Significant Increases to EB-5 Program Filing Fees Effective on December 23, 2016

by Ballard Spahr LLP

Ballard Spahr LLP

The Department of Homeland Security (DHS) has increased fees by an average of 21 percent for certain U.S. Citizenship and Immigration Services (USCIS) applications, including the U.S. Immigrant Investor Program (EB-5).

The EB-5 program provides a green card to foreign investors who invest a minimum of $1 million, or $500,000 in targeted employment areas, job-creating companies, and real estate projects. Pursuant to DHS's final rule published in the Federal Register on October 24, 2016, a new fee schedule takes effect on December 23, 2016, to cover USCIS's operational costs, including administration of the highly popular EB-5 Program.

DHS directed USCIS to conduct a comprehensive fee review, which concluded in 2015 with a determination that USCIS's filing fees do not fund its operational expenses entirely. The Immigration and Nationality Act (INA) tasks DHS with securing all of the costs USCIS incurs to provide its services through application fees. Based on this authority and USCIS's comprehensive fee review, DHS final fee schedule increases USCIS's fees on a weighted average of 21 percent.

Of note to persons involved with the EB-5 Program, DHS's final rules institute the following new fee and increased fees, effective as of December 23, 2016:

  • a filing fee of $3,035 to file a regional center's Annual Certification of Regional Center on Form I-924A, which previously could be filed at no cost;

  • an increased filing fee from $6,230 to $17,795 to file an Application for Regional Center Designation Under the Immigrant Investor Program on Form I-924;

  • an increased filing fee from $1,500 to $3,675 to file an Immigrant Petition by Alien Entrepreneur on Form I-526; and

  • an increased filing fee from $635 to $750 to file an Application to Register Permanent Residence or Adjust Status on Form I-485 and an increased filing fee from $985 to $1,140 to file a Form I-485 for certain applicants under the age of 14 years.

These EB-5 Program fee increases range from 145 percent for the Form I-526 to 186 percent for the Form I-924. In contrast, across the USCIS's many programs as a whole, DHS's new fees increase current fees significantly less, with increases ranging between 8 and 60 percent.

As recently reported by Ballard Spahr's EB-5 Group, Congress has extended the EB-5 Program through December 9, 2016, following the recent signing of a continuing resolution. Congress failed to extend it for a three-year period, as it has for more than two decades. Many have proposed making the program permanent. However, DHS's fee increases to the EB-5 Program may be seen as a portent to long-term renewal of the program.

Ballard Spahr's EB-5 Group encourages interested participants to file their Form I-924A for fiscal year-end of September 30, 2016, as soon as possible to postpone the inaugural payment of the new filing fee until the subsequent year-end. Further, we recommend interested participants contemplating filing one or more Forms I-924 Application for Regional Center Designation for a new regional center or to obtain USCIS pre-approval of a project by exemplar filing, to do so before December 23.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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