Has President Biden considered whether there is a limit to how many immigrants he should let into the country? His policies indicate that he hasn’t.
In any case, there is a limit, and he has exceeded it. This has overwhelmed our immigration system, causing record-breaking backlogs and unconscionably long waits for immigration benefits.
According to immigration expert Elizabeth Jacobs, “these extreme backlogs are not only eroding the credibility of the immigration system, but also encouraging additional illegal immigration to the United States. This is because long backlogs ensure that even those aliens who meet the Biden administration’s narrow enforcement priorities or do not have legitimate asylum claims are nevertheless provided an opportunity to live in the United States for numerous years.”
The limit varies according to the type of immigration benefit being considered.
For example, there are no numerical limits on the number of visas available to the immediate relatives of adult U.S. citizens (that is, their spouses, unmarried children and parents). But the annual worldwide level of immigrant visas for the rest of the family-based visas is limited to 480,000, and the limit on employment-based visas is 140,000.
It is evident from the long waiting times in the State Department’s Visa Bulletin that the number of visas available for the numerically limited categories is too low.
Ideally, there would be enough visas for foreign employees to fill the job vacancies that can’t be filled by American workers, and enough visas to reunify all of the citizen and lawful permanent resident families that are separated from family members in other countries. But congressional gridlock makes it impossible for lawmakers to authorize that many visas, and U.S. Citizenship and Immigration Services, the agency that adjudicates applications and petitions for immigration benefits, has a major backlog problem.
Between fiscal 2017 and fiscal 2019, the USCIS backlog was relatively stable at around 2.4 million cases; it more than doubled to 5 million in fiscal 2022.
Although there had not been any reductions in the backlog in more than a decade, the current USCIS director, Ur Jaddou, succeeded in reducing it by 15 percent in fiscal 2023. But she is going to need congressional funding to be able to pay for the additional resources she needs to eliminate it.
Currently, USCIS funds its operations largely from customer user-fee revenue. Congressional appropriations typically make up less than 5 percent of its budget. That isn’t an acceptable arrangement.
If congressional gridlock ends and lawmakers pass a bill to provide the number of visas needed to meet America’s foreign employee and family reunification needs, the bill also should provide USCIS with the congressional funding it needs to process such a large increase in visas.
USCIS also handles humanitarian applications. This includes applications for asylum, parole and Temporary Protected Status. Humanitarian applications amounted to more than 25 percent of its caseload in fiscal 2023.
The main one, however, is asylum.
If an application is filed by an asylum seeker who is not in removal proceedings, it is considered an affirmative application. If the asylum seeker is in removal proceedings before an immigration judge, it is considered a defensive application, because it will prevent the applicant from being deported if it is granted.
In January of 2018, USCIS announced that it was facing a “crisis-level” backlog of affirmative asylum cases, with more than 311,000 pending claims. The backlog rose to more than 1 million cases by the end of fiscal 2023. A CIS ombudsman has estimated that the time required for processing that many affirmative asylum applications is likely to approach a decade.
USCIS also assists in processing the record-breaking number of illegal border crossers who have been apprehended during Biden’s presidency. In fiscal 2023, USCIS conducted 146,000 credible fear interviews to assist in determining whether the illegal crossers seeking asylum have legitimate persecution claims. Asylum seekers who establish a credible fear of persecution are entitled to an asylum hearing before an immigration judge, and the immigration court is of course experiencing a backlog crisis.
Its backlog was 1,290,766 cases when Biden began his presidency. As of the end of May, it had nearly tripled to 3,669,560 cases. This happened despite an accelerated hiring of new judges during Biden's presidency.
The backlog can’t be eliminated by hiring more judges alone. The National Association of Immigration Judges estimates that it would take twice the current number (going from 700 to 1,400) to eliminate the backlog before 2032.
Already, the administration is not making progress on reducing the backlog. In the first eight months of fiscal 2024, it received 1,453,035 new cases; it only closed 604,769. At this rate, it would take more than four years to eliminate the backlog even if the court didn’t receive any new cases.
The only way to deal with this problem is to suspend consideration of new humanitarian applications until the backlogs are at manageable levels. The Regional Processing Centers program Biden set up when Title 42 was about to be terminated could be expanded and modified to accommodate the needs of the asylum applicants who are turned away at the American border during the suspension.
Employment and family reunification needs aren’t likely to be met by letting illegal crossers into the country. Little if anything is known about them. If they meet those needs, it is by mere happenstance.
Moreover, if they reach the interior of the country, it is very unlikely that they will ever be deported. The ICE Annual Report for Fiscal 2023 indicates that there were 1,292,830 migrants subject to final deportation orders in fiscal 2023, and that ICE only removed 142,580 of them.
I don’t know whether it is possible to fix these problems, but I am sure that four more years with Biden’s immigration policies will make the situation much worse.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims. Previously, he wrote decisions for the Board of Immigration Appeals for 20 years.
