United States | Proposed EB-5 fee adjustments by DHS would reduce certain costs for immigrant investors

Today, the Department of Homeland Security published a Notice of Proposed Rulemaking (NPRM) in the Federal Register to adjust EB-5 immigrant visa fees and codify certain provisions of the EB-5 Reform and Integrity Act of 2022.

Key Points:

According to the NPRM, “The Department proposes to adjust Employment-Based Immigration, Fifth Preference (EB-5) immigration benefit request fees charged by USCIS [U.S. Citizenship and Immigration Services]. USCIS conducted an EB-5-specific fee study, as required by the EB-5 Reform Act. The fees are proposed to be set at a level that USCIS has determined would enable it to recover the costs of administering the EB-5 program and to allow it to attain the processing time goals and to ensure there are internal procedures and controls in place to try to maximize the likelihood that the statutory goals are met.”

The five major changes proposed to the EB-5 program are summarized in the NPRM as:

o “Adjusting EB-5 program fees according to the schedule in Table 1;
o Establishing the USCIS EB-5 technology fee;
o Codifying EB-5 Integrity Fund fees and penalties; and
o Establishing Form I-527, Amendment to Legacy Form I-526.
o Clarifying the process by which an alien investor’s spouse and children file separate Form I-829 petitions when they are not included in the Form I-829 filed by the alien investor.”

The NPRM proposes significant fee reductions for core EB-5 filings, including Form I-526 and I-829, with decreases ranging from 14% to 61%. New fees are also introduced, such as an $8,000 charge for proposed Form I-527 and a $95 technology fee added to initial petitions. Table 1 in the NPRM includes a charted comparison of current and proposed EB-5 fees (with the technology fees added to the proposed fees) excerpted below:

Public comments on the proposed rule can be submitted here through Dec. 22.

Additional Information: The EB-5 Immigrant Investor Program is administered by USCIS. According to USCIS, “Under this program, investors (and their spouses and unmarried children under 21) are eligible to apply for lawful permanent residence (become a Green Card holder) if they:

• Make the necessary investment in a commercial enterprise in the United States; and
• Plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.”

Publication of the NPRM is the first step in the formal rulemaking process. Changes would not take effect until DHS issues a final regulation with a specified effective date. The agency is required to consider comments from the public in formulating the final rule.

This alert has been provided by the BAL U.S. Practice Group.

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