The American Immigrant Investor Alliance (AIIA), along with EB-5 investor Samantha Moody and IT Service Alliance, achieved a significant legal victory against the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) regarding the controversial EB-5 fee increase.
The Nov. 12 ruling freezes the implementation of the fee hikes until DHS sets a new EB-5 fee rule.
“The drumbeat from Washington these days is that ‘immigrants need to follow our laws or face the consequences.’ Yet this case points out that DHS and USCIS — whether they are run by Republicans or Democrats — seem to think that clear legislative directives and deadlines do not apply to them,” said Matthew T. Galati of The Galati Law Firm, who was one of the lawyers representing the plaintiffs.
“It is refreshing to see the Judiciary hold these agencies accountable and remind us all that the U.S. is a nation of laws. In this case, the fee raises were brazenly illegal and at odds with the RIA. We are very happy to see the court check this executive overreach and restore the EB-5 fees to their pre-April 2024 levels.”
The case, Moody et al. v. Mayorkas et al., was filed in March 2024 under Judge Charlotte N. Sweeney in the Colorado District Court.
In her ruling, Judge Sweeney determined that the fee increase that took effect on April 1, 2024, violated the Administrative Procedure Act (APA) and the EB-5 Reform and Integrity Act of 2022 (RIA). The judge emphasized that “USCIS acted contrary to the Act and therefore acted contrary to law.”
Although the Court stopped short of striking down the entire rule, it granted “limited relief”—a §705stay specifically on the EB-5 fees that were raised without the required fee-study guidance.
AIIA and EB-5 attorneys celebrated the ruling and its implications for EB-5 investors.
“The Moody v. Mayorkas ruling confirms that USCIS must adhere to the law when adjusting fee structures,” said AIIA.
Michael Harris from Harris Law added that the “decision is welcome news for EB-5 stakeholders.”
Absence of mandatory EB-5 fee study proved pivotal for legal win
Through a final rule, the USCIS implemented several administrative fee increases in April 2024, affecting the EB-5 visa program, the Asylum Program, and H-1B visa application fees.
For EB-5, the largest changes affected the prices of Forms I-526/I-526E, which increased by 204% to $11,160; Form I-1965G, by 47% to $4,470; and Form I-956F, used to obtain approval for regional center designation, rose 168% to $47,695.
Represented by attorneys Jonathan Wasden from Wasden Law, Matthew Galati from The Galati Law Firm, and Jesse Bless from Bless Mitigation, the plaintiffs initially sought to prevent the fee increase from taking effect. Unsuccessful, they continued the legal battle to have the hike revoked.
Their argument relied heavily on the fact that DHS and USCIS did not use a Congress-mandated fee study to calculate the increase, which contradicted a requirement under the EB-5 Reform and Integrity Act of 2022 (RIA).
Through the RIA, Congress mandated USCIS to complete a fee study for visa applicants under the RIA as a prerequisite for any changes to EB-5 fees. However, USCIS raised the EB-5 fees on April 1, 2024, without conducting a study; the change was implemented just over a year after the RIA became law.
AIIA president Ishaan Khanna illustrates, “an AIIA member paid inflated EB-5 fees as a direct result of the Final Rule being promulgated before the required fee study was completed, creating a concrete, particularized monetary harm tied to USCIS’s unlawful fee increases.”
Judge Sweeney said in her ruling that nothing absolved USCIS from the requirement of completing the fee study before setting fee hikes. “Congress telling USCIS to hang tight while the mandatory fee study was being completed doesn’t mean USCIS could do whatever it liked until the study was completed. Moreover, the Court is under no obligation to adopt USCIS’s incorrect interpretation.”
USCIS completed the fee study in February 2025.
What happens after this court ruling?
DHS and USCIS have yet to announce when the fees will return to their pre-hike amounts. Insofar as the USCIS website continues to show the increased amounts.
However, the duration will be temporary, as they in October proposed a reduction in the prices, based on the completed fee study.
Their proposal is currently under public review, which lowers the EB-5 prices but to amounts higher than pre-April 1 levels. Public comments close Dec. 22, 2025, and a new, fully compliant final rule is expected in early 2026.
The Court ruling does not address possible refunds for EB-5 investors who have already paid the increased fees.
“While the court found that EB-5 investors and projects paid increased fees under an unlawfully promulgated rule, it did not order automatic refunds,” Harris says. “The mechanism for recovering overpayments (whether through follow-on litigation, claims processes, or future agency guidance) remains an open question.”
“Practically, if this stay is not paused or narrowed on appeal, I would expect a renewed surge of EB-5 project and investor filings while the lower, pre-April 2024 fee schedule is back in effect,” Harris adds.
Despite the EB-5 fee hike win, the judge’s ruling was partial, as she determined that DHS and USCIS did not engage in “arbitrary and capricious agency action” when raising the asylum and H-1B fees.
Separately, a lawsuit filed by a group of Regional Centers and the EB-5 trade association Invest in the USA (IIUSA), which was also filed against the fee hike before the U.S. District Court for the Northern District of Texas, is currently awaiting a court decision.
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