Establishing Eligibility for a Fee Waiver with the USCIS

 

Introduction: Immigration Fee Waivers

Form I-912 InstructionsThe majority of filings with the United States Citizenship and Immigration Services (USCIS) require a filing fee in order for the application/form to be filed and processed. However, an applicant may qualify for an immigration fee waiver for many of these forms by filing the Form I-912, Request for Fee Waiver. Before reading this article, please see our full article discussing the situations in which an applicant with the USCIS will even be eligible to file a Form I-912 for a fee waiver for the fee associated with a specific USCIS form [see article]. In this article, we will discuss the evidentiary requirements for establishing eligibility for a fee waiver with the Form I-912 and the filing process.

To learn about fee waiver requests with the Executive Office of Immigration Review (EOIR), please see our full article [see article].

Forms and Classes of Applicants Eligible for Fee Waivers

8 C.F.R. 103.7 lists the current fees for USCIS immigration forms while section (c)(3) of the same regulation lists the forms for which fee waivers may be sought. The regulations in 8 C.F.R. 103.7(c)(3) are described in the instructions for the current version of the Form I-912 [see instructions]. We will reproduce the list of all of the forms for which fee waivers may be granted. In order to request a fee waiver, an applicant must file the Form I-912, Application for Fee Waiver [see current edition as of 08/26/16 (dated 04/25/15)].

Please see our full article to learn about the forms for which an applicant may file the Form I-912 to seek a fee waiver [see article].

Agency Guidance Regarding Fee Waiver Eligibility (Including Form I-912 Instructions)

Section 10.9(b) of the USCIS's Adjudicator's Field Manual (AFM) sets forth a three-step process for considering eligibility for a fee waiver [see PM-602-0011.1 (Mar. 13, 2011)]. In order to establish eligibility for a fee waiver, the applicant must establish his or her inability to pay the fee. Furthermore, the AFM explains that the waiver based on the inability to pay must be consistent with the status or the benefit sought from the USCIS. This issue may come up in cases where the applicant is seeking a status or benefit that depends in part on his or her ability to support him or herself or on his or her making a substantial financial investment.

The AFM explains that each determination will be made on a case-by-case basis in accordance with the following criteria. The USCIS website page titled “Additional Information on Filing a Fee Waiver” (last updated Jun. 2, 2016) (“USCIS website” or “website”) [link] explains that an applicant must check which one of these three criteria forms the basis of his or her fee waiver request. The applicant may choose to have his or her application considered on more than one basis. However, the applicant must provide sufficient evidence for at least one basis of eligibility for a fee waiver in order for the fee waiver to be granted.

1. Means-Tested Benefit

The simplest way for an applicant for a fee waiver to establish his or her eligibility is to present evidence showing that he or she is currently receiving a “means-tested benefit.” This is because means-tested public benefits are determined based on a person's income and resources. The AFM explains that if an applicant provides sufficient proof that he or she is receiving a means-tested benefit, the fee waiver will “normally be approved” without further evidence being required.

The USCIS website includes a chart listing some common federal programs that are means-tested benefit programs and federal programs that are not means-tested benefit programs. We have reproduced the chart below for your convenience:

Means-tested benefit programs NOT means-tested benefit programs

Examples include:

  • Medicaid
  • Supplemental Nutrition Assistance Program (SNAP, formerly called Food Stamps)
  • Temporary Assistance to Needy Families (TANF)
  • Supplemental Security Income (SSI

Examples include:

  • Medicare
  • Unemployment benefits
  • Social Security benefits
  • Social Security Disability Insurance (SSDI)
  • Retirement, Survivors and Disability Insurance (RSDI)
  • Student financial aid/loans/grants

 

In order to be a “means-tested benefit,” eligibility to receive the benefit must depend on the person's income and resources. This explains why, for example, Medicaid is a means-tested benefit program whereas Medicare is not. It is important to note that an applicant for a fee waiver may submit evidence showing that he or she is the beneficiary of any government means-tested program, whether it is federally, state, or locally funded. The USCIS website encourages applicants to provide detailed information if the benefit is not well known outside his or her locality.

The AFM and the USCIS website explain that an applicant must submit a letter, notice, or other official document(s) that contain the following information:

  • Name of the applicant;
  • Name of the agency granting the benefit;
  • The type of benefit; and
  • An indication that the applicant is currently receiving the benefit (e.g. date granted, expiration date, and/or date of renewal, if available).

The USCIS website advises that a benefit card is not sufficient by itself unless it contains the above information.

An applicant who is not receiving a means-tested benefit may rely upon his or her spouse's receiving a means-tested benefit in support of the fee waiver application so long as the applicant is residing with his or her spouse and they are not legally separated. If the applicant has a child under the age of 21, the child may qualify for a waiver based on his or her receiving a means-tested benefit. However, a parent may not qualify for a waiver solely based on his or her child's receiving a means-tested benefit if the parent does not receive a means-tested benefit. Nevertheless, evidence that the child is receiving a means-tested benefit may support the parent's case for eligibility for a fee waiver in conjunction with other evidence (e.g., it would support the case for other members of the household if the child's public benefit indicates that the household meets certain federal poverty guidelines benchmarks).

If a parent or of an adult child or legal ward who is disabled (physically or developmentally) or mentally impaired (and who is unmarried and cannot care for him or herself or maintain or establish a household), the parent or guardian may obtain an assigned representative for the means-tested benefit. Furthermore, evidence about the custody or disability of the adult child or ward may support a finding that a fee waiver is warranted.

2. Federal Poverty Guidelines

The AFM explains that, if the applicant cannot establish eligibility through a means-tested benefit, the applicant may seek to demonstrate “that his or her household income, on which taxes were paid for the most recent tax year, is at or below 150 percent of the Federal Poverty Level as established in the most recent poverty guidelines.” The current federal poverty guidelines can be found at aspe.hhs.gov/poverty-guidelines and on the Form I-912P, 2016 HHS Poverty Guidelines for Fee Waiver Request [see 2016 version].

If an applicant demonstrates that his or her household is at or below 150 percent of the current Federal Poverty Level, his or her fee waiver request will normally be approved without the need for further evidence.

The AFM explains that for purpose of determining eligibility for a fee waiver, a household may include the applicant and any of the following:

  • Spouse;
  • Parent(s) living with the applicant;
  • An unmarried child or legal ward under the age of 21 living with the applicant;
  • An unmarried child or legal ward over the age of 21 but under the age of 24 who is a full-time student living with the applicant when he or she is not at school; or
  • An unmarried child or legal ward for whom the applicant is the legal guardian because the unmarried child or legal ward is physically or mentally disabled to the extent that he or she cannot adequately care for him or herself and cannot establish, maintain, or re-establish his or her own household.

The applicant may submit the following evidence to meet the step 2 requirements:

  • Evidence of current employment or self-employment (e.g., recent pay statements, W2 forms, statement(s) from employer(s) on business stationary showing salary and/or wages paid, or income tax returns);
  • Documentation establishing other financial support or subsides (e.g., parental support, alimony, child support, educational scholarships and fellowships, pensions, Social Security, veteran's benefits, etc.);
  • Documentation establishing financial support or subsidies that may include monetary contributions for the payment of monthly expenses received from adult children, dependents, and other people living in the applicant's household;
  • Federal tax return(s) listing the members of the applicant's household (if available);

The USCIS website explains that the applicant must list the head of his or her household's income on the fee waiver request. This is generally either determined by the head of household as determined by the IRS or by the person who owns the majority of money in the household.

If the applicant's spouse lives overseas and provides monetary support to the household, the spouse's contributions to the household must be included in the application. If the spouse living overseas is unemployed and is supported by the applicant, the applicant must state this on the form. If the spouse lives overseas and otherwise provides no support to the applicant's household, the applicant should include a statement explaining the situation.

The AFM states that the following evidence should be included in the case that the applicant is filing as a Special Immigrant Juvenile (SIJ) [see category] or on behalf of an SIJ:

  • A recent state or juvenile court order establishing dependency of or custodial agreement pertaining to the SIJ; or
  • A letter from a foster care home or similar agency overseeing the SIJ's custodial placement that describes the SIJ's inability to pay; or
  • An approval notice on a Form I-797, Notice of Action, for a Form I-360 filed for the SIJ.

The USCIS website states that it will consider homelessness in reviewing a fee waiver request. If the applicant receives services from a homeless shelter, he or she should include a currently dated and signed letter from the shelter on the shelter's letterhead with an explanation. If a homeless applicant does not reside in a shelter, the applicant should provide an affidavit from “a member of good standing” of his or her community who both knows the applicant and can support the applicant's claims that he or she is homeless and unable to pay the fees.

3. Financial Hardship Due to Extraordinary Circumstances or Other Circumstances

The AFM explains that the final step to evaluating an applicant's eligibility for a fee waiver is to determine whether he or she is under financial hardship “due to extraordinary circumstances or other circumstances affecting his or her financial situation” that render him or her unable to pay the fees associated with a USCIS form or service. An applicant who may not be able to establish the inability to pay through step 1 or 2 may endeavor to establish his or her inability to pay through extraordinary or other circumstances.

The AFM provides a non-exhaustive list of “extraordinary circumstances or other circumstances” that may suffice for establishing eligibility for a fee waiver:

  • Unexpected and uninsured (or underinsured) medical bills;
  • Situations that could not normally be expected in the regular course of life events; or
  • A medical emergency or catastrophic illness affecting the individual or the individual's dependents.

The AFM explains that if the applicant is under financial hardship, he or she must submit evidence that shows that he or she “has suffered a sufficiently negative financial impact” as a result of the hardship that occurred within a “reasonably recent period preceding the filing of the fee waiver request” and that the hardship rendered the applicant's income during such period insufficient to pay the USCIS fee.

The USCIS lists the following documentation that may suffice for showing that the applicant is under financial hardship such that he or she should be granted a fee waiver:

  • Documentation of all assets owned, possessed, or controlled by the applicant and his or her dependents;
  • Documentation concerning liabilities and expenses owed by the individual and his or her dependents, and any other expenses for which the applicant is responsible;
  • Evidence of the applicant's income, or if the applicant cannot provide evidence of his or her income, he or she should provide a description of the financial hardship and why he or she cannot provide evidence of income (e.g., affidavits from churches and/or other community-based organizations indicating that the applicant is currently receiving some benefit from such an entity that may be used as evidence of income);
  • Any other documentation or evidence that demonstrates the applicant's inability to pay the requisite fee due to the applicant's overall financial picture and household situation.

The AFM encourages applicants to consider, in the course of organizing documentation, whether cash or assets exist aside from income that could be used to pay the fee after being liquidated. The AFM offers as an example the ownership of stocks or other assets that could be easily liquidated. This is because a fee waiver is not for “difficulty” in paying a fee but rather for “inability.”

Fee Waiver's Effect on Immigration Status

If the applicant for a fee waiver had a Form I-134, Affidavit of Support, or a Form I-864, Affidavit of Support under Section 213 of the Act, filed on his or her behalf, that person will still be responsible for meeting his or her obligations to support the applicant. However, the USCIS website explains that it will only consider that person's income or assets in determining whether the applicant is eligible for a fee waiver if the person who signed the affidavit is a member of the applicant's household. However, any financial contributions to the applicant's household may be considered.

The USCIS website notes that for certain immigration benefits, a reliance on public cash assistance may render an alien inadmissible on public charge grounds [see article]. Furthermore, certain classes of aliens may be deportable from the United States for having become a public charge within 5 years of entering the United States for reasons that arose prior to entry. Note that for certain fees, an applicant may only apply if he or she is exempt from the public charge ground of inadmissibility.

However, the website explains that the USCIS will not consider whether the applicant may be admissible or deportable for being a public charge in adjudicating the fee waiver request. Rather, the USCIS will consider the fee waiver requests on its own merits. However, if the alien must demonstrate that he or she is not or will not be a public charge to obtain an immigration benefit, it is possible, if not likely, that the grounds for which he or she is granted a fee waiver would ultimately lead to the denial of the benefit request.

If the applicant is found to have provided false documentation, misrepresented material facts, or other fraud on the Form I-912, USCIS will deny both the fee waiver request and the underlying benefit request. Furthermore, the alien may be found to be inadmissible.

Applying for a Fee Waiver

The USCIS website explains that the USCIS may accept a letter with all of the necessary information that states the request for a fee waiver in lieu of the Form I-912. The letter must contain all of the necessary information that states the request for a fee waiver, be signed by everyone requesting the fee waiver, and include all of the requisite supporting evidence.

The Form I-912 or the letter must be filed in accordance with the form instructions to the agency that is handling the benefit request. The website explains that if the Form I-912 is submitted with insufficient evidence, this may either lead to a denial or a delay in processing. Applicants should therefore ensure to submit all of the required evidence to ensure that the Form I-912 is adjudicated in a timely manner.

It is important to note that if the applicant submits the fee waiver request along with the appropriate fee, the fee will be accepted and the fee waiver request will not be considered.

The Form I-912 instructions explain that if the fee waiver request is denied, the applicant will receive notice of the denial in the form of the Form G-1054, Request for Fee Waiver Denial Letter, along with information about how to reapply for the immigration benefit or application with the proper filing fee. It is important to note that applicants may only have a limited to resubmit an application or petition with the proper filing fee. The situation will vary depending on the specific facts of the application and the benefit sought.

Conclusion

The fee waiver regulations exist to ensure that applicants for certain immigration benefits will not be precluded from applying for only the inability to pay the requisite filing fees. However, it is important to be aware of the specific situation when filing the fee waiver request, including if the filing of the underlying application or petition is time-sensitive (e.g., applications associated with Temporary Protected Status (TPS)). An applicant should only seek a fee waiver if he or she meets one of the three criteria for demonstrating the inability to pay and if he or she is unable to pay the requisite filing fees. In many cases, it is wise to consult with an experienced immigration attorney. This is especially the case if the applicant who is considering a fee waiver request may be subject to the public charge ground of inadmissibility.