Form EOIR-42B: Fee, Filing and Eligibility (2026)

Form EOIR-42B is the application behind every nonpermanent resident cancellation case, and since Oct. 1 it costs $1,690 to file before an immigration judge.

The Second Circuit’s Nov. 5 ruling in Diaz v. Blanche, which we covered this morning, turned on the hardship standard. But every case like Diaz’s begins with the same document: Form EOIR-42B, the Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents. How the form is filed, what it costs and what it must prove shape a case long before any appeals court sees it.

This explainer covers who can use the form, the fee that took effect Oct. 1, 2026, how payment now works, and the proposed changes to the form itself that are still pending.

What is Form EOIR-42B?

It is the Justice Department form a person in removal proceedings uses to ask an immigration judge to cancel removal and grant a green card. It is not a USCIS form and cannot be filed on its own outside court. The government’s own paperwork estimate, published in August, puts the number of 42B filers at roughly 13,800 a year.

Its companion, Form EOIR-42A, serves lawful permanent residents who are in removal proceedings. The two forms cover different legal tests with different fees.

Who qualifies for cancellation as a nonpermanent resident?

Under 8 U.S.C. 1229b(b)(1), the applicant must prove all four elements:

Ten years of continuous physical presence in the United States immediately before the application.
Good moral character during that period.
No disqualifying convictions under the criminal grounds the statute lists.
Exceptional and extremely unusual hardship to a U.S. citizen or permanent resident spouse, parent or child if the applicant is removed.

The 10-year clock is less forgiving than it looks. Under the “stop-time” rule in 1229b(d)(1), continuous presence ends when the person is served a notice to appear, or earlier if they commit certain offenses. Long or repeated trips abroad can also break it. Time spent in the country after the charging document arrives generally does not count.

Hardship is where most cases are won or lost, and the Board has been tightening the other elements too. Recent precedents require proof of rehabilitation and allow judges to weigh arrests that never led to a conviction.

How much does the EOIR-42B cost now?

The fee is $1,690 for applications filed on or after Oct. 1, 2026, up from $1,640. A final rule published Aug. 21, 2026, set the new amount, and it has two parts:

$1,590 under the 2025 reconciliation law (H.R. 1), after a $50 inflation adjustment to the prior $1,540.
$100 under the longstanding INA 286(m) fee, which did not change.

The EOIR-42A for permanent residents now costs $730, and the EOIR-40 is also $730. These totals do not include biometrics. Applicants still have to complete the separate DHS biometrics step that applies to applications filed in immigration court, and they should check the current DHS instructions for that fee. The rule warns that EOIR will reject filings without the correct fee or a request for an applicable waiver.

How is the fee paid, and can it be waived?

EOIR fees are now paid electronically through the EOIR Payment Portal. The agency stopped taking checks and money orders in February 2026. Its FAQ says use of the portal is mandatory for the fees it covers and warns of three things practitioners often miss:

Paying is not filing. The receipt goes with the application, which must still be filed with the court.
No split payments. The full fee must be paid in one transaction.
Refunds are generally not available.

The August rule states that it makes no changes to fee exceptions or waivers. Practitioner summaries report that an immigration judge may still waive the 42B fee at the judge’s discretion for an applicant who documents an inability to pay with a signed declaration. Whether waivers extend to the H.R. 1 portion of the fee has not been clearly settled. Anyone relying on a waiver should file the request with the application and be ready for a short deadline to pay if it is denied.

What changes are proposed for the form?

An Aug. 20, 2026 Paperwork Reduction Act notice proposed a revised 42B. Applicants would sign and affirm the form when they file it, rather than later before the judge. The question about how the applicant entered the country would be broadened to cover various visa types, and fields that no longer apply would be removed. The fee and e-filing instructions would also be updated. We explained the proposal when it was announced. The revision is a proposal, and the current edition remains the one to file until EOIR posts a new version.

Why the annual cap matters

Section 1229b(e) limits cancellation with adjustment of status to 4,000 people a year. That number has not changed since 1996, while the court backlog has grown many times over. So even an applicant who wins on every element may wait for a number to become available before the green card is actually granted. Combined with the deferential appellate review reaffirmed in Diaz, the cap makes the hearing before the immigration judge the decisive moment. The record built there, including evidence about treatment available in the country of removal, is usually the only record that counts.

Quick answers

What is a 42B in immigration court? It is Form EOIR-42B, the application a nonpermanent resident in removal proceedings files to ask a judge for cancellation of removal and a green card.

Can I file a 42B with USCIS? No. It is filed only in removal proceedings before an immigration judge.

What is the 42B filing fee after Oct. 1, 2026? $1,690, not counting biometrics.

How do I pay it? Electronically, through the EOIR Payment Portal. Then file the receipt with the application.

Does time after my notice to appear count toward the 10 years? Generally no. Under the stop-time rule, continuous presence ends when the notice to appear is served.

Does the Diaz ruling change how I file? No. It concerns how the Second Circuit reviews hardship findings and what new evidence must show on a motion to remand. Filing requirements are unchanged.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds an LL.M. from California Western School of Law, San Diego and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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