Immigration Backlogs and Congressional Funding

Immigration backlogs are affecting a wide range of immigrants — asylum seekers, DACA recipients, spouses of U.S. citizens, and high-skilled immigrants in the tech industry, to name a few. Backlogs have become a systemic issue within the immigration enterprise, which we define as the five departments that address immigration through appropriations: the Department of Health and Human Services (HHS), the Department of Homeland Security (DHS), the Department of Justice, the Department of Labor, and the Department of State (DOS). As each department attempts to tackle its segment of crisis, Congress could help address it by providing additional funding to clear backlogs and alleviate pressure on the system.

Immigration Court Backlog

Backlogs are particularly severe in immigration courts, under the Department of Justice, where immigration judges are overworked and under-resourced. Though there are many factors adding to the court backlog, two major events during the Obama administration contributed to its beginnings—increased interior deportations and a large influx of unaccompanied children at the border. The administration deported more than 3 million undocumented immigrants during its 8-year tenure, about 34,000 people a month at the peak of deportations in 2012. An influx in unaccompanied children from Central America in 2013-14 increased backlogs further, since by law unaccompanied children must be allowed to plead their case against removal in immigration court. In 2014, the administration reported the apprehension of 68,541 unaccompanied children, a 77% increase from 2013. The initiation of removal proceedings for this many people within a relatively short period greatly increased the number of cases in front of immigration judges, further straining the system. In 2014, the Obama administration asked for an additional $3.73 billion in emergency supplemental funds to be allocated to address the child arrivals, specifically underlining the need for funding to increase the capacity of immigration judges. However, in the Republican-controlled House of Representatives, the majority members tried to couple the request with a repeal of the DACA program, which ultimately led to the withdrawal of the bill from the floor so no additional funds were provided beyond the previously appropriated agency funding.

During the Trump administration, existing court backlogs expanded with the arrival of more migrants at the border seeking asylum. The implementation of programs such as the Migrant Protection Protocols (MPP), otherwise known as “Remain in Mexico,” contributed to the continued growth of backlogs. Cases of migrants placed in the program increased the court backlog dramatically and unevenly. In the first iteration of the program, cases were scheduled mainly in four jurisdictions—backlogs in those jurisdictions rose more quickly than in non-MPP courts, as they were unequipped for the level of case volume that MPP brought. Far fewer asylum seekers were enrolled during MPP 2.0, the program restarted by the Biden administration after a federal court order, which ultimately meant that cases were processed more quickly and contributed less to the backlog.

Despite MPP 2.0 not contributing to the growth of the court backlog, court backlogs have still grown under the Biden administration. When President Biden entered office, the court backlog stood at just under 1.3 million cases; as of August 2022, the court backlog is now slightly over 1.9 million cases. There are multiple reasons for this increase, but certain decisions made by the Biden administration certainly contributed to its growth. The administration’s decision to exempt unaccompanied minors from Title 42 in February 2021 increased cases in the backlog, as well as the administration’s policy to exempt vulnerable migrants from Title 42 expulsion between April and August 2021. High numbers of migrants from Cuba, Venezuela, and Nicaragua at the border have also driven the backlog, as none of these countries will accept deportees, nor will Mexico accept them under Title 42. The government has therefore allowed these migrants to stay in the country to pursue their asylum claims, driving the number of cases in the courts higher.

Legal Immigration Backlog

U.S. Citizenship and Immigration Services (USCIS) is facing severe and growing backlogs in processing its cases for legal immigration and asylum. As of April 2022, the agency has 8.5 million pending cases, with over 5 million of those cases pending beyond their usual processing time. In July 2019, the agency had a backlog of around 2.7 million, representing a massive increase in the span of just under three years. In September 2022, the agency announced it expected to issue all the available employment-based green cards for FY2022, a massive improvement from FY2021, when the agency let nearly 80,000 green cards go to waste because it could not process them all within the year. However, this milestone accomplishment came with trade-offs, with the agency prioritizing applications that were easiest to process instead of processing cases by date filed. This meant applicants who filed a few years ago may not receive green cards, while those who filed a few months ago might.

Many of the recent increases in USCIS’ backlogs can be explained by changes in their mandate and the COVID-19 pandemic, which forced USCIS to shut down all in-person services in March 2020 and implement a hiring freeze. Processing of immigration cases could not continue until USCIS reopened in June 2020. USCIS’ continued reliance on manual processing slowed the agency’s delivery of benefits throughout the pandemic, highlighting the need for digitization at the agency. Though USCIS reports positive trends in their processing times, the overall backlog remains high and processing times remain slow. Under the Trump administration, legal immigration backlogs that existed during the Obama administration experienced the same patterns as the court backlog. After entering office, the Trump administration added extra steps to immigration applications, increasing the level of scrutiny that USCIS applied. These new steps included requiring all applicants awaiting green cards to present themselves for in-person interviews, asking for extra evidence in applications, and increasing vetting for applications, all of which slowed processing. These changes increased the resources required to process applications and thus increased the existing case backlogs. The Biden administration has rescinded many of these orders and, as noted above, has been actively working to process cases.

At the State Department’s consular sections world-wide, immigrant visa applications are becoming similarly backlogged. In 2019, the monthly average of immigrant visa cases at the National Visa Center (NVC) waiting for an interview was about 61,000—in June 2021, NVC reported that more than 506,000 immigrant visa applications were awaiting interview. The backlog has reduced slightly since then, but as of September 2022, close to 385,000 eligible applicants were awaiting interviews. This unprecedented wait time for visas at embassies and consulates has disrupted operations for many companies with workers and executives on temporary visas, and has impacted industries from tourism to seasonal work.

HHS does not have responsibility for processing immigration cases, but does have responsibility for housing unaccompanied children arriving at the border, and for facilitating resettlement of approved refugees from overseas. HHS experienced an expansion in mandate due to the rise in numbers of unaccompanied children (UACs) since 2014, which funding has not kept pace with. HHS had to respond quickly to shelter a historic level of UACs when thousands of children were transferred into their custody in fiscal year 2021. In May 2021, there were reports that over $2 billion in HHS funding meant to rebuild the nation’s emergency medical reserve, expand COVID testing, and for other health initiatives had been diverted to caring for more than 20,000 unaccompanied children, indicating that the existing level of funding to HHS to care for unaccompanied children is not keeping pace with demand. \

Under the Biden administration, emergency responses to humanitarian crises in Afghanistan and Ukraine also led to an increase in asylum and related processing backlogs. The department in USCIS that processes refugee and asylum applications, the Refugees, Asylum, and International Operations Directorate, is understaffed, and many asylum offices and consulates have been closed for extended periods due to COVID. Effectively, every new influx of applications—including the 100,000 Ukrainians that the Biden administration committed to admitting—or prioritization of new cases, further overtaxes the system and forces existing cases to the back of the line. As existing resources and personnel attempt to deal with these influxes, they have to deprioritize other cases to keep up, and even those influx cases are processed extremely slowly, as has been seen, for example, with the processing of Afghan humanitarian parole applications from those remaining abroad. In the last two fiscal years, the number of refugees resettled has hit record lows – only 11,411 refugees were resettled in FY2021, with 62,500 spots allocated, and only 25,400 refugees were resettled in FY2022, with 125,000 spots allocated. This means an increasing number of people are waiting overseas to be resettled as the decimated refugee resettlement system struggles to keep pace with the goals the administration sets for resettlement.

Current Appropriations Funding to Immigration Enterprise

As the immigration enterprise deals with crisis after crisis, and backlogs increase as department resources strain to cover rapid response efforts on top of their regular duties, the House and Senate Committees on Appropriations could help clear backlogs by appropriating additional funds to the relevant departments. Making additional funding available to clear backlogs and staff up departments would speed up and ease the immigration process for populations the U.S. is trying to help, such as Ukrainians and other vulnerable immigrants, as well as those who have been waiting years or decades for their visas, and the U.S. citizens and employers waiting on them as well as expediting decisions on which immigrants can remain in the United States or must be deported.

Historically, the immigration enterprise across the U.S. government has been underfunded. It received an average of $3.3 million dollars less than requested in Presidential budgets between FY2013 and FY2021, according to BPC’s analysis of budget and appropriations data across those years for the major offices or functions of government that are involved in the immigration system.

Figure 1: Appropriations Requested vs. Allocated to the Immigration Enterprise (FY2013 – FY2022)

Source: BPC analysis of presidential budget justifications and Congressional appropriations acts.

Congress has generally overfunded some departments involved in immigration while underfunding others. The overfunded departments tend to focus on enforcement, while departments that focus on benefit provision and visa processing tend to go underfunded. The process of funding the immigration enterprise contributes to this disconnected approach, and to the overfunding of some departments and underfunding of others. Five federal agencies handling immigration are funded through four different appropriations subcommittees, each with different priorities and goals, making it difficult to take one overarching approach to the immigration enterprise as a whole

This discrepancy is visible throughout the immigration enterprise but is especially pronounced at the Department of State, which is typically focused on processing visas for temporary visitors, students, and workers, as well as issuing green cards primarily to family-sponsored immigrants. The discrepancy can be seen in figures 2 and 3; Diplomatic and Consular Affairs and the Bureau of Population, Refugees, and Migration are both housed within the State Department and handle visa processing and migration and refugee assistance, respectively. It is notable that in FY2020 and FY2021 the Trump administration had proposed significant reductions to the Refugee and Migration assistance functions at the State Department which Congress ignored, increasing the funding for those missions above the FY2019 levels.

Figure 2: Appropriations Requested vs. Allocated to Diplomatic and Consular Affairs (FY2013 – FY2022)

Source: BPC analysis of presidential budget justifications and Congressional appropriations acts.

Figure 3: Appropriations Requested vs. Allocated to the Bureau of Population, Refugees, and Migration (FY2013 – FY2022)

In FY2022, Congress appropriated an additional $250 million to address existing backlogs and to support the processing of refugees through USCIS above its fee-funded budget. With this additional money, USCIS hired 200 staff members for their asylum division, but the $345 million USCIS originally requested, which was denied, was a more realistic estimate of the funding needed to significantly reduce agency backlogs. On September 26, in a fireside chat, USCIS Director Ur Jaddou stressed the continuing need for appropriations to the agency, arguing that the agency’s humanitarian mission had grown so large that it was no longer realistic for the agency to be entirely fee-funded. USCIS has not generated sufficient revenue through fees in the last few years to keep the agency running effectively, making appropriations a large source of their funding. In the long term, the fiscal health of this agency depends on shifting its financial model, which likely includes providing it with regular congressional appropriations.

The State Department’s visa offices have also faced a similar funding shortfall, in large part brought on by the COVID-19 pandemic. Between FY2013-FY2019, the Bureau of Consular Affairs was fully funded by passport and visa user fees, but due to COVID, these revenues dropped drastically, with FY2020 seeing a 41% decline in consular fee revenue. The State Department projects that fee revenue may not reach pre-pandemic levels for a few years, which could put the department at risk of being unable to meet its necessary obligations or clearing its backlog of applications.

Conclusion

As the immigration system struggles to keep pace with modern immigration trends, and backlogs continue to grow, reevaluating the fee-based funding models for these agencies is critical. While Congress has previously prioritized funding to DHS for enforcement policies, it is equally important that appropriations fully fund benefits programs to better address backlogs, provide assistance to refugees, and respond appropriately to immigration trends. This will help alleviate backlogs across the immigration system and ensure these departments have the necessary funding to effectively manage their responsibilities in addition to migration and humanitarian crises.