Melissa and her husband Richard are anxious. Melissa, a Citizen of Ireland, is in the U.S. on a 2 year conditional Green Card, granted to her on the basis of her bona fide marriage to Richard, a U.S. Citizen. Richard was recently laid off but is diligently looking for a new job. And Melissa just had a baby-- their first child. The medical bills have wiped out whatever little savings they had made for themselves. With the date for them to file the joint-petition to remove the conditions on her stay fast approaching, they are very concerned about meeting the substantial filing fee that must be submitted with the application. They have read somewhere that USCIS does offer “fee waivers” and are anxious to learn if they may be eligible to seek one.
So, what are the requirements to seek a USCIS Fee Waiver and how does one apply for the same?
Generally, USCIS has the discretion to waive any filing fees for an application, petition, motion or request if the applicant can establish that he or she is unable to pay the prescribed fee. Applicants may request a fee waiver based on inability to pay while seeking various benefits or services through USCIS. Some of the eligible applications and petitions include:
An example of a form that is not eligible for fee waiver is the Form I-130, Petition for Alien Relative; or Form I-140, Petition for Immigrant Alien, as both these processes involve proving financial ability to pay or support the beneficiary.
How does one apply for a Fee Waiver?
There are two methods to submit a request for fee waiver- a written request submitted with the application, petition or motion, or USCIS Form I-912, Request for Fee Waiver. When requesting a fee waiver, the applicant must clearly demonstrate that he or she is unable to pay the fee.
Until 2010, when an applicant wished to submit a fee waiver request to USCIS, the applicant had to submit a written request to USCIS asking for permission to waive the filing/processing fee along with the application or petition for the relevant benefit. The request for fee waiver had to state that the applicant believed that he or she was entitled to the benefit, the reasons for the inability to pay, and evidence to support the same.
In 2010, USCIS released Form I-912, Request for Fee Waiver. While USCIS continues to accept and consider the written fee waiver request in order to comply with immigration regulations, the Form I-912 was developed to streamline the process. As this is a form to request a waiver of a USCIS fee, there is, of course, no filing fee for Form I-912.
How are Fee Waiver Requests Adjudicated?
An applicant can be eligible for a fee waiver in several ways and USCIS’ process for reviewing the fee waiver request involves several steps. Below is a brief overview of those steps. It is important to remember that USCIS adjudicates and reviews all fee waiver requests, whether through the submission of Form I-912 or an applicant-generated written request, in exactly the same way.
Step 1: Is the applicant receiving a means-tested benefit?
Applicants who are receiving a “means-tested benefit” when they file a fee waiver request may be de facto considered eligible for a fee waiver. A “means-tested benefit” is usually a government-funded public benefit (federal or state) that the applicant receives based on his or her income and/or resources. Examples include food stamps, Medicaid, Supplemental Social Security Income, Temporary Assistance to Needy Family, etc.
If an applicant is receiving any means-tested benefit, and if he or she is able to provide sufficient evidence of the same, then the fee waiver request will normally be approved and no further information will be required. Furthermore, the spouse or unmarried children under 21 living in the same household as an applicant receiving a means-tested benefit will qualify for a fee waiver.
Evidence that the applicant is receiving a means-tested benefit can include a recently dated letter from the agency issuing the benefit verifying that the applicant is receiving the same; monthly statements, or any other official documents that bear the name of the issuing agency and the name of the applicant being shown as the recipient of the benefit.
If the applicant is not receiving a means-tested benefit or does not want to submit information regarding his or her receipt of a means-tested benefit to USCIS, the adjudicator moves on Step 2.
Step 2: Is the applicant’s household income at or below 150% of the Federal Poverty Guidelines at the time of filing?
Applicants whose household income is at or below 150% of the Federal Poverty Guidelines will qualify for a fee waiver. It is important to note that household income includes all sources of income for each person in the household, including financial assistance outside of employment.
- The first step is to determine household size. The following members of the “household” should be identified and included:
- applicant’s spouse;
- applicant’s children or legal wards, who are
- unmarried, under 21 years of age, and live with the applicant;
- unmarried, over 21 years of age but under 24 years of age, full-time students and live with the applicant when not at school;
- unmarried, any age, and for whom the applicant is the legal guardian because they are physically or mentally disabled.
Note: If applicant’s parents live with the applicant, they can also be included as members of the household when determining the size of the household.
- The next step is to document and determine the household income. Income from all members of the household must be included in the calculations. Evidence of the household income may include:
- copies of most recent Federal tax returns;
- copies of pay stubs for a minimum of the past one month;
- evidence of receipt of unemployment wages;
- statement from employer on business stationery showing salary or wages paid.
Note: A person living with the applicant but not claimed as a member of the household for tax purposes can be excluded when calculating household income. Similarly, if the applicant lives with someone else and is not claimed as a member of their household for tax purposes, that person’s income can be excluded when calculating household income.
|Q: Nadifa is a U.S. Lawful Permanent Resident and a national of Somalia. Her sister, Amina, was visiting her from Somalia when armed conflict erupted in Somalia preventing her from returning to her country. Amina now qualifies for Temporary Protected Status and wants to apply. She has not been working in the U.S. because she does not have work authorization, and Nadifa’s job barely gives her enough to cover the monthly expenses for her family.
||Can Amina get a waiver of the filing fees for TPS? |
A: Probably! Amina needs to complete the Application for Temporary Protected Status and Application for Employment Authorization, and file them with Form I-912. She will need to evidence her current financial status and demonstrate her inability to pay to justify the need for the waiver.
If the applicant is unable to show that his or her annual income is at or below 150% of the Federal Poverty Guidelines, then the adjudicator moves on to Step 3.
Step 3: Does the applicant have some financial hardship situation that he or she would want USCIS to consider when determining eligibility for a fee waiver?
An applicant can be eligible for a fee waiver if the applicant has a financial hardship that impacts his or her ability to pay and believes that this financial hardship warrants a fee waiver regardless of the fact that his or her income may be above 150% of the Federal Poverty Guidelines. In such cases, the applicant needs to provide USCIS with:
- description of his or her financial hardship;
- evidence of household income;
- information and evidence concerning assets (savings/checking, IRAs, real estate, property, stocks, bonds, annuities, etc.) of the applicant, including type and value;
- information and evidence concerning liabilities and expenses of the applicant, including but not limited to, rent, mortgage, child support, child care or elder care expenses, medical bills, commuting costs, tuition costs, monthly payments on lawful debts, etc.
Note: Where the applicant cannot provide evidence of his or her income, he or she will need to provide USCIS with a description of his or her hardship and why he or she cannot provide any evidence in support of his or her income.
It is important to remember that the fee waiver determination is made separately from the adjudication of the applicant’s eligibility for the USCIS benefit. Applicants must, however, keep in mind that the grant of the fee waiver is discretionary. An applicant does not “automatically” qualify for a fee waiver based on any one particular situation or factor. Each request is unique and is considered individual, on its own merits. A fee waiver request may be granted when it has been established to the satisfaction of the USCIS Officer with jurisdiction over the request that the individual is unable to pay the fee. Unfortunately, there is no appeal of the denial of a fee waiver request. If a fee waiver request is denied, the entire application package will be returned to the applicant, who must then begin the application process again by re-filing for the benefit with the appropriate fee.
Melissa’s and Richard’s difficult situation most likely make them eligible for a fee waiver. For example, if Melissa received any state or federally mandated health insurance during her pregnancy or if Melissa and Richard are on Food Stamps, they should be eligible under Step 1. Alternatively, if the loss of Richard’s income brings their income level below 150% of the Federal Poverty Guidelines, they can probably seek a fee waiver under Step 2. If, for example, Richard is receiving unemployment and their income remains above 150% of the Federal Poverty Guidelines, they still may be eligible under Step 3 if they can demonstrate their financial hardship situation (the medical bills, child care expenses, sudden loss of income, etc.).They must, however, remember that they have to clearly demonstrate that they are unable to pay the fee and granting of a fee waiver is at the sole discretion of USCIS. Also, as there is a chance that the fee waiver may not be granted, it is important to file as early as possible so as not to avoid any issues if the need to re-file arises.
If you have questions about how to file USCIS Fee Waiver Request or apply for a visa fee waiver, consult a VisaPro immigration attorney. We will be happy to guide you through the process.
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