What is a Waiver in Immigration Law?

By Alexander J. Segal  Sep. 14, 2016 1:24p

What is an Immigration Fee Waiver (USCIS)?

The United States Citizenship and Immigration Services (USCIS) require immigration fees for the processing of certain forms and services. These fees help fund the USCIS’s operations. In certain cases, the USCIS may allow an applicant seeking an immigration benefit to apply for an immigration fee waiver. In general, an application for an immigration fee waiver is filed with the benefit application using the Form I-912, Request for Fee Waiver. Alternatively, an applicant may also send a letter that includes the request for the waiver being sought along with all of the evidence required by the Form I-912. If an applicant demonstrates eligibility for a fee waiver, his or her form or benefit request will be processed by the USCIS without fee. If a fee waiver request is denied, the applicant will have to re-file the form or benefit request in accordance with the form instructions.

Before Filing an Immigration Fee Waiver Request

Before seeking a fee waiver, the applicant must make sure that he or she can even procure a fee waiver for the specific form or benefit sought. The Form I-912 instructions as well as regulations found in 8 C.F.R. 103.7 contain the forms for which fee waivers may be sought. There are certain forms for which an applicant may always seek a fee waiver, certain forms for which an applicant may seek a fee waiver depending on the benefit sought, and certain forms for which there are no fee waivers available. In general, the following classes of applicants may apply for a fee waiver for any forms associated with their applications for status as a:

1. Battered spouse of A, G, E3, or H nonimmigrants;
2. Battered spouse or child of a lawful permanent resident (LPR) or U.S. citizen under section 240A(b)(2) in an application for VAWA cancellation of removal;
3. T nonimmigrant;
4. Temporary Protected Status (TPS);
5. U nonimmigrant; or
6. VAWA self-petitioner.

If the applicant’s form or benefit request is eligible for an immigration fee waiver, he or she may proceed to other considerations before deciding whether to file.

Rules for Immigration Fee Waivers

Section 10.9(b) of the Adjudicator’s Field Manual (AFM) lists the three ways in which an applicant may demonstrate that he or she is eligible for a fee waiver. In general, these methods are listed in order of ascending difficulty:

1. Demonstrate that he or she is receiving a means-tested benefit (federal, state, or local);
2. Demonstrate “that his or her household income, on which taxes were paid for the most recent year, is at or below 150 percent of the Federal Poverty Level established in the most recent poverty guidelines”;
3. Demonstrate that the inability to pay is due to financial hardship caused by extraordinary circumstances or other circumstances.

In order to establish eligibility for an immigration fee waiver, the applicant must show through at least one of three methods that he or she is unable to pay the requisite immigration fee in question. The easiest way for an applicant to establish eligibility is by showing that he or she is receiving a government means-tested benefit. A means-tested benefit is a benefit that depends on the beneficiary’s income and resources. For example, Medicaid is a “means-tested benefit” because entitlement depends on a beneficiary’s income, whereas Medicare is not a means-tested benefit.

If the applicant is not receiving a means-tested benefit, he or she may establish eligibility by demonstrating that his or her household income for the most recent taxable year is at or below 150 percent of the most recent federal poverty guidelines. If seeking to establish eligibility through this method, the applicant must carefully follow the rules on the Form I-912 instructions regarding who is counted as part of his or her “household” and ensure that sufficient evidence is submitted.

The final method for demonstrating eligibility for a fee waiver is by establishing financial hardship due to extraordinary circumstances or other circumstances. The AFM provides a non-exhaustive list of examples of circumstances that may qualify an applicant for a fee waiver:

• Unexpected and uninsured (or underinsured) medical bills;
• Situations that could not normally be expected in the regular course of life events; or
• A medical emergency or catastrophic illness affecting the individual or the individual’s dependents.

If seeking to establish eligibility through this method, the applicant must carefully explain the “circumstances,” how they cause an “inability to pay,” and follow the evidentiary requirements in the Form I-912 instructions.

The applicant may submit evidence to establish eligibility for an immigration fee waiver in more than one category. However, the applicant needs only to establish eligibility under one of the three grounds in order to be granted a fee waiver (e.g., if the applicant establishes that he or she is receiving a means-tested benefit, it is unlikely that the USCIS would proceed to consider evidence that he or she qualifies under the federal poverty guidelines ground in step two).

Additional Considerations

An applicant should only apply for a fee waiver if he or she is unable to pay the fee for one of the three reasons listed in the AFM. Fee waivers are for the “inability” to pay and not for “difficulty” in paying. This is important because if a fee waiver application is denied, the underlying form or benefit request will not be processed, and the applicant will have to re-file the application with the correct fee. This is especially important to remember for applications that may be time-sensitive. An applicant should always be aware of his or her overall immigration situation when considering an immigration fee waiver application.

A fee waiver request will be adjudicated separately from the form or benefit to which it applies. This means, for example, if the evidence on the fee waiver application indicates that the applicant may be inadmissible or ineligible for the underlying benefit on public charge grounds (if applicable), the fee waiver application may still be granted on its own merits. However, the underlying application may be denied on grounds of public charge.

Finally, if an applicant is found to have provided false documentation, misrepresented material facts, or committed other fraud in the fee waiver application, both the fee waiver and the underlying benefit request will be denied. Furthermore, the applicant may be subject to further immigration or criminal penalties.

Conclusion

Whether an applicant is eligible for a fee waiver will depend on the form being filed or benefit being sought and on the specific facts of the applicant’s situation. An applicant may benefit from consulting with an experienced immigration attorney regarding both his or her eligibility for an immigration fee waiver and whether his or her financial situation may call into question his or her eligibility for an immigration benefit or immigration status in the United States.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Resources and materials:

Alexander J Segal - "Establishing Eligibility for a Fee Waiver with the USCIS"