Practitioners before the Executive Office for Immigration Review (EOIR) are dealing with competing pressures when deciding whether to seek a fee waiver for a client in removal proceedings. The recently passed congressional legislation dramatically increases fees for post-decision motions and appeals, making such motions and appeals impossible for many noncitizens to afford. For example, the fee for an appeal to the Board of Immigration Appeals (BIA) is now $1,010 (up from $110), while a motion to reconsider or reopen before the BIA or Immigration Judge (IJ) is now $1,045 (up from $145).   

While fee waiver requests (filed on Form EOIR-26A) remain available for motions and appeals, EOIR leadership has demonstrated hostility towards such requests. In July 2025, after the reconciliation legislation was passed, EOIR issued a Policy Memo (EOIR 25-26) stating that “[a]djudicators should be mindful of potential fraud or misrepresentations on fee waiver applications, particularly from [noncitizens] who have employment authorization and have lived in the United States for many years.” The policy memo went on to state that any suspicions of fraud with respect to fee waiver requests should be referred to EOIR’s Anti-Fraud Unit.  

 More recently, the BIA issued a precedential decision in Matter of Garcia Martinez, 29 I&N Dec. 169 (BIA 2025). In that case, the BIA found that a non-detained noncitizen who is represented by private counsel is presumed to have the ability to pay any requisite filing fee before the IJ or BIA. The BIA also held that a fee waiver request from a non-detained adult noncitizen that contains zeros in all income blocks — as the request submitted by Mr. Garcia Martinez did — is presumptively invalid. In reaching its holdings, the BIA focused on the fact that the respondent in Garcia Martinez was seeking cancellation of removal in the United States in part based on financial support he was providing to his wife and children, which contradicted his fee waiver request claiming to have no income. The BIA also noted that the respondent had been represented by private counsel since 2018. While the fee waiver request in Garcia Martinez was not well-prepared, the precedential decision contains sweeping and troubling language stating that “[f]ee waivers are the exception and should not be granted as a matter of routine.” 29 I&N Dec. at 170.  

So, should practitioners continue to seek fee waivers on behalf of their clients? In appropriate cases they may do so, with awareness of the two presumptions established in Garcia Martinez: 1) a non-detained noncitizen represented by private counsel is presumed able to pay any filing fee; and 2) a fee waiver from a non-detained adult listing zero income is presumptively invalid. The decision states that to rebut the presumption, the fee waiver request must contain an explanation as to how the noncitizen can afford private counsel but not the government filing fee.  

Luckily, noncitizens represented by pro bono counsel or by counsel at legal services organizations that charge either no or low fees are not subject to this presumption of ability to pay. Pro bono and legal service providers should make sure that their EOIR-26 and EOIR-27s indicate that they are providing legal services pro bono and should consider indicating that they are pro bono counsel on cover sheets to filings. Practitioners should also remember that a fee waiver request on Form EOIR-26A must be filled in completely and accurately regarding the individual’s assets, incomes, and expenses — it should not merely contain a string of zeros.  

Notices of Appeal accompanied by fee waivers will not be considered properly filed if the fee waiver is denied. However, the regulations permitting fee waivers, found at 8 CFR § 1003.8(a)(3), do allow a window in which the Notice of Appeal or motion may be refiled — either with the proper fee or with a new fee waiver — in order to be considered timely filed. Garcia Martinez at least provides some clarity here and affirms that the regulations provide a 15-day period in which a respondent may refile their Notice of Appeal or motion. Practitioners should regularly monitor their ECAS accounts and spam folders to ensure they refile rejected Notices of Appeal or motions within that window. See F-B-G-M- & J-E-M-G-, 29 I&N Dec. 52 (BIA 2025).  

Practitioners should also keep in mind that adjudicators may consider how the fee waiver request reflects on the merits of the underlying application for relief. As in Mr. Garcia Martinez’s case, an adjudicator may view a fee waiver request suspiciously when an applicant is claiming to be a primary source of financial support for family members in the United States. On the other hand, an asylum applicant filing a fee waiver request for an asylum appeal, especially when represented by pro bono counsel, may be more likely to have success because such a request does not contradict their underlying claim for relief. Practitioners must thoroughly discuss the pros and cons of fee waiver requests with their clients before proceeding.