Update

Update: The new fee waiver rules were enjoined by a Federal judge on September 29, 2020. For the time being, the prior fee waiver rules will remain in effect. Please see our blog on the injunction to learn more [see blog].

Introduction

On August 3, 2020, the United States Citizenship and Immigration Services published a new final rule in the Federal Register [link] establishing new fees for USCIS forms and restricting the circumstances in which fee waivers may be available. We examined the new fee schedules in a separate post [see article]. In this post, we will examine the new rules for USCIS fee waivers. These rules take effect on October 2, 2020.

New Fee Waiver Regulation

The new fee waiver rules are set forth in 8 CFR 106.3. Generally, the USCIS is restricting fee waivers and exemptions except in those cases where they are set forth in statute. Below, we will examine the new regulatory rules on fee waivers and exemptions for USCIS forms.

Categories of Aliens Eligible for Fee Waivers

New 8 CFR 106.3(a) lists categories of aliens eligible for fee waivers. To start, any aliens who are eligible for fee waivers under statute remain eligible for fee waivers. 8 CFR 106.3(a)(1) implements the statutory provision at INA 245(l)(7), which makes certain alien crime and domestic violence victims eligible for fee waivers.

Under 8 CFR 106.3(a)(1), the following classes of aliens are eligible to apply for waivers of any USCIS fees for benefits and associated filings up to and including an application for adjustment of immigration status:

VAWA self-petitioners and derivatives as defined under INA 101(a)(51) and anyone otherwise self-petitioning under INA 204(a) due to battery or extreme cruelty;
T nonimmigrants;
U nonimmigrants;
Battered spouses of A, G, E3, or H nonimmigrants;
Battered spouses or children of a lawful permanent resident or U.S. citizen and derivatives as provided under INA 204A(b)(2) of the INA; and
Applicants for TPS, including both initial applicants for TPS and re-registering TPS beneficiaries.

In addition to classes set forth in INA 245(l)(7), the following aliens may also seek waivers of any fees for an immigration benefit and associated filing up to and including an application for adjustment of immigration status:

Special Immigrant Juveniles who have been placed in out-of-home care under the supervision of a juvenile court or state child welfare agency at the time of filing; and
Afghan or Iraqi Translator or Interpreter, Iraqi National employed by or on behalf of the U.S. Government, or Afghan National employed by or on behalf of the U.S. government or employed by the International Security Assistance Forces.

Finally, any requestors who have been approved for any of the benefits listed in 8 CFR 106.3(a) may also apply for a waiver of any fees for the Form N-400, Application for Naturalization, Form N-600 Application for Certificate of Citizenship, or Form N-600K, Application for Citizenship and Issuance of Certificate Under Section 322, as applicable.

Special Exceptions Available in USCIS’s Discretion

Under 8 CFR 106.3(b), the Director of the USCIS may offer a full or partial fee exception from any fee for which exceptions would not ordinarily be available “if the Director determines that such action is an emergent circumstance, or if a major national disaster has been declared in accordance with 44 CFR part 206, subpart B.” However, requestors cannot directly ask the USCIS Director for an exception. Furthermore, as detailed below, many classes of applicants are not eligible for a fee exception under any circumstance.

First, no alien who is subject to the affidavit of support requirements under INA 213A, or who is already a sponsored immigrant as defined in 8 CFR 213a.1, may have fees waived unless he or she is seeking a waiver of the joint filing requirement to remove conditions on his or her residence based on abuse.

Second, no alien who is subject to the public charge ground of inadmissibility under INA 212(a)(4) is eligible for a fee exception.

Eligibility for Fee Waivers

Regardless of the alien’s status, he or she must meet several general requirements for a fee waiver. This applies both to those requestors who are eligible for fee waivers under 8 CFR 204.6(a) and those aliens who may be eligible for fee exceptions under 8 CFR 204.6(b).

Under 8 CFR 204.6(c), fee waivers are limited to those aliens with an annual gross household income at our below 125 percent of the Federal Poverty Guidelines.

Under 8 CFR 204.6(d), aliens must apply for a fee waiver on the fee waiver form provided for by the USCIS, and in accordance with the fee instructions.

Fee Exemptions

In limited cases, the USCIS Director may provide an exemption for any fee associated with a USCIS form. In order to grant an exemption, the Director must find that the granting of the exemption would be in the public interest, be consistent with the applicable laws, and be related to one of the following cases:

Asylees;
Refugees;
National security;
Emergencies or major disasters declared in accordance with 44 CFR part 206, subpart B;
An agreement between the U.S. government and another nation or nations; or
USCIS error.

Documenting Household Income

As we noted, a requestor’s annual gross household income must be at or below 125 percent of the Federal Poverty Guidelines in order to be eligible for a fee waiver. 8 CFR 106.3(f) lists the documents that an applicant for a fee waiver must submit in order to establish the requisite gross household income level:

  • A transcript(s) from the United States Internal Revenue Service (IRS) of the person’s IRS Form 1040, U.S. Individual Income Tax Return;
  • If the person was not required to file a Federal income tax return, he or she must submit their most recent IRS Form W-2, Wage and Tax Statement, Form 1099G, Certain Government Payments, or Social Security Benefit Form SSA-1099, if applicable;
  • If the person filed a Federal income tax return, and has recently changed employment or had a change in salary, the person must also submit copies of consecutive pay statements (stubs) for the most recent month or longer;
  • If the person does not have income and has not filed income tax returns, he or she must submit documentation from the IRS that indicates that no Federal income tax transcripts and no IRS Form W-2s were found;
  • An alien who is applying for or has been granted benefits or status as a VAWA self-petitioner or derivative or a T or U nonimmigrant, who does not have any income or cannot provide proof of income may:
    • Describe the situation in sufficient detail as provided in the form and form instructions prescribed by DHS to substantiate that he or she has income at or below 125 percent of the Federal Poverty Guidelines as well as the inability to obtain the required documentation; and
    • Provide pay statements (stubs) or affidavits from religious institutions, non-profits, or other community-based organizations verifying that he or she is currently receiving some benefit or support from that entity and attesting to his or her financial situation as documentation of income, if available.

Finally, the regulation provides for special rules for fee waiver applications related to the Special Immigrant Juvenile classification. In these cases, the fee waiver applicant must provide the following instead of documentation of gross household income:

Evidence that the applicant is approved for or has filed for Special Immigrant Juvenile classification, and
Evidence that the applicant remains in out-of-home care, such as foster care.

Because fee waivers and exceptions all require the requestor to be below the specified gross household income level, carefully documenting gross household income is a clear prerequisite to obtaining a fee waiver, exception, or exemption.

Conclusion

The new USCIS rules on fee waivers significantly limit the scope of fee waivers. However, certain victims of violence and crime victims remain eligible to affirmatively seek fee waivers. Furthermore, the USCIS may grant exceptions or exemptions in limited cases in agency discretion. When seeking a fee waiver in a qualifying case, it is essential for the requestor to carefully document his or her gross household income in order to establish eligibility for a fee waiver.