By: Aaron Reichlin-Melnick and Shev Dalal-Dheini | americanimmigrationcouncil.org| Editorial credit: Walter Cicchetti / Shutterstock.com
On September 5, U.S. Citizenship and Immigration Services (USCIS), the agency established by Congress to adjudicate immigration applications, made a startling announcement. For the first time since the agency was created in 2003, the agency will create a new class of “special agents,” who will be authorized to carry firearms and arrest people for both civil and criminal immigration and non-immigration violations.
This drastic change in the agency’s mission will instill fear in applicants seeking lawful status with USCIS, further pushing individuals who do not have clear-cut eligibility into the shadows, directly impacting our safety and security. The vagueness of the new rules also creates a lot of uncertainty for U.S. citizens and American businesses sponsoring family members and foreign talent, as well as for the lawyers representing individuals with difficult cases.
Finally, this change in responsibilities will impact the agency’s ability to fulfill its statutory responsibility of timely adjudications and will put its employees who have never served in law enforcement roles in life and death situations. This decision raises profound questions for an agency which Congress explicitly separated from the enforcement authorities of U.S. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP).
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When Congress created the Department of Homeland Security (DHS) in response to the September 11 terrorist attacks, it deliberately broke up the functions of the previous Immigration and Naturalization Service (INS), which had been found to be inefficient and inadequate at protecting American national security. One key reason that Congress separated USCIS into a distinct agency was its recognition that timely adjudication of benefits requests was key to ensuring safety and security. Congress even expressly wrote into the Homeland Security Act that DHS was forbidden from delegating away authority in a way that would “recombine … [or] combine, join, or consolidate functions or organizational units” of the immigration enforcement components of DHS with the benefits component “into a single agency.”
Despite this command, the Trump administration’s latest announcement suggests a desire to tilt the United States’ immigration bureaucracy even closer to an all-enforcement posture, where immigration is viewed entirely through the lens of crackdowns, rather than the innumerable contributions that immigrants provide to this country.
What Did the Trump Administration’s Action Do?
Congress expressly forbade DHS from recombining USCIS with ICE or CBP or combining its adjudicatory functions with their enforcement functions. To circumvent this statutory edict, the Trump administration has chosen to retain USCIS as its own separate agency. Instead, DHS Secretary Kristi Noem “delegated” authority to the USCIS director to choose specific employees of the agency who can now engage in law enforcement powers — which now including carrying firearms as part of their duties, similar to the authorities currently given to ICE and CBP officers.
Secretary Noem issued this delegation of authority in May and now a final regulation that was issued without notice or opportunity for public comment, will codify that delegation into law. The May delegation authorized USCIS officers for the first time to issue “expedited removal” orders and engage in other immigration enforcement actions.
Since that point, the Trump administration has been actively boasting about the sub-agency’s assistance to ICE, including initiating removal proceedings for 26,000 people since February and regularly conducting ICE arrests when people come in for their USCIS interviews and appointments.
Under the new regulation that codifies the May delegation and takes effect on October 6, 2025, the USCIS director is authorized to create new law enforcement positions which may:
- Initiate investigations into any criminal or civil violation of the Immigration and Nationality Act.
- Arrest any individual accused of violating immigration law or having committed immigration crimes, or has been observed committing a federal crime.
- Arrest any individual accused of facilitating unlawful entry into the United States.
- Execute and serve search and arrests warrants.
- Carry firearms, conduct vehicular pursuits, and use force, up to and including lethal force, when appropriate.
In short, the regulation grants these new “special agents” essentially the same powers as any ICE or CBP law enforcement officer — even though USCIS officers have no experience carrying out these duties.
In the new regulation, the Trump administration cites current investigatory work done by USCIS’ Fraud Detection and National Security (FDNS). But when Congress created FDNS in 2004 to investigate fraud in immigration benefits applications and conduct background checks on applicants in conjunction with law enforcement agencies, it explicitly excluded arrest, detention, and warrant-issuing powers from USCIS.
What Questions Remain Unanswered?
The biggest question posed by this new policy is what these “special agents” are going to do, how they will do it, and who will be impacted by these changes; including whether these actions will expand a climate of fear which is causing people to avoid interacting with the legal immigration system.
The delegation states that the USCIS “special agents” will only be permitted to act on issues “within the jurisdiction of USCIS,” but that term is not defined in law. USCIS’ jurisdiction is quite broad and could conceivably cover many things touching on the tens of million applications the agency receives every year.
At the same time, the new rule gives USCIS the authority to issue arrest warrants for “non-immigration” violations, which is undefined as it relates to USCIS. Moreover, USCIS will now be able to arrest and detain not only people who have submitted applications to USCIS, but also any persons who “bring in, transport, or harbor certain [foreign nationals], or induce them to enter.” This vague authority could extend to lawyers representing applicants, their sponsors, or even anyone they happen to come upon during their work.
Crucially, it remains unclear whether these agents willconduct criminal or civil investigations into alleged violations of immigration law during the process of reviewing an application, or whether USCIS intends to send armed agents into communities as they conduct administrative site visits, “neighborhood checks,” or support ICE’s broader enforcement efforts. This could further weaponize the Supreme Court’s recent permission to arrest first and ask questions later.
Because this delegation comes with no additional funding, there are also unanswered questions about how these new positions will be funded, who will serve as these special agents, how they will be trained or how many agents will be hired. Currently, USCIS is primarily funded through user fees to cover the costs of adjudications and is expressly prohibited from transferring fees between USCIS and ICE and CBP. These special agents will need intensive training as they, and the people they encounter, could be put in life and death situations. Currently, immigration enforcement officers undergo months long training at offsite locations.
While some USCIS adjudicators could have prior law enforcement training, USCIS has never used armed law enforcement officers in its entire agency history. Whether these agents would be taken from pre-existing staff or hired externally remains to be seen, but regardless such training would be costly and applying user fees to this endeavor will result in increased costs for applicants or slower adjudications and may be legally impermissible. In addition, USCIS has given no indication of how many people will become USCIS “special agents.” This could end up being a small part of the agency with a few dozen people, or a new police force with a growing number of agents diverted away from their normal duties to strap on a badge and a gun.
Importantly, whether these officers have been lawfully granted enforcement authority remains to be seen. Given Congress’ clearly stated desire to keep USCIS from becoming just another wing of a newly reformed INS, any person criminally arrested by a USCIS special agent could challenge whether that officer has legal grounds to carry out these duties.
What Are the Biggest Concerns with This Change?
Introducing guns and the use of lethal force into a primarily administrative and adjudicative environment brings inherent risks to the safety and security of USCIS staff and the individuals who come to the agency. As the government continues to restrict immigration and ramp up enforcement, USCIS is now increasingly becoming a wing of the mass deportation machine. With historic backlogs and growing red tape, the legal immigration process risks becoming even further out of reach for many people around the world, which will adversely impact U.S. economic growth and innovation. In addition, the possibility that information disclosed to USCIS may lead to armed agents breaking down a door may limit cooperation from even U.S. citizens who have business before the agency or who are asked to submit evidence to support an immigrant.
Turning USCIS strictly into a law enforcement agency, despite its clear directive to adjudicate cases, will slow down adjudications and ultimately harm our national security. As USCIS focuses on law enforcement, applications will go unadjudicated and individuals who may pose threats to the United States will go unvetted and unidentified. Moreover, having armed officers at USCIS offices or doing administrative site visits will only push immigrants who may have claims for legal benefits or relief further into the shadows, rather than allowing individuals to present themselves to the government and be vetted.
Rather than reverting to an immigration system as one massive enforcement machine which has already proven to be unsuccessful, the administration should follow the decisions of Congress in creating a separate adjudications agency in the first place and keep it that way.
New USCIS ‘Special Agents’ Will Be Given the Power to Arrest, Use Deadly Force Against Immigrants added by Caribbean American Weekly on
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