drop in application and petition requests through the end of the year in light of the coronavirus pandemic. The agency delayed furloughing more than 13,000 employees at the beginning of August after asking Congress for $1.2 billion in emergency funding. These fee changes were first proposed in November, and would most likely be taking effect regardless of the health crisis.  

“USCIS is required to examine incoming and outgoing expenditures and make adjustments based on that analysis,” USCIS Deputy Director for Policy Joseph Edlow said in a statement. “These overdue adjustments in fees are necessary to efficiently and fairly administer our nation’s lawful immigration system, secure the homeland and protect Americans.”

For Laurel Herndon, founder, executive director and managing attorney of The Immigrant Legal Center of Boulder County, the ever-increasing fees are part of the overall destruction of the administrative state as “the Trump administration has created systemic incompetence within USCIS.” 

For Herndon, the question is: “How are they burdening their own systems that are then making it seem as though the fees need to go up since USCIS was established as a fee-supported service?”

As an example, she points out the enormous cost and effort by the Trump administration to justify wealth requirements for green card holders, which is now facing myriad legal challenges and has been blocked by a Manhattan federal court.  

“So it was in essence, a waste of time,” Herndon says. “And the cost of that waste of time is being put on the backs of our immigrant community members.”

Additionally, when USCIS proposed the new fees in November, it suggested that some of the revenue would be used to fund ICE. But after Congress gave ICE $207.6 million for the 2020 fiscal year, “the fees established by this final rule are not calculated to provide funds to ICE,” while still leaving room to use the fees for “activities conducted by any component of the department (DHS) that constitute immigration adjudication and naturalization services.” 

Herndon says all this means is that the transfer of resources between USCIS and ICE will now take place more “clandestinely,” not that it will stop all together.   

“Underlying all of this seems to be the preference of the Trump administration to maximize deportations and to build their wall,” she says. “And we know there have been transfers. It may not have been dollars that are traceable, but it has been of personnel and time. And so I think a fee increase like this is going to exacerbate that process as well.”

When it comes to the new fee structure, it’s difficult to make direct apples-to-apples comparisons of what processes now cost more, Herndon says. For example, several fees have been “unbundled,” creating overall cost increases whether or not some categories are decreasing in price. A cursory look at the new structure shows that the initial application for lawful permanent residency (a green card) is decreasing by $10. However, before this new rule the price included interim work authorization and travel benefits for the applicant while they wait for approval. Now individuals must apply for those benefits separately, raising the overall price from its current cost of $1,760 to $2,860 as of Oct. 2.  

Herndon says her office has about 30 pending applications for green card renewals, some of which have been unresolved for 15 months. At the same time, DACA renewals, also processed by USCIS but currently under court supervision, are being approved in two or three months, despite the fact that the process of renewal is more or less the same for both applications. 

“It seems to me that when there is oversight of what is going on, that they toe the line and everything else seems to be slipping away into some incompetence here,” she says.

The ability to apply for total or partial fee waivers is also going away almost entirely with these new rules, causing lawyers and advocates to further their case that the Trump administration is attempting to institute wealth requirements for immigrants. According to USCIS, if these changes in fee waiver policy weren’t included in this final rule, all fees would have been increased by an additional weighted average of 10% in order to cover budget shortfalls.

The Trump administration already attempted to change USCIS’ fee waiver policy last year by requiring significantly more proof of financial hardship. A federal judge in California blocked the changes from going into effect, ruling that they were substantial enough to fall under the Administrative Procedure Act, requiring public notice and comment, which the administration did not do. With the new rules, however, the agency did engage in “an extremely expensive, comprehensive review of all USCIS fees, including fee waivers,” including public comment, Herndon says. Which most likely removes the possibility of such an injunction in this case.

Under the new rules, fee waiver considerations are limited to categories mandated by law or treaty such as temporary protected status or battered women and children. Even if they are still being considered, the requirements for approval have substantially increased, Ashley Harrington, children’s program managing attorney at Rocky Mountain Immigrant Advocacy Network (RMIAN), says.

Take, for example, her clients with special immigrant juvenile status, who have been determined to have been abused, neglected or abandoned and who are applying for work authorization and permanent residency. Although these kids were never exempt from paying USCIS application fees, “it has always been that there was almost an automatic fee waiver,” she says. Now, the only ones who qualify for a fee waiver are those in the foster care system, which is actually a small number of the kids Harrington represents. Most are living with a single parent, who now have to figure out how to pay the full price of legal permanent residency applications with the additional $550 work authorization fee. 

“Congress set out this pathway for permanent residency for these kids and they’re going to be blocked from pursuing that pathway just because of money,” Harrington says.

The new fee structure also affects applications for humanitarian relief only available to the most vulnerable immigrants — those seeking asylum — and comes amid other proposed changes to the asylum process by the Trump administration that would severely limit asylum by rewriting years of statutes and regulations developed through case law.  

Starting Oct. 2, applying for asylum will cost $50, whereas currently it’s free. USCIS also doesn’t charge for the first work authorization application while awaiting asylum approval, but under the new rules, it will cost $550 plus a $30 biometric test, neither of which are eligible for a fee waiver. 

“This is just another way to limit asylum and another way to try to limit immigration benefits for people that can’t pay,” Harrington says. “I understand that USCIS is needing more income, but to do it on the backs of the poorest immigrants who are fleeing to us for protection is really cruel.”

Harrington says the announcement on July 31 leaves immigrants and their lawyers a short window to finish applications and turn in paperwork, adding a sense of urgency to an already stressful process. Although one could expect a rush of applications in the next several months, with the economic fallout of the coronavirus pandemic, many people will find it hard to afford the current fees. Come Oct. 2, it will only become that much harder. 

Hundreds of thousands of people take the U.S. citizenship oath each year.

“People won’t apply,” says Anita Stuehler, who has run free citizenship classes through Boulder Public Library for the last 15 years. (She’s currently hosting small classes in a local park.) “It’s already expensive and people have to take out loans and borrow [from friends and family.] They already struggle to get the money, and this is going to block a lot of people from applying.” 

Perhaps that’s the point, Chapin from CU-Boulder suggests. 

“I think it’s important to note that naturalized citizens unlike lawful permanent residents can vote,” she says. “The Republicans are not blind to the fact that there have been studies done [that show] naturalized citizens tend to lean Democrat and tend to vote Democrat in elections.” 

Chapin is a daughter of an immigrant — her mother is from El Salvador, marrying her U.S. citizen father in 1974. It wasn’t until George H.W. Bush’s presidency, however, that she naturalized, Chapin says. “She applied to [become a citizen] so that she could vote. That was the reason, she wanted to vote for Bill Clinton.”

According to the Pew Research Center, one in 10 eligible voters in 2020 are naturalized citizens, a 93% increase from the turn of the century. Of the 23 million immigrants, 61% live in just five states — California, New York and New Jersey, which solidly vote Democrat, and Florida and Texas, which mostly elect Republicans. While not all immigrants (obviously) are Democrats, studies show the majority skew left, even if they are registered independent, Chapin adds. 

“We are on a track to becoming a community that doesn’t look like we looked 50 years ago. There are people in power that don’t like that,” Herndon adds. “And one great way of delaying that from happening is preventing newcomers to our country from being able to vote.”

USCIS maintains the fee adjustments are necessary to process more naturalization and benefit requests, and not an attempt to discourage citizenship. 

According to a USCIS spokesperson,  “The final rule is in no way intended to impede or limit legal immigration. To the contrary, in fiscal year 2019, USCIS exceeded an 11-year high of new oaths of citizenship. This is a testament to the diligence, training and expertise of adjudicators and agency staff stationed at our offices around the country.”

Despite her criticisms, Herndon says the local USCIS office in Centennial has been working extremely hard to continue providing services to the immigrant community, although previous direct lines of communication between staff and immigration lawyers like Herndon have all but ceased under the Trump administration. 

“They’ve been totally hampered by this president and I think our Immigration Bar really appreciates it,” she says. “They have hung in there and they’re ready to get back to business when a new administration takes office.”

Likewise, Herndon says, her office recommends people delay applications for citizenship until there’s a change in the White House. Not only has the current administration nearly doubled naturalization fees with this new rule, it also has expended resources setting up a denaturalization task force in an effort to strip people of their citizenship. Although that never went anywhere, Herndon says it “really paints a picture of what this administration is doing, which is trying to prevent our immigrant community members from becoming U.S. citizens.”

And that’s a shame, Steuhler says. Through her years teaching naturalizations classes in Boulder, she’s seen many people become citizens. They often come back to class after passing the citizenship test or taking the oath of citizenship with tears of excitement and joy. They talk about the profound sense of safety and home they now feel, some perhaps for the first time. 

“Most people, when they become a citizen, it means a lot to them,” she says. “And with [the fee] increase, that’s going to be taken away from a lot of people.”