The Department of Homeland Security (DHS) is proposing to reduce most of the fees currently charged by the United States Citizenship and Immigration Service (USCIS) to EB-5 investors and regional centers, and to create new petitions and charges.
The proposed new fees was entered into the Federal Registry for public comment on Oct. 23. The comment period ends Dec. 22.
Ishaan Khanna, President of the American Immigrant Investor Alliance (AIIA), said the proposal aligns fees with current processing costs and goals associated with the EB-5 immigration program.
“The EB-5 fee rule represents a commendable and long-overdue DHS effort to align fees with actual processing costs and goals, promoting a fairer and more sustainable framework for EB-5 investors and smaller stakeholders in this space,” Khanna says.
The proposal says that lowering the fees “will enable USCIS to better align the costs of administering the EB-5 program, attain the EB-5 processing time goals as provided in the EB-5 Reform Act [RIA], and make improvements to the information technology systems used to administer the EB-5 program.”
If approved as they are, these new fees could impact approximately 11,260 EB-5 program filings annually (based on 2024/2025 figures). They involve nine forms currently part of the EB-5 programs and the creation of a new petition.
To calculate the new amounts, the USCIS used the results of the mandatory EB-5 fee study requested by RIA.
EB-5 community reacts to proposed fees
The EB-5 community welcomes the proposal but remains cautious of its outcome.
Tahmina Watson from Watson Immigration Law points out the proposed reduction of the fee as “a welcome and timely step toward aligning the program with current economic realities.”
Joey Barnett from WR Immigration highlights that the proposal “finally provides some implementing guidance” on the RIA.
Charles Kuck from Kuck Baxter adds: “It is interesting that USCIS chose not to punish users of the EB-5 visa, perhaps those most able to pay increased fees and foot the bill for other non-fee programs, but it is great news for EB-5 investors.”
Jennifer Hermansky, EB-5 attorney and EB-5 Committee chair for the American Immigration Lawyers Association (AILA), says the committee intends to submit comments to USCIS.
“Each of these provisions needs to be analyzed in detail before comments can be provided back to USCIS. EB-5 stakeholders, including investors, regional centers, NCEs, etc., should provide feedback to USCIS in the notice and comment process.”
The regional centers association Invest In the USA (IIUSA) said its Public Policy Committee will also draft a submission for the public comment period.
Matthew Galati from Galati Law notes that the calculations used the results from an EB-5 fee study, long-awaited by the industry.
“It is a pleasant surprise that DHS is proposing lower filing fees now that the EB-5 Reform and Integrity Act’s fee study is finally completed. We certainly will not complain about lower fees, and we congratulate the Agency for completing its work – however late it may be,” he says.
Proposal reduces current fees, introduces new ones for EB-5 investors
According to DHS, the new fees align with EB-5 workloads, recover projected costs, and achieve the processing time goals of the RIA. The changes proposed are:
I-526 form
It is the first form filed by EB-5 applicants, whether they are standalone (I-526) or regional center investors (I-526E).
- A $9,530 fee, down 14% from the current $11,160, and a new EB-5 Technology Fee of $95 for both forms. The total proposed fee is $9,625.
Meanwhile, DHS justifies the technology fee to improve IT systems for processing applications and petitions involved in the EB-5 petition life cycle, as well as to enhance other technologies and infrastructure.
- An $85 increase in the fee for EB-5 investors to pay for the EB-5 Integrity Fund, to $1,085.
RIA created the Integrity Fund to cover monitoring, investigations, and compliance activities for the program. Both investors and regional centers contribute to this fund.
- A new fee of $8,000 to file Form I-527, for Amendment to the Legacy Form I-526, a new form for those qualified pre-RIA EB-5 investors who wish to amend their I-526 petition if it was filed before March 15, 2022.
The new I-527 form is aimed at “good faith” investors who wish to keep their application eligible when their regional center is terminated or their New Commercial Enterprise (NCE) or Job Creating Entity (JCE) is debarred.
“If a new Form I-527 is introduced, it will be essential that USCIS issue clear guidance and well-structured instructions so that applicants and attorneys can navigate requirements without confusion or duplicative filings,” Watson says.
I-829 form
It is the third and final form that EB-5 applicants file as part of their application process. This procedure is to remove conditions on permanent resident status for EB-5 investors who already have a conditional green card, provided their EB-5 investment fully complies with the visa program.
- A $7,860 fee, down 14% from the current $9,525.
These reductions in fees for I-526s and I-829 forms already incorporate the biometric services costs required when filing these petitions.
Bernard Wolfsdorf from WR Immigration considers the reduction a “modest discount.”
“It appears DHS is keeping the original investor program open for business, even at a slight discount, which is a very good sign for immigrant investors,” he adds.
According to Ronald Klasko from Klasko Law, the reduction in fees is “substantial.”
“I hope that, on closer analysis, we will have a basis for advocating for further fee reductions for EB-5 investors,” Klasko says. “Unfortunately, the proposed rule does not address excessive filing fees paid by regional centers and investors for more than one year and still being paid until the promulgation of a final rule.”
Galati, Khanna, and Klasko also note that the proposed new fees align with ongoing litigation against the April 2024 hike of EB-5 visas.
One is a lawsuit filed by Civitas Capital Management and other regional centers against DHS, which is currently awaiting a court decision.
A second lawsuit filed by EB-5 investor Samantha Moody and other claimants against DHS also challenged the 2024 fee rule, with Galati being part of the plaintiffs’ legal team. The plaintiffs are AIIA and IT Service Alliance, who aimed at blocking the fee hike from taking effect in April last year. “We’re glad USCIS has now acted — better late than never,” Khanna says.
“By only now doing the work and concluding the RIA-based fees should be lower, DHS is effectively conceding that EB-5 applicants were overcharged for approximately 18 months,” Galati says.
The attorney also cautions that the rule would not benefit everybody.
“Future applicants should be very happy with this news. But those who filed from April 2024 through today, and those who are still awaiting adjudications pending longer than the RIA’s stated goals despite a surplus of resources, will likely be quite angry with what they’ve had to pay and endure.”
Proposed EB-5 regional center fees also involve reductions and new charges
- A $28,895 fee to file Form I-956, Application for Regional Center Designation, which currently stands at $47,695. And $18,480 for amendments, from the current $47,695.
- A $29,935 fee for Form I-956F, Application for Approval of Investment in a Commercial Enterprise, is also down from $47,695.
- A $2,740 fee to file Form I-956G, Regional Center Annual Statement, down from the $4,470 that regional centers pay today.
- A new $55 fee to submit Form I-956H, Bona Fides of Persons Involved with Regional Center.
- A new $2,740 fee for Form I-956K, Registration for Direct and Third-Party Promoters,
- A $10,825 EB-5 Integrity Fund Fee for regional centers with 20 or fewer total EB-5 investors, from the $10,000 they currently pay.
- A $21,650 Integrity Fund Fee for regional centers with more than 20 EB-5 investors, up from the $20,000 they already pay.
“Small project developers, who rely on EB-5 financing to sustain their businesses and create jobs for U.S. citizens, will benefit the most from the reduction fees for Form I-956 and I-956F,” Khanna says.
The proposal also includes higher penalties for regional centers that make late payments to encourage timely fee submissions.
Expected impact of the proposed new fees
“We are still months away from new fees,” business plan writer Suzanne Lazicki from Lucid Professional Writing wrote in her blog. “I expect that the liveliest public comments may be on the section of the rule discussing integrity fees, and the fundamental question of whether there’s any compliance distinction between a ‘previously-approved regional center’ and a ‘regional center designated under (E).”
The proposed rule acknowledges that the reduced fees will help improve completion of adjudication and reduce the current backlogs, which they deemed “excessive”.
The agencies also clarified that even though the fees would decrease, this would not result in the EB-5 program being inadequately funded or managed.
After reviewing feedback regarding this regulation, DHS will finalize and release a fee study that will become effective 60 days following its publication.
Watson concludes that as part of this rulemaking process, the agencies “should also prioritize tools that meaningfully reduce processing times and eliminate unnecessary inefficiencies, particularly at the I-526/I-829 stages where adjudication delays have had wide-ranging downstream effects.
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