As we have reported in past months, the INS fees increased across the board on October 13th. The only fee in the increase not rising right away are naturalization filing fees which will rise on January 15, 1999.

In connection with the announced increase, the INS recently issued a guidance memo discussing procedures related to change. The memo first notes that applications received on or after October 13th with the incorrect filing fee are to be returned as improperly filed.

The rest of the memo largely discusses how the INS is to disseminate information on the fee increase.

Around the time the fees went final, the INS issued guidance on waiving fees. The INS has discretion to waive any application or petition filing fees if the applicant establishes that he or she is unable to pay the fee. An October 9, 1998 memo discussed what an applicant must show to prove "inability to pay". INS officers should consider the following:

- 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), or

- His or 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 or she is elderly (age 65 or older at the time the fee waiver request is submitted.)

- He or she is disabled. The 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.

Documentation to prove the above will be needed as well. Paperwork from government agencies showing qualification for benefits, bills and receipts, employment records, evidence of the applicant's living arrangements in the US, etc. should be provided.

To apply for a fee waiver alongside an immigration benefit, an applicant needs to submit the documentation noted above and an affidavit or unworn letter that is signed, dated and includes the following statement:

"I declare under penalty of perjury that the foregoing is true and correct."

Be sure to write in large print "FEE WAIVER REQUEST" on the outside of the mailing envelope and on the top of the affidavit and each page of supporting documentation.

If the waiver request is denied, the entire package will be returned to the applicant and it should be re-filed with the appropriate fee.

Of course, requesting such a waiver and presenting the evidence above may be just the evidence INS needs to deny a petition on public charge grounds. Be sure the immigration benefit being sought does not have a public charge issue before requesting this waiver. Naturalization cases are probably the most common type of case that will be covered here.

On a related note, the INS says it is ready to begin accepting the new $500 scholarship/worker retraining fee filed with H-1B applications as a result of the new legislation.