Fee Waivers Under the New Regulations

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Fee Waivers Under the New Regulations

• Web-Based Conference Call Training for Refugee
  Service Providers
• Peggy Gleason Laura Burdick
• Catholic Legal Immigration Network, Inc. (CLINIC)
• September 27, 2007

2
Overview

• Background and recent history of fee increases
• Advocacy on the fee increases
• Fee waiver background and requirements
• Nuts and bolts of applying
• Practice tips

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Fee Increases

• First announced in the Federal Register on
  February 1
• Have increased application fees by average of 66
• Justification to pay for improvements in
  customer service, security systems, and
  infrastructure

4
The Problem

• INA allows USCIS to fund its services entirely
  through fees (rather than tax dollars) and
  Congress does not provide any regular, annual
  appropriations for USCIS operating expenses
• INA 286 (m) fees for providing adjudication
  and naturalization services may be set at a level
  that will ensure recovery of the full costs of
  providing all such services, including the costs
  of similar services provided without charge to
  asylum applicants or other immigrants. Such fees
  may also be set at a level that will recover any
  additional costs associated with the
  administration of the fees collected.

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The Problem, contd

• Congress requires USCIS to audit the costs of
  processing applications every two years, and
  adjust fees accordingly
• Chief Financial Officers Act of 1990 USCIS must
  review, on a biennial basis, the fees,
  royalties, rents, and other charges imposed by
  the agency for services and things of value it
  provides, and make recommendations on revising
  those charges to reflect costs incurred by it in
  providing those services and things of value.

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Recent History of Increases

• Increases occurred in 1998, 2002, 2004, and 2005
• In October 2005, USCIS imposed a 10 average per
  application fee increase for inflation

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New Fee Schedule (effective for applications
filed on or after July 30, 2007)

• N-400 from 330 to 595
• N-336 from 265 to 605
• I-485 from 325 to 930
• N-600 from 255 to 460
• Biometrics from 70 to 80
• Total citizenship application fee 675

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Procedures for Applications Erroneously Rejected
for Wrong Fee

• If rejected by S.C., re-submit same application
  packet to S.C. with cover letter explanation,
  Attn. Case Resolution Unit
• If rejected by lock box, re-submit same
  application packet with cover letter explanation
  to USCIS, 427 S. LaSalle, 3rd Floor, Chicago, IL
  60605-1029, Attn. Dennis Sharkey, with notation
  Do Not Open in Mail Room
• Will be given date of original receipt

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Advocacy on the Fee Increases

• USCIS accepted public comments for 60 days after
  the initial, February Federal Register
  announcement, until April 2, 2007
• More than 3,900 public comments received
• Comments are summarized in Federal Register
  announcement dated May 30, 2007
• Effective date of increase was July 30, 2007

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Advocacy on the Fee Increases, contd

• Congressional hearing of the House Judiciary
  Subcommittee on Immigration, Citizenship took
  place February 14
• Proposed legislation on March 7 by Sen. Obama and
  Rep. Gutierrez (Citizenship Promotion Act of
  2007, S. 795, H.R. 1379) would halt increases and
  provide appropriations for application processing
• Proposed legislation on July 30 by Rep. Lofgren
  would void fee increases
• Lawsuit filed on August 28 by Immigrant Law Group
  of Oregon

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Fee Waivers

• Allowed under 8 C.F.R. 103.7 (c) any of the
  fees prescribed may be waived in any case in
  which the alien is able to substantiate that he
  or she is unable to pay the prescribed fee.
• Based on inability to pay the fee
• Adjudicated by the USCIS office where application
  is filed
• Discretionary, varies by USCIS office

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Fee Waivers

• No USCIS form to standardize process
• USCIS recently said it would create better
  informational materials for fee waiver applicants
• High approval rates of 65-85 over the last year
  (June 06 June 07), but not broken down by
  type of application

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Fee Waivers Under the New Rule

• Only allowed for certain applications, including
  N-400, N-336, N-600
• Not allowed for I-485, unless applicant is an
  asylee or other group not subject to public
  charge
• Note refugees are exempt from I-485 fee (do not
  have to pay biometrics fee, either this is new
  policy)
• New rule allows fee waiver for biometrics fee as
  well as application fee if application fee is
  waived, biometrics fee is also waived

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Fee Waiver Requirements

• Refer to policy guidance issued on 3/4/04,
  available at http//www.uscis.gov/files/pressrele
  ase/FeeWaiverGd3404.pdf
• And new policy guidance issued 7/20/07, at
  http//www.uscis.gov/files/pressrelease/FeeWaiver0
  72007.pdf

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Fee Waiver Requirements Situations and Criteria

• USCIS will look at certain situations and
  criteria
• Public Benefits. Whether, within the last 180
  days, you qualified for or received a federal
  means-tested public benefit
• Low Income. Whether your annual household income
  on which taxes were paid for the most recent tax
  year is at or below the poverty level
• Age. Whether you are elderly (age 65 or over) at
  this time

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Fee Waiver Requirements, contd

• Situations and criteria
• Disability. Whether you have a disability that
  has been determined by the SSA, HHS, VA, or other
  federal agency
• Dependents. Whether you have dependents in
  household who are seeking derivative status or
  benefits concurrently
• Special Situation. Whether you are in a special
  situation that requires humanitarian or
  compassionate consideration

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Fee Waiver Requirements Overall Financial
Picture

• USCIS also looks at overall financial picture
• Household members and their income
• Applicants income
• Applicants assets
• Applicants expenses
• Must submit documentation showing that you meet
  the requirements

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Highlights from the USCIS Policy Guidance

• USCIS officers retain broad discretionary
  authority
• No automatic waiver based on one or more
  situations/criteria (i.e. receipt of public
  benefits)
• Each case is unique and should be considered upon
  its own merits
• Will look at overall financial picture

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Highlights from the USCIS Policy Guidance, contd

• For household income, household is defined by
  Census Bureau guidelines as all persons who
  occupy a housing unit, whether related or not
• Will look at any extraordinary expenditures of
  applicant or dependents
• Will look at monetary contributions received from
  adult children, dependents, and other people
  living in the household

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USCIS Policy Guidance, contd

• How to determine inability to pay?
• July 20, 2007 memo vague will apply totality of
  the circumstances, and look to age, disability,
  household income, receipt of federal means-tested
  benefit in last 180 days and other relevant
  evidence
• March 4, 2004 Yates memo specific documentation
  and process

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USCIS Policy Guidance, contd

• Authority 8 CFR 103.7 (c) which fees can be
  waived, which exempt
• Broad discretionary power to decide. Adjudicating
  office to review with recommendations, decided by
  supervisor.
• NB Discretion is bound by fairness and
  consistency. If exercise of discretion is
  arbitrary or capricious, it may be reversed.

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Nuts and Bolts of Applying

• Send fee waiver request with supporting documents
  (do not send fee in the alternative)
• No USCIS form, but use CLINIC form
  (http//www.cliniclegal.org/Refugee/feewaivers.htm
  l ) and supporting documents to apply
• Put large notation on mailing envelope, FEE
  WAIVER REQUEST ENCLOSED and top of application
  to flag it
• INS memo in late 1998 directed field offices to
  adjudicate waiver requests within 5 working days
• No appeal, but can reapply with additional
  documents if receive denial

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Nuts and Bolts of Applying, contd

• Per 2004 memo, useful documents include
• Sources of income pay stubs, employment
  letters, tax returns
• Household members names, dob, residence, their
  income sources
• Show receipt of means tested benefit i.e. TANF,
  SSI, food stamps, CHIP, non emergency Medicaid in
  last 180 days

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More Fee Waiver Evidence

• Assets detail what, value, debt
• Prove humanitarian or compassionate special
  circumstances
• Show essential expenses including rent/mortgage,
  utilities, medical, food, clothing, child care,
  transport, credit debts, etc.

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How Much Documentation?

• Check local practice 2004 USCIS memo suggest
  extensive documentation, local standards may be
  less stringent
• 2004 memo states officer must consider household
  members in detail must consider income from
  dependents and effect of extraordinary expenses

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Documentation

• Income when is it low enough to show unable to
  pay?
• 2004 memo says look to last tax return to see if
  below poverty income guidelines (refer to
  http//aspe.os.dhhs.gov/poverty/07poverty.shtml
  for 2007 HHS guidelines)
• Elderly (65 and over when waiver sent) given
  special consideration
• Disabled as determined by SSA or other federal
  agency show verification

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Documentation, contd

• Note that TPS fee waivers have separate standard
  8 CFR 244.20 inability to pay judged by last
  3 months, if essential expenses exceed gross
  income
• TPS regs allow declarations if other evidence of
  income/expense not available

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Fee Waivers Practice Tips

• Multiple family members as applicants each need
  own waiver but should include copy of
  principals fee waiver in each packet
• If household member not contributing income but
  living together, explain and document financial
  picture
• Translator certification at end of income/expense
  statement

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Fee Waivers - Challenges

• SEIU v. Chertoff challenges 2007 fee schedule as
  an unlawful revenue-raising measure beyond the
  powers of USCIS to promulgate
• NW Immigrants Rights Project
• www.Ilgrp.com

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Questions?

• Laura Burdick
• CLINIC
• Tel [phone]
• Fax [phone]
• E-mail lburdick_at_cliniclegal.org