The Trump administration has unlawfully revised its fee waiver process for citizenship applications, leaving thousands of low-income legal permanent residents unable to change their status, alleged a lawsuit filed Oct. 30 in Northern California.
The organizations Protect Democracy and Advancing Justice-AAJC, along with the Seattle, Washington City Attorney’s Office, and the law firm of Mayer Brown filed the suit in U.S. District Court for the Northern District of California.
Seattle Mayor Jenny Durkan said in a press statement: “The American promise must be open to all. Wealth is not and should never be a requirement of being an American citizen.”
In 2017, almost 40 percent of citizenship applications were submitted with a fee waiver.
One out of every seven Indian Americans lives below the federal poverty line.
On Oct. 25, US Citizenship and Immigration Services announced it was changing Form I-912, which allows low-income people to file an application for citizenship without paying a $725 filing fee. The agency formerly used a means-tested approach to determine whether an applicant was eligible for a fee waiver by checking whether he or she had used federal benefits, such as Medicaid, Supplemental Nutrition Assistance Program, Temporary Assistance to Needy Families, and Supplemental Security Income.
USCIS announced Oct. 25 that it would no longer use the means-tested approach. Individuals may still request a fee waiver if their documented annual household income is at or below 150 percent of the federal poverty guidelines or they demonstrate financial hardship, stated the agency.
“USCIS relies on fees to cover the costs of adjudicating applications and petitions, implementing operational efforts, and ensuring the nation’s lawful immigration system is properly administered,” said USCIS Acting Director Ken Cuccinelli.
“USCIS waives hundreds of millions of dollars in fees annually. The revised fee waiver process will improve the integrity of the program and the quality and consistency of fee waiver approvals going forward,” he said in a press statement.
USCIS noted that 95 percent of its revenue comes from application fees, and also noted that it had granted more than $293 million in fee waivers for fiscal year 2018.
The lawsuit alleges that the agency acted illegally, as it stepped around the Notice of Proposed Rule Making — which would require a 30 to 60 day public comment period before being submitted to the Office of Management and Budget for review — and instead used the Reduction in Paperwork Act to implement the new policy, which is scheduled to go into effect Dec. 2.
It also alleged that USCIS’s changes are “arbitrary and capricious,” which also violate the Administrative Procedure Act.
The lawsuit noted the new rules would make it much harder for thousands of legal permanent residents to attain citizenship. “This change effectively creates a wealth test for citizenship and will block large numbers of low-income LPRs from becoming citizens, despite the fact that they are already part of the fabric of — and make enormous contributions to — our country,” noted the plaintiffs.
Applicants for a fee waiver must now prove they have a household income of 150 percent or lower of the federal poverty guidelines, or that they are suffering from a significant financial hardship. Such hardships were not defined by USCIS in its memo announcing the new rules.
Applicants for fee waivers can no longer use tax returns; they must submit tax transcripts from the Internal Revenue Service.
“Tax transcripts — stripped-down summaries of tax returns that are available only from the IRS — can be extremely onerous for low-income LPRs to obtain. And the president himself has argued that tax transcripts ‘are notoriously inaccurate’ and ‘would not be able to provide a reasonable picture of any taxpayer’s return,’” wrote the plaintiffs, noting that requiring the form was in violation of the regulation and therefore unlawful.
USCIS is also mandating that waiver applicants use Form I-912, and will not accept hand-written applications, said plaintiffs in the lawsuit, noting that written requests have been a “valuable alternative for those applicants who do not have the resources or skills to complete the form.”
“At a minimum, these changes create a significantly more burdensome process for fee waiver applicants. And they will block a large number of LPRs from even applying for fee waivers, and in turn, naturalization,” said the plaintiffs.
“This rule change is about changing the complexion of future immigrants from black and brown to white and furthers a class-based society that is discriminatory and unwelcoming,” said John Yang, AAJC president and executive director, in a press statement.