U.S. Citizenship and Immigration Services (USCIS) issued a 500-plus page proposal to increase fees to hire more staff and address backlogs. For example, the proposed filing fee for Form I-956, the regional center application, is $47,695, an increase of $29,900 from $17,795. A 20% staffing addition and significant increases in work hours attributed to EB-5 forms are cited as drivers for the cost hikes. Of note, the proposal precedes the completion of a fee study for “timely processing" one year after the enactment of the Reform and Integrity Act.
USCIS is suggesting substantially increased EB-5 application fees in a fee proposal just released by the Department of Homeland Security. The increases in some cases are more than three times the current fees.
The increases are meant to increase USCIS staffing and to address processing times and backlogs. The fee increases are not standardized but are specific to each service.
Timing for the new proposal and fees
Written comments for the proposal will be accepted on or before March 6, 2023. A listening session took place on January 6, 2023.
The newly proposed fee rule would dramatically increase the cost to file an EB-5 application.
The proposed fee for Form I-526, Immigrant Petition by Alien Entrepreneur, and Form I-526E, Immigrant Petition by Regional Center Investor, is $11,160, more than three times the current $3,675 fee.
The proposed fee for I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, is $9,525, more than two and a half times the current $3,750 fee.
The proposed fee for I-956, Application for Regional Center Designation, is $47,695, more than two and a half times the $17,795 fee for Form I-924.
The proposed fee for Form I-956F, Application for Approval of Investment in a Commercial Enterprise is $47,695, more than two and a half times the current I-956F fee of $17,795.
The proposed fee for Form I-956G, Regional Center Annual Statement, is $4,470, a 47% increase from the $3,035 fee for the pre-RIA Form I-924A, Annual Certification of Regional Center.
Far more hours per application drive fee increases
DHS cites two factors behind the significant increase in fees: “The primary cost driver responsible for this increase is payroll, including the need to hire additional staff due to an increase in the volume of applications that USCIS receives and the increase in time per adjudication for USCIS to process many applications, petitions, and requests.”
First, let’s look at staffing levels. The Immigration Investor Program Office (IPO) in Washington, DC, handles EB-5 matters. The fee proposal outlines how IPO staffing numbers must increase: “In the FY 2016/2017 fee rule, USCIS planned for 204 positions in IPO. In the FY 2022/2023 fee review, USCIS estimates an annual average requirement of 245 positions in IPO.”
So USCIS anticipates hiring 41 more staff members to adjudicate EB-5 petitions, a 20% increase. However, the time spent per EB-5 petition has increased far beyond anyone’s reasonable expectations and appears to be the single biggest driver of the fee hikes.
DHS admits that even though the number of applications has declined consistently from FY 2016 to FY 2020, the time spent adjudicating each application has increased. The agency doesn’t use modifiers to describe these increases in average adjudication times, but words like “substantial” or even “staggering” will come to mind for many EB-5 stakeholders.
The FY 2016/2017 fee rule estimated that each I-526 petition would take 6.5 hours to adjudicate. But the FY 2022/2023 rule now estimates now estimates 20.69 hours per I-526 and I-526E petition. The fee rule does not explain why the agency now needs well over three times the time to adjudicate investor petitions compared with six years ago.
A similarly staggering increase in hours per petition applies to regional centre applications. The pre-RIA I-924 regional center application was estimated to require 40 hours to adjudicate. Now, the new fee rule estimates 108.5 hours of adjudication time.
This proposal precedes the Reform and Integrity Act fee study
The timing of this proposal almost aligns with the due date for the fee study proposed for “timely processing” in the EB-5 Reform and Integrity Act of 2022 (RIA). However, this fee rule is not meant to fulfill the requirement of that RIA fee study.
The RIA’s fee study must be completed within one year of the enactment of the RIA, which was signed into law on March 15, 2022. And within 60 days of the study’s completion, the new fees must be set. The fee study aims to determine the appropriate fees required for the average processing of non-TEA petitioner applications with 180 days, and TEA petition applications within 90 days.
The new DHS fee rule separates itself from the RIA fee study: “Therefore, DHS proposes new fees for the EB-5 program forms in this rule using the full cost recovery model described herein that we have used to calculate those fees since the program's inception and not the fee study parameters and processing time frames required by the EB-5 Reform and Integrity Act of 2022. USCIS will collect fees established under INA section 286(m), 8 U.S.C. 1356(m), for the EB-5 program, including as may be effected by a final rule for this proposed rule, until the fees established under section 106(a) of the EB-5 Reform and Integrity Act of 2022 take effect.” [Editor’s emphasis]
So if this new fee proposal becomes implemented it may, for EB-5, only be in effect for a short while until the fee study’s recommendations take effect.
How could the RIA’s fee study numbers change from those in the current DHS fee rule? It’s hard to imagine that the fees required to achieve extraordinarily low processing times for EB-5 applications will be lower than those in the current proposal which do not aim to achieve incredibly low processing benchmarks.
Were the new DHS proposed fees for EB-5 determined with such processing goals in mind? For the sake of efficiency one would hope the Immigration Service would not waste time conducting two different fee studies with vastly different processing objectives.
But the new proposal seems to delineate the EB-5 objectives of the current fee proposal with the pending RIA proposal: "The EB-5 Reform and Integrity Act of 2022 has no immediate impact on the staffing levels of the USCIS Immigrant Investor Program Office…. DHS has proposed fees in this rule based on the currently projected staffing needs to meet the adjudicative and administrative burden of the Immigrant Investor Program Office pending the fee study required by section 106(a) of the EB-5 Reform and Integrity Act of 2022.” [Editor’s emphasis]
If the currently proposed fees are meant to address “currently projected staffing needs,” it’s hard to imagine that the resources needed to adjudicate investor petitions in just 90 days would be anything less, and possibly substantially more. So hold on to your hats — and wallets.
We shall see if the RIA’s fee study numbers will remain the same — or increase even more — as the anniversary of the RIA’s enactment is fast approaching.