By Victor Valdez Gonzalez
I. Introduction
On August 3, 2020, the Department of Homeland Security (DHS) finalized changes to the fees U.S. Citizenship and Immigration Services (USCIS) charges for various immigration applications. In sum, DHS is increasing fees drastically, adding a new $50 fee for asylum applications, limiting fee waivers, slightly discounting fees for forms currently available for online filing, and charging separate fees for Forms I-765 and I-131 when filed
with a pending or concurrently filed Form I-485. These changes are effective October 2, 2020—thus, any application, petition, or request postmarked on this date or later must include payment of the fees established by DHS’s final fee rule.1 Note that litigation may impact the effective date and it is important to monitor developments in this area. Fortunately, the rule does not contain the transfer of funds to ICE that had been
part of the proposed rule.
II. Background
USCIS proposed increases in fees on November 14, 2019, followed by a comment period.2 This rule is the final version of that proposed rule and will take effect in October, barring any litigation that may enjoin it. Before this rule, USCIS has repeatedly attempted to reduce fee waivers and narrow the standards to exclude receipt of a means-tested benefit by making changes to Form I-912 (Request for Fee Waiver). USCIS tried three times to make those changes to the fee waiver form, beginning in September 2018. The agency ultimately failed to enforce those changes because a federal court enjoined them from doing so. 3 Unfortunately, while these proposed changes to the I-912 form are currently enjoined, the fee rule contains additional restrictions on fee waiver eligibility that go beyond changes to the I-912 and will take effect on October 2, 2020.
III. Overview of Key Changes
A. Overall Fees Increase
First, DHS is dramatically increasing the filing fees for most immigration applications and will begin to charge for applications that have never had a fee. For example, the filing fee for Form N-400 (Application for Naturalization) will increase by more than 80 percent—costing individuals upward of $1100 to apply for citizenship. The filing fee for Form N-336 (Request for Hearing on a Decision in Naturalization Proceedings) is increasing by nearly 150 percent to $1725. The rule also eliminates the possibility of a fee waiver in the N-400 and N-336 applications, which will undoubtedly suppress citizenship applications and appeals by
moderate-income applicants. While almost all fees have increased, DHS has nominally reduced a few fees, especially for online filing4, and has kept some fees the same. Please see Table 1 below for a summary of all the changes to the USCIS fee schedule.
B. New Fee for Asylum
Additionally, DHS has established a new filing fee for asylum applications, despite international treaty obligations calling on governments to protect refugees and the fact that many asylum applicants lack funds upon fleeing their countries. USCIS will charge a $50 filing fee for Form I-589 (Application for Asylum and for Withholding of Removal).5 There is a limited exception for the asylum fee for unaccompanied minors who are in removal proceedings. The United States will join Iran, Fiji, and Australia as the only countries out of 147 treaty signatories who charge fees for asylum.6
C. Fee Waivers Eliminated for Most Applications
DHS is eliminating fee waivers except where the INA statutorily requires DHS to provide one.7 Under the final rule, only VAWA self-petitioners, T nonimmigrants, U nonimmigrants, certain battered spoues and children, TPS applicants, SIJS applicants, and Afghan/Iraqi special immigrants will be eligible for fee waivers. This group may apply for a fee waiver, where applicable, for their principal immigration benefit and any ancillary or subsequent applications, e.g., waivers, appeals, adjustment of status, naturalization, or certificate of
citizenship. See the table in the regulations for the fee exempt and related applications that are still fee-waiver eligible, reproduced below as Table 2. To review which application types were previously eligible to apply for a fee waiver but will no longer be able to do so, review the list at 8 CFR 103.7(c).8
D. Fee Waiver Standards Narrowed
Besides eliminating fee waivers, DHS is also considerably narrowing the criteria to qualify for a fee waiver.
Currently, applicants may qualify for a fee waiver based on a receipt of a means-tested benefit, financial hardship, or income at or below 150 percent of the federal poverty level income guidelines. 9 After the fee rule is effective, however, only those whose income is at or below 125 percent of the federal poverty level will qualify.10 DHS is also eliminating the reduced fee waiver for naturalization applicants. The reduced fee waiver was available to those whose income was between 150 percent and 200 percent of the federal poverty level.
Lastly, applicants who qualify for a fee waiver must file Form I-912, which was previously optional, and must have required supporting documentation—i.e., tax transcripts, W-2 form, or specified documents proving income.
E. Unbundling of Adjustment Applications – Paying Additional Separate Fees
DHS will now require separate filing fees for Forms I-765 and I-131 when filed concurrently with Form I-485 or while it is pending with USCIS. Until now, adjustment applicants have been able to submit applications for employment authorization and a travel document for no additional fee while USCIS adjudicates their adjustment application. This will no longer be the case. Individuals who wish to work or travel while their adjustment applications are pending must pay an additional $550 to file Form I-765 and $590 to file Form I-
131.
Furthermore, DHS is eliminating the reduced child fee for Form I-485. While children under the age of 14 years old have only paid $750 to file Form I-485 (when the child concurrently files with a parent)11, they will now pay the full fee of $ 1,130.
F. Form Changes
The final fee rule also includes a table of form changes that lists revised forms that applicants must use after the rule’s effective date. These revised forms reflect the new fees, modify instructions to conform with the changes in the I-912 fee waiver form, and reflect the elimination of the I-942 reduced fee waiver option for naturalization.12 As always, use the most current version of the form from the USCIS website, especially in light
of the October 2, 2020, projected changes.
IV. Conclusion
In summary, this fee rule will significantly increase the costs of applying for several immigration benefits. First, DHS is drastically increasing filing fees—namely for naturalization applications. Second, DHS is contravening international treaty obligations by imposing a new fee on already vulnerable asylum seekers. Third, DHS is gutting fee waivers and considerably narrowing the eligibility for those fee waivers it must provide. Lastly, DHS
is unbundling the interim benefits of adjustment applications, charging those who want to work or travel while their applications are pending. Sadly, these changes will effectively price out countless immigrants and their families who will not be able to afford the new costs of seeking immigration benefits. Specifically, these changes will impact millions of lawful permanent residents who are otherwise eligible to become U.S. citizens— preventing them from voting and fully participating in our democracy.