An initial investment can help funders assess needs and costs and inform the future growth of an institutionalized program. Because the need for and impact of universal representation programs is well established, government officials and other stakeholders should consider the first-year funding an initial investment in a long-term sustainable program. As programs grow, they can achieve greater efficiencies of scale.^[]For example, as new programs and providers develop expertise on a wide range of claims, they will create resources—such as briefs, affidavits, and expert witnesses—that require a significant initial investment of time but will drastically increase the quality and efficiency of representation for future clients. Many programs start with modest initial investments commensurate with the local jurisdiction’s size and budget. For example, in some smaller cities and counties, programs have started with an initial investment of $200,000 to $500,000. In larger jurisdictions like Chicago and Los Angeles, the investment started at $1.3 million and $7.9 million, respectively (the latter through a two-year partnership among the city, county, and philanthropy).^[]To read more about Chicago’s program, see The Resurrection Project, “Victory for the Chicago Immigrant Community,” https://perma.cc/X9AU-YHBP. For more on the program in Los Angeles, see Vera, Los Angeles Justice Fund,
2020, 3. Unfortunately, even these relatively large initial investments have not been enough to meet the demand. Initial investments should be planned to increase incrementally over time to support a fully funded infrastructure for representing everyone in the jurisdiction who is in need. This would allow legal teams to build out capacity at a manageable pace. For example, the program in Prince George’s County started as a $100,000 investment that grew to $500,000 after a few years. (See “Spotlight on Prince George’s County, Maryland.”) The state of New Jersey doubled its investment for fiscal year 2021, from $3.1 million to $6.2 million.^[]American Friends Service Committee, “NJ Coalition for Immigrant Representation Applauds Increased Funding to Detention and Deportation Defense,” September 29, 2020, https://perma.cc/2WKN-KG6T.

The ideal model of funding is secure over a multiyear period with room to grow incrementally

Most current deportation defense programs need to get annual approval through the local operating budget process, a requirement that creates funding uncertainty and obstacles to staffing a robust removal defense program. First, many deportation cases will likely still be pending beyond the first year.^[]Although in 2018 the average detained case completion time was 40 days, many people remain in detention for months or even years. See Transactional Records Access Clearinghouse, “Immigration Court Processing Time by Outcome” (Syracuse, NY: Syracuse University) database, https://trac.syr.edu/phptools/immigration/court_backlog/court_proctime_outcome.php. This information is updated monthly and may change as new data is added. Where it is feasible, multiyear funding helps ensure continuity of representation throughout clients’ cases, so that the budget process doesn’t cause gaps in the provision of legal services. Second, providers face challenges in hiring and staffing when funding is not secure beyond the first year, impeding the overall impact of the program and negating some of the initial infrastructure investment. Multiyear funding allows organizations to hire a team, build caseloads over time, and recruit from a broader pool of talent than they may have otherwise attracted with an uncertain funding stream. Jurisdictions such as Prince George’s County have been able to address these challenges by creating a multiyear program. Others—including Dane County, Denver, and Long Beach—have made their investment a permanent line item in their local budget, freeing the programs from an annual negotiation and approval process.

Funding levels should reflect a commitment to supporting the infrastructure needed to create and adequately staff legal teams

Although program costs vary depending on size, location, scope, and stage, government agencies should anticipate funding some essential budget items, including these:

• legal teams, including attorneys, paralegals, administrative support, social workers, case managers, and supervisor/management support (see “Staffing and managing legal teams” for more details);
• infrastructure expenses, such as leasing additional space, ongoing overhead costs (like phone and internet), and a case management system;
• staff training and support, such as legal training, professional development, bar dues, and access to legal research resources;
• travel expenses, such as mileage reimbursements or car rentals (detention facilities and courts are often located far from metropolitan areas where providers are usually located); and
• litigation expenses, such as expert witnesses, interpretation, filing fees, and incidental expenses.^[]It is a best practice to fund these litigation expenses separate from casework costs, so that providers are not forced to choose, for example, between retaining an expert witness to perform a psychological evaluation and personnel expenses.

Investments should also reflect a commitment to funding full-scope representation that continues through the life of the case. See “Designing an effective and scalable program” for more information on program design.

Once the amount of funding is determined, jurisdictions should implement a payment model that supports legal teams and promotes the values key to universal representation. The development of a sustainable universal representation program that centers zealous, independent, and person-centered defense while making efficient use of limited resources depends in large part on how the work is funded. Establishing a billing and payment system that ensures enough resources and makes the best use of roles for all relevant actors allows programs to serve all stakeholders.

Many factors influence the preferred way to pay for a program, including its scope, caseload volumes, the distance from detention centers, and government contracting requirements. Publicly funded programs have used different billing models to balance these factors, including hourly billing, flat-rate budgeting, fixed cost per case, and unit pricing. For a more detailed description and comparison of the four models, see the appendix. As described in more detail below, Vera advocates using a flat-rate budget model for universal representation programs because it promotes the best practices listed here, particularly when compared with unreliable cost-per-case budgeting models. Billing and payment systems should do these things:

• Reflect and reinforce the optimal roles for all stakeholders, allowing the government funder and providers to focus on what they do best. For the government, this means ensuring the delivery of funded program services at a reasonable, predictable cost while avoiding involvement in case-level decision-making. For providers, this means delivering zealous independent representation, which requires adequate resources and the ability to hire, train, and retain staff. A neutral third-party administrator—a role that local foundations and Vera have played in certain programs—can help reinforce those roles by administering the billing and payment system and ensuring that resources are allocated appropriately.
• Account for representation over the life of immigration proceedings. Detained cases typically move quickly through the immigration system. But with an immigration court backlog exceeding 1.2 million pending cases, deportation proceedings can take several years to complete, particularly for clients who are fighting their cases outside of custody, including those previously detained and released on bond.^[]As of December 2020, the immigration court backlog stood at nearly 1.3 million pending cases, with an average length of nearly 900 days. See Transactional Records Access Clearinghouse, “Immigration Court Backlog Tool,” database (Syracuse, NY: Syracuse University), https://trac.syr.edu/phptools/immigration/court_backlog. This information is updated monthly and may change as new data is updated; see also Marissa Esthimer, “Crisis in the Courts: Is the Backlogged U.S. Immigration Court System at Its Breaking Point?” Migration Policy Institute, October 3, 2019, https://perma.cc/QV9R-MVXJ. Multiyear funding allows legal teams to carry caseloads that account for individual cases each year they remain open; this helps ensure continuity of representation throughout a client’s case and helps providers maximize their ability to plan and balance a diverse set of caseloads over time.^[]Governments and providers may also want to consider factoring in “wind-down” funds if government funding is ended; some billing and payment models are better equipped to do this than others. It also promotes staff retention, which supports continuity of representation for cases that last for long periods and strengthens the relationship and trust built between the client and attorney.
• Promote budget predictability and cost control. The billing and payment system should enable the provider to estimate how many people will receive program services and how much the program will cost during the funded period. It should also give providers an idea of their caseloads and the scope of funded representation, staff, and other resources required to serve that caseload, as well as the amount the provider will be paid over the funding period. The billing and payment model should ensure that providers have enough resources to represent clients across a broad spectrum of case types and complexities.^[]In addition to more predictable expenses, such as personnel costs and office space, providers should also consider variable litigation expenses such as expert witnesses, interpretation, incidental expenses, and filing fees, which are highly dependent on the circumstances of each case. One benefit of neutral third-party administrators is that they can administer a separate budget for these variable costs so that providers do not risk under-budgeting (and having to cover necessary litigation expenses with other funding or forgo them altogether) or over-budgeting for them (and potentially having to refund part of their budgets).
• Be sustainable for all stakeholders. The billing and payment model should aim to support zealous representation in a way that is sustainable over time. This includes funding for the structural costs of starting, growing, and maintaining a universal representation program, as well as the resources for periodic evaluations of the program’s implementation and impact. Stakeholders should also consider the administrative burdens of different billing and payment models, some of which require more work than others on the part of the government agencies, providers, and third-party administrators.
• Be flexible. Given the constantly shifting landscape of immigration representation, universal representation billing and payment systems should be flexible enough to accommodate changes in case volume, cost, and duration. At the beginning of a program or funding period, governments and providers should try to anticipate any factors that might affect program costs during that period and account for them in the budget. Those factors might be local (such as the opening of a large new detention facility several hours from the nearest provider) or national (such as a U.S. Supreme Court decision that changes asylum law). Although these factors can be difficult to translate into a budget, government administrators and providers should understand that the cost of representation may change during the funding period due to factors beyond their control and that they should communicate with one another to make adjustments to metrics or budgets going forward as such situations arise.

The flat-rate budget model is optimal for universal representation programs because it promotes these best practices, particularly when compared with unreliable cost-per-case budgeting models. This recommendation is based on best practices developed through experience with multiple funding models used in large-scale, publicly funded representation programs, including the federally funded National Qualified Representative Program and Unaccompanied Children’s Program, and the city- and state-funded New York Immigrant Family Unity Projects (NYIFUP).

With a flat-rate budget, providers agree to provide representation for a defined caseload at a predetermined rate, paid in regular installments over the course of the funding period. The defined caseload includes cases that are still pending from the previous year. Proposed flat-rate budgets should include staff time and relevant non-personnel expenses, such as office rent, phones, and routine travel. This approach ensures enough capacity while providing a predictable income to the provider and a predictable cost for the government funder. Flat-rate budgets allow providers to hire and train enough staff to cover the contracted caseload while avoiding the high administrative burden of compiling and reviewing detailed hourly invoices—and relieve the government agency of the additional administrative burden of reviewing and approving detailed hourly invoices. Programs may also consider using a hybrid model that uses multiple payment systems, particularly when multiple providers are involved. For example, a program might compensate some providers using flat-rate budgets and others using hourly billing.