Help Us Fund Our Lawsuit Against USCIS On The Raising of EB-5 Fees

Update on this lawsuit can be found here: https://goaiia.org/we-unsuccessfully-stopped-the-fee-increase-but-the-fight-has-just-begun/

USCIS is raising EB-5 petition fees by over 150%, hurting investors and regional centers. AIIA is suing to stop this because it likely won’t improve processing times and unfairly burdens stakeholders. On behalf of AIIA former DOJ attorneys have filed a lawsuit to stop this fee increase. AIIA has launched a fundraiser to help pay for the legal costs to fight this fee increase and protect the EB-5 program’s future.

On Jan 31st, 2024 USCIS finalized the previously proposed change to filing fee increases for certain immigration and naturalization benefit requests, which will come into full effect by April this year. Every few years, USCIS reevaluates the cost of adjudicating all cases received by the agency to adjust fees – for inflation, increased complexity of forms and adjudication times, as well as expected fluctuation in staffing at the agency. However, even with an extensive backlog of EB-5 pending petitions and a small number of active adjudicators, USCIS still believes it is justified in raising the cost of filing an I-526 or I-829 by over 150% or more.

Currently, USCIS charges $3,675 for filing an I-526 or I-526E, and $3,750 for filing an I-829. The agency now seeks to raise fees for petition filing to $11,160 for I-526/I-526Es and $9,525 for I-829 applications. This works out to over a 204% and 154% increase in the respective fee amounts and would affect anyone who will file these petitions after April 1st, 2024.

Why is USCIS raising the fees?

USCIS’s justification in this matter is somewhat similar to what they have outlined in the NPRM posted last year–that the fee increase is necessary in light of inflation and rising staffing costs, especially considering the extraneous backlog faced by EB-5 investors on multiple fronts. And the reason that the price hike falls especially harshly on EB-5 applicants is because USCIS consider EB-5 investors to be more capable of shouldering the cost compared to other groups that are financially less fortunate.

This is especially egregious when considering that USCIS admits that “USCIS cannot commit to across-the-board processing time reductions (for EB-5) as adjudications involve case-by-case review of complex applications and related supplementary information.” Which means that the price hike might only be used to cover USCIS’s own revenue shortfall rather than be used to provide any noticeable service improvements in the EB-5 adjudication process.

Why should I care about this case?

If you are an EB-5 stakeholder of any kind, this additional fee is a huge burden on everyone (aside from those who have already filed their I-829 or have received their permanent Green card). But this will undoubtedly impact EB-5 investors the most, as they will also be indirectly affected by the fee increases on I-956 forms filed by regional centers and those costs will more than likely be passed on via things like management fees.

Many may think that this increased fee may lead to better service from the agency but we have not seen any firm commitments from USCIS on that. There is also the risk that regional centers may be disincentivized from updating their I-956F because of the significantly higher fee.

Who are the lawyers fighting this lawsuit?

The litigation effort is being spearheaded by some of the most experienced and respected attorneys in the EB-5 and federal litigation space. This includes Matt Galati who has represented AIIA as well as many EB-5 investors in their fight against USCIS. We are also represented by former Department of Justice (DOJ) attorneys Jon Wasden–who had served as a trial attorney at the DOJ and worked on litigation and appeals at the Administrative Appeals Office (AAO) and Jesse Bless–who helped defeat the previous fee increase USCIS tried to do in 2020.

What is the legal justification for this case?

The fee increase that is expected to come into effect goes against previous congressional directives on this matter, and suffers from procedural problems in its financial research process. Congress mandated a fee study – which was never completed. AIIA believes that these attorneys–who have had a track record of aiding EB-5 investors–are raising justified challenges to the fee increase.

Will the fee increase be stopped right away?

At present, a temporary restraining order (TRO) will soon be filed that should prevent the price hike from coming into effect before the case goes to trial. It is paramount for all EB-5 stakeholders that the TRO is filed quickly to prevent the implementation of the fee increases.

Is there anyone else filing a lawsuit?

Other parties are interested in filing a lawsuit to challenge the price increase; however, as far as we know no other parties have expressed the same level of urgency or action as the attorneys mentioned above have.

What can I do to help?

We have created a special fundraising campaign to help pay for this lawsuit and the ongoing legal costs. AIIA is leading the crowdfunding effort to pay for this lawsuit. The attorneys have gone ahead to draft the complaint and filed the lawsuit without payment. There are going to be several legal costs in this case, from expert testimonies, court filing fees, etc. and we need your support to fund this suit.

Please donate to this lawsuit here: https://goaiia.org/fee-increase-lawsuit/