Day 84: Fridays with USCIS

Photo by Erik Mclean on Unsplash

When you hear about immigration in the news, you usually hear about the “immigration courts.” The immigration courts - really an office in the Department of Justice called the Executive Office for Immigration Review - are only one agency in the complex federal regulatory system around immigration.

Another agency you hear about a fair amount in the news is ICE (Immigration and Customs Enforcement), or its parent agency, the Department of Homeland Security. ICE does the investigation and prosecution of immigration violations within U.S. borders (for the most part).

CBP (Customs and Border Protection), also in DHS, polices U.S. borders, both the land borders with Mexico and Canada as well as any sea or air ports. They get cast as either the villains or the heroes (depending on who’s talking) in those stories about apprehensions at the southern border.

The Sleeping Giant: USCIS

There’s another office within DHS that you hear much less about in the popular media, and that’s United States Citizenship and Immigration Service (or USCIS - and don’t ask me why they get the “U.S.” in front of the common version of their acronym while the other agencies don’t. It’s just one of those things in life you have to accept.)

Although USCIS isn’t nearly as glamorous/notorious as the agencies mentioned above, it actually decides far more cases than the immigration courts. EOIR is notorious for having a backlog of more than 2 million pending court cases, but USCIS received over 9 million applications in FY2022 alone.

USCIS v. EOIR

Cases before EOIR involve a charge by the government that an individual is unlawfully present in the United States - because they entered unlawfully, overstayed a visa, or violated the terms of their admission. Because the outcome may be physical removal from the country, a clear deprivation of liberty, some trial-like procedures are provided.

Cases before USCIS, on the other hand, involve an individual seeking an immigration “benefit,” such as naturalization, permanent residency, work authorization, a temporary visa, or some type of humanitarian-based protection (like the United 4 Ukraine program, to name one of many). These applications are submitted on forms accompanied by personal documents that prove a person’s eligiblity. There’s no trial, although a few types of applications do require an in-person interview at a USCIS office. They are mostly decided based on the forms and accompanying evidence submitted.

If that sounds easy, it isn’t. USCIS forms are a bit like IRS forms, except not that simple. It takes most third-year law students several tries to complete even a basic USCIS form accurately, and USCIS will reject them if you make even small formatting errors. During the Trump administration, they would even reject them if you left blank a non-applicable question (like “middle name” for a person who has none) instead of writing “N/A.” If you don’t send something they want - or, in more than a few cases, even if you did send it - they will send you a “Request for Evidence,” or RFE, asking you to file more papers, usually within 60 days.

Our clinic regularly handles cases in immigration court - they give law students an excellent opportunity to develop trial lawyering skills in a condensed form. But USCIS applications for visas, green cards, and naturalization are less labor intensive and more numerous, both in the system and on our clinic’s docket.

A Day with USCIS

And that, finally, brings me to the point of this post: One of the pleasures of being the director of the Immigration Law Clinic is that I get to spend days like today, having Fun With USCIS.

In our law clinic, cases are usually assigned to law students, and the attorneys act as trail guides and emergency backups. But cases can hang around for months or years before they’re completely resolved (remember that number, 9 million cases per year?). That means we have cases that were prepared and submitted by clinic students one, two, or more years ago that are still awaiting decision. Those cases aren’t really the best educational vehicles for incoming law students, so we no longer assign them. But occasionally USCIS acts and requires a prompt response, or the client’s circumstances change prompting a need to communicate changes to USCIS. Generally, the attorneys will handle these responses.

Well, USCIS seems to have done lots of hiring lately, because in the past month their pace of action seems to have roughly tripled. That means that all those cases that didn’t get assigned to students suddenly need attention — my attention.

Don’t get me wrong, I really do enjoy the work (mostly). I enjoy getting to work with clients, brainstorming ways to satisfy whatever USCIS is looking for. Today, for example, involved:

• helping a client assemble additional documents to demonstrate a relationship for a family member’s visa application;

• reviewing and properly closing files for clients whose naturalization or green card applications have recently been approved;

• emailing an employee of another federal agency to obtain documents requested by USCIS in an RFE;

• evaluating whether to complete a new USCIS form for a client whose personal situation changed while an old application remains pending with USCIS;

• working with a client to apply for a new type of work authorization they just became eligible for, using USCIS’s maddeningly clunky online filing system.

In addition to the satisfaction of working with people to help deal with challenges, these experiences also give me a perspective on the immigration system and how it’s working (or not working) that I find invaluable, both as a teacher and as a scholar. Immigration law and policy is confusing enough on the books, but it’s positively Kafka-esque in action. For someone who studies our immigration system and how to make it better, there’s no substitute for boots on the ground.