FAQs Regarding USCIS Proposed Fee Schedule and Changes to Certain Benefit Request Requirements
On November 14, 2019, the Department of Homeland Security (DHS) published proposed rules in the Federal Register regarding changes to the U.S. Citizenship and Immigration Services (USCIS) fee schedule and changes to certain other immigration benefit request requirements. This FAQ answers some common questions about the proposed changes.
Which forms would be subject to a fee increase under the proposed rule?
Fees would increase for numerous forms and services. Table 19 in the Federal Register provides a comprehensive list of current and proposed fees for forms and services that are affected. Our chart below highlights some of the major increases that will likely impact applicants seeking family-based or humanitarian related immigration benefits. These proposed fees would be subject to change in a final rule. Alternative fees have also been proposed in case Congress does not approve Immigration Examinations Fee Account fund transfers to ICE or courts do not allow DACA renewal fees to be imposed.
1 time I-765 - Asylum Seekers
Which forms would no longer be eligible for a fee waiver?
Under the proposed rule, fee waivers would be eliminated for most forms unless the law specifically requires USCIS to accept one. The proposed rule would specifically eliminate fee waivers for the following forms, unless the applicant was granted an individual exception or the law requires one:
- I-751 [the domestic violence waiver is still fee exempt under Violence Against Women Act (VAWA)];
- N-336 (N-400, N-470, N-565, N-600, N-600K); and
- forms for applicants exempt from the public charge inadmissibility ground. (The Federal Register Notice uses the example of Forms I-601, I-192, and I-193 as forms that would not be eligible for a fee waiver under this category. See the proposed rule at page 62299. Note, however, that the FRN later states that VAWA, U, and T applicants may request fee waivers for these specific forms. See Table 7, page 62297. For more on VAWA, U, and T, see question 8 below.)
Discretionary fee waivers would be available as described below in question 3. Fee exemptions related to certain humanitarian benefits are described below in questions 6-15.
Who would qualify for a fee waiver under the proposed rule?
According to proposed 8 CFR §§ 106.3(b), (c), and (f), the director of USCIS would have discretionary authority to provide fee exemptions in the public interest, if the exemption is related to one of the following:
- national security,
- emergencies or major disasters,
- an agreement between the U.S. government and another nation or nations, or
- USCIS error.
In addition, the person seeking a fee waiver would also need to meet the following eligibility requirements:
- Annual household income is at or below 125 percent of the Federal Poverty Guidelines (FPG);
- Is not subject to the affidavit of support requirements under INA § 213A;
- Is not already a sponsored immigrant; and
- Is not subject to the public charge inadmissibility ground under INA § 212(a)(4).
See 8 CFR § 106.3(d). Note that those who are not subject to the public charge inadmissibility ground are not subject to the affidavit of support requirements.
How would individuals request a discretionary fee waiver?
The proposed rule does not provide clear guidance on how one would request a fee waiver. Proposed rule 106.3(b)(2) states that “an applicant, petitioner, or other requestor may not directly submit a request that the Director exercise [the discretionary] authority.”
Elsewhere, proposed rule 106.3(e) states that “a person must submit a request for a fee waiver on the form prescribed by USCIS in accordance with the instructions on the form.” To document income, the requestor would also need to submit tax return transcripts from the Internal Revenue Service, unless they were not required to file a federal tax return. See proposed 8 CFR § 106.3(g).
Would fee waivers still be available for naturalization?
No. The proposed rule would eliminate fee waivers for Form N-400 and would also eliminate the reduced naturalization fee option for applicants with family incomes greater than 150 percent and more than 200 percent of the Federal Poverty Guidelines. See proposed rule at page 62317. Naturalization applicants would only be eligible for the “discretionary waiver” discussed above.
Is there still a fee waiver for SIJS and SIJS-related forms?
Applications for Special Immigrant Juvenile Status (SIJS) on Form I-360 would continue to be fee exempt. See §106.2(15) of the proposed rule. The proposed rule does not discuss adjustment of status for those with SIJS. Currently, special immigrant juveniles must pay a fee when filing Form I-485, unless they qualify for a fee waiver. Presumably, SIJS applicants for adjustment would need to meet the requirements for a discretionary fee waiver under proposed 8 CFR § 106.3.
Are U/T/VAWA applications still fee exempt?
Yes, they are still fee exempt.
Are U/T/VAWA-related applications still eligible for fee waivers?
Yes. U/T/VAWA applicants may apply for a waiver of any fees for an immigration benefit and any associated filing, including an application for adjustment of status. In addition to these benefit-related applications, the I-751 domestic violence waiver is still fee exempt under VAWA. The fee waiver guidance at Table 7, page 62297, lists the immigration categories for which DHS must provide an opportunity to request a fee waiver for the underlying immigration benefit requests and associated forms in accordance with the Trafficking Victims Protection Reauthorization Act. See INA § 245(l)(7); proposed 8 CFR § 106.3(a).
Are refugee adjustments still fee exempt?
Yes. Under 209(a) adjustment of status for refugees continues to be fee exempt. See § 106.2(16) of the proposed rule.
Is there a fee for an Asylum Application (I-589) in the proposed rule?
Yes. There is a $50 fee for the asylum application in the proposed rule.
Is this proposed $50 fee for the Asylum application (I-589) eligible for a fee waiver?
Is the first I-765 (employment authorization) application still fee exempt for asylum seekers?
No. Under the proposed rule, the first I-765 under the (c)(8) category, will no longer be fee exempt. However, there is no change to the fee for the first I-765 for those granted asylum.
Are asylee adjustments still fee waiver eligible?
No. According to the proposed rule, Form I-485 is no longer eligible for a fee waiver except as provided in Table 7 of the rule. Thus, asylees would only be eligible for the “discretionary fee waiver” discussed above.
Are Cuban Adjustment Applicants eligible for a fee waiver?
No. Applicants under the Cuban Adjustment Act are not exempt from the Form I-485 application fee. Under the proposed rule, they might be eligible for a “discretionary fee waiver” if all requirements are met. See question 2 above.
Are DACA renewal requestors fee waiver eligible?
No, but the existing Deferred Action for Childhood Arrivals fee exemption would be available to those who are eligible. Currently, DACA renewal requestors are required to submit Forms I-821D, I-765, and I-765WS. The proposed rule would impose a new application fee for Form I-821D. However, the guidelines for requesting a fee exemption would remain unchanged.
To be considered for a fee exemption, applicants must submit a letter and supporting documentation demonstrating at least one of the following conditions:
- under 18 years of age, homeless, in foster care, or under 18 years of age and otherwise lacking any parental or other familial support and income less than 150% of the U.S. poverty level;
- cannot care for themselves because they suffer from a serious chronic disability and income is less than 150% of the U.S. poverty level; or
- at the time of the request, accumulated $10,000 or more in debt in the past 12 months as the result of unreimbursed medical expenses for themselves or an immediate family member and income is less than 150% of the U.S. poverty level.
When would these fee increases and fee waiver policies go into effect
As of this writing, the proposed USCIS Fee Schedule is not in effect and any new fee changes will not go into effect until after a final rule is published. The public has until December 30, 2019 to submit comments to the Notice of Public Rulemaking (NPRM) published on November 14, 2019 and the subsequent NPRM published on December 9, 2019. DHS should review all comments they receive, which may take a number of weeks or months. After that time, they should issue a Final Rule that would likely go into effect 60 days after publication.
I am currently preparing a fee waiver application. Are there any policy changes I should be aware of?
Yes. A new USCIS Form I-912 (10/24/19 version) briefly went into effect Monday, December 2, 2019 but a federal court decision on December 11, 2019 placed a preliminary injunction on the use of that form. USCIS has removed the 10/24/19 version of Form I-912 from its website and will instead require the 03/13/18 version of Form I-912 until further notice; they will also accept prior editions or a written request. USCIS will process the 10/24/19 forms that it has already received based on the Adjudicator’s Field Manual 10.9 and 10.10.
For more information, please see USCIS’ Fee Waiver information page.
How can I submit a comment to DHS regarding these proposed rules?
CLINIC encourages its network and others concerned about ensuring immigrants have fair access to asylum, naturalization, green cards, DACA, and other types of benefits to file comments on the proposed changes before December 30, 2019.