Guidance to respond to second fee waiver comment period through May 6 | CLINIC

Guidance to respond to second fee waiver comment period through May 6

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Public comment guidance:

USCIS proposed changes to filing fee waiver

 

30-day comment period: Open until May 6, 2019


Comments must be submitted to “OMB USCIS Desk Officer” via email at dhsdeskofficer@omb.eop.gov. All submissions MUST include 1) your name or the name of your organization and 2) “USCIS Information Collection Activity, OMB Control Number 1615-0116” must be in the subject line of your email.

 

Background: USCIS first announced its proposal to change the fee waiver process and eligibility through the elimination of receipt of a means-tested benefit on Sept. 28, 2018. CLINIC and other advocates submitted comments to USCIS during the corresponding 60-day comment period, recommending that the proposal be withdrawn because it would create a substantial and unjustified burden on applicants and their representatives as well as create operational inefficiency at USCIS. During that 60-day comment period, USCIS received approximately 1,200 comments. USCIS’ responses to those comments can be found on regulations.gov.

On April 5, USCIS issued a Federal Register Notice announcing that it is advancing the proposal by sending information to the Office of Management and Budget, or OMB, for review. The April 5 Federal Register Notice opened a new 30-day comment period to submit comments to OMB regarding the proposed changes. The OMB comment period closes on May 6.

 

Strategy:

  • OMB’s role is to review the proposal according to the Paperwork Reduction Act, which requires USCIS’ proposal minimize duplication and burden on the public, have practical utility and support the proper performance of the agency’s mission. Accordingly, the focus of comments should generally be on how the proposed changes to fee waiver add burdens (to individuals, practitioners, state/local agencies, USCIS, other federal agencies), are costly, impractical and inefficient.
  • Filing fee waivers are currently available for over two dozen form types, including citizenship and naturalization, work authorization, green card renewals, and to access certain humanitarian and survivor-based benefits. While fee waivers associated with naturalization applications have been a focus of much of the advocacy to date, we encourage the submission of comments that discuss how the proposed changes will affect other types of applicants.

  • Whenever possible, use data to support your comment -- this can be from your own organization, USCIS/Congressional reports, other studies, etc. For example, if your organization utilizes workshop models to serve clients, try to calculate and quantify costs/burdens to your agency if you are no longer able to use workshops to serve fee waiver applicants (serve fewer clients, each consultation would take XX more time, lose investments you have made in advertising workshops, etc.).
     
  • Organizations and individuals may also take this opportunity to respond to USCIS’ responses to public comments from the first comment period, particularly to responses that address efficiency, burdens, costs, etc.
     
  • For organizations that submitted a comment to USCIS during the first comment period: Take this opportunity to build upon your first comment, explaining to OMB why USCIS’ proposed change will create inefficiency, increase costs and be burdensome. If your organization/agency does not have capacity to update/expand your comments during this 30-day comment period, we recommend re-submitting your original comments to OMB.

 

Content/principles:

  • USCIS’ proposed changes to fee waivers are part of its larger agenda to put up barriers for low-income immigrants, particularly to prevent access to citizenship. USCIS has failed to provide any evidence or data to establish that use of receipt of a means-tested benefit in determining eligibility for fee waivers has resulted in an inconsistent application of the fee waiver policy or that elimination of the means-tested benefit category is more efficient. Applying for a fee waiver using receipt of a means-tested benefit is by far the most common, least burdensome way for individuals and legal services organizations. 
     
  • In addition to removing receipt of means-tested benefit, the proposed changes would make submitting Form I-912 mandatory in applying for a fee waiver, eliminating the option to submit a declaration/statement/letter instead of a form. Fee waivers for immigration benefits provide access to qualifying applicants; removing options and making the process more difficult and rigid reduces access.
     
  • Burdens/costs to individuals: Showing receipt of a means-tested benefit is the most straightforward way to prove eligibility for a fee waiver. Individuals have already gone through the process of applying for a means-tested benefit and had their income/ability to pay examined by a state/local agency. Demonstrating household income below 150 percent of Federal Poverty Guidelines or hardship is duplicative and requires collecting extensive paperwork and the relevant portion of Form I-912 is lengthy, detailed and complex. Collecting the necessary paperwork can create an insurmountable barrier for an individual or family, depending on their circumstances and resources.
     
  • VAWA/U/T visa applicants: People in these vulnerable situations may be particularly affected by changes to fee waivers. Leaving a violent or abusive situation can require tremendous resources and leave a person without means to collect extra paperwork. The flexibility built into current fee waiver policy (including USCIS accepting a declaration instead of Form I-912 as well as a variety of evidence) is essential for survivors to access immigration benefits. The current proposal would require Form I-912 and create more rigid standards.
     
  • Burdens/costs to legal services organizations: Eliminating the receipt of a means-tested benefit to establish fee waiver eligibility will require legal practitioners to collect and evaluate a multitude of documents to help clients in applying for a fee waiver. Large-scale naturalization and other workshops that are staples to efficiently maximizing legal services will become impossible. The proposed change would add considerable time to each case and costs to clients/agencies.  
     
    USCIS has proposed changing the form instructions to require a federal income tax transcript from the IRS as documentation of annual income. This new requirement has major implications for legal service providers and applicants. Legal service providers will need to spend additional time assisting clients to obtain a federal income tax transcript, and this will delay access to immigration benefits.
     
  • Burdens/costs to communities and state and local agencies: Access to immigration benefits is not a luxury; it provides vital protection and security, helps stabilize families, and creates more integrated communities. With new barriers to immigration benefits, state/local agencies may be forced to divert resources in order provide additional support to low income populations or create funds to help low income people/families pay for immigration benefits. This is duplicative, burdensome and inefficient, as state and local agencies have already spent resources determining if an individual qualifies for a means-tested benefit.
     
  • Burdens/costs to USCIS: USCIS adjudicators, who are more accustomed to handling “simple” fee waiver applications based on receipt of a means-tested benefit, will need additional training to process caseloads of complex fee waiver cases and training on the additional documentation requirements. Applications based on the remaining grounds would take much longer for a USCIS officer to adjudicate—and for an applicant or legal service provider to prepare—than one based on receipt of a means-tested benefit.
     
  • Burdens/costs to other federal agencies: USCIS has proposed changing the form instructions to require a federal income tax transcript from the IRS as documentation of annual income. This will add additional costs and burden on the IRS to fulfill requests.

 

Monday, April 15, 2019 - 12:45pm