NAVIGATING THE RECENT LEGAL BATTLES OVER EB-5 VISA GUIDELINES AND FEE INCREASES— BY RONALD FIELDSTONE
the extent to which there will be retroactive leeway for those EB-5 investors who supposedly relied upon the October 11, 2023, Policy Release, so that such petitioners are not prejudiced to the extent that they have already advanced funds and are expecting a return of funds in a timely manner.
As a result, USCIS’ s definition of“ sustainment period” to mean the two years for the sustainment of an applicant’ s EB-5 investment remains subject to further interpretation or modification. The same shall be determined by the agency from time to time, and subject to litigation against USCIS challenging the position concerning its application of the definition.
THE FILING FEES INCREASE In the second case brought in by the U. S. District Court in the Northern District of Texas, several Regional Centers and IIUSA sued to void USCIS’ s unilateral increase of EB-5 filing fees.
As background, on or about January 3, 2023, USCIS announced that filing fees for the EB-5 Program will be subject to an increase, becoming effective as of April 1, 2024. In particular, the filing fees for a Form I-956, Application for Regional Center Designation, and Form I-956F, Application for Approval of an Investment in a Commercial Enterprise, increased from $ 17,795 to $ 47,695( i. e., a 168 % increase). Correspondingly, the filing fee required to be paid by each EB-5 investor for a( i) Form I-526E petition increased from $ 3,675 to $ 11,160( a 204 % increase); and( ii) Form I-829 petition increased from $ 3,750 to $ 9,525( a 154 % rise). Notably, the $ 1,000 fee paid by each EB-5 investor to the EB-5 Integrity Fund remains unchanged.
In November of 2025 the Federal District Court in Colorado ruled that the increase in the filing fees violated the RIA. Immediately thereafter, USCIS announced that it would accept the lower filing fees. The Court did not address the refund of the increased filing fees paid subsequent to April 1, 2024.
Based upon the ruling in the Colorado case, the senior Judge in the Texas case may be more inclined to rule more quickly. The plaintiff in this case requested a refund of the increase filing fees that were paid.
OVERVIEW OF CERTAIN IMMIGRATION ISSUES There is no certainty whether USCIS will attempt to adopt regulations consistent with its Policy Release. The current Policy Release creates confusion as to
There is no certainty whether USCIS will attempt to adopt regulations consistent with its Policy Release
All professionals involved in preparing the EB-5 package have a responsibility to take reasonable care in providing clear information about the risks regarding making an EB-5 investment
1) Each EB-5 investor’ s two-year mark and when the required jobs have been created 2) Whether each EB-5 investor’ s two-year time needs to be separately tracked to determine when the two years begin. For example,( A) how do we treat the typical scenario of New Commercial Enterprise( NCE) accumulating partial EB-5 funds from 5 investors and advancing the same to the Job Creating Entity( JCE) as part of the EB-5 financing; and( B) what if there are multiple EB-5 investors whose EB-5 funds are advanced by the NCE to the JCE periodically?
Ultimately, the tracking and accounting of job creation for EB-5 investors will be very complicated. In addition, there is uncertainty as to whether all EB-5 investors are retroactively grandfathered under the RIA based upon the above analysis.
WHAT ARE THE SECURITIES LAWS AND CORPORATE IMPLICATIONS? Including appropriate disclosures in EB-5 offering and related corporate documents regarding the foregoing issues until these cases have been finally decided is critical, particularly with respect to addressing the uncertainty regarding the definition of“ sustainment period”.
The following are just a few recommendations regarding how to appropriately address these issues:
• Disclose the status of the case and provide language as to the uncertainty that has been created because of the same.
• Need to address risk factor with EB-5 investors concerning any repayment of their capital contributions prior to meeting the pre-RIA“ sustainment period,” given the uncertainties set forth above.
From a corporate standpoint, the NCE’ s operating agreement or partnership agreement should provide its Manager / GP with authority to decide when EB-5 investors may receive a return of their capital contributions to comply with the“ at risk” requirements under the EB-5 Program, which, in turn, will be based upon the ultimate determination of when their respective“ sustainment periods” begin.
The applicable EB-5 loans, or preferred equity documents, should also appropriately address these uncertainties in connection with the loan term, the preferred investment exit strategies, and the necessity
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