10/09/98 INS Fee Waiver Guidance NOTE: See more recent fee waiver guidance. As part of the August 14, 1998, regulation increasing filing fees for most immigration benefits, the Immigration and Naturalization Service (INS) pledged to review its current fee waiver policy to ensure that it would be fair to the applicant, promote consistency, and be reasonable for INS to administer. Because federal guidelines require the processing of immigration benefits to be self-supported by filing fees, the policy also must ensure that adequate fee revenue is collected by INS to fund application processing. Generally, the INS has discretion to waive any application or petition filing fees if the applicant establishes that he/she is unable to pay the fee. The guidance maintains INS' discretionary authority to grant fee waivers, but provides direction on what constitutes "inability to pay." Implementation of Fee Waiver Guidance In conjunction with the first fee increases on October 13, 1998, INS issued fee waiver guidance to field offices, which will be effective until a final regulation amending the current fee waiver regulation is published in the Federal Register. Before proceeding with a regulation, INS will conduct a field assessment to obtain data that will help build on the existing guidance and formulate a fee waiver regulation. INS expects to have an interim rule by summer 1999, and a final rule by the end of that year. What is the Fee Waiver Field Guidance? INS Service Officers currently have broad discretion in granting fee waivers. The field guidance, outlined below, will provide Service Officers with guidelines which should be considered when determining if a fee waiver is justified. However, the field guidance is not exhaustive. INS Service Officers will evaluate all factors, circumstances, and evidence supplied by the applicant before making a determination. In all fee waiver requests applicants are required to demonstrate an "inability to pay." In determining "inability to pay," INS Service Officers may consider the following situations and criteria regarding the applicant: Within the last 180 days, he/she qualified for or received a "federal means tested public benefit," such as Food Stamps, Medicaid, Supplemental Security Income (SSI), and Temporary Assistance to Needy Families (TANF), His/her household income on which taxes were paid for the most recent tax year is at or below the poverty level contained in the most recent poverty guidelines revised annually by the Secretary of Health and Human Services. He/she is elderly (age 65 or older at the time the fee waiver request is submitted.) He/she is disabled. Applicant should submit verification of disability (see below, How To Apply for a Fee Waiver.) The age and number of dependents who are seeking derivative status or benefits concurrently with the principal applicant. Humanitarian and compassionate situations, such as: the applicant is temporarily destitute; the applicant does not own, possess, or control assets sufficient to pay the fee without a showing of substantial hardship; or an applicant is on a fixed income and confined to a nursing home. Any other evidence or factors that the INS Service Officer believes establishes an applicant's "inability to pay" the required filing fees. Applicants should be aware that certain immigration benefits have income requirements or require evidence that the applicant or beneficiary is not likely to become a public charge (for example: nonimmigrant visa petitions, family-based visa petitions, classifying an orphan as an immediate relative, employment-based visa petitions, employment authorizations, travel documents, and advance parole.) Documentation Documentation, such as the suggested examples listed below, may be submitted to provide proof of the "inability to pay:" Evidence that an applicant has, within the last 180 days, qualified for or received a "federal means tested public benefit;" In case of disability, documentation showing that the disability has been previously determined by the Social Security Administration, Health and Human Services, Veteran's Administration, the Department of Defense or other appropriate federal agencies; Employment records, pay stubs, W­2 forms, letter(s) from employer(s), and income tax returns (proof of filing of a tax return) for the applicant. These documents may also be submitted for his/her dependents in the United States; Rent receipts, utility bills (such as gas, electricity, telephone, water), food, medical expenses, child care, and receipts for other essential expenditures; Documentation to show all assets owned, possessed, or controlled by the applicant or by his/her dependents; Evidence of applicant's living arrangements in the United States (living with relative, living in his/her own house apartment, etc.), and evidence of whether his/her spouse, children, or other dependents are living in his/her household in the United States; Evidence of essential, unexpected expenditures made by the applicant or his/her dependents living in the United States. How To Apply for a Fee Waiver To apply for a fee waiver, an applicant must submit an affidavit-or unsworn declaration that is signed and dated and includes the statement: "I declare under penalty of perjury that the foregoing is true and correct"-requesting a fee waiver and stating the reasons why he/she is unable to pay the filing fee. The affidavit and supporting documentation (see above, Documentation) must be submitted along with the benefit application or petition. To facilitate the processing of fee waiver requests, applicants should write in large print "Fee Waiver Request" on the outside of the mailing envelope containing their application or petition and fee waiver request, as well as at the top of their affidavit and each page of their supporting information. 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. - INS -