Which Forms are Eligible for a Fee Waiver?

A fee waiver may be requested based on an inability to pay for the following:

1. General Fee Waivers: Forms I-90, I-191, I-751, I-765, I-817, I-821, I-881, N-300, N-336, N-400, N-470, N-565, N-600, N-600K; and
2. Humanitarian Fee Waivers: any fees associated with the filing of any benefit request by a VAWA self-petitioner or an alien who has or is requesting a T visa or U visa; is a battered spouse of A, G, E–3, or H nonimmigrant, or a battered spouse or child of a lawful permanent resident or U.S. citizen; or has Temporary Protected Status. This would include filings not otherwise eligible for a fee waiver or eligible only for a conditional fee waiver such as Forms I-212, I-485, I-539, and I-601.
3. Conditional Fee Waivers: If not listed above, you may request a fee waiver subject to the following conditions:  (a) I-131 – only if applying for humanitarian parole (i.e., only for persons located overseas who are applying for an Advance Parole Document, Application Type “e” or “f” in Part 2); (b) I-290B – only if the underlying application was fee exempt, the fee was waived, or it was eligible for a fee waiver; and (c) in addition, an applicant who does not have to show he or she will not become a public charge for admission or adjustment of status purposes according to section 212(a)(4) of the INA may request a waiver of the following fees: I-192, I-193, I-485 (This would include but not be limited to an I-485 from a “Registry” applicant, an asylee, Special Immigrant Juvenile, an application under the Cuban Adjustment Act, the Haitian Refugee Immigration Fairness Act, and the Nicaraguan Adjustment and Central American Relief Act, or similar provision, or; a Lautenberg Parolee), and I-601.
4. Biometrics: biometric services in connection with any application or petition, regardless of whether it is listed above.

What is the Fee Waiver Application Process?

USCIS has developed  Form I-912, Request for Fee Waiver, in an effort to facilitate the fee waiver request process. While USCIS will continue to consider applicant-generated fee waiver requests (i.e., those not submitted on Form I-912) that comply with 8 CFR 103.7(c), it is USCIS’s preference that Form I-912 be used to submit fee waiver requests.   Also, Form I-912 and its instructions provide helpful guidance in structuring and documenting a fee waiver request.

Who Can Get a Fee Waiver?

The review of a fee waiver request will focus on the following three steps:

Step 1. Are you receiving a means-tested benefit?  This step instructs an applicant about various acceptable means-tested benefits and the kinds of acceptable evidence used to document the receipt of a means-tested benefits. This step also outlines which family members will be considered as eligible for a fee waiver based upon the primary applicant’s receipt of a means-tested benefit. If you are receiving a means-tested benefit and you have provided sufficient evidence with your fee waiver request, your fee waiver will normally be approved and no further information is required.

Step 2. Is your household income at or below 150% of the Federal Poverty Guidelines at the time of filing? This step instructs an applicant about what is acceptable evidence in determining household income. It also specifies what family members should be included when determining household size. If you have provided sufficient evidence that your household income is at or below the 150 % threshold, your fee waiver will normally be approved.

Step 3. Do you have some financial hardship situation that you would want USCIS to consider when determining eligibility for a fee waiver? This step allows an applicant to list any special circumstances that USCIS should consider in addition to income such as extraordinary expenses and liabilities.

We have written in the past about the need of this fee increase and our office handled a surge of applications before the fee increase date to accommodate filings under the old fee structure which, for some filings, was significantly lower.

Schedule of USCIS Filing Fees

As part of the new fee structure, USCIS has prepared a helpful (and neatly organized) schedule of the current USCIS filing fees – Form G-1055 (in PDF format).

Increases (and a few decreases) in USCIS Filing Fees

A full schedule of the new fees is set forth in page 4 the final rule PDF document or in this table.  Among the most notable increases are:

• Form I-90 (replacement of green card) filing fee increases from $290 to $365;
• Form I-129 (used for H, L, P, O visas) filing fee increases from $320 to $325;
• Form I-129F (used for fiancee visas) filing fee decreases from $455 to $340;
• Form I-130 (family-based immigrant visas) filing fee increases from $355 to $420;
• Form I-131 (reentry permits and advance parole documents) filing fee increases from $305 to $360;
• Form I-140 (employment-based immigrant visas) filing fee increases from $475 to $580;
• Form I-290B (motion to reopen/appeal) filing fee increases from $585 to $630;
• Form I-485 (adjustment of status) filing fee increases from $930 to $985 (for children under 14 when filing with parent the fee increases from $600 to $635);
• Form I-539 (change or extension of status) filing fee decreases from $300 to $290;
• Form I-751 (removal of condition) filing fee increases from $465 to $505;
• Form I-765 (work permit) filing fee increases from $340 to $380;
• Form I-824 (action on approved petition, follow-to-join) increases from $340 to $405;
• Form I-907 (premium processing) increases from $1,000 to $1,225;
• Biometrics processing fee increases from $80 to $85.

Effective Date

All of these fee changes become effective on November 23, 2010.  All applications or petitions mailed, postmarked, or otherwise filed on or after November 23, 2010 must include the new fee.

Our Attorney Fees Remain Unchanged

Unlike USCIS, our fees remain unchanged and we are happy to help you prepare and file your case.  Please contact us if our office can be of any assistance.

Increases (and a few decreases) in USCIS Filing Fees

A full schedule of the new fees is set forth in page 4 the final rule PDF document or in this table.  Among the most notable increases are:

• Form I-90 (replacement of green card) filing fee increases from $290 to $365;
• Form I-129 (used for H, L, P, O visas) filing fee increases from $320 to $325;
• Form I-129F (used for fiancee visas) filing fee decreases from $455 to $340;
• Form I-130 (family-based immigrant visas) filing fee increases from $355 to $420;
• Form I-131 (reentry permits and advance parole documents) filing fee increases from $305 to $360;
• Form I-140 (employment-based immigrant visas) filing fee increases from $475 to $580;
• Form I-290B (motion to reopen/appeal) filing fee increases from $585 to $630;
• Form I-485 (adjustment of status) filing fee increases from $930 to $985 (for children under 14 when filing with parent the fee increases from $600 to $635);
• Form I-539 (change or extension of status) filing fee decreases from $300 to $290;
• Form I-751 (removal of condition) filing fee increases from $465 to $505;
• Form I-765 (work permit) filing fee increases from $340 to $380;
• Form I-824 (action on approved petition, follow-to-join) increases from $340 to $405;
• Form I-907 (premium processing) increases from $1,000 to $1,225;
• Biometrics processing fee increases from $80 to $85.

Effective Date

All of these fee changes become effective on November 23, 2010.  All applications or petitions mailed, postmarked, or otherwise filed on or after November 23, 2010 must include the new fee.

Conclusion

We will not comment on the fairness and the justifications of the new fees.  We hope that the new fees will result in increased efficiency and accuracy in USCIS adjudications.

We urge our clients and readers, if possible, to prepare and file any upcoming petitions and applications for benefits before the new fees become effective in approximately two months on November 23rd.   As with previous fee increases, we expect increased workload of filings so please contact us as soon as possible so that we can ensure we can prepare and file your case on time before the filing fee increase becomes effective on November 23rd.  Please contact us now so that we can analyze and prepare your case for filing.

As of September 1, 2010, all services — including calling for information and scheduling an appointment — will be provided for no additional cost, with no requirement that applicants pay phone charges or PIN numbers to access such services. Starting September 1, 2010, applicants will visit CSC Visa Information Services to either obtain information online or via telephone on how to start their application for a U.S. visa at a consular section in Canada.

For those U.S. visa applicants who have already scheduled an appointment or paid their MRV fee, the U.S. Embassy in Canada has some specific instructions.

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of August 20, 2010, USCIS has received approximately 33,900 H-1B petitions counting toward the 65,000 cap (a substantial increase of 4,200 over the past week).  Similarly, as of August 20, there were 12,600 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 300 over the past week).

H-1B Quota Trends – Is the Substantial Regular Cap Filings Increase a One-Time Event?

The numbers, as reported over the past week, show a reversal of the recent trends of minor weekly increases.  During the past week there was a substantial increase in the number of regular cap H-1B filings — over 4,000 in a week which is drastically bigger than any the filings over the previous weeks.

It is difficult to estimate the reason for this increase but it is most likely due to the fee increase imposed on certain H-1B filings.  We suspect that a number of companies wanted to file before they were subjected to the new significant H-1B filing fee.  We will monitor next 1-2 weeks’ H-1B numbers to understand whether this increase was indeed a one-time opportunity to file before the fees were raised or there is a longer-term trend of increased regular-cap H-1B filings.

We wish to reiterate our caution to potential H-1B employers and employees that as the U.S. economy is seen to recover and grow, it is possible that the pace of H-1B filings will increase.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2011 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.

About the Fee

The fee will be in the amount of $14.00 and will be required to be paid via credit card (MasterCard, Visa, American Express and Discover) at the time of completion of the ESTA pre-travel registration.  An ESTA registration is valid for up to two years so the fee will not need to be paid for subsequent VWP travels within this two-year period before a new ESTA registration (and fee) will be required.

The fee was mandated by the Travel Promotion Act of 2009 which mandates that the ESTA funds will be partnered with private funds for the purpose of U.S. travel promotion.

Fee Becomes Effective September 8, 2010

All ESTA registrations submitted on or after September 8, 2010 will require the payment of the new fee.   VWP travelers who plan to visit the U.S. in the near future may want to submit their ESTA registration in advance of this date.

The mandatory nature of the fee and the fact that it can only be paid via certain credit cards through the ESTA website has caused some concerns.  Although many Visa Waiver Countries travelers have access to credit cards at their disposal, the credit card payment requirement may deter or inconvenience some VWP travelers during their ESTA registration process.   As of now, there are no other alternative methods for paying the fee.

Visa Waiver Countries

As a reminder, the Visa Waiver Countries are: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom.

What Are the New H-1B and L-1 Filing Fees?

Effective immediately, Public Law 111-230 requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after Aug. 14, 2010, and will remain in effect through Sept. 30, 2014.

Note that not all H-1B or L-1 cases are subject to these new fees.  These additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status.  Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed:

• Initially to grant an alien nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15) (H-1B or L-1 cases), or
• To obtain authorization for an alien having such status to change employers.

It should also be noted that this additional fee, where applicable, is in addition to any applicable filing, fraud prevention, ACWIA or premium processing fees.

Revisions of Form I-129 is Underway

Because Public Law 111-230 is effective immediately but USCIS has not released a revised Form I-129 to reflect the new requirements and fees, USCIS advises all H or L filings to clearly describe whether the new fee applies:

USCIS recommends that all H-1B, L-1A and L-1B petitioners, as part of the filing packet, include the new fee or a statement of other evidence outlining why this new fee does not apply. USCIS requests that petitioners include a notation of whether the fee is required in bold capital letters at the top of the cover letter. Where USCIS does not receive such explanation and/or documentation with the initial filing, it may issue a Request for Evidence (RFE) to determine whether the petition is covered by the public law. An RFE may be required even if such evidence is submitted, if questions remain.

Source: USCIS Update: USCIS Implements H-1B and L-1 Fee Increase According to Public Law 111-230 (August 19, 2010)

Conclusion

The H-1B and L visa fee increase is likely to impact a number of companies relying heavily on foreign workers.  The law has sparked some controversy and is subject to a number of diplomatic, political and even international trade disputes.   However, as it stands now, all H-1B and L filings should undergo an additional level of analysis whether Public Law 111-230 applies.

A formal proposal has been published in the Federal Register and there is a 45-day comment period.   Some of the increases are substantial, especially when considered in conjunction with the ~60% fee increase done in 2007.   For example, an I-130 petition for an alien relative will jump from $355 to $420.  An I-131 application for a travel document goes up by $55, and an application for an employment authorization document increases by $40.  Adjustment of status fees will increase by $55.  Businesses will also need to pay more – I-140 petitions for immigrant workers are increasing by over $100, premium processing fee is going up by $225 and a brand new fee of $6,230 is proposed to establish a Regional Center under the EB-5 program.

The USCIS justification is plain – our costs are high, our revenues are low, we need to either decrease service (by having less adjudicators and by increasing processing times) or to raise fees.   In a conference call to discuss the fee increase, USCIS Director Mayorkas explained that the fee increase is necessary to bridge the $160 million budget shortfall at the agency.

The 45-day comment period is due to expire in late July, so we encourage our readers and clients to comment on the proposed fee increase.  We will continue monitoring this proposal and will announce any developments with respect to any changes to the rule or to its effective date.   Please subscribe to our weekly newsletter to receive timely updates on this and related topics.

According to the notice, the new rule will become effective on June 4, 2010 (15 days after publication).  The increase in fees is mainly due to increase in processing costs for a number of non-immigrant visas processed at the U.S. consulates abroad.  For most of these visa types, the current fee is $131.00.  As a result, while some categories see a minor increase of $10-20, some categories see the fees more than double (for example, K visa applications).

The New Non-immigrant Consulate Visa Fees

    (a) Non-petition-based nonimmigrant visa (except E              $140
     category)..........................................
    (b) H, L, O, P, Q and R category nonimmigrant visa..            $150
    (c) E category nonimmigrant visa....................            $390
    (d) K category nonimmigrant visa....................            $350
    (e) Border crossing card--age 15 and over (valid 10             $140
     years).............................................
    (f) Border crossing card--under age 15; for Mexican              $14
     citizens if parent or guardian has or is applying
     for a border crossing card (valid 10 years or until
     the applicant reaches age 15, whichever is sooner).

It should be noted that these fee increases apply to consular visa applications only.  The USCIS petition processing fees remain unaffected by this rule.

The jury is still out on whether there is a notable and sustainable decrease in processing times for petitions filed with USCIS.  However, in an article from today Business Week reports that the government has collected much less (hundreds of millions of dollars) than originally anticipated when the new USCIS fees went into effect.

The 2007 USCIS fee increase had a collection target of an additional $1 billion.  However, the agency is now expecting that it would collect about $282 million short of the $2.33 billion target for the fiscal year ending on September 30, 2009.

According to Director Majorkas, “[g]iven the current economic climate, we anticipate that the current filing trend will continue. We will therefore continue to make the necessary adjustments while remaining dedicated to delivering on our public service mission.”  As a result, the agency costs are expected to far exceed its revenue and will have to seek ways to bridge its budget shortfall.  There are requests for money from Congress and it is possible that there may be some fee adjustments, although no official information has been made available.

Numbers of Fee Rejections

The numbers of fee-based rejections of immigration petitions are  staggering.  Alhough most of the service centers do not keep track of rejections solely based on fees, the potential numbers are alarming.  In December 2008, there were up to 4,000+ possible fee rejections in the California Service Center, 5,000 in the Nebraska, 7,000 in Texas and slightly over 6,000 in Vermont.  The Chicago Lockbox Operations Division,  however, keeps track of the fee rejections and it estimates that 3.2 percent of the 10,000-12,000 filigs per day are rejected for fee-related reasons.  This adds up to 300-400 petitions rejected per day and this is only for the Chicago Lockbox.

Common Mistakes and Problems

There are  few common problems and mistakes which contribute to the majoriry of rejected petitions:

• No amount written – please make sure you write the exact amount of the fee, USCIS will not write the amount for you;
• Incorrect amount – verify that the fee is correct and that there are no additional fees, such as biometric, etc.
• Written and numerical amounts do not match and missing signature – this is most likely an oversight by the check drafter but, unfortunately, it is common;
• Stale-dated checks – in some cases USCIS would delay the receipting of a petition and will not deposit the check for a number of months and the check will become “stale” – to avoid this, make sure the check is dated as of the date the check is sent to USCIS or shortly in advance;
• Incorrect payee – most of the USCIS filing fees should be issued to Department of Homeland Security but this can vary and the instructions for each form should be consulted before writing the check;
• Check or money order not submitted through a U.S. bank or in U.S. dollars – the checks or money orders must be in U.S. dollars and drafted on U.S. bank.

Recommendations

The report has several recommendations for USCIS with which we, at the Capitol Immigration Law Group, agree fully:

1. Institute a batch filing system that would enable high volume filers to pay USCIS fees online;
2. Institute an online shopping cart mechanism that would simplify the process of identifying appropriate USCIS forms, calculating related fees, and submitting payments;
3. Expand the payment options within the e-Filing system to include all USCIS fees; and
4. Implement additional visual and written aids within current instructions to ensure that payments are submitted correctly.

Additionally, language barriers and complicated instructions sometimes contribute to one or more of the above mistakes.  The Ombundsman urges USCIS to revise its fee collection procedures to address not only the mechanics of the fee collection but also the complexity of the immigration filings system and the applicable fees.

The two reports are very revealing in describing USCIS’s budgetary items, its heavy reliance on filing fees to finance operations and some inefficiencies created by the fact that USCIS is self-funding to a large extent.  The reports also criticize the July 2007 fee increase which resulted in an enormous spike in applications and, according to the GAO, surprised USCIS.  One of my favorite examples was:

USCIS’s lack of timely, comprehensive fee reviews prior to 2007 led to the need for an average fee increase of 86 percent. This contributed to a surge in application volume as applicants attempted to submit their applications before the fee increase took effect, resulting in costly operational challenges. For example, the number of applications submitted increased an unprecedented 100 percent in July 2007 over the prior month, exceeding storage capacity. At the Texas Service Center unprocessed applications were stored outside in six rented 10-by-40-foot containers, double-locked, and monitored by a full-time security guard.

Yes, according to the GAO, at least some of the applications filed at the Texas Service Center were stored outside, in a 10-by-40 container (like this one), exposed to weather and other elements.

What may be of the greatest interest are the current average processing time compared to the FY 2008 and FY 2009 goals for the following categories :

• I-140, Immigrant Petition for Worker – current goal:  6 months, FY 2009 goal: 4 months.  Actual average time: 11.8 months.
• I-485, Adjustment of Status- current goal: 6 months, FY 2009 goal: 4 months.  Actual average time: 13.6 months.
• I-131, Reentry Permit – current goal: 3 months, FY 2009 goal: 2.5 months.  Actual average time: 3.9 months.

The USCIS has acknowledged that the goals were set before the new fee rule came into effect during the summer of 2007 and which resulted significant increase in the filings.  However, USCIS has declined to realistically adjust (decrease) the goals for FY 2008 and 2009.  As a result, although we expect that the processing times will improve, the gap between the goals for FY 2009 and the actual processing times will remain significant.

The decline is attributed mainly to the higher filing fees.  The citizenship application fee rose from $400 to $675 on July 30, 2007, and prompted many who are eligibleand have been postponing their filing to do so before July 30, 2007.  In fact, July 2007 recorded a record-high 460,000 citizenship applications.  (See chart)

There is some concern that some foreign nationals who are eligible for citizenship are priced out due to the increased filing fee.  USCIS defended the increase on the ground that it is necessary to cover processing and security check costs.  USCIS has further stated that it allows citizenship applicants who are not able to afford the filing fee to apply for a waiver.  However, the reality is that there are very few such requests actually made, of which, some are denied.  In July of 2008, there were only 1,578 requests for fee waiver, of which only 1,052 were approved.

This increase allows the Department to recover the costs of security and other enhancements to the non-immigrant visa application process. This increase applies both to non-immigrant visas issued on machine-readable foils in passports and to border crossing cards issued to certain applicants in Mexico.

It is important for our readers to note that applicants who paid the prior $100 application fee before January 1 will be processed only if they are scheduled and appear for a visa interview on or before January 31. Applicants who paid the prior $100 application fee and appear for visa interviews after January 31, 2008 must pay the difference — $31 — before they will be interviewed.