[Federal Register Volume 84, Number 108 (Wednesday, June 5, 2019)]
[Pages 26137-26140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11744]



U.S. Citizenship and Immigration Services

[OMB Control Number 1615-0116]

Agency Information Collection Activities; Revision of a Currently 
Approved Collection: Request for Fee Waiver; Exemptions

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security.

ACTION: 30-Day notice.


[[Page 26138]]

SUMMARY: The Department of Homeland Security (DHS), U.S. Citizenship 
and Immigration Services (USCIS) has submitted the following 
information collection request to the Office of Management and Budget 
(OMB) for review and clearance in accordance with the Paperwork 
Reduction Act of 1995. The notice is inviting additional public 
comments for 30-days. The purpose of this notice is to inform the 
public about the policy changes being effectuated by the revision of 
the USCIS Request for Fee Waiver, expound on the reasons for the 
change, and request public comments on the additional points raised in 
this notice.

DATES: The purpose of this notice is to allow an additional 30 days for 
public comments. Comments are encouraged and will be accepted until 
July 5, 2019.

ADDRESSES: Written comments and/or suggestions regarding the item(s) 
contained in this notice, especially regarding the estimated public 
burden and associated response time, must be directed to the OMB USCIS 
Desk Officer via email at [email protected]. All submissions 
received must include the agency name and the OMB Control Number 1615-
0116 in the subject line.
    You may wish to consider limiting the amount of personal 
information that you provide in any voluntary submission you make. For 
additional information please read the Privacy Act notice that is 
available via the link in the footer of http://www.regulations.gov.

Regulatory Coordination Division, Samantha Deshommes, Chief, 20 
Massachusetts Avenue NW, Washington, DC 20529-2140, Telephone number 
(202) 272-8377 (This is not a toll-free number; comments are not 
accepted via telephone message.). Please note contact information 
provided here is solely for questions regarding this notice. It is not 
for individual case status inquiries. Applicants seeking information 
about the status of their individual cases can check Case Status 
Online, available at the USCIS website at http://www.uscis.gov, or call 
the USCIS National Customer Service Center at (800) 375-5283; TTY (800) 



    USCIS is primarily funded by application and petition fees. Under 
INA 286(m), 8 U.S.C. 1356(m), DHS has the authority to establish the 
fees it charges for immigration and naturalization services to recover 
the full costs of such services, including those provided without 
charge, and to recover costs associated with the administration of the 
fees collected. Therefore, the fees are set at a level that is intended 
to recover the full cost of USCIS operations.
    Currently, USCIS may waive the fee for certain immigration benefit 
requests when the individual requesting the benefit is unable to pay 
the fee. See 8 CFR 103.7(c). To request a fee waiver, the individual 
must submit a written waiver request for permission to have his or her 
benefit request processed without payment. Under the current 
regulation, the waiver request must state the person's belief that he 
or she is entitled to or deserving of the benefit requested and the 
reasons for his or her inability to pay and include evidence to support 
the reasons indicated. See 8 CFR 103.7(c)(2). The statute authorizing 
USCIS to establish fees does not specifically mention fee waivers and 
fee exemptions for any type of applicant or group, or any criteria for 
fee waivers. The statute does state that fees are to be set at a level 
that will recover the full costs of adjudication and naturalization 
services provided ``including the costs of similar services provided 
without charge to asylum applicants or other immigrants.'' INA section 
286(m), 8 U.S.C. 1356(m). However, DHS must permit certain applicants 
to apply for fee waivers. INA section 245(l)(7), 8 U.S.C. 1255(l)(7).
    In 2011, USCIS issued policy guidance to streamline fee waiver 
adjudications. See Policy Memorandum, PM-602-0011.1, Fee Waiver 
Guidelines as Established by the Final Rule of the USCIS Fee Schedule; 
Revisions to Adjudicator's Field Manual (AFM) Chapter 10.9, AFM Update 
AD11-26 (Mar. 13, 2011) (``Fee Waiver Policy''). The Fee Waiver Policy 
interpreted 8 CFR 103.7(c) to provide acceptable measures of income, 
establish the procedures individuals must follow, and outline the 
documentation that may demonstrate they are unable to pay a fee. In 
June 2011, USCIS issued Form I-912, Request for Fee Waiver, as a 
standardized form with instructions to request a fee waiver in 
accordance with the Fee Waiver Policy. Prior to the 2011 Fee Waiver 
Policy, USCIS engaged in a holistic analysis of the individual's 
finances to determine inability to pay, which burdened USCIS officers 
with a preliminary financial analysis, that preceded their primary role 
of determining if the applicant met the requirements for the benefit 
requested. The 2011 Fee Waiver Policy established a streamlined process 
where if the individual provided proof of a means-tested benefit, the 
fee waiver will normally be approved for forms listed in 8 CFR 
103.7(c)(3) for applicants who at time of filing the fee waiver request 
with the benefit application:
     Were receiving a means-tested benefit;
     Had a household income at or below 150 percent of the 
Federal Poverty Guidelines (FPG); or
     Were experiencing extreme financial hardship such as 
unexpected medical bills or emergencies.

Proposed Changes

    USCIS is removing the means-tested benefit as a criterion in its 
fee waiver request determinations, requiring the submission of Form I-
912 to request a fee waiver, and clarifying what the evidentiary that 
will be considered for a fee waiver. The proposed guidance would 
provide that a person may be eligible to receive a fee waiver if he or 
     Has a household income at or below 150 percent of the FPG; 
     Is experiencing extreme financial hardship such as 
unexpected medical bills or emergencies.
    USCIS is proposing to rescind the March 13, 2011 policy and issue 
new guidance clarifying what documentation may be submitted to 
demonstrate an individual's inability to pay a fee when requesting a 
fee waiver. The applications and petitions that are eligible for a fee 
waiver are provided in 8 CFR 103.7(c)(3) and will not be changed by 
this form and policy change.
    USCIS notes that the proposed policy also complies with section 
1238 of the Federal Aviation Reauthorization Act of 2018. Public Law 
115-254 (Oct. 5, 2018). That law provides that the President, in 
consultation with the Governor of a State, may waive certain fees for 
an individual or household who lives in a federally declared disaster 
area, including the following USCIS fees: Form I-90; Form I-193; Form 
I-765; Form N-300; Form N-565; and the biometric services fee. DHS 
plans to carry out this permissive authority through the USCIS 
Director's exercise of his or her discretion to provide a specific 
class of fee waivers for emergency and disaster relief. 8 CFR 103.7(d).

Reasons for the Changes

    USCIS has determined that without changes to fee waiver policy it 
will continue to forgo increasing amounts of revenue as more fees are 
waived. As a result, USCIS expects that DHS will be required to 
increase the fees that it charges for benefit requests for which fees 
are not waived. In the FY 2016/

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2017 fee rule, DHS noted that the estimated annual forgone revenue from 
fee waivers and exemptions has increased markedly, from $191 million in 
the FY 2010/2011 fee review to $613 million in the FY 2016/2017 fee 
review. See 81 FR 26922 and 73307. In the FY 2016/2017 proposed rule, 
DHS provided notice that in the future it may revisit the USCIS fee 
waiver guidance with respect to what constitutes inability to pay under 
8 CFR 103.7(c). See 81 FR 26922.
    In addition to curtailing the rising costs of fee waivers, this 
proposed policy change is intended to introduce more consistent 
criteria for approving all fee waivers. USCIS has found that the 
various income levels used in states to grant a means-tested benefit 
result in inconsistent income levels being used to determine 
eligibility for a fee waiver. Consequently, a fee waiver may be granted 
for one person who has a certain level of income in one state, but 
denied for a person with that same income who lives in another state. 
Therefore, USCIS has determined that fee waivers should not be based on 
the receipt of a means tested benefit, and the revised form will not 
permit a fee waiver based on receipt of a means-tested benefit. It will 
retain the poverty-guideline threshold and financial hardship criteria.

Administrative Procedure Act (APA) and Paperwork Reduction Act (PRA)

    USCIS has published two Federal Register notices requesting public 
comment on these proposed changes as required by regulations at 5 CFR 
1320.8(d)(1) (83 FR 49120) and 5 CFR 1320.10(a) (84 FR 13687). USCIS is 
in the process of responding to the comments received, but has decided 
to provide this additional notice and request for comments to clarify 
the nature of the proposed policy changes.
    The current USCIS policy and the Form I-912 provide the procedures 
for requesting a waiver of USCIS fees based on 8 CFR 103.7(c), which 
provides that the party requesting the benefit is unable to pay the 
prescribed fee, and a fee waiver is consistent with the status or 
benefit sought. The APA excepts rules of agency organization, procedure 
or practice from notice and comment requirements. 5 U.S.C. 553(b)(A). 
USCIS issued its 2011 Fee Waiver Policy and Form I-912 to explain and 
provide instructions to adjudicators but did not create legally binding 
rights, obligations, or effect a change in the regulations. In 
addition, the USCIS form instructions for Form I-912 established 
procedural requirements for requesting a fee waiver. The form 
instructions established application procedures but did not change the 
substantive standards by which USCIS evaluated applications for 
immigration benefit requests, just the procedural steps for such 
requests. An agency is not required to use the APA's notice-and-comment 
procedures to issue an interpretive or procedural rule that amends or 
repeals an interpretive \1\ or procedural rule.\2\

    \1\ Perez v. Mortgage Bankers Ass'n, 135 S.Ct. 1199 (2015).
    \2\ James v. Hurson Associates, Inc. v. Glickman, 229 F.3d 277 
(D.C. Cir. 2000).

    USCIS has reviewed this policy change and determined that it will 
not abrogate or adversely affect any substantive rights of the affected 
parties. The 2011 Fee Waiver Policy provided guidelines for 
adjudication of requests and provided that we would accept a means 
tested benefit as evidence of inability to pay as required by 8 CFR 
103.7(c)(2). With respect to the proposed policy change, USCIS 
acknowledges that a person who is receiving a means tested benefit in a 
state where the income level for granting the receipt of a means tested 
benefit is above 150 percent of the FPG (the new maximum threshold for 
a fee waiver), may no longer be able to have their USCIS fees waived 
simply by using receipt of that benefit as evidence. However, USCIS 
does not think that by having operated under that policy results in 
individuals who happen to receive a means tested benefit from a 
government agency inuring to a right to receive adjudication of their 
immigration benefit request for free.
    Additionally, USCIS acknowledges that, while an agency can change 
its interpretation of a regulation at different times in its history, 
the interpretative changes can create no unfair surprise.\3\ As stated 
above, USCIS acknowledges that as a result of this change there are 
some applicants who would be able to receive free adjudication now who 
will not be able to after this policy change. USCIS has, however, 
analyzed the potential for and taken into account serious reliance 
interests that may be engendered by the 2011 policies. USCIS has 
determined that potential applicants cannot reasonably be determined to 
have taken an action in detrimental reliance on USCIS continuing its 
2011 policy for providing free services. Regardless of USCIS's past use 
of receipt of means tested benefits as a means for determining that an 
applicant for immigration benefits is unable to pay the fee for his or 
her immigration benefit request, USCIS has determined that an applicant 
is unlikely to have incurred costs or been harmed based on relying on 
USCIS continuing that policy. Each person's decision to apply for, and 
eligibility to receive, a means tested benefit would be based on the 
need for that benefit and not because the person can use receipt of the 
benefit to avoid paying a USCIS immigration benefit request fee. To the 
extent that a person is in the process of completing and filing a 
request, with this notice USCIS will have provided three public notices 
of the impending policy and procedure change. In addition, to eliminate 
any impact on an applicant who is currently working on, researching, 
and gathering necessary evidence for an immigration benefit and 
planning to request a fee waiver based on receipt of a means tested 
benefit, USCIS will provide sufficient advance notice and transition 
period before the new version of Form I-912 will be a requirement for 
requesting a fee waiver, to permit applications that are in process to 
be submitted under the previous policy. To the extent that applicants 
who are not yet working on, researching, and gathering necessary 
evidence for an application may no longer receive a fee waiver after 
this change, USCIS has determined that the need to reduce annual 
forgone revenue from fee waivers and approve fee waivers using 
consistent income levels is still justified and necessary regardless of 
those affected parties being required to pay the prescribed fees. USCIS 
welcomes public comments on all of the effects of this change in 

    \3\ Long Island Care at Home Ltd. v. Coke, 551 U.S. 158, 171 
(2007); Christopher v. SmithKline Beecham Corp., 567 U.S. 142 


    You may access the information collection instrument with 
instructions, or additional information by visiting the Federal 
eRulemaking Portal site at: http://www.regulations.gov and enter USCIS-
2010-0008 in the search box. Written comments and suggestions from the 
public and affected agencies should address one or more of the 
following four points:
    (1) Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the proposed collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the

[[Page 26140]]

use of appropriate automated, electronic, mechanical, or other 
technological collection techniques or other forms of information 
technology, e.g., permitting electronic submission of responses.

Overview of This Information Collection

    (1) Type of Information Collection Request: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: Request for Fee Waiver.
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: I-912; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Individuals or households. USCIS 
uses the data collected on this form to verify that the applicant is 
unable to pay for the immigration benefit being requested. USCIS will 
consider waiving a fee for an application or petition when the 
applicant or petitioner clearly demonstrates that he or she is unable 
to pay the fee. Form I-912 standardizes the collection and analysis of 
statements and supporting documentation provided by the applicant with 
the fee waiver request. Form I-912 also streamlines and expedites 
USCIS's review, approval, or denial of the fee waiver request by 
clearly laying out the most salient data and evidence necessary for the 
determination of inability to pay. Officers evaluate all factors, 
circumstances, and evidence supplied in support of a fee waiver request 
when making a final determination. Each case is unique and is 
considered on its own merits. If the fee waiver is granted, the 
application will be processed. If the fee waiver is not granted, USCIS 
will notify the applicant and instruct him or her to file a new 
application with the appropriate fee.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the information collection I-912 is 
350,000 and the estimated hour burden per response is 1.17 hours; for 
the information collection DACA Exemptions the estimated total number 
of respondents is 108 and the estimated hour burden per response is 
1.17 hours; for the information collection 8 CFR 103.7(d) Director's 
exception request the estimated total number of respondents is 20 and 
the estimated hour burden per response is 1.17 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 409,650 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this collection of information is $1,312,980.

L. Francis Cissna,
Director, U.S. Citizenship and Immigration Services, Department of 
Homeland Security.
[FR Doc. 2019-11744 Filed 6-4-19; 8:45 am]