As we have previously covered, 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 EB-5 stakeholders. Our legal team of top EB-5 and former DOJ attorneys have filed a lawsuit and submitted a Temporary Restraining Order (TRO) this week on behalf of AIIA to stop this fee increase. AIIA has launched a fundraiser to help pay for the legal costs to fight this fee increase for the immigrant community.

In filing this lawsuit, we have sent a clear message to USCIS that they cannot just force the EB-5 community to pay more just because “EB-5 investors can afford the fee hike”. Our lawsuit has already been covered by Bloomberg Law, Forbes, and Times of India, which further speaks to what’s at stake here.

In our original complaint we made the argument that not only is USCIS’s new fee increment a direct violation of federal law, but it will also severely harm the EB-5 community financially by charging exorbitant fees without ever improving the quality of their service.

We strongly believe that the fee increase would do irreparable harm with the financial burden it would place on EB-5 immigrant investors and with its unfair targeting of immigrant investors to essentially subsidize other immigration programs, doing imminent harm to our members who we, as an organization, represent. This lawsuit may take months to settle; however, forcing people to start paying illegal fees now and then asking them to sue for reimbursement later would be impractical. The cost and time involved in lawsuits outweigh any potential recovery.

In turn, yesterday the government attorneys responded by claiming that no imminent or irreparable harm would be done to EB-5 investors should the new fee rules come to pass. They completely glossed over the fact that baselessly raising thousands of dollars worth of filing fees without doing the required fee study is cause for irreparable harm. Moreover, their argument against the TRO relies on how a failure to implement the new fee structure could financially harm USCIS, as if by charging significantly higher fees the agency will magically pick up the pace in processing and adjudication efficiency.

As soon as we received the government’s motion to dismiss our TRO our legal team got to work drafting up a reply. We emphasized that the new fee schedule, particularly the EB-5 investor fee increase, violates federal law which is one of our foundational arguments in this case. The fact remains that fees weren’t established through a mandatory fee study and aren’t tied to the processing timelines mandated by Congress. Even though our argument focused on the EB-5 community we argued that the TRO should be applied to the entire fee schedule, not just to our specific members. We believe halting the entire rule now was necessary to address the violation of federal law.

Despite our attorneys’ best efforts, the court disagreed with our argument that the increased fees would cause irreparable harm between April 1st and post trial. The judge reasoned that the financial burden on EB-5 investors, though substantial, wasn’t great enough compared to the investment already made and the harm wasn’t immediate since deadlines to file applications were months away. Stopping the fee increase would also cost USCIS millions daily.

This means that the USCIS fee increase will come into effect on April 1st this year, extending an unfair financial burden to the immigrant community.

However, the fight is far from over!

Without the temporary protection of the TRO, it is substantially more important now than ever for us to focus on the upcoming lawsuit and maximize our chances of winning. By winning the case, we can fend off USCIS’s attempts to increase the costs for all EB-5 stakeholders. The silver lining in this story is that the government did not oppose, and the court did not opine on our main argument in the lawsuit, thus we still believe that we have a strong chance of ultimately winning this suit.

Currently, the DOJ is fighting us over this case, which inevitably means that the process will be long and complicated. With everything at stake here, we need your help and support to finance our attorneys to fight this good fight and protect the rights of the EB-5 community.