The U.S. Postal Service and U.S. Citizenship and Immigration

The U.S. Postal Service and U.S. Citizenship and

Immigration Services: Similar but Unequal

By Kelly Ann Whelan

In early August 2020, U.S. Citizenship and

Immigration Services (USCIS), part of the

Department of Homeland Security (DHS),

announced a final rule significantly raising the fees

associated with certain immigration and

naturalization benefit requests – by a weighted

average of around 20 per cent.

The agency included

the decision to charge asylum seekers a $50 fee to

submit an application. The agency, in its justification

of the fee hikes, claimed that it did so on the basis

that,

As required by federal law, USCIS conducted a

comprehensive biennial fee review and

determined that current fees do not recover the

cost of providing adjudication and naturalization

services. DHS is adjusting USCIS fees by a

weighted average increase of 20% to help

recover its operational costs. Current fees would

leave the agency underfunded by about $1 billion

per year.

USCIS is under the direction of DHS, the secretary

of which holds a Cabinet post. As a fully-fledged

department of the U.S. government, DHS has the

authority to change the fees under section 31 of the

U.S. Code as long as it goes through the process

outlined in the Administrative Procedure Act

(APA).

Such was the case before 1971 for the United States

Postal Service (USPS). Prior to that year, USPS was

just another government department with a Cabinet

position, charging fees for services and funding its

own operations. Yet, in 1971, Congress decided that

the services that the then-United States Post Office

Department (USPoD) provided were akin to a

business. Thus, Congress transformed it into a new

independent agency and required it to “pay for

itself” — meaning the agency would receive no tax

dollars and instead fund itself directly through the

sale of its postage, products, and services.

Yet,

unlike a market business, USPS has limited authority

to set its own prices and Congress has oversight over

how much the agency can charge for services.

Further, Congress may set mandates that USPS must

follow that are binding, unlike any other government

agency. Principles of this model have contributed to

USPS’ debt and funding issues in recent years.

In this brief, we explore the similarities and

differences between USCIS and USPS and present

the argument that treating the agencies similarly in

relation to Congressional controls on fees of services

and funding could improve both agencies.

A Brief History of the Pony Express

The history of an American postal service goes back

to before independence, where Great Britain oversaw

the creation of a postal service in the Colonies in

1691 under the joint rule of William III and Mary II.

After the American Revolution (1765-1783), George

Washington officially established the postal service

as an official government department –

The United States Post Office Department (USPoD)

– in the newly independent country in 1792.

However, it would not be until 1872 that the

department would be elevated to Cabinet status.

For

the next nearly 100 years, USPoD would operate as

a regular government department, funded out of

general government revenue, charging fees for its

services, and adding to said revenue.

In 1971, this would change. In light of postal

workers’ strikes and demands for higher pay and

bargaining rights, Congress began to view USPoD as

closer to a business rather than a government

department. Instead of conceding and negotiating

directly with the government employees, Congress

negotiated agreements with unions and decided to

reorganize USPoD so that it could function as a

business rather than a public service.

Then-

president Richard Nixon signed the Postal

Reorganization Act, which went into effect in 1971,

turning USPoD into USPS, an agency rather than a

department.

As a result, Congress requires USPS to

fund its operations entirely with its own revenue,

much like a private business that is a market

participant.

However, unlike a private business, USPS is required

to provide mail service to every corner of the

country, unlike its private market competitors such

as FedEx and UPS. Even in areas where it is a greater

financial burden to provide mail services than the

revenue coming in, USPS is required to operate

there. Furthermore, unlike a private business,

Congress has a lot of control over USPS’ operations,

fees, and organization. First, Congress set up the

Postal Regulatory Commission (PRC), making it

virtually impossible for USPS to set its own prices,

as would a private business. Instead, Congress made

ratemaking more complicated by including in the law

various non-economic pricing provisions. Postage

rates were to be “reasonable and equitable,” and rates

for letters must be uniform – meaning the postage

paid bears no relation to how far the mail must

travel.

Second, in 2006, Congress passed a law

requiring USPS to fund its likely pension costs for

the next 75 years.

Such a requirement is an

enormous financial burden that no other entity,

government or private, imposes on itself because it

makes no economic sense.

As a result, USPS is in debt. There are many other

issues in addition to the main two described above,

but in sum, USPS is treated as a business providing

services without being given the rights to make its

own decisions to function properly; and it is tightly

controlled by Congress.

INS to USCIS

Unlike an American postal service, the first body

regulating immigration into the United States would

come almost toward the turn of the 20

century and

come under the control of several different

departments. In 1891, the government decided that

immigration was a federal matter, and in response to

states passing their own separate immigration laws,

passed the Immigration Act of 1891.

This Act

established the first immigration regulatory body in

the United States as the Office of the Superintendent

of Immigration under the Treasury Department.

response to the growing number of immigrants after

World War I, a more comprehensive agency, the

Immigration and Naturalization Service (INS) was

established under the Department of Labor in 1933.

In 1940, INS was transferred to the Department of

Justice and further expanded with the wave of

immigrants after World War II.

In response to the post-9/11 shift in overall policy,

the Department of Homeland Security (DHS) was

formed, and under its purview, three agencies

relating to immigration: Immigration and Customs

Enforcement (ICE), Customs and Border Protection

(CBP), and U.S. Citizenship and Immigration

Services (USCIS) – INS’ successor.

Under DHS, USCIS derives funding from both

congressional appropriations and the revenue it

derives by charging for services. Much like USPS,

USCIS has struggled to fund itself, most recently

asking Congress for $1.2 billion in emergency

funding or face furloughs.

USPS vs. USCIS

USPS and USCIS have many similarities, but are

treated quite differently by Congress. Treating them

similarly in certain respects could lead to

improvements for both agencies.

First, both USPS and USCIS have a range of services

that they charge for. And, these services fund each

agency, either completely or in part. Second, both

agencies serve particular services for U.S. citizens

and immigrants alike. Third, both are mandated

under federal law.

Yet, USCIS has the ability to regularly assess

whether fees cover processing costs and change them

accordingly, and quite easily, as long as APA

requirements are met. USPS, on the other hand, must

go through its own PRC process, under the control of

Congress. USCIS does not have that level of

congressional oversight. Further, USPS, with its

services, is treated as a business and is expected to

fully fund itself through its services. Meanwhile,

USCIS, with its services, is not expected to fully fund

itself through its services and does receive some

congressional funding.

While these services are radically different, the

“business model” is not dissimilar between the two

agencies. While not a simple solution, USCIS should

have more congressional oversight to help the

agency to manage its budget. As it continually has

U.S. Citizenship and Immigration Services Fee Schedule and

Changes to Certain Other Immigration Benefit Request

Requirements, 85 Fed. Reg. 46788 (August 3, 2020).

U.S. Citizenship and Immigration Services (USCIS), USCIS

Adjusts Fees to Help Meet Operational Needs, NEWS

RELEASES (31 July 2020), www.uscis.gov/news/news-

releases/uscis-adjusts-fees-to-help-meet-operational-needs.

31 U.S.C. § 9701 (1982).

Rebecca Burns, In 1971, Nixon Passed a Rule to Doom the

Post Office. Now, It’s Finally Happening, IN THESE TIMES (14

July 2020), www.inthesetimes.com/article/us-postal-service-

lawrence-swaim-covid-19-donald-trump-postal-clerks-union.

Francis C. Huebner, Our Postal System, 9 RECORDS OF THE

COLUMBIA HISTORICAL SOCIETY, WASHINGTON, D.C. 126,

128 (1906).

An Act to Establish the Post-Office and Post Roads within

the United States, 1

Cong. § 7 (1792).

The Post Office Act, Pub. L. 42-335 (1872).

Burns, supra note 4.

An Act to improve and modernize the postal service, to

reorganize the Post Office Department, and for other purposes,

Pub. L. 91-375 (1970) (codified as amended at 29 C.F.R. §

102.135).

Kevin R. Kosar, The Postal Regulatory Commission’s $50

billion decision, BROOKINGS INSTITUTE (Oct. 25, 2016),

had to raise fees for vulnerable immigrants and U.S.

citizens alike who need immigration-related

services, even after taking into account inflation,

USCIS appears to be unable to manage its own

budget successfully. And, if USCIS receives some

congressional funding with little oversight, USPS

should be, at least in part, also funded by Congress,

as it provides an invaluable service to all Americans

(and immigrants).

www.brookings.edu/blog/fixgov/2016/10/25/postal-

regulatory-commission/.

Sarah Anderson, et. al., How Congress Manufactured a

Postal Crisis — And How to Fix it, INSTITUTE FOR POLICY

STUDIES (Jul. 15, 2019), www.ips-dc.org/how-congress-

manufactured-a-postal-crisis-and-how-to-fix-it/.

The Immigration Act of 1891, Pub. L. 51-551 (1891).

National Archives, Records of the Immigration and

Naturalization Service [INS], 85.1 ADMINISTRATIVE HISTORY

(2016), www.archives.gov/research/guide-fed-

records/groups/085.html.

Id.

U.S. Citizenship and Immigration Services (USCIS),

Overview of INS History, USCIS HISTORY OFFICE AND

LIBRARY at 11. (2012),

https://www.uscis.gov/sites/default/files/document/fact-

sheets/INSHistory.pdf.

Nicole Ogrysko, USCIS cancels impending employee

furloughs days ahead of deadline, FEDERAL NEWS NETWORK

(Aug. 25, 2020),

www.federalnewsnetwork.com/workforce/2020/08/uscis-

cancels-impending-employee-furloughs-days-ahead-of-

deadline/.