On January 4, 2023, the United States Citizenship and Immigration Services (USCIS) published a Notice of Proposed Rulemaking (NPRM) to increase a number of filing fees for many different visa categories.
Although fees are usually revised biannually, the agency has not changed current fees since 2016 and has suffered a 40% decrease in revenue as a result of lower application numbers due to COVID-19. According to a statement on the USCIS website, the agency “receives approximately 96 percent of its funding from filing fees, not from congressional appropriations.”
Currently, this NPRM will be in its comment period until March 6, so anyone who wishes can leave written comments online. During the agency’s listening session on January 11 for this subject matter, USCIS showed firm intentions to consider the feedback it will receive through the comment period, so this proposal may yet be revised. The following step would be for the rule to go into effect after the public comment period ends.
Increases in the new proposed fees vary considerably, with some fees for various visas remaining unchanged and others increasing between 2% and 2050%, according to a study by Fragomen, one of our immigration law firm partners.
The EB-5 Immigrant Investor program fees are being adjusted, as shown below:
Per the EB-5 Reform and Integrity Act of 2022 (RIA), prospective regional centers must file the newly created Form I-956 to be designated as regional centers and to be able to operate. This form is not only new, but, if the proposed fee goes into effect, it also sees a considerable increase in the cost to become a regional center. This higher operating cost may result in regional centers charging higher administrative fees to EB-5 investors. On the other hand, after not being able to operate for over a year, all regional centers are eager for investors, so this may play out as an advantage for investors over the short term.
A higher designation fee may also steer players whose core business is not EB-5 away from the EB-5 industry, adding more integrity and transparency to it. This and other measures initiated by the EB-5 Reform and Integrity Act are certainly working to shape a safer and more regulated EB-5 industry.
If the proposed fees do go into effect after the end of the comment period, on March 6, 2023, without any revisions, EB-5 investors will have to pay about $13,000 more to USCIS in filing fees, plus $1,595 more if they apply for an adjustment of status (Forms I-485, I-765, and I-131).
Impact on Processing Times
USCIS currently has a considerable backlog to catch up on, particularly with regard to EB-5 applications. When presenting this NPRM, USCIS presented a comprehensive study and documents justifying the new proposed fees, concluding that “the new fees would allow USCIS to more fully recover its operating costs, reestablish and maintain timely case processing, and prevent the accumulation of future case backlogs.”
Let’s also remember that the Department of Homeland Security (DHS) has until March 15, 2023, to produce a study about reducing backlogs with the goal of having EB-5 petitions adjudicated in six months, as foreseen in the RIA 2022. As EB-5 expert Suzanne Lazicki explains, “the NPRM follows a cost-recovery model that only accounts for USCIS costs and incoming workload; the Integrity Act study will have to use a different method to address the timely processing objective.”
Will the proposed EB-5 fee increases result in better service and shorter processing times? While these are the expectations of all stakeholders—from immigration attorneys to regional centers to, mainly, EB-5 investors—this question is yet to be answered. There is no doubt that USCIS needs to add a lot of people and hours to its Immigrant Investor Program Office (IPO) in order to reduce current backlogs.
Should You Rush Your EB-5 Application?
As of now, we cannot confirm if or when fees will actually change, but the NPRM is a strong indication of USCIS’s intentions. Once the comment period is over, the agency may take time to review the comments or may put the fees into effect with or without a grace period.
If you have already applied for an EB-5 visa by filing an I-526/I-526E form, you may consider if you would like to apply for a Concurrent Adjustment of Status before the new fees go into effect.
In case you are considering applying for the EB-5 program, it is important to account for the time needed to prepare a petition before you are able to file. While we understand that applying for EB-5 is an important life-changing decision, we strongly recommend taking action now in order to take advantage of the current filing fees and to save a few thousand dollars.