Introductions: EOIR and BIA Fees and Fee Waivers

In the course of immigration proceedings, certain forms and motions must be filed with the Executive Office of Immigration Review (EOIR). Some of the forms published by the EOIR have associated filing feels. In the interest of ensuring that aliens of limited financial means have the opportunity to pursue their cases before Immigration Courts and/or the Board of Immigration Appeals (BIA), the regulations provide for a limited-use fee waiver for those who lack the ability to pay. In this article, we will discuss the regulations regarding fees in immigration court and before the BIA. After reading this article, please see our related article on fee waivers for required fees in immigration court or before the BIA [see article].

To learn about fee waivers for forms published by United States Citizenship and Immigration Services (USCIS) that are filed with the Department of Homeland Security (DHS), please see our full article [see article].

Fees in General

Regulations found in 8 C.F.R. 1103.7 discuss filing fees in immigration proceedings.

First, 8 C.F.R. 1103.7(a)(3), citing to 8 C.F.R. 103.7(a)(1), explains that the EOIR does not actually accept fees relating to EOIR proceedings (except for certain appeals and motions before the BIA). 103.7(a)(1) explains that certain offices of the USCIS are authorized to accept fees for EOIR forms, and such fees must be paid to those Department of Homeland Security (DHS) offices that are authorized to accept fees. 8 C.F.R. After a form with the requisite fee is properly submitted, the USCIS will return any documents, submitted with fee, relating to EOIR proceedings.

8 C.F.R. 103.7(a)(2) sets forth the rules for paying EOIR fees to an office of the USCIS. Fees must be made payable in United States currency (fees in the form of postage stamps shall not be accepted). Checks must be made payable to the “Department of Homeland Security” except in the following cases:

The applicant resides in the U.S. Virgin Islands (must be made payable to the “Commissioner of Finance of the Virgin Islands”; or
The applicant resides in Guam (must be made payable to the “Treasurer of Guam”).

8 C.F.R. 103.7(a)(2) explains that a receipt from DHS is not binding on the DHS if the fee is found to be uncollectable. If a check is not honored by the bank or financial institution on which it is drawn, the applicant will be charged $30.00. Finally, if a fee is found to be uncollectable, “statutory deadlines will not be deemed to have been met if payment is not made within [ten] business days” after the applicant receives notification that his or her check did not go through.

Rules for Fees to the BIA

8 C.F.R. 1003.8(a)(4) explains the method of payment for appeals or motions before the BIA. The fee for filing such an appeal or motion must be paid by check, money order, or electronic payment “in a manner and form authorized by the [EOIR].” If the fee is paid by check or money order, it must be made payable to the “United States Department of Justice.” The fee must be drawn on a bank or other institution that is located in the United States and must be payable in U.S. currency. The check or money order must have the full name and alien registration number of the alien. If the fee is uncollectable, the fee requirement will not be satisfied. If the alien is filing an appeal from a DHS officer to the BIA, the fee must be paid to the DHS in accordance with the regulations found in 8 C.F.R. 103.7(a).

Filing Fees

8 C.F.R. 1103.7, 1103.8, and 1003.24 list the immigration forms and actions that have fees in immigration proceedings. It also lists actions that do not require a fee.

Appeals

The following are forms for filing appeals to the BIA along with the requisite filing fees (see 8 C.F.R. 1003.7(b)(1):

Form EOIR-26, Notice of Appeal from a Decision of an Immigration Judge: ($100 filing fee for appealing a case appeal or interlocutory appeal, no fee for filing a bond appeal);
Form EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of a USCIS Officer: ($110 filing fee); and
Form EOIR-45, Notice of Appeal from a Decision of an Adjudication Official in a Practitioner Disciplinary Case: ($110 filing fee).

With regard to the Form EOIR-26, 8 C.F.R. 1003.8(a)(2)(i) explicitly states that there will be no filing fee for a custody bond appeal filed under 8 C.F.R. 1003.1(b)(7).

Motions

Under certain circumstances, there is no fee for filing a motion to reopen or reconsider. 8 C.F.R. 1003.8(a)(2)(ii), there will be no fee for a motion to reopen that is filed before the BIA, and which is “based exclusively on an application for relief that does not require a fee.” As the EOIR explains on its website, this applies to applications based exclusively on asylum [link]. 8 C.F.R. 1003.8(2)(iii) contains a similar provision for motions to reconsider that are not based exclusively on an application for relief that did not require a fee. 8 C.F.R. 1003.24(b)(2)(ii) and (iii) contain parallel exemptions for motions to reopen and reconsider filed before an immigration judge in immigration court.

Under 8 C.F.R. 1003.7(b)(2), there is a $110 filing fee for a motion to reopen or reconsider before an immigration judge or the BIA that is not based exclusively on an application for relief that did not require a fee.

Multiple Parties

Under 8 C.F.R. 1003.7(b)(3), only one filing fee will be required if an appeal or motion (see previous two subsections) is filed on behalf of multiple aliens and the aliens will be covered by a single decision.

Applications for Relief

8 C.F.R. 1003.7(b)(4) lists the forms and associated fees for applications for relief in the form of suspension of deportation or cancellation of removal:

Form EOIR-40, Application for Suspension of Deportation: ($100.00 filing fee);
Form EOIR-42A, Application for Cancellation of Removal for Certain Permanent Residents ($100.00 filing fee; $85 per person for biometrics); and
Form EOIR-42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents: ($100.00 filing fee; $85 per person for biometrics).

Additionally, those seeking suspension of deportation or special rule cancellation of removal under NACARA [see article] must use the Form I-881, NACARA — Suspension of Deportation or Application for Special Rule Cancellation of Removal. The fee for filing this form in immigration court is $165.00 (only a single fee required for application including multiple applicants in the same proceeding under 8 C.F.R. 1003.7(b)(3)). An additional fee for biometrics may be required.

Please see the section of our article on how fees for applications for relief are paid [see section]

DHS Forms

The filing fees for DHS forms used in immigration proceedings are found in DHS regulations in 8 C.F.R. 103.7. The EOIR website lists two such forms along with their fees [link]:

Form I-485, Application to Register Permanent Residence or to Adjust Status ($985.00 filing fee; $635.00 for persons under the age of 14; additional biometrics fee may be needed); and
Form I-130, Petition for Alien Relative ($355.00 filing fee).

Rules for Payment of Fee for Application for Relief

Under 8 C.F.R. 1003.8(b), the BIA does not collect fees for applications for relief from removal. Rather, such fees are collected by the DHS under 8 C.F.R. 103.7. If an applicant files a motion before the BIA based upon an application for relief, the applicant will pay to the BIA only the fee for the motion to reopen. The fee for the application for relief will be paid to the DHS. If the BIA grants the motion to reopen and remands the record to an immigration judge, the application fee will be paid in accordance with 8 C.F.R. 1003.24(c)(1).

8 C.F.R. 1003.24(c)(1) specifies that, when an application forrelief is filed in the course of proceedings in immigration court, the fee must be filed “in advance” with the DHS in accordance with the provisions in 8 C.F.R. 103.7. When the application for relief is filed in immigration court, it must be accompanied by the receipt from the DHS indicating that the fee was received.

Under 8 C.F.R. 1003.24(c)(2), if a motion to reopen proceedings in immigration court is based upon an application for relief, the fee for the motion to reopen must be paid to the DHS. When the motion is filed with the immigration court, it must be accompanied by the fee receipt. The payment of the fee for an application of relief must be paid to the DHS “within the time specified by the immigration judge.”

Actions for Which No Fee is Required

8 C.F.R. 1003.8 and 1003.24 list situations in which filing fees are not required for forms or motions before the BIA or before an immigration judge respectively.

Instances Where No Fee is Required Before the BIA

Under 8 C.F.R. 1003.8(a)(2), fees are not required in the following instances before the BIA:

1. Filing a custody bond appeal;
2. A motion to reopen based exclusively on an application for relief that does not require a fee;
3. A motion to reconsider based exclusively on a prior application for relief that did not require a fee;
4. A motion filed while an appeal, a motion to reopen, or a motion to reconsider is already pending before the BIA;
5. A motion requesting only a stay of removal, deportation, or exclusion;
6. An appeal or motion filed by the DHS;
7. A motion that is agreed upon by all parties in the proceeding and is jointly filed; or
8. An appeal or motion filed under a law, regulation, or directive that specifically does not require a filing fee.

Instances Where No Fee is Required Before an Immigration Court

Under 8 C.F.R. 1003.24(b)(2), fees are not required in the following instances before an immigration court:

1. A motion to reopen based exclusively on an application for relief that does not require a fee;
2. A motion to reconsider based exclusively on a prior application for relief that did not require a fee;
3. A motion filed while proceedings are already pending before the immigration court;
4. A motion requesting only a stay of removal, deportation, or exclusion;
5. A motion to reopen a deportation or removal order entered in absentia if the motion is filed under the old section 242B(c)(3)(B) of the INA (as it excited prior to April 1, 1997), or under section 240(b)(5)(C)(ii) of the INA;
6. Any motion filed by the DHS;
7. A motion that is agreed upon by all parties and jointly filed; or
8. A motion filed under a law, regulation, or directive that specifically does not require a filing fee.

Conclusion

An alien in proceedings in immigration court or before the BIA should consult with an experienced immigration attorney for guidance throughout the entire process. In addition to determining the best actions to take on behalf of a client, an experienced immigration attorney will be able to ensure that any required fees are filed with the correct authorities and in a timely manner. To learn about fee waivers for fees covered by 8 C.F.R. 1003.7, 1003.8, and 1003.24, please see our full article [see article]. To learn about fee waivers for USCIS forms, please see our full article [see article]