Fee Exemptions and Deferred Action For Childhood Arrivals – A Primer

BY DAVID WERNER — Just weeks ago, the Department of Homeland Security–facing $3.2 billion in sequestration related budget cuts–released thousands detainees from detention facilities nationwide. Between February 9 and March 1, DHS released 2,228 individuals, including 225 detainees within Miami’s ICE jurisdiction.  While DHS granted these former detainees freedom from incarceration, they still face deportation proceedings.

However, the opportunity to avoid deportation proceedings is available to those individuals that qualify for Deferred Action for Child Arrivals (“DACA”).  An applicant petitioning the United States Citizenship and Immigration Service (“USCIS”) for DACA is eligible for protection whether or not she was in removal proceedings at the time of her application, even if she had received a final order of removal.

On June 15, 2012, DHS, applying its prosecutorial discretion, issued a memorandum that announced the creation DACA.  Pursuant to this memorandum, undocumented persons who are eligible and apply for DACA will receive, for two years, deferred action from removal proceedings, a work permit, and a social security number. [Editor’s note: DACA was discussed in a previous post on the UMLR blog, available here.]

This news is, of course, welcome for undocumented immigrants who were brought to the United States as children. But there’s a wrinkle–deferred action is expensive.

Since August 2012, the USCIS has received over 450,000 applications for DACA.  Unfortunately USCIS does not accept its standard fee waiver form, the I-912, with DACA applications.  Although USCIS has provided for a limited number of “fee exemptions,” not fee waivers, for those applying for DACA, most applicants will have to include $465 when they submit their application.  Because USCIS is almost entirely funded by the fees it collects, the fee covers the background check, biometrics appointment costs, processing fees, and USCIS’s overhead costs associated with the DACA application.

Applications for fee exemptions are submitted under a procedure and evaluated using qualifications than vary from the standard I-912 fee waiver.  To receive a DACA fee exemption, an applicant must separately petition USCIS prior to submitting the completed DACA application.  If an applicant is successful in applying for the fee exemption, he will receive notification in the mail from USCIS within 90 days of submitting his request.

Unlike the I-912 fee waiver, which is a supplemental form placed in a non-DACA naturalization application, the DACA fee exemption is an approval letter submitted concurrently with the DACA application.  Because USCIS must approve the fee exemption prior to the submission of a DACA application, requesting a fee exemption would typically add up to three months to the application process, but the effects of the sequester may create delays to the process.

To receive a fee exemption, the applicant must send a letter to USCIS’s Washington, D.C. office.  Evidence supporting the applicant’s membership in one of the following classes must also accompany the fee exemption letter:

  1. The applicant is under 18 years of age, homeless, in foster care, or under 18 years of age and otherwise lacking any parental or other familial support and his income is less than 150% of the U.S. poverty level;
  2. The applicant cannot care for himself because he suffers from a  serious chronic disability and his income is less than 150% of the U.S. poverty level;  or
  3. The applicant, at the time of the request, accumulated $25,000 or more in debt in the past 12 months as the result of unreimbursed medical expenses for himself or an immediate family member and his income is less than 150% of the U.S. poverty level.

There is no requisite piece or amount of evidence necessary to show an applicant’s membership in a class.  Rather than submitting an avalanche of documentation with a fee exemption letter, USCIS recommends providing quality, pointed evidence that creates a comprehensive picture of the applicant’s financial conditions and class qualification.

Because all three classes require the applicant’s household income to fall below 150% of the federal poverty level, any letter requesting a fee exemption must include a comprehensive overview of the applicant’s household income.  To properly document this, the letter should include copies of the applicant’s most recent tax return and pay stubs, as well as evidence he receives a means-tested benefit.  If anyone else in the household contributes to the income, the letter should include copies of similar documentation.  If USCIS cannot establish that the applicant’s household income falls below this threshold, his fee exemption application will be denied.

USCIS does not have a bright-line standard for demonstrating the distinguishing element of either class, but evidence must be submitted with the letter exhibiting an applicant’s status as a member of one of the three classes.  For example, an applicant suffering from a serious, chronic disability must provide medical records documenting his long-term suffering from the disability.  To further bolster this claim, the applicant would want to also include a letter from a treating physician detailing his illness, the duration of his illness, and his treatment regimen.  Providing focused, relevant evidence from multiple credible sources properly documents the applicant’s class qualification.

Despite an arduous, and possibly expensive, application process, DACA does not confer legal status upon those receiving deferred action.  The Economist notes that DACA takes “its roots” in the DREAM Act, a piece of legislation proposed in Congress several times over the past decade aimed at conferring legal permanent residence upon a class of persons similar to those eligible for DACA.  Unlike the proposed DREAM Act, whose purpose is to provide a path to citizenship, DACA merely provides a two-year window in which recipients may avoid removal proceedings.

But still, for those facing deportation, it’s better than nothing.

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