No April Fools: Lawsuit Against USCIS on EB-5 Fee Increase 

No April Fools: Lawsuit Against USCIS on EB-5 Fee Increase 

By Mona Shah, Esq. 

The Lawsuit

To our regular subscribers, there was certainly no surprise when a lawsuit was filed on March 19, 2024, relating to the upcoming USCIS filing fee increases by Bless Litigation, Wasden Law and Galati Law.  The lawsuit was filed in the District of Colorado and is aimed at stopping USCIS proposed increased fees from going into effect.  

Jess Bless of Bless Litigation, explained their decision as such: “For EB-5 investors, Congress mandated new fees, but first they required a fee study to be conducted.  That was not done, yet fees have been increased anyway.  Congress also wanted EB-5 fees tied to specific processing times, and DHS failed to do so in this Final Rule.  On behalf of the EB-5 community, my co-counsel and I seek what the law demands.  Nothing more.” 

New Fee Schedule

The proposed new fee schedule has been roundly criticized for the exorbitant increases, including fees for some forms rising by over 150% (and one over 200%). The public comment period, which began on January 4, 2023 (and was even extended through March 13, 2024), led to a flood of comments blasting USCIS. Some commentators even warned that such excessive increases could lead to the opposite of the agency’s intended goal of increasing funding—if fees are too high, people may simply choose not to apply. And not only is that a loss for USCIS (which is “largely” funded by filing and petition fees), that is a loss for all the communities across the United States that would have benefited from the investments and jobs those applications would have led to.  

Why?

Despite the almost 8,000 comments full of complaints and insights from the public and industry experts, on January 30, 2024 USCIS published a final rule. In the rule, they also noted in response to the feedback that “[m]ost commenters opposed the rule and expressed unqualified opposition or opposition to one or more provisions.”  Nonetheless, the fee increases were scheduled to take effect on April 1, 2024, and USCIS claimed in response to comments regarding EB-5 program fee increases that “[f]ull cost recovery means not only that fee-paying applicants and petitioners must pay their proportionate share of costs, but also that at least some fee-paying applicants and petitioners must pay a share of the immigration adjudication and naturalization services that DHS provides on a fee-exempt, fee-reduced, or fee waived basis.” 

It is notable that the fee increases for several of the other forms were only adjusted for inflation, this is not the case for those in the EB-5 program.  

Appeal to Our Readers

Bless Litigation, Wasden Law and Galati Law Firm, have joined together to fight this unjust increase, and have chosen to do so without direct payment for legal fees. The American Immigrant Investor Alliance is leading a crowdfunding effort to help pay for the lawsuit, which is expected to have substantial out-of-pocket costs.   

If you would like to donate to the lawsuit, you can do so here.  

Megan Butler also contributed to this article.