Practice Alert | April 2019
UPCOMING ELIMINATION OF MEANS-TESTED BENEFITS AS BASIS FOR FEE WAIVER REQUESTS | APRIL 2019
1
On September 28, 2018, the Department of Homeland Security (DHS) proposed dramatically changing the fee waiver
process, most notably by eliminating receipt of means-tested benefits as a possible basis for a fee waiver.
1
Despite
concerns raised by immigration and healthcare advocates and others about the detrimental effect of the proposed
changes on working class people, low-wage workers, and vulnerable groups, DHS announced on April 5, 2019 that it
intends to proceed with these changes.
2
Other changes include new required evidence that must be submitted with the
fee waiver request and exclusive use of the Form I-912 to request the waiver of an immigration filing fee.
This practice alert provides a brief overview of some of the main changes practitioners can expect with the rule change.
We do not know exactly when the revised Form I-912 and fee waiver process will take effect, but anticipate it may be
shortly after the latest comment period closes on May 6, 2019.
3
Given that these significant changes to the fee waiver
process will make it more difficult and time-intensive to establish inability to pay an immigration filing fee, we urge
practitioners to advise clients who are eligible for a fee waiver based on receipt of means-tested benefits to apply as soon
as possible, before this option is eliminated.
I. Background on Fee Waiver Requests
Fee waivers are available for many—but not all—immigration applications and processes,
4
and are an important tool for
allowing access to immigration benefits that might otherwise be out of reach for many people, for no other reason than
their lack of financial resources.
5
Practitioners who routinely file fee waiver requests, for instance those who primarily
1
See 83 FR 49120 (Sept. 28, 2018).
2
See 84 FR 13687 (Apr. 5, 2019). The April 5, 2019 notice provides for an additional 30-day comment period, but advocates are not optimistic at
this point that DHS will reverse course.
3
The ILRC will monitor the implementation timeline and track advocacy efforts including potential litigation that could delay implementation of this rule
change. For updates, go to https://www.ilrc.org/.
4
Fee waiver requests are available for all naturalization applications, all green card renewals, all employment authorization applications—initial or
renewal—except for those for Deferred Action for Childhood Arrivals (DACA) cases, and all biometrics fees (with the exception of the biometrics fee
associated with the provisional waiver process). In addition, fee waiver requests are accepted in association with adjustment and waiver applications,
but only for certain immigrants including U and T nonimmigrants, VAWA self-petitioners, TPS grantees, special immigrant juveniles, asylees, and
others exempt from public charge inadmissibility. Thus, a large group of applicants—anyone applying for permanent residency through a family
member or employer petition—is ineligible for a fee waiver, but fee waivers still are critical for many applicants for immigration benefits. See 8 CFR §
103.7(c)(3) and USCIS Adjudicator’s Field Manual (AFM), Chapter 10.9, for a detailed list of applications for which a fee waiver may be available.
Despite the fact that fee waivers are not available for all applications or all applicants, they are, however, an essential access tool: more than half a
million fee waiver requests are filed each year.
5
Immigration application filing fees can range from a few hundred dollars to over a thousand dollars. See USCIS Fee Schedule, available at
https://www.uscis.gov/g-1055. USCIS last increased fees in December 2016. See https://www.uscis.gov/forms/our-fees.
PRACTICE ALERT:
UPCOMING
ELIMINATION OF MEANS-TESTED
BENEFITS AS BASIS FOR FEE
WAIVER REQUESTS
By Ariel Brown
UPCOMING ELIMINATION OF MEANS-TESTED BENEFITS AS BASIS FOR FEE WAIVER REQUESTS
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UPCOMING ELIMINATION OF MEANS-TESTED BENEFITS AS BASIS FOR FEE WAIVER REQUESTS | APRIL 2019
serve immigrant survivors who are eligible for fee waivers for all forms, may not pay as much attention to immigration
filing fees. As a reminder of what is at stake, we have attached a chart at the end of this alert with current filing fees for
some of the most common immigration applications.
6
According to the regulations, fee waivers are available for certain applications at DHS’ discretion, as long as the fee
waiver request is not inconsistent with the underlying benefit (requesting a fee waiver for an application for permanent
residency would be inconsistent for any applicant who is subject to the public charge ground of inadmissibility at INA §
212(a)(4)).
7
When a fee waiver is available for an application, the legal standard in the regulation is that the applicant
must establish they are “unable to pay the prescribed fee.”
8
The current fee waiver process provides three different ways an individual requesting a fee waiver can prove their inability
to pay, based on:
1) Receipt of means-tested benefits;
2) Household income at or below 150% of federal poverty guidelines;
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or
3) Other financial hardship, such as costly medical bills or homelessness.
Receipt of means-tested benefits has traditionally been the easiest and most straightforward way both for applicants to
prove they qualify for a fee waiver and for adjudicators to assess inability to pay,
10
because a government agency has
already screened the financial resources of a person who has been found to qualify for a means-tested benefit.
II. Summary of Fee Waiver Changes
•
Required Use of Form I-912; Each Person Requesting a Fee Waiver Must Complete Their Own Form I-912.
Under
the proposed revised fee waiver process, all individuals requesting a fee waiver must submit their request using
Form I-912; USCIS will no longer accept informal, “applicant-generated” fee waiver requests.
11
By making use of
Form I-912 mandatory and simultaneously narrowing the type of information the applicant may submit to show
their inability to pay (see next sections), USCIS seeks, through a form change, to substantially limit the scope of
the regulation.
12
Additionally, each individual will have to submit their own fee waiver request, as the changes
will not allow multiple applicants to be included on the same I-912 request.
•
No More Means-Tested Benefits Basis.
Most significantly, receipt of means-tested benefits will no longer be a
basis for requesting a fee waiver. The other two bases for proving inability to pay, having a household income at
or below 150% of the Federal Poverty Guidelines (FPG) or other unspecified “financial hardship,” will become
the only options. As before, an individual requesting a fee waiver can base their request on one or more of these
6
For a complete list, see USCIS Fee Schedule, available at https://www.uscis.gov/g-1055.
7
See 8 CFR § 103.7(c)(1)(ii).
8
8 CFR § 103.7(c)(1)(i).
9
For the Federal Poverty Guidelines used as part of the fee waiver process, see https://www.uscis.gov/i-912p.
10
See USCIS, Policy Memorandum: Fee Waiver Guidelines as Established by the Final Rule of the USCIS Fee Schedule, (Mar. 13, 2011), available at
https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2011/March/FeeWaiverGuidelines_Established_by_the_Final%20Rule_USCISF
eeSchedule.pdf (explains a “step-wise” approach to reviewing fee waiver requests that starts with the means-tested benefit basis and instructs
adjudicators that “If the individual provides sufficient proof of the means-tested benefit, the fee waiver will normally be approved, and no further
information will be required.”). Note USCIS intends to rescind this policy memo and replace it with new guidance as part of the rule change, but the
memo is instructive for understanding how adjudicators under existing fee waiver policy are directed to approach evaluating fee waiver requests, with
means-tested benefits as one of the criteria.
11
Notwithstanding the fact that use of a specific USCIS-published fee waiver request form is not mandated by regulation. See 8 CFR § 103.7(c)(2).
12
The regulation requires that a person requesting a fee waiver for an immigration benefit “submit a written request for permission to have their
request processed without payment of a fee with their benefit request. The request must state the person’s belief that he or she is entitled to or
deserving of the benefit requested, the reasons for his or her inability to pay, and evidence to support the reasons indicated.” 8 CFR § 103.7(c)(2).
UPCOMING ELIMINATION OF MEANS-TESTED BENEFITS AS BASIS FOR FEE WAIVER REQUESTS
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reasons; depending on which grounds they select, the requester must fill out different parts of the Form I-912
and submit different supporting evidence.
•
New Required Supporting Evidence, Including Tax Transcripts Instead of Copies of Tax Returns, Pay Stubs Alone
No Longer Enough.
The types of required supporting evidence to establish household income and/or financial
hardship is also changing. Once the final rule change takes effect, an applicant requesting a fee waiver based
on household income at or below 150% FPG will have to provide an IRS transcript of their most recent tax return
as well as tax transcripts for any household members who also contribute financial support. Requiring transcripts
instead of photocopies of tax returns, which applicants often submitted in the past, means people will now have
to download their tax transcripts from the IRS website, or have them mailed to their home address on file with
the IRS.
13
For both household income and other financial hardship, if the applicant did not file tax returns for the
most recent tax year because they did not have any income, USCIS will require documentation from the IRS
confirming no W-2s and no tax transcripts in order to prove no income, unless they are an applicant for, or have
been granted, SIJS, VAWA, U nonimmigrant status, or T nonimmigrant status (see next section). Other proof of
income, besides tax transcripts, is restricted under the proposed fee waiver revisions. Pay stubs will only be
accepted, in addition to a tax transcript, for those who have experienced a salary or employment change since
they filed their income taxes, or for those who are unable to provide other evidence due to their victimization
(see next section).
•
Some Limited Exceptions to Fee Waiver Required Information and Evidence for Survivors (SIJS, VAWA, U, and T).
In response to comments USICS received after the initial notice of proposed rulemaking, the agency made some
modifications to the proposed fee waiver changes, easing evidentiary requirements and information collection
for pending or approved special immigrant juveniles and VAWA self-petitioners as well as U and T nonimmigrants.
For instance, pending or approved VAWA self-petitioners or U or T nonimmigrants will not have to provide
information about a spouse or other abuser or trafficker’s income, even if the individual is also a household
member. Additionally, if these applicants cannot provide required proof of income, they may explain their
situation and why they are unable to submit the required documentation. Pending or approved special immigrant
juveniles do not have to provide proof of income or list household income for a fee waiver request.
•
No Change to the List of Applications and Services for Which Fee Waivers Are Available.
The types of applications
for which a fee waiver may be available—all naturalization applications, all green card renewals, almost all
biometrics fees, adjustment and waiver applications but only for certain immigrants including U and T
nonimmigrants, VAWA self-petitioners, TPS grantees, special immigrant juveniles, asylees, and others exempt
from public charge inadmissibility—has not changed. Refer to the I-912 Form Instructions for a complete list of
which application fees are presently eligible for a fee waiver.
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However, the ILRC expects that USCIS will raise
fees and limit the applications and petitions for which fee waivers are available in its biennial fee review,
expected to be published this summer.
III. What to Do Now
•
Screen clients who will be filing applications for which a fee waiver is available to see if they currently receive
means-tested benefits. Examples of means-tested benefits that have been used in support of fee waiver
requests include, but are not limited to, Medicaid, SNAP (Supplemental Nutrition Assistance Program, formerly
referred to as Food Stamps), Supplemental Security Income (SSI), and Temporary Assistance for Needy Families
13
For more information, see https://www.irs.gov/individuals/get-transcript. The IRS website appears to allow only individuals with a Social Security
Number to download their tax transcript online, and all other individuals (i.e. those who filed their tax returns using an ITIN, Individual Tax
Identification Number) must request delivery of their tax transcript by mail.
14
Available at https://www.uscis.gov/i-912. Note this page will be updated once the revised form and instructions replace the current versions.
UPCOMING ELIMINATION OF MEANS-TESTED BENEFITS AS BASIS FOR FEE WAIVER REQUESTS
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UPCOMING ELIMINATION OF MEANS-TESTED BENEFITS AS BASIS FOR FEE WAIVER REQUESTS | APRIL 2019
(TANF, also referred to as “welfare”).
15
A letter, notice, or other official document issued by the government
agency granting the benefit is acceptable proof that the fee waiver requester receives a means-tested benefit.
•
If your client would be eligible for a fee waiver now based on means-tested benefits, consider trying to submit
the immigration application before this rule change takes effect. However, make sure to balance urgency of filing
before the fee waiver change with USCIS’ new policy allowing adjudicators to deny immigration applications that
lack all required initial evidence.
16
The new policy empowers adjudicators to deny an application without giving
the applicant an opportunity to supplement the missing documents.
17
Therefore, even if you are trying to file an
immigration application with a fee waiver request before the fee waiver changes are finalized, do not neglect
including all required documentation for the underlying immigration application, as the fee waiver might be
accepted but later, when the underlying application is being adjudicated, the application or petition could be
denied if found to be missing necessary supporting documentation. Further, USCIS’ revised policy under new
guidance regarding Notices to Appear (NTAs) and referrals to ICE makes the consequences of a denied
immigration application more serious and especially risky for applicants who do not have other immigration
status.
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•
After the form changes go into effect, if your client cannot qualify using the new fee waiver request form, consider
challenging the new requirements by submitting a fee waiver request in accordance with the regulatory language
at 8 CFR § 103.7(c)(2); in other words, submit a written request, stating the reasons for your client’s inability to
pay, with the evidence to support the reasons indicated. You should only do this with your client’s consent and
their understanding that the request may be rejected for failure to use the form, and that this could lead to delays
for the underlying application or petition. This approach may be most appropriate for advocates who are prepared
to engage in strenuous advocacy (or even litigate) a fee waiver rejection.
•
Submit a public comment, and encourage others to do so as well, registering your opposition to this rule change.
To submit a comment regarding the proposed fee waiver changes during the current comment period, which
runs through May 6, 2019, go to:
https://www.federalregister.gov/documents/2019/04/05/2019-06657/agency-information-
collection-activities-revision-of-a-currently-approved-collection-request-for-fee.
The ILRC has created a template that can also be used to submit a comment, available at:
https://www.ilrc.org/fee-waiver-template-comment.
See also template comments created by CLINIC Legal and Asian Americans Advancing Justice-Los Angeles.
Note that some templates pre-populate the comment language, but we urge anyone submitting a comment to
customize the language because only unique comments are recognized.
15
For more information about means-tested benefits that can support a fee waiver application, go to https://www.uscis.gov/feewaiver#meanstested.
16
USCIS, Policy Memorandum: Issuance of Certain RFEs and NOIDs, (July 13, 2018), available at
https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/AFM_10_Standards_for_RFEs_and_NOIDs_FINAL2.pdf.
17
See id.
18
See USCIS, Policy Memorandum: Updated Guidance for the Referral of Cases and Issuances of Notices to Appear (NTAs) in Cases Involving
Inadmissible and Deportable Aliens, (June 28, 2018), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-
06-28-PM-602-0050.1-Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf. Among other instances, the new policy directs adjudicators to issue
an NTA where an immigration application or petition is denied and the applicant is not lawfully present in the United States.
UPCOMING ELIMINATION OF MEANS-TESTED BENEFITS AS BASIS FOR FEE WAIVER REQUESTS
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IV. Related Resources
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• Naturalization Fee Waiver Packet: https://www.ilrc.org/naturalization-fee-waiver-packet
• Naturalization Reduced Fee Option and Fee Waiver Practice Advisory:
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https://www.ilrc.org/naturalization-
reduced-fee-option-and-fee-waiver
V. Chart of Common Immigration Filing Fees
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Application or Petition
(**see G-1055 Fee Schedule or Form I-912 Instructions for limited
circumstances where fee waiver may be accepted for the application)
Filing Fee
(*see G-1055 Fee Schedule or Form Instructions for some exceptions
to fees and fee amounts based on age or other classification)
Form I-90, Application to Replace Permanent Resident
Card
$455 + $85 biometrics fee*
Form I-131, Application for Travel Document
$575 for advance parole request + $85 biometrics fee
for all applicants age 14 through 79, but no fee if filed
concurrently with I-485 application*
Form I-192, Application for Advance Permission to Enter
as a Nonimmigrant**
$930 if filing with USCIS
Form I-290B, Notice of Appeal or Motion**
$675 unless appealing denial of petition for special
immigrant visa for special immigrant Iraqi or Afghan
national
Form I-485, Application to Register Permanent
Residence or Adjust Status**
$1,140 + $85 biometrics fee for applicants age 14-78*
Form I-601, Application for Waiver of Grounds of
Inadmissibility**
$930
Form I-751, Petition to Remove Conditions on Residence
$595 + $85 biometrics fee
Form I-765, Application for Employment Authorization**
$410 + $85 biometrics fee for applicants between age
14 and 79*
Form N-400, Application for Naturalization
$640 + $85 biometrics fee for all applicants under age
75
Form N-600, Application for Certificate of Citizenship
$1,170
19
Once the fee waiver changes are finalized, these resources will be updated to reflect the new changes. However, we include them with this practice
alert to assist practitioners filing fee waivers now, before the new changes go into effect.
20
Note that the reduced fee option is only available for naturalization applications.
21
For a complete list, see USCIS Fee Schedule, available at https://www.uscis.gov/g-1055.
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UPCOMING ELIMINATION OF MEANS-TESTED BENEFITS AS BASIS FOR FEE WAIVER REQUESTS | APRIL 2019
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[email protected] www.ilrc.org
Washington D.C.
1015 15th Street, NW, Suite 600
Washington, DC 20005
t: 202.777.8999 f: 202.293.2849
About the Immigrant Legal Resource Center
The Immigrant Legal Resource Center (ILRC) works with immigrants, community organizations, legal professionals, law enforcement,
and policy makers to build a democratic society that values diversity and the rights of all people. Through community education
programs, legal training and technical assistance, and policy development and advocacy, the ILRC’s mission is to protect and defend
the fundamental rights of immigrant families and communities.