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The leading Copyright |
Price Tag: Immigration Fee Hikes And How We Should Respondby Gary Endelman
Does the
Statue of Liberty have a price tag or is it simply a matter of giving USCIS the
money it needs to keep the paperwork moving in a post-9/11 world? The answer to
that will go a long way towards shaping the emerging debate over the proposed
fee increase that USCIS announced this past Friday[1].
For those who view any visa as a priceless benefit, or any immigrant as a
potential terrorist, no amount is too high. On the other hand, and there always
seems to be one, those who think we need or should have more immigration are
naturally inclined to resist higher fees as unnecessary and vindictive,
designed not to enhance the USCIS’ capacity to do its job but, rather, to
make it more difficult for the poor and dispossessed to realize in full measure
the promise of American life. What is not
in dispute is the sticker shock that comes with even a cursory reading of what
the USCIS has in mind. The cost of
naturalization soars from $330 to $595 for adult applicants and from $355 to
$460 for children, an 80% increase. The fee for a green card application zooms
from $325 to $900, a 178% jump, although companion fees for travel and work
authorization are waived. The husband or wife who will want to bring in a
spouse will now have to pay almost twice as much. The family who wants to become American
citizens had better take out a second mortgage: the Migration Policy Institute
calculates they would have to pay$1450 for their citizenship papers.[2]
The higher the fees, the less likely is it that poor people will have the cash
to become American citizens. In 2000-2001, when it costs $225 for a
naturalization application, 41% of eligible green card holders who had not yet naturalized had incomes
below 200% of the poverty level; more recently, this had shrunk to just 28%
with low incomes. The Migration Policy Institute estimates that “in 2002,
there were about 8 million LPRs who were eligible but had not yet obtained
citizenship.”[3] It is hard to escape the
conclusion that such a massive fee increase amounts to a de facto cap on
naturalization. There is an
issue of fundamental fairness at stake. The USCIS itself admits that, even with
the higher fees, service would not improve until 2009.[4]
In effect, petitioners paying the fees now will not realize the promised
benefits; these belong to those who come later. In effect, current petitioners
are being asked to subsidize future efficiencies. Anybody have a problem with that? William
Ramos, With one hand, Lady Liberty lifts her lamp beside the golden door. Who’s
to blame? It would be tempting to condemn the USCIS as the gang that
couldn’t shoot straight, the atavistic expression of a bumbling
bureaucracy that never misses a chance to miss a chance. It would also be
wrong. Almost alone among major federal agencies, the USCIS lives on what it
kills. In 1988, Congress established the Immigration Examination Fee Account
(IFEA). Since then, the fees dumped into IFEA fund immigration benefits. Pursuant to Section 286(m) of the
Immigration and Nationality Act, 8 USC 1356, the USCIS must recover the full
cost of the services and programs that it provides. Moreover, the Chief
Financial Officers Act of 1990 mandates that the USCIS bean counters put on
their green eye shades every two years to determine if fee revisions are
necessary or appropriate. [8]
The USCIS last conducted an in-depth examination of its fee structure in FY
1998, a fee structure that could not possibly take into account the whirlwind
unleashed by 9/11/. The last fee increase on October 26, 2005 did nothing more
than keep pace with inflation. In
January 2004, a Government Accountability Report concluded that fees were
“not sufficient to fully fund CIS operations” and characterized the
then current fee schedule as “based on an outdated fee
study…” [9]
While it is
true that Congress has provided some cash infusion in recent years, this has
been almost entirely devote to backlog reduction and administrative overhead,
not to application processing. Ironically, IFEA was created and sold as a giant
step forward, an attempt to provide the legacy INS with a secure revenue stream
in the face of Congressional inaction: “At the time, “ notes the
Migration Policy Institute, “the move to fee-funding was seen by the INS
as a needed reform, as Congress had not reliably provided INS with sufficient
funds to cover its application processing work.” [10] Nor
can it be said that the contemplated fee schedule is wholly without redeeming
features. $40 out of every fee will be reserved for refugee and asylum services [11]
while some $32 out of all payments are to be set aside to support fee-exempt
case processing. [12]
Perhaps most encouraging to business customers is the realization that, should
the proposed fee approach see the light of day, premium processing dollars can
now be used to underwrite major technology upgrades; if the USCIS is to
survive, such fundamental infrastructure enhancements are the lifeline on which
it must depend. [13]
The CIS admits as much “ Under the proposed fee schedule, premium
processing revenues will be fully isolated from other revenues and devoted to
the extra services provided to
premium processing customers and to broader investments in a new technology and
business process platform to radically improve USCIS’ capabilities and
service levels.”[14] Justifying a
massive fee increase as a cordon sanitaire around premium processing raises the
nagging but inevitable question of whether we should have such fees in the
first place. Most large employers accept them as the cost of doing business.
Why should the USCIS improve service when they can make a boat load of money by
taking longer? Indeed, if things get bad enough, and they will, desperate
employers will jump at the chance to pay more than $1000. When everyone
expedites, what relevance does premium processing retain? The losers in this
are not only the aliens and the employers who want to hire them, but everyone
who works in the American economy and depends on it. Small companies just getting
started, the ones who are the engine of job creation in an economy where the
big boys are constantly trying to get lean and mean, are precisely the ones
least able to afford the added $1000 surcharge. The utility of premium
processing as an argument for higher fees would lose its rationale if the USCIS
did not have to depend on fees to survive.[15] Where do we
go from here? Perhaps, how we end
up depends, in no small measure, from where we begin. The issue one suspects is
not whether the USCIS needs more money for clearly such is the case. Rather,
the issue is what the proper use of use fees should be. To the USCIS, it seems fair to say that
higher fees used in the same way promises to be neither fiscally prudent nor
philosophically justifiable. It is the antithesis of prudent stewardship to act
in the future precisely as you have in the past but expect different
results. Yet, it seems no less fair
to remind those on the other side that good intentions and high rhetoric are
not an acceptable substitute for effective policy or efficient procedure. Now
we can begin. Consider
the following but feel free to throw it aside and substitute something better:
What did
our mothers tell us when we were young? You get what you pay for? That should
be the yardstick against which the USCIS proposed fee increase should be
measured.
[1] The proposed fee schedule can be found at http://www.regulations.gov . A complete description is set forth at 72 Fed.Reg.
4888-4915 (Fe. 1, 2007) [2] The Migration Policy Institute, “Immigration Fees
in Context, “No. 15 (February 2007). The complete bulletin is on the MPI
website: http://www.mpi.org (hereinafter cited as “MPI Report”). [3] [5] Suzanne Gamboa, “Big Increases in citizenship,
other fees planned,” Dallas Morning News (Jan. 31, 2007). http://www.dallasnews.com/sharedcontent/APStories/stories/D8N05DF01.html
[6] The letter was signed by Sen. Patrick Leahy (D-VT) and
Rep. John Conyers (D-MI) who chair the Senate and House Judiciary Committees as
well as Sen. Edward Kennedy (D-MA) and Rep. Zoe Loefgren (D-CA) who preside
over their respective Immigration sub-committees. [7] New York Times, “The Price of Citizenship”
(Feb. 4, 2007). http://select.nytimes.com/gst/abstract.html?res=FA0A13FB395B0C778CDDAB0894D [8]
31 USC 901-03. The Department of Homeland Security became subject to the CFO
Act with the enactment of Public Law 108-330 on October 16, 2004. Federal policy on the need to set fees
at a level high enough to ensure full recovery for services rendered is also
set forth by the Office of Management and Budget (OMB) Circular A-25, User Charges (Revised), section 6, 58
Fed. Reg. 38142(July 15, 1993) [9]
General Accounting Office, Immigration
Application Fees: Current Fees are Not Sufficient to Fund U.S. Citizenship and
Services’ Operations (GAO-04-309R, Jan. 5, 2004) at 2. [10]
MPI Report at 3. [11]
Id at 4. [12]
[13]
“Building An Immigration Service For the 21st Century”
Questions and Answers on USCIS Fee Adjustments no. 9 (Jan. 31, 2007). http://www.uscis.gov [14]
Comments, 72 Fed. Reg. 4888, 4893-4894 ( Feb. 1, 2007) [15] A more comprehensive critique of premium
processing can be found at http://www.ilw.com/articles/2003,0307-endelman.shtm. [16]
21stst Century Department of Justice
Appropriations Authorization Act, Pub.L. 107-273, 116 Stat. 1758 (2002). The
relevant investor provisions can be found at Sections 11031-37. The conference
committee report is H.R. Conf. Rep. No. 107- 685 ( 2002). A huge Thank You is
owed to Steve Yale-Loehr who led the fight to overturn Matter of Izumi, 22 I&N Dec. 169, 19 Immigr. rep. B2-32 (Assoc.
Comm’r, Examinations 1998) and companion cases whose purpose and effect
was to read the EB-5 investor visa out of the INA. [17]
Boddie v. |
