EB-5 attorneys share insights on recent changes in filing dynamics following the reduction of EB-5 visa application fees just over a week ago, in compliance with a court ruling.
A Nov. 12 court ruling froze the implementation of the fee hikes, effective Nov. 14.
There is a consensus among attorneys that the fee reduction has been a positive development for new EB-5 investors. With the updated fee structure reverting to levels established before April 1, 2024, the current costs are $3,675 for filings of EB-5 forms I-526/I-526E and $3,750 for Form I-829, in addition to other related application fees.
“[United States Citizenship and Immigration Service] USCIS has updated its website for the EB-5 forms to reflect the reduction in the fees as a result of the recent litigation,” says Jennifer Hermansky, EB-5 attorney and EB-5 Committee chair for the American Immigration Lawyers Association (AILA).
“USCIS should continue to accept the Forms I-956, I-956F, I-956H, I-526E, and I-829 using the old fee. [AILA] has requested USCIS to confirm that the biometrics fee of $85 has been reinstated for Form I-956H and Form I-829; however, we believe that these fees are due as they were previously due under the old fee schedule,” Hermansky adds.
How are EB-5 investors reacting to the lower fees?
Some EB-5 attorneys note that their new clients are increasingly interested in filing for projects, and there has been a noticeable surge in EB-5 investment consultations.
“Yes, we have seen an uptick of existing clients seeking to quickly file additional projects,” Shae Armstrong from Bradley says. “They understand this opportunity and window at $17kish filing fees that may close quickly.”
Yuliya Veremiyenko-Campos from YVC Legal agree: “We have seen a clear uptick in interest and a noticeable surge in EB-5 consultations.”
Other lawyers, such as Natalia Morozova from Cohen, Tucker & Ades P.C., report that it’s business as usual. “We have not seen any difference whatsoever,” she says.
Meanwhile, Richard Gump from Richard A. Gump Jr. P.C. does not expect the reversal to “significantly affect many investors’ decisions to either file or not file.”
Renata Duarte from R Duarte Law advises potential investors to assess the current lower fee situation. “Do not rush unless the filing is truly ready. Talk to your attorney. This is an expensive process, and saving money now should never come at the expense of a complete, accurate, and well-documented application.”
Focus remains on complying with EB-5 requirements and timing
Darren Silver from Darren Silver & Associated, LLP, notes that his clients have sent mixed messages about the reduction in filing fees.
“On the one hand, of course, everyone is happy to pay a lower filing fee, and the cost savings are significant,” Silver adds. “On the other hand, we have been extremely impressed with the responsiveness and efficiency of the Department, with an emphasis on fast adjudications.”
The low fee measure is temporary, as the Department of Homeland Security (DHS) prepares to publish a new final rule with lower EB-5 prices, yet higher than pre-hike levels.
Attorneys say that while clients appreciate the lower costs, many remain focused on critical questions regarding the appropriateness of the investment, potential returns, and the timing of receiving their green cards.
Gump notes: “The primary questions are still: ‘Is this an appropriate investment for me and will I get my capital back with at least a modest return?’ ‘Will I get my green card in a time frame that works for me?’”
Investors are asking how long EB-5 fees will remain low, and if USCIS will make refunds
The decision by the Colorado District Court found that the DHS and USCIS unlawfully increased fees on April 1, 2024, in violation of the Administrative Procedure Act and the EB-5 Reform and Integrity Act of 2022.
However, this halt is temporary as litigation continues. Plaintiffs of this case, including the American Immigrant Investor Alliance (AIIA) and investor Samantha Moody, are working with DHS to submit a “Joint Status Report” in January.
Meanwhile, a separate claim challenging the 2024 EB-5 fee hike, filed in the Federal District Court for the Northern District of Texas, is pending a court ruling.
Meanwhile, AIIA is addressing refund requests for elevated EB-5 fees paid after April 1 and is considering a class-action lawsuit for financial restitution for affected investors and regional center operators.
However, lawyers remain cautious about the potential for litigation aimed at seeking refunds for EB-5 investors who paid the higher fees over approximately 1.7 years.
“It is noteworthy that the fees are prospective and not retroactive,” says Ronald Fieldstone from Saul Ewing LLP. “The case did not address the refund of the increased filing fees that were paid.”
“Many existing investors are asking whether they can recover the difference they paid under the now-invalidated fee rule,” says Veremiyenko-Campos. USCIS “has not announced any process for refunds of past overpayments, so investors are essentially in a ‘wait-and-see’ mode while we evaluate what legal options may realistically exist.”
Others have not received similar inquiries.
“We have not had any clients asking for government fee refunds or interested in litigation yet,” says Gump.
“So far, no one has asked us to sue,” says Tammy Fox-Isicoff from Rifkin & Fox-Isicoff P.A.
Attorneys recall USCIS precedent of refunds
EB-5 lawyers recollect past occasions when USCIS has refunded EB-5 investors.
Fox-Isicoff remembers a similar situation when the EB-5 program expired in 2021. We were involved in this for I-924 fees when the EB-5 RC program expired without I-924 adjudications. USCIS ended up voluntarily returning the fees for the I-924s, and we prevailed in obtaining our legal fees after demonstrating USCIS returned fees pursuant to our [Freedom of Information ACT] FOIA litigation.”
“There are precedents for getting fees back from the federal government when a charge lacked legal authority, including in immigration,” says Duarte. “Anyone who paid the higher EB5 amounts is not yet entitled to a refund absent further court relief or an agency program.”
In the event of refunds arising from litigation, Duarte advises that the best legal options are a district court APA relief claim or a Court of Federal Claims illegal exaction claim.
However, Veremiyenko-Campos cautions that USCIS should implement a refund process independent of any lawsuit. “Waiting for litigation to force the issue only prolongs uncertainty for families who acted in good faith.”
Silver emphasizes the unease regarding the impact of litigation on USCIS performance. “The open question is whether the reduction of the filing fee, and now a potential lawsuit to regain the overpayment, is going to push USCIS back to unresponsiveness and slow adjudications again.”
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