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Proposed Rule2025-19642

U.S. Citizenship and Immigration Services Employment-Based Immigrant Visa, Fifth Preference (EB-5) Fee Rule

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Published

October 23, 2025

Issuing agencies

Homeland Security Department

Abstract

The Department of Homeland Security (DHS) proposes to adjust Employment-Based Immigration, Fifth Preference (EB-5) immigration benefit request fees charged by U.S. Citizenship and Immigration Services (USCIS). This rule also proposes to codify certain elements of the EB-5 Reform and Integrity Act of 2022 and implement new statutory requirements. DHS intends for the rule to provide USCIS with the resources necessary to accomplish the goals of the EB-5 Reform and Integrity Act of 2022 and enhance and maintain the integrity of the EB- 5 program.

Full Text

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[Federal Register Volume 90, Number 203 (Thursday, October 23, 2025)]
[Proposed Rules]
[Pages 48516-48552]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-19642]

[[Page 48515]]

Vol. 90

Thursday,

No. 203

October 23, 2025

Part II

Department of Homeland Security

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8 CFR Parts 106 and 216

U.S. Citizenship and Immigration Services Employment-Based Immigrant
Visa, Fifth Preference (EB-5) Fee Rule; Proposed Rule

Federal Register / Vol. 90 , No. 203 / Thursday, October 23, 2025 /
Proposed Rules

[[Page 48516]]

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 106 and 216

[CIS No. 2777-24; DHS Docket No. USCIS-2025-0139]
RIN 1615-AC93

U.S. Citizenship and Immigration Services Employment-Based
Immigrant Visa, Fifth Preference (EB-5) Fee Rule

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security (DHS) proposes to adjust
Employment-Based Immigration, Fifth Preference (EB-5) immigration
benefit request fees charged by U.S. Citizenship and Immigration
Services (USCIS). This rule also proposes to codify certain elements of
the EB-5 Reform and Integrity Act of 2022 and implement new statutory
requirements. DHS intends for the rule to provide USCIS with the
resources necessary to accomplish the goals of the EB-5 Reform and
Integrity Act of 2022 and enhance and maintain the integrity of the EB-
5 program.

DATES: Submission of Public Comments: Written comments must be
submitted on this proposed rule on or before December 22, 2025. The
electronic Federal Docket Management System will accept comments prior
to midnight eastern time at the end of that day.

ADDRESSES: You may submit comments on the entirety of this proposed
rule package, identified by DHS Docket No. USCIS-2025-0139, through the
Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In accordance
with 5 U.S.C. 553(b)(4), the summary of this rule found above may also
be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the website
instructions for submitting comments. Comments must be submitted in
English, or an English translation must be provided. Comments that will
provide the most assistance to USCIS in implementing these changes will
reference a specific portion of the proposed rule, explain the reason
for any recommended change, and include data, information, or authority
that support such recommended change. Comments submitted in a manner
other than the one listed earlier, including emails or letters sent to
DHS or USCIS officials, will not be considered comments on the proposed
rule and may not receive a response from DHS. Please note that DHS and
USCIS cannot accept any comments that are hand delivered or couriered.
In addition, USCIS cannot accept comments contained on any form of
digital media storage devices, such as CDs/DVDs and USB drives. USCIS
is also not accepting mailed comments at this time. If you cannot
submit your comment by using <a href="https://www.regulations.gov">https://www.regulations.gov</a>, please
contact the Regulatory Coordination Division, Office of Policy and
Strategy, U.S. Citizenship and Immigration Services, Department of
Homeland Security, by telephone at 240-721-3000 for alternate
instructions.

FOR FURTHER INFORMATION CONTACT: Office of the Chief Financial Officer,
U.S. Citizenship and Immigration Services, Department of Homeland
Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone
240-721-3000.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
II. Executive Summary
A. Purpose and Major Provisions of the Regulatory Action
B. Summary of the Proposed EB-5 Program Fees
C. Summary of Economic Impacts
III. Background and Purpose
A. The EB-5 Program
B. USCIS Fees
C. Legal Authority and Guidance
1. EB-5 Reform and Integrity Act of 2022
2. Other Legal Authorities
D. Full Cost Recovery
E. EB-5 Fee Schedule
1. Current EB-5 Fees
2. State of EB-5 Fee Schedule Regulations
F. Severability
IV. Fee-Setting Approach
A. The Processing Times Referenced in the Integrity Reform Act
1. USCIS Efficiency Improvements
2. Completion Goals Are Not Requirements
B. EB-5 Fee Study Methodology
1. Volume
2. Completion Rates
3. Legacy Workloads
4. Cost Reallocation
5. Regional Center Termination Costs
C. EB-5 Fee Study Projected Costs and Revenue
1. EB-5 Fee Study Cost Projections
2. EB-5 Fee Study Revenue Projections
3. EB-5 Fee Study Cost and Revenue Differential
D. EB-5 Fee Study Results and Proposed Fee Adjustments
1. Proposed EB-5 Immigration Benefit Request Fee Adjustments
2. EB-5 Technology Fee
3. Form I-527, Amendment to Legacy Form I-526
V. EB-5 Integrity Fund Fees and Penalties
A. EB-5 Integrity Fund
B. Current EB-5 Integrity Fund Fees
C. Proposed Inflation Adjustment to EB-5 Integrity Fund Fees
D. EB-5 Integrity Fund Penalties
1. Proposed Penalties
2. Calculation of Investors To Determine Amount Owed
3. Timeline and Payment Process
E. Technical Change
VI. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review),
Executive Order 13563 (Improving Regulation and Regulatory Review),
and Executive Order 14192 (Unleashing Prosperity Through
Deregulation)
1. Summary
2. Economic Impacts
B. Regulatory Flexibility Act (RFA)
1. Initial Regulatory Flexibility Analysis (IRFA)
C. Unfunded Mandates Reform Act of 1995 (UMRA)
D. Congressional Review Act
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Family Assessment
H. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
I. National Environmental Policy Act (NEPA)
J. Paperwork Reduction Act (PRA)

Table of Abbreviations

ABC Activity-Based Costing
BLS Bureau of Labor Statistics
CEQ Council on Environmental Quality
CFO Chief Financial Officer
CFR Code of Federal Regulations
CPI-U Consumer Price Index for All Urban Consumers
DHS Department of Homeland Security
DOL Department of Labor
EB-5 Employment-Based Immigration Visa Classification, Fifth
Preference
E.O. Executive Order
FDNS Fraud Detection and National Security Directorate
FR Federal Register
FY Fiscal Year
GAO Government Accountability Office
IEFA Immigration Examinations Fee Account
INA Immigration and Nationality Act of 1952
IOAA Independent Offices Appropriations Act
IPO Immigrant Investor Program Office
IRFA Initial Regulatory Flexibility Analysis
JCE Job-Creating Entity
NAICS North American Industry Classification System
NCE New Commercial Enterprise
NEPA National Environmental Policy Act
OIRA Office of Information and Regulatory Affairs
OPQ Office of Performance and Quality
PRA Paperwork Reduction Act
RFA Regulatory Flexibility Act
RIA Regulatory Impact Analysis
SBA Small Business Administration
SOC Standard Occupational Code
TEA Targeted Employment Area
UMRA Unfunded Mandates Reform Act
USCIS U.S. Citizenship and Immigration Services
VPC Volume Projection Committee

[[Page 48517]]

I. Public Participation

DHS invites all interested parties to participate in this
rulemaking by submitting written data, views, comments, and arguments
on all aspects of this proposed rule. DHS also invites comments that
relate to the economic, environmental, or federalism effects that might
result from this proposed rule. Comments must be submitted in English,
or an English translation must be provided. Comments that will provide
the most assistance to USCIS in implementing these changes will
reference a specific portion of the proposed rule, explain the reason
for any recommended change, and include data, information, or authority
that support such recommended change. Comments submitted in a manner
other than the one listed earlier, including emails or letters sent to
DHS or USCIS officials, will not be considered comments on the proposed
rule and may not receive a response from DHS.
Instructions: If you submit a comment, you must include the agency
name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
USCIS-2025-0139 for this rulemaking. Regardless of the method used for
submitting comments or material, all submissions will be posted,
without change, to the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, and will include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of personal information that
you provide in any voluntary public comment submission you make to DHS.
DHS may withhold information provided in comments from public viewing
that it determines may impact the privacy of an individual or is
offensive. For additional information, please read the Privacy and
Security Notice available at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Docket: For access to the docket and to read background documents
or comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, referencing
DHS Docket No. USCIS-2025-0139. The docket includes additional
documents that support the analysis contained in this proposed rule to
determine the specific fees that are proposed. You may also sign up for
email alerts on the online docket to be notified when comments are
posted, or a final rule is published.

II. Executive Summary

A. Purpose and Major Provisions of the Regulatory Action

DHS proposes to adjust EB-5 immigration benefit request fees to
meet certain requirements provided in the EB-5 Reform and Integrity Act
of 2022, div. BB of the Consolidated Appropriations Act, 2022, Public
Law 117-103 (EB-5 Reform Act), and continue to adequately fund the cost
of administering the EB-5 program. DHS proposes the following major
changes:
<bullet> Adjusting EB-5 program fees according to the schedule in
Table 1;
<bullet> Establishing the USCIS EB-5 technology fee;
<bullet> Codifying EB-5 Integrity Fund fees and penalties; and
<bullet> Establishing Form I-527, Amendment to Legacy Form I-526.
<bullet> Clarifying the process by which an alien investor's spouse
and children file separate Form I-829 petitions when they are not
included in the Form I-829 filed by the alien investor.

B. Summary of the Proposed EB-5 Program Fees

Table 1 summarizes the fees that DHS is proposing in this rule to
meet EB-5 Reform Act requirements. The fees in the column titled
Current Fees are the fees that DHS currently collects. See 8 CFR part
106. The fees in the column titled Proposed Fee(s) are the fees DHS
proposes in this rule. The final two columns display the difference
between current and proposed fees, based on dollar value and
percentage. In addition, the draft version of USCIS Form G-1055, USCIS
Fee Schedule, included in the docket for this rulemaking uses these
proposed fees.
In certain cases, the proposed fee may be the sum of several fees.
For example, as described in Section IV.D.2 of this preamble, the
initial I-526 and I-526E EB-5 immigration benefit requests require an
additional technology fee under this proposed rule. The table includes
rows with the technology fee added to the Proposed Fee(s) column for
clarity.

Table 1--Comparison of Current and Proposed EB-5 Fees
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Proposed
Immigration benefit request Current fee(s) fee(s) $ Difference % Difference
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I-526 Immigrant Petition by Standalone Investor-- $11,160 $9,625 ($1,535) -14
Initial (with $95 technology fee)..............
I-526E Immigrant Petition by Regional Center 11,160 9,625 (1,535) -14
Investor--Initial (with $95 technology fee)....
I-526E Immigrant Petition by Regional Center 11,160 9,530 (1,630) -15
Investor--Amendment............................
I-527 Amendment to Legacy Form I-526............ 0 8,000 8,000 N/A
I-829 Petition by Investor to Remove Conditions 9,525 7,860 (1,665) -17
on Permanent Resident Status...................
I-956 Application for Regional Center 47,695 28,895 (18,800) -39
Designation--Initial (with Regional Center
Termination cost)..............................
I-956 Application for Regional Center 47,695 18,480 (29,215) -61
Designation--Amendment (with Regional Center
Termination cost)..............................
I-956F Application for Approval of an Investment 47,695 29,935 (17,760) -37
in a Commercial Enterprise--Initial or
amendment (with Regional Center Termination
cost)..........................................
I-956G Regional Center Annual Statement-- 4,470 2,740 (1,730) -39
Initial, amendment, or supplement..............
I-956H Bona Fides of Persons Involved with 0 55 55 N/A
Regional Center Program........................
I-956K Registration for Direct and Third-Party 0 2,740 2,740 N/A
Promoters......................................
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The EB-5 Reform Act established a special fund to be known as the
EB-5 Integrity Fund. INA sec. 203(b)(5)(J), 8 U.S.C. 1153(b)(5)(J). The
EB-5 Reform Act requires the Integrity Fund to be financed through the
collection of an annual fee ($10,000 or $20,000 annually) paid by and
collected from designated regional centers in relation to the number of
total investors. INA sec. 203(b)(5)(J)(ii), 8 U.S.C. 1153(b)(5)(J)(ii).
In addition, the

[[Page 48518]]

Integrity Fund is financed by the collection of $1,000 from each
regional center petitioner with their filing of a Form I-526E. Id.
DHS also proposes imposing penalties for failing to pay and for
late payments of the EB-5 Integrity Fund fees. INA sec. 203(b)(5)(J), 8
U.S.C. 1153(b)(5)(J) requires a reasonable penalty fee for a regional
center that does not pay the annual Integrity Fund fee within 30 days
after the date on which such fee is due, and termination of a regional
center that does not pay the fee within 90 days. DHS proposes to impose
the following:
<bullet> Ten percent of the required integrity fee (e.g. 10 percent
of $10,000 or $20,000 prior to adjusting such required amounts for
inflation) for a regional center that pays its fees on day 31 through
and including day 60 after the due date.
<bullet> Twenty percent of the required integrity fee for a
regional center if their fee is paid on day 61 through and including
day 90 after it is due.
<bullet> Termination of a regional center's designation if it fails
to pay the fee within 90 days of the date on which such fee is due.
This rule proposes to codify in regulation the fees and penalties
associated with the Integrity Fund, as explained in Section V of this
preamble.
Finally, the rule clarifies when an immigrant investor's
derivatives should be included in the principal alien investor's Form
I-829 petition.\1\ The regulations currently in effect do not clearly
define the process by which derivatives may file a Form I-829 petition
when they are not included on the principal's petition, including
whether each derivative in such cases should file their own separate
Form I-829 petition or whether the derivatives should jointly file on
the same petition. This rule proposes: (1) when the principal is
deceased, all derivatives (spouse and children) of the deceased
investor may be included on a single Form I-829 petition, (2) each
derivative must otherwise file a separate Form I-829 petition when the
spouse and children are not included on the investor's Form I-829
petition, and (3) for any derivative beneficiary who files a Form I-829
petition separately from the principal investor, the deadline to file
is the same as would have applied to the principal investor.
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\1\ DHS proposed and finalized this change as part of the EB-5
Immigrant Investor Program Modernization rulemaking. See 82 FR 4738
(Jan. 13, 2017) (proposed rule); 84 FR 35750 (July 24, 2019) (final
rule). On June 22, 2021, a U.S. district court vacated the rule on
grounds unrelated to this provision. Behring Regional Center LLC v.
Wolf, 544 F. Supp. 3d 937 (N.D. Cal. 2021).
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C. Summary of Economic Impacts

The fee schedule DHS is proposing would impact about 11,260 \2\ EB-
5 program form filings annually and decrease form fees by about 14.7
percent, or by about $2,259 based on a projected volume-weighted per
form average. The impact for these 11,260 filings could accrue to
individual investors,\3\ regional centers,\4\ and other persons or
businesses involved in promoting program investments.
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\2\ Volume is rounded from 11,262, comprising 10,805 projected
FY 2024/2025 current forms and 457 new Form I-527 filings, (see
Table 3, Projected Average Annual Receipts for EB-5 Immigration
Benefit Requests in FY 2024/2025 Fee Review).
\3\ For most investors the impact would be a lower fee; however,
a new fee would accrue to investors who file an amendment on
proposed new Form I-527.
\4\ Regional centers would pay lower fees for their
applications; however, they could be impacted by the new fee for
those involved with the regional center program filing the Form I-
956H.
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DHS estimates that the 10-year and annualized monetized costs would
be about $42.1 million and $4.2 million, in order, in undiscounted
terms. At a 3 percent discount rate, the figures would be $35.9 million
and $3.6 million, in order. At a 7 percent discount rate, the figures
would be $29.6 million and $3.0 million, in order. Impacts associated
with filing the new Form I-527, as well as a few expected Form I-829
filings from dependents separate from the principal filers, are
categorized as costs, as are changes in forms' burdens. The proposed
fee changes (for EB-5 program forms that currently exist) would
constitute transfer payments from DHS to requestors, estimated to be
$830.7 million over a 10-year period (a reduction of $244.1 million
from current filing fees).\5\ Penalties and fees would also be
classified as costs but are not estimated and quantified. There are
also likely to be familiarization costs associated with the proposed
rule.
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\5\ Transfer payments are monetary payments from one group to
another that do not affect total resources available to society. See
OMB Circular A-4 pp. 14 and 38 for further discussion of transfer
payments and distributional effects. OMB Circular A-4 is available
at: <a href="https://trumpwhitehouse.archives.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf">https://trumpwhitehouse.archives.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf</a>.
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Based on limited data and information, DHS analysis suggests that
most regional centers and almost all new commercial enterprises (NCEs)
\6\ and job-creating entities (JCEs) involved in program investment
activity would be small entities under the Regulatory Flexibility Act
of 1980 (RFA). Complete details on the possible impacts, a formal
accounting statement, and important caveats to the initial small entity
determination are provided in Section VI, Parts A and B, of this
document.
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\6\ A ``new commercial enterprise'' is ``any for-profit
organization formed in the United States for the ongoing conduct of
lawful business . . . that receives, or is established to receive,
capital investment from [employment-based immigrant] investors.''
INA sec. 203(b)(5)(D)(vi).
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III. Background and Purpose

A. The EB-5 Program

Congress created the EB-5 program in 1990 to stimulate the U.S.
economy through job creation and capital investment by immigrant
investors. Public Law 101-649, 104 Stat. 4978 (Nov. 29, 1990).
Subsequently, the EB-5 regional center program was added in 1992 by the
Departments of Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act, 1993, Public Law 102-395, sect. 610, 106
Stat 1828 (Oct. 6, 1992) (repealed 2022). As amended by the EB-5 Reform
Act, the EB-5 program makes approximately 10,000 visas available
annually to qualified immigrants (and their dependents) who invest at
least $1,050,000, or a discounted amount of $800,000 if the investment
is in a targeted employment area (TEA) (which includes certain rural
areas and areas of high unemployment) or an infrastructure project, in
a U.S. business that will create at least 10 full-time jobs in the
United States for qualifying employees. See INA sec. 203(b)(5)(A)-(C),
8 U.S.C. 1153(b)(5)(A)-(C). Investors may satisfy up to 90 percent of
the job creation requirements with jobs that are estimated to be
created indirectly through qualifying investments within a new
commercial enterprise associated with a regional center designated by
USCIS for participation in the regional center program. INA sec.
203(b)(5)(E)(iv), 8 U.S.C. 1153(b)(5)(E)(iv).
USCIS is committed to maintaining the integrity and efficient
administration of the EB-5 program.\7\ As

[[Page 48519]]

part of that commitment, beginning in fiscal year (FY) 2013, USCIS
created the Immigrant Investor Program Office (IPO) in Washington, DC,
to manage EB-5 matters. IPO consists of staff with expertise in
economics, law, business, finance, securities, and banking to enhance
consistency, timeliness, and integrity within the program. Since its
creation, IPO has added staff and technology focused on managing the
program, identifying and preventing fraud, and ensuring national
security, public safety, and compliance within the program, and
developed employees' expertise in financial investigations, anti-money
laundering, and global sanctions.
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\7\ The DHS Office of the Inspector General (OIG) and U.S.
Government Accountability Office (GAO) previously reviewed the EB-5
program and made recommendations. See OIG, OIG-14-19, ``United
States Citizenship and Immigration Services' Employment-Based Fifth
Preference (EB-5) Regional Center Program'' (Dec. 2013), <a href="https://www.oig.dhs.gov/sites/default/files/assets/Mgmt/2014/OIG_14-19_Dec13.pdf">https://www.oig.dhs.gov/sites/default/files/assets/Mgmt/2014/OIG_14-19_Dec13.pdf</a>; GAO, GAO-15-696, ``Immigrant Investor Program:
Additional Actions Needed to Better Assess Fraud Risks and Report
Economic Benefit'' (Aug. 12, 2015), <a href="https://www.gao.gov/products/gao-15-696">https://www.gao.gov/products/gao-15-696</a>; GAO, GAO-16-828, ``Immigrant Investor Program: Progress
Made to Detect and Prevent Fraud, but Additional Actions Could
Further Agency Efforts'' (Sept. 13, 2016), <a href="https://www.gao.gov/products/gao-16-828">https://www.gao.gov/products/gao-16-828</a>. GAO also reviewed USCIS fraud detection
efforts, including those for EB-5. See GAO, GAO-22-105328, ``U.S.
Citizenship and Immigration Services: Additional Actions Needed to
Manage Fraud Risks'' (Sept. 19, 2022), <a href="https://www.gao.gov/products/gao-22-105328">https://www.gao.gov/products/gao-22-105328</a>; GAO, GAO-23-106452, ``Immigrant Investor Program:
Opportunities Exist to Improve Fraud and National Security Risk
Monitoring'' (Mar. 18, 2023), <a href="https://www.gao.gov/products/gao-23-106452">https://www.gao.gov/products/gao-23-106452</a>.
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IPO also hired auditors to complete regional center compliance
reviews of annual certification filings. See INA sec. 203(b)(5)(G), 8
U.S.C. 1153(b)(5)(G); 8 CFR 204.6(m)(6). Section 203(b)(5)(E)(vii) of
the INA, as added by the EB-5 Reform Act, requires USCIS to audit each
designated regional center at least once every 5 years. Regional center
audits enhance EB-5 program integrity by verifying information in
regional center applications, annual certifications, and associated
investor petitions.\8\ Currently, IPO generally conducts regional
center audits in accordance with Generally Accepted Government Auditing
Standards.\9\ USCIS plans and performs the audits to obtain sufficient,
appropriate evidence to provide a reasonable basis for its findings and
conclusions based on the audit objectives. An audit provides USCIS the
opportunity to verify the information submitted by designated regional
centers in applications, petitions, and annual statements, and to
confirm compliance with applicable laws and authorities to ensure
continued eligibility for regional center designation. The audit
includes, for example, researching information in government systems,
reviewing commercial and public records, and substantiating evidence
that accompanies regional center applications and certifications. It
also includes obtaining information, on a consensual basis, through
requests for evidence, virtual meetings, and if necessary, an in-person
audit.
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\8\ See USCIS, ``EB-5 Regional Center Audits,'' <a href="https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-immigrant-investor-regional-centers/eb-5-regional-center-audits">https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-immigrant-investor-regional-centers/eb-5-regional-center-audits</a> (last updated
Apr. 9, 2024).
\9\ See GAO, GAO-24-106786, ``Yellow Book: Government Auditing
Standards: 2024 Revision'' (Feb. 1, 2024), <a href="https://www.gao.gov/yellowbook">https://www.gao.gov/yellowbook</a>.
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The EB-5 Reform Act specifically supports or requires new fraud,
national security and public safety functions for EB-5 adjudications.
INA sec. 203(b)(5)(F)(iv), 8 U.S.C. 1153((b)(5)(F)(iv) (site visits);
INA sec. 203(b)(5)(H)(iii), 8 U.S.C. 1153(b)(5)(H)(iii) (background
checks); INA sec. 203(b)(5)(N)-(O), 8 U.S.C. 1153(b)(5)(N)-(O)
(national security/fraud determinations); INA sec. 203(b)(5)(R), 8
U.S.C. 1153(b)(5)(R) (Office of Foreign Asset Control checks). In
addition, DHS has the general authority to verify any information
submitted to establish eligibility for immigration benefits at any time
to ensure compliance with laws and authorities that authorize or govern
the benefit, program, process, or status. See, e.g., INA sec.
103(a)(3), 8 U.S.C. 1103(a)(3); 8 CFR 103.2(b)(1).
USCIS will verify information and validate the assertions made and
evidence provided in EB-5-related immigration benefit requests. USCIS
verifies the eligibility of the requestor and validates the information
they submitted using various methods of investigation, which include
reviewing public records and information; contacting requesters,
investors, employees, and related entities; reviewing information in
the requestors' U.S. government records; and accessing publicly
available records. USCIS conducts random and for-cause site visits and
shares information with law enforcement agencies. USCIS intelligence
research specialists assess national security concerns, review annual
filings of regional centers, and audit regional centers to ensure
ongoing compliance with the program. If adverse or derogatory
information results from an audit, compliance review, verification, or
site visit, USCIS generally will deny the request, revoke approval, or
terminate the requestor's current status.\10\
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\10\ USCIS provides an opportunity to address any adverse or
derogatory information before denial, revocation, or termination.
See 8 CFR 103.2(b)(16)(i).
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The EB-5 Reform Act authorizes DHS to propose fees in this rule
that will, among other things, recover the costs of adjudicating EB-5
immigration benefit requests. See Public Law 117-103, div. BB, sec.
106(b) and 106(c). Those costs include primary adjudication staff,
supporting staff, technology for managing the EB-5 program, conducting
audits, and the relevant portion of the costs of the Administrative
Site Visit and Verification Program.\11\ These costs are described in
the remaining sections of this rule and the fee study that is published
as an addendum to this rule for the public to review and comment on.
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\11\ See USCIS, ``Administrative Site Visit and Verification
Program,'' <a href="https://www.uscis.gov/about-us/organization/directorates-and-program-offices/fraud-detection-and-national-security-directorate/administrative-site-visit-and-verification-program">https://www.uscis.gov/about-us/organization/directorates-and-program-offices/fraud-detection-and-national-security-directorate/administrative-site-visit-and-verification-program</a> (last
updated May 13, 2025).
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B. USCIS Fees

USCIS is primarily funded by fees charged to applicants,
petitioners, and requestors for immigration and naturalization benefit
requests. USCIS manages the following four fee accounts:
<bullet> The Immigration Examinations Fee Account (IEFA), which
includes premium processing revenues (INA secs. 286(m), (n), (t), and
(u); 8 U.S.C. 1356(m), (n), (t), and (u));
<bullet> The Fraud Prevention and Detection Account (INA secs.
214(c)(12) and (13), 286(v); 8 U.S.C. 1184(c)(12) and (13), 1356(v));
<bullet> The H-1B Nonimmigrant Petitioner Account (INA secs.
214(c)(9) and (11), 286(s); 8 U.S.C. 1184(c)(9) and (11), 1356(s)); and
<bullet> The EB-5 Integrity Fund (INA sec. 203(b)(5)(J), 8 U.S.C.
1153(b)(5)(J)).
When USCIS provides adjudication and naturalization services, it is
authorized to set IEFA fees at a level that will ensure recovery of the
full costs of providing all such services. See INA sec. 286(m), 8
U.S.C. 1356(m). The fees that are collected from individuals and
entities filing immigration benefit requests are deposited into the
IEFA. Id. These fees fund the cost of adjudicating immigration benefit
requests, including those provided without charge to refugee, asylum,
and certain other applicants or petitioners. The IEFA accounted for
approximately 94 percent of total funding for USCIS in FY 2023. The
IEFA includes premium and non-premium processing revenues. Premium
processing refers to the additional fees for expedited processing
established under section 286(u) of the INA, 8 U.S.C. 1356(u). Non-
premium processing refers to all other adjudication and naturalization
services that USCIS funds from the IEFA account, including the costs of
similar services provided without charge. IEFA non-premium funding
represented approximately 73 percent, and IEFA premium funding
represented approximately 21 percent of USCIS' FY 2023 total
funding.\12\ The remaining

[[Page 48520]]

USCIS funding came from appropriations (approximately 5 percent) or
other fee accounts (approximately 1 percent) in FY 2023.\13\ While
premium processing funds are also IEFA fees, this rule does not propose
premium processing fee changes or consider premium processing costs or
revenue as part of the EB-5 fee setting approach described in this
preamble.
---------------------------------------------------------------------------

\12\ See DHS, USCIS Budget Overview: FY 2025 Congressional
Justification, <a href="https://www.dhs.gov/sites/default/files/2024-04/2024_0325_us_citizenship_and_immigration_services.pdf">https://www.dhs.gov/sites/default/files/2024-04/2024_0325_us_citizenship_and_immigration_services.pdf</a>.
\13\ Id.
---------------------------------------------------------------------------

The Fraud Prevention and Detection Account \14\ and H-1B
Nonimmigrant Petitioner Account \15\ are both funded by fees for which
the dollar amount is set by statute. DHS has no authority to adjust the
fees for these accounts. The EB-5 Integrity Fund, a new account
established in FY 2023, is discussed in a separate section of this
preamble. See Section V of this preamble.
---------------------------------------------------------------------------

\14\ The Fraud Prevention and Detection fees charged to certain
employers petitioning for nonimmigrant workers in the H-1B, H-2B,
and L-1 visa classifications are set by statute. Revenue is used for
activities related to preventing and detecting fraud in immigration
benefit requests. See 8 U.S.C. 1356(v)(2)(B) (``One-third of the
amounts deposited into the Fraud Prevention and Detection Account
shall remain available to the Secretary of Homeland Security until
expended for programs and activities to prevent and detect
immigration benefit fraud, including fraud with respect to petitions
filed under paragraph (1) or (2)(A) of section 1184(c) of this title
to grant an alien nonimmigrant status described in subparagraph (H)
or (L) of section 1101(a)(15) of this title.''). Revenue is shared
equally among USCIS, Department of State, and DOL. Effective July
25, 2018, USCIS also collects and retains the $50 Commonwealth of
the Northern Mariana Islands fraud fee. See 48 U.S.C.
1806(a)(6)(iv). DHS interprets Fraud Prevention and Detection
Account authority as providing supplemental funding to cover
activities related to fraud prevention and detection and not
prescribing that only those funds may be used for that purpose. The
Fraud Detection and National Security Directorate (FDNS) is funded
out of both the IEFA and the Fraud Prevention and Detection Account.
The fees deposited in the Fraud Prevention and Detection Account are
fixed by statute and are insufficient to cover the full costs of
FDNS. Therefore, USCIS uses both Fraud Prevention and Detection
Account and IEFA funds for FDNS costs.
\15\ Certain H-1B fees are required by other laws. Revenue is
shared among USCIS, DOL, and the National Science Foundation. USCIS
receives 5 percent of these funds. USCIS uses the H-1B Nonimmigrant
Petitioner Account as supplemental funding for the limited H-1B
petition and petition for immigrant worker adjudication activities
authorized by statute. See 8 U.S.C. 1356(s)(5). The H-1B
Nonimmigrant Petitioner Account does not fully fund the H-1B program
at USCIS. As such, USCIS also uses IEFA fees to administer the
program. IEFA fees are not required for those limited purposes
authorized or required by sec. 1356(s)(5).
---------------------------------------------------------------------------

Since its inception, the EB-5 program has been funded by fees set
by DHS under the IEFA authority. Historically, the fees that USCIS
charges for its services that are deposited into the IEFA are generally
described as ``IEFA fees,'' while the costs to provide such services--
which are generally used as the basis to develop the IEFA fees--are
described as ``IEFA costs.'' See, e.g., FY 2022/2023 fee rule, 89 FR
6194 (Jan. 31, 2024).
DHS issued a final rule to adjust the USCIS fee schedule on August
3, 2020. See 2020 fee rule, 85 FR 46788 (Aug. 3, 2020). The rule was
scheduled to become effective on October 2, 2020. However, the rule was
preliminarily enjoined, and USCIS did not implement the fees set out in
the 2020 fee rule, though the provisions remained in the CFR until they
were replaced by the FY 2022/2023 fee rule, effective April 1,
2024.\16\
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\16\ Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520
(N.D. Cal. 2020) (ILRC); Nw. Immigrant Rights Project v. USCIS, 496
F. Supp. 3d 31 (D.D.C. 2020) (NWIRP).
---------------------------------------------------------------------------

C. Legal Authority and Guidance

1. EB-5 Reform and Integrity Act of 2022
DHS publishes this proposed rule under the authority of the EB-5
Reform Act. Among other things, the EB-5 Reform Act immediately
repealed the former authorizing statutory provisions for the Regional
Center Program under the Departments of Commerce, Justice, and State,
the Judiciary, and Related Agencies Appropriations Act, 1993, Public
Law 102-395, 106 Stat. 1828, sec. 610, and added new authorizing
provisions to the Immigration and Nationality Act of 1952 (INA),
substantially reforming the Regional Center Program effective May 14,
2022. The reformed Regional Center Program is authorized through
September 30, 2027.\17\
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\17\ This rule and its supporting analysis assume that the
program will be extended and will not sunset on this date, as
Congress has a history of reauthorizing the program when it is set
to end. See, e.g., Public Law 112-176, 126 Stat. 1325.
---------------------------------------------------------------------------

The EB-5 Reform Act also directed DHS to conduct a fee study and
set fees for EB-5 program-related immigration benefit requests.\18\
Thus, DHS proposes the fees in this rule as authorized in section 106
of the Reform Act.
---------------------------------------------------------------------------

\18\ Although the deadline provided in section 106(b) for
promulgation of the regulations has passed, the Supreme Court has
repeatedly held that ``if a statute does not specify a consequence
for noncompliance with statutory timing provisions''--which the EB-5
Reform Act does not--the agency is not deprived of its power to act.
Barnhart v. Peabody Coal Co., 537 U.S. 149, 159 (2003) (quoting
United States v. James Daniel Good Real Prop., 510 U.S. 43, 63
(1993)).
---------------------------------------------------------------------------

Specifically, the EB-5 Reform Act provides discretion for DHS to
set fees to sufficiently recover the costs of providing such services,
and attaining the goal of completing adjudications, on average, not
later than:
<bullet> 180 days after receiving a regional center application
(Form I-956) or application for approval of an investment in an NCE
(Form I-956F);
<bullet> 90 days after receiving an application for approval of an
investment in an NCE (Form I-956F) with respect to an investment that
is located in a TEA;
<bullet> 240 days after receiving an immigrant investor petition
for classification under INA sec. 203(b)(5)(E) (Form I-526E) or a
petition to remove conditions under INA sec. 216A (Form I-829); and
<bullet> 120 days after receiving an immigrant investor petition
for classification under INA sec. 203(b)(5)(E) (Form I-526E) with
respect to an investment in a TEA.
See Public Law 117-103, div. BB, sec. 106(b).
In addition to setting the fees with the processing time goals of
Public Law 117-103, div. BB, sec. 106(c), the EB-5 Reform Act also
authorizes DHS to include the following costs in the EB-5 fees:
<bullet> An amount equal to the amount paid by all other fee-paying
applicants to cover or reduce the costs of reduced or no fee
applications (such as asylum applications), and
<bullet> An amount not greater than one percent of the immigrant
investor petition filing fee to improve the information technology
systems used to process, adjudicate, and archive EB-5 petitions and
applications, and convert EB-5 petitions and applications to electronic
formats.
See Public Law 117-103, div. BB, sec. 106(c).
In addition, as explained in more detail later in this preamble,
the EB-5 Reform Act requires DHS to collect fees for the EB-5 Integrity
Fund. INA sec. 203(b)(5)(J), 8 U.S.C. 1153(b)(5)(J). The EB-5 Reform
Act established a fund in the U.S. Department of the Treasury for DHS
to investigate international activities and compliance, conduct site
visits, and detect fraud, among other integrity measures. INA sec.
203(b)(5)(J), 8 U.S.C. 1153(b)(5)(J). Specifically, DHS must collect
$10,000 or $20,000 from each designated regional center (depending on
the number of total investors) annually, must collect $1,000 from each
regional center petitioner with their filing of a Form I-526E, may
increase such fees by regulation as necessary to ensure sufficient
amounts in the fund, and may impose penalties for failure to pay the
fee after it is due. INA sec. 203(b)(5)(J)(ii), 8 U.S.C.
1153(b)(5)(J)(ii).
In connection with implementation and administration of the
Integrity

[[Page 48521]]

Fund, USCIS must pursue collection of nonpayments from designated
regional centers by imposing reasonable penalties for nonpayment within
certain periods of time and terminating the designation of a regional
center that fails to pay the Integrity Fund fee as required. INA sec.
203(b)(5)(J)(iv), 8 U.S.C. 1153(b)(5)(J)(iv).
2. Other Legal Authorities
This proposed rule is also consistent with nonstatutory guidance on
fees, the budget process, and Federal accounting principles.\19\ DHS
uses Office of Management and Budget (OMB) Circular A-25 as guidance
for determining user fees for immigration benefit requests.\20\ DHS
also follows the annual guidance in OMB Circular A-11 if it requests
appropriations to offset a portion of IEFA costs. USCIS used the
activity-based costing (ABC) methodology supported in OMB Circulars A-
25 and A-11 to conduct the EB-5 fee study and develop the proposed EB-5
program fee schedule.
---------------------------------------------------------------------------

\19\ See OMB, Circular A-25, ``User Charges,'' 58 FR 38142 (July
15, 1993) (revising Federal policy guidance regarding fees assessed
by Federal agencies for Government services). See also Federal
Accounting Standards Advisory Board Handbook, Version 22 (12/23),
Statement of Federal Financial Accounting Standards 4: Managerial
Cost Accounting Standards and Concepts, SFFAS 4, <a href="http://files.fasab.gov/pdffiles/handbook_sffas_4.pdf">http://files.fasab.gov/pdffiles/handbook_sffas_4.pdf</a> (generally describing
cost accounting concepts and standards, and defining ``full cost''
to mean the sum of direct and indirect costs that contribute to the
output, including the costs of supporting services provided by other
segments and entities.); id. At 49-66 (July 31, 1995). See also OMB,
Circular A-11, ``Preparation, Submission, and Execution of the
Budget,'' sec. 20.7(d), (g), <a href="https://www.whitehouse.gov/wp-content/uploads/2018/06/a11.pdf">https://www.whitehouse.gov/wp-content/uploads/2018/06/a11.pdf</a> (Jul. 2024) (providing guidance on the FY
2026 budget and instructions on budget execution, offsetting
collections, and user fees).
\20\ For the purposes of this rule, OMB Circular A-25 is
appropriate for the requirements to set fees that will fund the EB-5
program, but USCIS lacks cost data associated with the goal of
achieving certain processing times. Thus, this proposed rule also
seeks to address the projected fiscal impact of the processing time
requirements using other methods.
---------------------------------------------------------------------------

In the future, if the fees proposed in this rule are established,
USCIS will review the EB-5 program fees in accordance with the Chief
Financial Officer (CFO) Act, 31 U.S.C. 901-903, which requires each
agency's CFO to review, on a biennial basis, the fees imposed by the
agency for services it provides and recommend changes to the agency's
fees as necessary.

D. Full Cost Recovery

As noted previously, DHS publishes this proposed rule under the EB-
5 Reform Act, which, as a general matter, authorizes DHS to set EB-5
program fees ``at a level sufficient to ensure the full recovery only
of the costs of providing such services'' (emphasis added), plus the
cost of meeting the goal of completing adjudications within prescribed
time frames, plus an ``equal'' amount for processing benefit requests
with no fee or a reduced fee. See Public Law 117-103, div. BB, sec.
106(b) and 106(c).
DHS proposes this rule to address the projected fiscal effect of
implementing the EB-5 Reform Act consistent with the EB-5 fee study
described in Section IV of this preamble and fee study in the docket.
DHS has examined recent USCIS budget history, service levels, and
immigration trends to forecast EB-5 program costs, revenue, and
operational metrics to determine the fees USCIS must collect to
generate sufficient revenue to fund the anticipated EB-5 program
operating costs and to meet the EB-5 Reform Act processing time goals.
This assessment included EB-5 program support costs such as physical
overhead, information technology, management and oversight, human
resources, national security vetting and investigations,\21\ accounting
and budgeting, and legal support. As explained in this rule and the
supporting documents, the projected costs of administering the EB-5
program will be lower than projected fee revenue with the current fees,
indicating a need for a fee adjustment. However, USCIS estimates that
the cost of administering the EB-5 program is increasing. For example,
in the 2024 final rule, USCIS estimated the total cost of Form I-526
was approximately $30.3 million.\22\ In the EB-5 fee study, USCIS
estimates that the total cost of Forms I-526/I-526E is approximately
$35.5 million, or a $5.2 million increase. The primary cost driver
responsible for this cost increase is payroll, predominately because of
the hiring of additional staff to meet, on average, the new processing
time goals. However, as discussed later, the proposed fees are lower
than the current fees because the proposed fees do not include any
additional costs for processing benefit requests with no fee or a
reduced fee, thus reducing the fees overall. As such, the proposed EB-5
fees would not fund a proportionate share of workload without fees and
workload below full cost, and, thus, would not recover what DHS defined
as full cost in previous fee rules. See section IV.B.4 for more
information. Consistent with the EB-5 Reform Act, this proposed rule
would ensure that USCIS recovers full EB-5 program operating costs by
setting EB-5 fees at a level sufficient to fund overall requirements
and general operations related to the EB-5 program.
---------------------------------------------------------------------------

\21\ Congress recommended that DHS establish an organization
``responsible for developing, implementing, directing, and
overseeing the joint USCIS-Immigration and Customs Enforcement anti-
fraud initiative and conducting law enforcement/background checks on
every applicant, beneficiary, and petitioner prior to granting
immigration benefits.'' See Conference Report to accompany H.R. 4567
[Report 108-774], ``Making Appropriations for the Department of
Homeland Security for the Fiscal Year Ending September 30, 2005,''
p. 74, <a href="https://www.gpo.gov/fdsys/pkg/CRPT-108hrpt774/pdf/CRPT-108hrpt774.pdf">https://www.gpo.gov/fdsys/pkg/CRPT-108hrpt774/pdf/CRPT-108hrpt774.pdf</a>.
\22\ See USCIS, FY 2022/2023 IEFA Fee Review Supporting
Documentation with Addendum (Nov. 2023), available at <a href="https://www.regulations.gov/document/USCIS-2021-0010-8176">https://www.regulations.gov/document/USCIS-2021-0010-8176</a>. Specifically, see
Appendix Table 3: Projected Total Cost by Immigration Benefit
Request, pg. 41-45.
---------------------------------------------------------------------------

E. EB-5 Fee Schedule

1. Current EB-5 Fees
On April 1, 2024, the FY 2022/2023 fee rule replaced the 2020 fee
rule in its entirety by revising the regulatory changes codified by the
enjoined 2020 fee rule. See 89 FR 6194 (Jan. 31, 2024). The fees that
this rule proposes would replace the EB-5 fees set by the FY 2022/2023
fee rule. Throughout this proposed rule, the phrases ``current fees''
or ``current fee schedule'' refer to the fees in effect from the FY
2022/2023 fee rule. Table 2 summarizes the IEFA EB-5 immigration
benefit requests currently in effect. Through this rule, DHS is
proposing fees that would replace the EB-5 fees that were set in the FY
2022/2023 fee rule.

Table 2--Current IEFA EB-5 Immigration Benefit Request Fees
------------------------------------------------------------------------
Immigration benefit
Form No.\23\ request Fee
------------------------------------------------------------------------
I-526....................... Immigrant Petition by $11,160
Standalone Investor.
I-526E \24\................. Immigrant Petition by 11,160
Regional Center Investor.
I-829....................... Petition by Investor to 9,525
Remove Conditions on
Permanent Resident Status.
I-956....................... Application for Regional 47,695
Center Designation
(formerly Form I-924,
Application for Regional
Center Designation Under
the Immigrant Investor
Program).
I-956F...................... Application for Approval 47,695
of an Investment in a
Commercial Enterprise.

[[Page 48522]]

I-956G...................... Regional Center Annual 4,470
Statement (formerly Form
I-924A, Annual
Certification of Regional
Center).
I-956H \25\................. Bona Fides of Persons No Fee
Involved with Regional
Center Program.
I-956K \26\................. Registration for Direct No Fee
and Third-Party Promoters.
------------------------------------------------------------------------

2. State of EB-5 Fee Schedule Regulations
---------------------------------------------------------------------------

\23\ ``Form, when used in connection with a benefit or other
request to be filed with DHS to request an immigration benefit,
means a device for the collection of information in a standard
format that may be submitted in a paper format or an electronic
format as prescribed by USCIS on its official [website].'' 8 CFR 1.2
The term ``Form'' followed by an immigration form number includes an
approved electronic equivalent of such form as made available by
USCIS on its official website. See 8 CFR 1.2 and 299.1. The word
``form'' is used in this proposed rule in both the specific and
general sense.
\24\ Note that the Immigrant Petition by Regional Center
Investor (I-526E), Application for Approval of an Investment in a
Commercial Enterprise (I-956F), Bona Fides of Persons Involved with
Regional Center Program (I-956H), and Registration for Direct and
Third-Party Promoters (I-956K) were a result of the EB-5 Reform Act
and did not exist during the FY 2016/2017 fee rule. See 81 FR 73292
(Oct. 24, 2016). The current fees were set in the FY 2022/2023 fee
rule. See 89 FR 6194 (Jan. 31, 2024). For new EB-5 workloads where a
comparable benefit request was available, USCIS applied the same fee
as that comparable form. Specifically, the fee for Form I-526E is
the same as the fee for Form I-526, and the fee for Form I-956F is
the same as the fee for Form I-956. For new EB-5 workloads where no
comparable form existed (Forms I-956H and 956K), USCIS determined
not to charge a fee at that time. Form I-527 is a new form being
proposed now. Thus, Forms I-527, I-956H, and I-956K do not currently
have any associated fees.
\25\ Id.
\26\ Id.
---------------------------------------------------------------------------

In the FY 2022/2023 fee rule, DHS adjusted the USCIS fee schedule
and made changes to certain immigration benefit request requirements,
including EB-5 program fees. See 89 FR 6194 (Jan. 31, 2024). The EB-5
fees in the FY 2022/2023 fee rule were calculated by using the full
cost recovery model described in that rule. In the same manner as DHS
and USCIS used in their fee rules since the EB-5 program's inception,
the methodology used to determine the proposed EB-5 program fees was
consistent with the fees proposed for other benefit requests.
Generally, the fee amounts indicated by the full cost recovery model
for the immigrant investor program forms were not capped or decreased
below the estimated amount that resulted in full cost recovery. As
described in the FY 2022/2023 fee rule, 88 FR 402, 418 (Jan. 4, 2023),
DHS applied the discretion provided in section 286(m) of the INA, 8
U.S.C. 1356(m), to: (1) use ABC to establish a model for assigning
costs to specific benefit requests consistent with OMB Circular A-25;
(2) allocate costs for programs for which a fee is not charged or a law
limits the fee amount; (3) distribute costs that are not attributed to,
or driven by, specific adjudication and naturalization services; and
(4) make additional adjustments to effectuate specific policy
objectives.\27\ Because the fee study had not yet been completed at the
time, the EB-5 fees in the FY 2022/2023 fee rule were not set according
to the fee study parameters and processing time goals of the EB-5
Reform Act, which are narrower in scope than the full cost recovery
model that USCIS normally employs when determining IEFA fees through
the authority of section 286(m) of the INA, 8 U.S.C. 1356(m). However,
the EB-5 fees proposed in this rule are set using the parameters in the
EB-5 Reform Act.\28\
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\27\ DHS may provide services for free and fund those free
services with the fees charged to other, unrelated filings. 8 U.S.C.
1356(m). Relatedly, short of providing services for free, DHS may
adjust certain fees downward based on value judgments and public
policy reasons and shift the unrecovered costs to the fees charged
to other, unrelated filings.
\28\ DHS, ``U.S. Citizenship and Immigration Services Fee
Schedule and Changes to Certain Other Immigration Benefit Request
Requirements,'' 89 FR 6194, 6287 (Jan. 31, 2024) (stating, ``DHS
interprets `[N]otwithstanding' in section 106(b) of the EB-5 Reform
and Integrity Act of 2022 to mean that section 106 requires DHS to
establish fees to achieve the processing time goals set out in
section 106(b), but that authority and its separate study
requirements exist separately from (or `notwithstanding') INA sec.
286(m), 8 U.S.C. 1356(m), and, therefore, do not preclude USCIS from
instituting new EB-5 program fees while that effort is
undertaken'').
---------------------------------------------------------------------------

F. Severability

DHS believes that the provisions in this rule can function
independently of each other, like other USCIS fees under current
regulations. See 89 FR 6194, 6237-6238 (Jan. 31, 2024); see also 8 CFR
106.6. For example, the EB-5 Integrity Fund penalty fees could be
stalled while a new rule is undertaken without affecting all other fees
generally. If DHS were prohibited from collecting any new fee for any
reason, DHS believes this rule is structured so that a stay,
injunction, or vacatur of a fee set by this rule could be narrowly
tailored to remedy the specific harm that a court may determine exists
from the specific fee or fees challenged. USCIS would be able to
continue operations, perhaps at a reduced level or by shifting
resources in the absence of the fee until DHS is able to conduct new
rulemaking to re-set fees and correct the deficiencies that resulted in
the court order. Operating without one or a few of the new fees would
be preferable to an invalidation of all the new fees, which may disrupt
and deteriorate the EB-5 program at USCIS and would go against
Congress' goal of timely processing EB-5 petitions.

IV. Fee Setting Approach

As noted previously, the EB-5 Reform Act directed DHS to conduct a
fee study and set fees for EB-5 program-related immigration benefit
requests at a level sufficient to recover the costs of providing such
services and attain the goal of completing adjudications, on average,
within certain time frames. See Public Law 117-103, div. BB, sec.
106(b). This rule proposes fees and provides data and supporting
documents that serve as the basis for the EB-5 fee adjustments outlined
in this rule. After considering comments on this rule, DHS will
complete and publish a final fee study that will take effect 60 days
after publication as required by Public Law 117-103, div. BB, sec.
106(b).

A. The Processing Times Referenced in the Integrity Reform Act

In accordance with the EB-5 Reform Act, DHS proposes fees in this
rule with ``the goal of completing adjudications, on average,'' within
90, 120, 180, or 240 days, as applicable, after the relevant
immigration benefit request is received in accordance with 8 CFR
103.2(a)(7)(ii). See Public Law 117-103, div. BB, sec. 106(b)
(``including the cost of attaining the goal of completing
adjudications, on average, not later than . . .'').
1. USCIS Efficiency Improvements
DHS and USCIS appreciate the processing times expectations
expressed in the EB-5 Reform Act and agree that our current backlogs
are excessive. As explained in the FY 2022/2023 fee rule, DHS
appreciates the need for operational improvements regarding processing
times, process improvement, customer service, interviews, streamlined
filings, online filing, prioritization of certain requests,

[[Page 48523]]

training, and other steps to address the USCIS processing backlog. 89
FR 6194, 6254 (Jan. 31, 2024). As explained in the proposed fee rule,
USCIS is reviewing its adjudication and administrative policies to find
deficiencies, while strengthening the integrity of the immigration
system. See 88 FR 402, 455 (Jan. 4, 2023). More recently, DHS sought to
make changes to individual programs for employment-based immigration
without making changes to fees. See e.g., 89 FR 103054 (Dec. 18, 2024).
In the EB-5 program specifically, USCIS had made significant gains
recently in EB-5-related requests processing times and backlogs, while
strictly complying with Congress' anti-fraud and integrity
provisions.\29\ For example, by hiring new staff and making other
important investments at IPO, the backlog of Form I-829s decreased from
9,989 pending forms at the end of FY23 to 7,249 by the end of Q3 in
FY24, a decrease of 27.4 percent.\30\
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\29\ USCIS, Progress on USCIS Processing Times, <a href="https://www.uscis.gov/newsroom/stakeholder-messages/progress-on-uscis-processing-times">https://www.uscis.gov/newsroom/stakeholder-messages/progress-on-uscis-processing-times</a> (last reviewed/updated Apr. 30, 2024).
\30\ USCIS, All USCIS Application and Petition Form Types
(Fiscal Year 2024, Quarter 3), <a href="https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q3.xlsx">https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q3.xlsx</a> (Aug. 29,
2024).
---------------------------------------------------------------------------

2. Completion Goals Are Not Requirements
DHS notes, however, that the law does not prescribe hard deadlines
for adjudications, nor does it impose specific consequences on USCIS
(such as any requirement to refund fees) if the processing time for a
specific request exceeds those goals. Therefore, consistent with the
statute, DHS is not proposing to codify any processing deadlines, or
any consequences for missing those processing time goals. USCIS will
strive to process EB-5 requests as quickly and efficiently as possible
to meet the time goals referenced in the EB-5 Reform Act and on which
the fees in this rule are based, while keeping the integrity of the
program utmost in mind.

B. EB-5 Fee Study Methodology

Generally, USCIS does not perform fee reviews for individual
programs, thus the EB-5 Reform Act requires that the agency depart
somewhat from its normal fee setting practices. Nevertheless, some of
USCIS' historical practices were still helpful here. DHS and USCIS use
the biennial fee review process to capture any changes in operating
costs and non-premium form fees across the USCIS enterprise. When
conducting a fee review to determine whether current immigration and
naturalization benefit fees will generate sufficient revenue to fund
the anticipated operating costs associated with administering the
nation's legal immigration system, USCIS usually assesses its recent
operating environment to determine the appropriate method to assign
costs to immigration benefit requests. One of the primary methods that
USCIS uses is ABC, a business management tool that assigns resource
costs to operational activities and then to products, services, or
both. USCIS uses commercially available ABC software to create
financial models. These models determine the cost of each major step
toward processing immigration benefit requests. This is the same
methodology that USCIS has used in conducting five of the most recent
previous IEFA fee reviews.\31\ For this rule, USCIS conducted a FY
2024/2025 fee review for the biennial period to determine the fees
needed to recover the full costs of operating the entirety of USCIS
with certain modifications required to meet the new statutory
requirements in the EB-5 Reform Act. The results are the basis for the
EB-5 fee study. That study provided EB-5 program fees needed to recover
EB-5 program costs relative to their contribution to the total
operating costs of USCIS following our usual fee study methodology.
Throughout this proposed rule, DHS may use the terms FY 2024/2025 fee
review or EB-5 fee study interchangeably.
---------------------------------------------------------------------------

\31\ Two of the last seven fee reviews did not result in fee
changes. However, DHS revised USCIS fees five times based on fee
review results that used similar methodology to this one. See 72 FR
29851 (May 30, 2007); 75 FR 58962 (Sept. 24, 2010); 81 FR 73292
(Oct. 24, 2016); 85 FR 46788 (Aug. 3, 2020); 89 FR 6194 (Jan. 31,
2024).
---------------------------------------------------------------------------

To assess whether the current EB-5 fees meet full operating-cost
recovery consistent with the EB-5 Reform Act requirements, USCIS
determined the EB-5 program projected workload receipts, developed cost
estimates for staffing and other direct costs, and estimated the
adjudication hours per completion (completion rates) for each EB-5
immigration benefit request form.
USCIS and its personnel have considerable expertise in conducting
fee studies and analyzing the fees required to recover the full costs
of administering programs and entire agencies. Nevertheless, the EB-5
Reform Act is new, and it establishes distinct requirements and reforms
for the EB-5 program. Therefore, USCIS is unable to strictly follow the
same methodology for the EB-5 program it has used in conducting past
IEFA fee reviews, because IEFA fees are generally based on workload,
processing time, completion rates, staffing, and indirect costs of
programs that are relatively well established and known. USCIS has
studied and estimated the EB-5 program workload based on the processing
burden estimates of experts in administering the legacy EB-5 program
with certain modifications to meet new and reformed EB-5 program
statutory requirements. The EB-5 Reform Act does not prescribe a method
for its required fee study. However, the fees proposed in this rule
adhere to OMB Circulars A-11 and A-25. DHS reviewed the EB-5 program
fees using ABC, consistent with previous fee rules. DHS believes the
fees proposed in this rule represent reasonable fees following fee
study practices and incorporating adjustments based on public policy
reasons as explained in this rule and its supporting documents. DHS
cannot predict every policy change that may occur at all levels of the
U.S. Government or court decisions that may affect this rule but has
used the best data available during this rule's development. As stated
previously, any shortcoming caused by the lack of information and
newness of the program reforms are mitigated by the requirement that
USCIS review the EB-5 program fees in accordance with the CFO Act, 31
U.S.C. 901-03, 2 years after they take effect and recommend changes to
the agency's fees as necessary.
1. Volume
USCIS generally uses two types of volume data to conduct fee
reviews: workload and fee-paying volume. Workload volume is a
projection of the total number of immigration benefit requests that
USCIS will receive in a fiscal year. Fee-paying volume, on the other
hand, is a projection of the number of customers that will pay a fee
when filing requests for immigration benefits.\32\ Given that EB-5
immigration benefit request fees are not eligible for fee waivers or
fee exemptions, the entire annual EB-5 workload volume was considered
for the EB-5 fee study.\33\
---------------------------------------------------------------------------

\32\ There are a number of immigration benefit requests that
USCIS provides at no or reduced cost to the benefit requestor, such
as filing for asylum. See, e.g., USCIS, ``Application for Asylum and
for Withholding of Removal,'' <a href="https://www.uscis.gov/i-589">https://www.uscis.gov/i-589</a> (last
updated Apr. 9, 2024). Other benefit requests fees may be waived.
See 8 CFR 106.3(a).
\33\ Please note that the volumes discussed in this section and
used to estimate the proposed fees may be different than those used
to estimate the public burden in the Paperwork Reduction Act
section. See section VI.J. of this preamble.
---------------------------------------------------------------------------

The workload volume forecasts are agreed upon by the USCIS Volume

[[Page 48524]]

Projection Committee (VPC).\34\ The mission of the VPC is to facilitate
workload and fee projection data stakeholder collaboration,
communication, and coordination of critical business decisions about
projected workload. This group provides a forum for making enterprise-
wide decisions about projected workload supported by input from
knowledgeable subject matter experts from within USCIS, other
governmental agencies, and the private sector. The scope of authority
of the VPC includes but is not limited to:
---------------------------------------------------------------------------

\34\ See USCIS Volumes Projection Committee Consolidated Meeting
Notes for EB-5 Fee Study in the docket for this proposed rule.
---------------------------------------------------------------------------

<bullet> Assessing and documenting current USCIS workload
projection methodologies;
<bullet> Benchmarking and documentation of workload projection
methodologies, assumptions, or projection methodologies applied to
similar entities in use by other government agencies and the private
sector;
<bullet> Comparing VPC projections versus actual figures to
determine what factors may account for material variances and to better
refine its forecasting approach;
<bullet> Vetting each identified projection methodology through the
use of legacy USCIS workload data to determine its efficacy for use in
developing workload projections up to 7 years in the future; and
<bullet> Initiating and maintaining biannual meetings to update
workload forecasts.
The VPC predicts USCIS annual workload volumes using historical and
recent volume trends, statistical forecasts, and subject-matter
expertise from various USCIS directorates and program offices,
including the IPO, USCIS service centers, the National Benefits Center,
and regional, district, and field offices. Workload volume is a key
element used to determine the USCIS resources needed to process EB-5
benefit requests on average within the processing time goals
established in the EB-5 Reform Act. EB-5 program workload volume is the
primary cost driver for assigning activity costs to EB-5 immigration
benefit requests. Table 3 displays the projected average annual
receipts for EB-5 immigration benefit requests:

Table 3--Projected Average Annual Receipts for EB-5 Immigration Benefit
Requests in the FY 2024/2025 Fee Review
------------------------------------------------------------------------
Projected average
Immigration benefit request annual receipts
------------------------------------------------------------------------
I-526 Immigrant Petition by Standalone Investor..... 225
I-526E Immigrant Petition by Regional Center 3,500
Investor...........................................
I-527 Amendment to Legacy Form I-526................ 457
I-829 Petition by Investor to Remove Conditions on 3,430
Permanent Resident Status..........................
I-956 Application for Regional Center Designation... 200
I-956F Application for Approval of an Investment in 450
a Commercial Enterprise............................
I-956G Regional Center Annual Statement............. 500
I-956H Bona Fides of Persons Involved with Regional 2,100
Center Program.....................................
I-956K Registration for Direct and Third-Party 400
Promoters..........................................
------------------------------------------------------------------------

2. Completion Rates
USCIS completion rates identify the adjudicative time required to
complete (render a decision on) specific immigration benefit requests.
The completion rate for each benefit type represents an average.
Completion rates reflect what is termed ``touch time,'' or the time an
employee with adjudicative responsibilities handles the case. This rate
does not reflect ``queue time,'' or time spent waiting, for example,
for additional evidence or supervisory approval. Completion rates do
not reflect the total processing time applicants, petitioners, and
requestors can expect to wait for a decision on their case after USCIS
accepts it.
In the EB-5 program context, USCIS uses subject-matter expertise to
estimate completion rates. The completion rates for this EB-5 fee study
are estimates developed by USCIS' Office of Performance and Quality
(OPQ), using historical data and subject matter expert input from IPO.
The EB-5 fee study completion rate estimates were also guided by the
processing time goals contemplated by the EB-5 Reform Act, shown in
Table 4 below.\35\
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\35\ For completion rates without these processing time goals or
other changes from the EB-5 Reform Act, see Table 5 in this proposed
rule and its comparison to information from the proposed rule for
the FY 2022/2023 fee rule. See 88 FR 402, 448-450 (Jan. 4, 2023).
Processing time goals are not the only change in the completion
rates. The EB-5 Reform Act or DHS implementation of it may also have
changed purpose or adjudication requirements of some forms. For
example, Form I-526 was previously used by the old regional center
program. USCIS revised Form I-526 and created Form I-526E as a
result of the EB-5 Reform Act. Now Form I-526 is used for standalone
investors. As such, Form I-526 receipts from previous years may be
less comparable to future estimates.

Table 4--EB-5 Reform Act Average Processing Time Goals for EB-5
Immigration Benefit Requests
------------------------------------------------------------------------
Processing time goal (in
Immigration benefit request days)
------------------------------------------------------------------------
I-526E Immigrant Petition by Regional 240 (120 for TEA
Center Investor. investments).
I-829 Petition by Investor to Remove 240.
Conditions on Permanent Resident Status.
I-956 Application For Regional Center 180.
Designation.
I-956F Application for Approval of 180 (90 if NCE is located
Investment in a Commercial Enterprise. in TEA).
------------------------------------------------------------------------

USCIS was able to estimate the completion rates of the EB-5 forms
by extrapolating staff hours spent on EB-5 adjudications and estimates
from subject matter experts on EB-5 request processing. USCIS
identified and defined the activities required to support the relevant
adjudications and the time personnel spent conducting

[[Page 48525]]

each activity to estimate relevant completion rates. USCIS determined
that, in general, it conducts the following activities when
adjudicating EB-5 forms:
<bullet> Intake of documents;
<bullet> Sending receipt notices;
<bullet> Performing background checks;
<bullet> Inputting filing information into systems;
<bullet> Reviewing and analyzing evidence, information on forms,
results of database searches, and interviews (if applicable);
<bullet> Drafting decisions;
<bullet> Reviewing decisions at a supervisory level;
<bullet> Issuing decisions;
<bullet> Updating systems;
<bullet> Conducting quality reviews, administrative investigations,
site visits, and audits as applicable;
<bullet> Processing records; and
<bullet> Issuing documents.
The extrapolation of staff hours spent on these activities for the
EB-5 program served as an input to determine the times required to
adjudicate the subject forms. In addition, depending on the particular
benefit request, USCIS may conduct additional activities. For example,
Forms I-829 and I-956H may include conducting fingerprint-based
background checks.
In addition to using these data to set EB-5 fees, completion rates
help determine appropriate staffing allocations to handle projected
workload. Completion rates may change between IEFA fee reviews based on
more recent estimates, data availability, or subsequent regulatory or
policy changes. Table 5 displays the completion rates for EB-5
immigration benefit requests in this proposed rule.

Table 5--EB-5 Completion Rates per Benefit Request
[In hours]
----------------------------------------------------------------------------------------------------------------
FY 2022/2023
Immigration benefit request fee rule EB-5 fee study Difference % Difference
----------------------------------------------------------------------------------------------------------------
I-526 Immigrant Petition by Standalone Investor. 5.01 16.30 11.29 225
I-526E Immigrant Petition by Regional Center 5.01 16.30 11.29 225
Investor.......................................
I-527 Amendment to Legacy Form I-526............ N/A 13.30 N/A N/A
I-829 Petition by Investor to Remove Conditions 12.13 12.13 0 0
on Permanent Resident Status...................
I-956 Application for Regional Center 108.50 N/A N/A N/A
Designation....................................
I-956 Application for Regional Center N/A 37.50 N/A N/A
Designation--Initial...........................
I-956 Application for Regional Center N/A 12.50 N/A N/A
Designation--Amendment.........................
I-956F Application for Approval of Investment in N/A 40.00 N/A N/A
a Commercial Enterprise........................
I-956G Regional Center Annual Statement......... 4.60 N/A N/A N/A
I-956H Bona Fides of Persons Involved with N/A N/A N/A N/A
Regional Center Program........................
I-956K Registration for Direct and Third-Party N/A N/A N/A N/A
Promoters......................................
Regional Center Terminations.................... N/A 108.00 N/A N/A
----------------------------------------------------------------------------------------------------------------

For Forms I-956G, Regional Center Annual Statement; I-956H, Bona
Fides of Persons Involved with Regional Center Program; and I-956K,
Registration for Direct and Third-Party Promoters, USCIS did not use
completion rates in the analysis of those immigration benefit request
fees which results in proposed fees that are lower than they would be
if a completion rate was used.\36\ In the ABC model for this proposed
rule, Forms I-956G, I-956H, and I-956K include fewer activities, and
thus lower costs, than other EB-5 workloads. For example, Forms I-956G,
I-956H, and I-956K do not use the Make Determination activity, which is
the adjudication activity in the fee review. As such, these proposed
fees are much lower than other proposed fees in this rule. This
analysis is consistent with other USCIS fee rules, which do not use
completion rates for every workload. See, e.g., 88 FR 402, 446-447
(Jan. 4, 2023). While proposed fees for I-956G, I-956H, and I-956K are
significantly lower than other proposed fees in this rule, it is still
important for USCIS to recover these costs through the proposed fees.
As noted previously, DHS is authorized by the EB-5 Reform Act to charge
for ``fees for services provided under sections 203(b)(5) and 216A of
such Act (8 U.S.C. 1153(b)(5) and 1186b) at a level sufficient to
ensure the full recovery only of the costs of such services'' and
additional fees. See Public Law 117-103, div. BB, sec. 106(b) and
106(c). Because USCIS relies almost entirely on fee revenue, in the
absence of a fee schedule that ensures full cost recovery, USCIS would
be unable to sustain an adequate level of service, let alone meet
processing time goals. By proposing separate fees for Forms I-956G, I-
956H, and I-956K, DHS ensures that USCIS will have the resources to
complete these workloads rather than force USCIS to make trade-offs or
shift resources to complete these workloads.
---------------------------------------------------------------------------

\36\ Although there is work involved in the review of each of
these forms, the ``completion rate'' is not captured the same way as
the other EB-5 workloads. Specifically, Form I-956G submissions are
reviewed and then administratively closed. Form I-956K registrations
are approved, but USCIS processes them as registrations and not
applications or petitions to be adjudicated. Form I-956H is
submitted as part of a Form I-956 or I-956F filing and is reviewed
when those filings are adjudicated. Therefore, the ``completion
rate,'' or time involved for processing Form I-956H submissions, is
already captured in the Form I-956 or I-956F completion rates.
---------------------------------------------------------------------------

3. Legacy Workloads
DHS includes the cost of legacy EB-5 workloads in the FY 2024/2025
fee review because of their significant effect on the EB-5 fee study
results. USCIS estimates that it may terminate 300 regional centers in
FY 2024 and FY25, and the average completion rate for each is 108
hours. As explained later in this preamble, DHS proposed to distribute
the cost of regional center terminations to the costs of applying for a
regional center or seeking investment in a commercial enterprise
activity, Forms I-956 and I-956F. Future fee reviews will reevaluate
the effects of legacy EB-5 workload and whether it affects USCIS fees.
4. Cost Reallocation
As noted previously, the EB-5 Reform Act directed DHS to conduct a
fee study and set fees for EB-5 program-related immigration benefit
requests at a level sufficient to recover the costs of providing such
services and attaining the goal of completing adjudications, on
average, within certain time frames. See Public Law 117-103, div. BB,
sec. 106(c). The EB-5 Reform Act did not prescribe a method for how DHS
was to

[[Page 48526]]

determine the fees and generally delegated the responsibility to DHS.
The EB-5 Reform Act also authorizes DHS to add an amount to EB-5
program fees by providing that DHS can charge fees in excess of the fee
levels described in section 106(c), in an amount equal to the amount
paid by all other classes of fee-paying applicants for immigration
benefits, to cover or reduce the costs of processing benefit requests
that are processed with no fee or a reduced fee. Public Law 117-103,
div. BB, sec. 106(c):
Fees in excess of the fee levels described in subsection (b) may be
charged only--(1) in an amount that is equal to the amount paid by all
other classes of fee-paying applicants for immigration-related
benefits, to contribute to the coverage or reduction of the costs of
processing or adjudicating classes of immigration benefit applications
that Congress, or the Secretary of Homeland Security in the case of
asylum applications, has authorized to be processed or adjudicated at
no cost or at a reduced cost to the applicant.
Because section 106(c) states that fees may be charged, DHS has
decided not to use that authority to add an amount to EB-5 fees to
support costs incurred to process all forms for which the fees are
waived, exempted, or held below projected cost. As a result, the
proposed EB-5 fees would not fund a proportionate share of workload
without fees and workload with fees that do not recover full cost.
DHS interprets section 106(c) to authorize USCIS to charge EB-5
program filers for costs that USCIS incurs to adjudicate certain fee
exempt, fee waived, reduced fee, and humanitarian immigration benefits.
Next, that provision recognizes that DHS sets USCIS fees at the level
required to recover immigration adjudication and naturalization service
costs, while also requiring fee-paying applicants to cover some of the
costs of applications processed at no or reduced cost (through fee
reductions exemptions or fee waivers). See, e.g., 88 FR 402, 450-451
(Jan. 4, 2023). Thus, section 106(c) recognizes that DHS historically
sets fees as authorized by INA section 286(m), 8 U.S.C. 1356(m), in a
manner that allows some filers to not pay any fees, or pay lower fees,
while requiring others to pay higher fees that may otherwise be needed
to cover the costs associated with processing their benefit requests.
Id.
However, section 106(c)(1) contains inconsistencies with how DHS
has historically set USCIS fees. First, section 106(c)(1) states, in
relevant part (emphasis added), ``amount equal to the amount paid . . .
to cover . . . requests . . . processed with no fee or a reduced fee .
. . .'' However, there is no such ``equal'' amount.\37\ Instead, DHS
proportionally assigns costs incurred to provide services for which
USCIS does not receive revenue based on the ability-to-pay principle in
Government Accountability Office (GAO) fee setting guidance \38\ and
the full cost recovery authority in 8 U.S.C. 1356(m), balancing access,
affordability, equity, and benefits to the national interest while
providing USCIS with the funding necessary to maintain adequate
services.\39\ For example, the cost reallocation to cover free or
reduced fee services added in the FY 2016/2017 fee rule ranged from a
negative amount (reduced below cost) to $5,016. The cost reallocation
assigned to Form I-140, Petition for Immigrant Worker, was $197; Form
N-600, Application for Certificate of Citizenship, was $330; and Form
I-485, Application to Register Permanent Residence or Adjust Status,
was $321.\40\ Because there is no equal amount to impose, DHS must
interpret what constitutes an amount ``equal'' for the EB-5 fees.
---------------------------------------------------------------------------

\37\ See, e.g., 85 FR 46788, 46869 (Aug. 3, 2020) (stating,
``For the fees that DHS does not limit, we use the total cost for
each form to reallocate the cost of limited fee increases or
workload without fees.''); 75 FR 58962, 58973 (Sept. 24, 2010)
(stating, ``To the extent not supported by appropriations, the cost
of providing free or reduced services must be transferred to all
other fee-paying applicants.''); 72 FR 29851, 29865 (May 30, 2007)
(stating, ``As with any other waiver, the loss of that fee revenue
would necessarily be spread across all other benefit applications
and petitions, having the potential to increase those fees.'').
While the costs are ``transferred'' or ``spread'' to all other fee-
paying applicants, they are not necessarily spread by assigning an
``equal'' ``amount.''
\38\ See GAO, GAO-08-386SP, ``Federal User Fees: A Design
Guide,'' pp. 7-12 (May 29, 2008), <a href="https://www.gao.gov/products/GAO-08-386SP">https://www.gao.gov/products/GAO-08-386SP</a>.
\39\ Appendix Table 1 of the fee study included in this docket
includes the cost estimate for various USCIS workloads without fees.
\40\ The cost reallocation amounts come from Appendix Table 4 of
the FY 2016/2017 fee review supporting documentation for the final
rule. See USCIS, ``FY 2016/2017 IEFA Fee Review Supporting
Documentation with Addendum,'' p. 53 (Oct. 2016), <a href="https://www.regulations.gov/document/USCIS-2016-0001-0466">https://www.regulations.gov/document/USCIS-2016-0001-0466</a>.
---------------------------------------------------------------------------

Second, section 106(c)(1), states, in part, ``classes of
immigration benefit applications that Congress, or the Secretary of
Homeland Security in the case of asylum applications.'' (Underlining
added). As stated earlier, DHS uses cost reallocation to assign costs
of all fee exemptions and waivers under INA section 286(m). Because
section 106(c)(1) only mentions asylum applications, it could be
interpreted to preclude the transfer of the costs of other fee
exemptions to the EB-5 workload.\41\ Because the language describing
what no cost and reduced costs may be covered by EB-5 fee filers is
inconsistent with how USCIS has historically set fee, DHS must
interpret what costs are recoverable.
---------------------------------------------------------------------------

\41\ For example, Congress has codified fee exemptions for
military personnel who naturalize. See, e.g., INA section 328(b)(4),
8 U.S.C. 1439(b)(4) (fee exemption for Military Naturalization Based
on Peacetime Service); 8 CFR 106.2(b)(3)(i). The FY 2022/2023 fee
rule maintained the existing fee exemptions for the military and
added fee exemptions Form I-765, Application for Employment
Authorization. See 89 FR 6194, 6214, 6226-6227; 8 CFR
106.2(a)(44)(ii)(I). Current and former military service may also
qualify for fee waivers. See 89 FR 6194, 6214, 6232; 8 CFR 106.2(c).
---------------------------------------------------------------------------

DHS believes that exercising the section 106(c)(1) authority would
likely result in litigation, thus preventing or delaying USCIS from
implementing the new fees, meeting the processing time goals, complying
with the EB-5 Reform Act, and receiving the revenue from the new fee
schedule. Because the total estimated amount of free and reduced
service costs that the EB-5 fees would fund is only around $47 million,
and that amount is not a significant portion of the USCIS budget, DHS
has determined that amount can be borne by a commiserate reduction in
USCIS carryover balances and reserves. Furthermore, the One Big
Beautiful Bill Act \42\ establishes additional fees for asylum
applications, which may provide USCIS with supplementary revenue to
cover asylum costs. Therefore, after considering that costs caused by
such litigation could exceed the fees that would be collected by our
exercise of the section 106(c)(1) authority, DHS is proposing no cost
reallocation in this rule. This proposed action would result in USCIS
not recovering its full costs because the amount that the EB-5 fees
would contribute to covering the costs of free services (and currently
funded with the existing fees) could not be recovered from other fee
payers in this rule. DHS appreciates comments specifically on the
authority provided in section 106(c)(1) to use EB-5 program fees to
fund the processing of other USCIS requests.
---------------------------------------------------------------------------

\42\ To provide for reconciliation pursuant to title II of H.
Con. Res. 14., Public Law 119-21, 139 Stat. 72 (2025) <a href="https://www.congress.gov/119/bills/hr1/BILLS-119hr1eas.pdf">https://www.congress.gov/119/bills/hr1/BILLS-119hr1eas.pdf</a>.
---------------------------------------------------------------------------

5. Regional Center Termination Costs
As stated previously, INA sec. 203(b)(5)(J), 8 U.S.C.
1153(b)(5)(J), requires DHS to terminate a regional center that does
not pay the Integrity Fund fee. DHS may also terminate a regional
center based on non-compliance with other applicable

[[Page 48527]]

requirements. See e.g. INA 203(b)(5)(E)(vii)(III), 8 U.S.C.
1153(b)(5)(E)(vii)(III). Terminations are integral to maintain the
integrity of the program. USCIS incurs costs for termination, and those
costs have generally been funded from EB-5 request fees. USCIS
previously used revenue from Forms I-956 and I-956F to recover the cost
of regional center terminations. In previous fee rules, the time spent
to terminate the designation of regional centers was part of the
completion rate along with other adjudicative work. For example, the
proposed fee rule used a completion rate of 108.5 hours for Form I-956
and it included hours spent on regional center terminations. See 88 FR
402, 509 (Jan. 4, 2023).
In this rule, DHS proposes to continue recovering the cost of
regional center terminations with the fees for Forms I-956 and I-956F.
In the EB-5 fee study, USCIS estimated the cost of regional center
terminations separate from any other benefit request. USCIS determined
the cost of regional center terminations by using the same methodology
as other IPO workloads in the ABC model for the EB-5 fee study. USCIS
estimated a completion rate of 108 hours for regional center
terminations. See Table 5 of this preamble. The average annual total
cost of these terminations is approximately $6.8 million in the ABC
model.\43\ See the fee study in the docket for more information.
---------------------------------------------------------------------------

\43\ In whole dollars, the average annual total cost of regional
center terminations is $6,846,310 in the ABC model for the FY 2024/
2025 fee review.
---------------------------------------------------------------------------

It would not be practical for USCIS to collect a fee specifically
for terminations. It would be administratively burdensome for USCIS to
attempt to collect a fee for terminations from regional centers during
the process of termination, after already collecting fees relating to
the filing of Forms I-956 and I-956F. USCIS also anticipates that
collection of such a fee at the termination stage is impractical
because entities facing termination of regional center designation may
opt not to pay the fee at that stage, especially given that the
termination itself may be based on failure to pay the Integrity Fund
fee. For example, USCIS may terminate a regional center if it does not
consent to an audit. See INA 203(b)(5)(E)(vii)(III), 8 U.S.C.
1153(b)(5)(E)(vii)(III). USCIS may also terminate the designation of
any regional center that does not pay the EB-5 Integrity Fund fee
within 90 days of the due date. See INA 203(b)(5)(J)(iv)(II), 8 U.S.C.
1153(b)(5)(J)(iv)(II).
While the EB-5 Reform Act created the EB-5 Integrity Fund, the
listed uses of the fund do not explicitly include typical adjudication
activities. Instead, it explicitly mandates use for various compliance,
fraud investigation, audit, and site visit activities. See INA
203(b)(5)(J)(iii), 8 U.S.C. 1153(b)(5)(J)(iii). As stated later in this
preamble, USCIS will also use the EB-5 Integrity Fund to audit regional
centers to ensure compliance with EB-5 requirements and review the flow
of investor capital into capital investment projects. See section V of
this preamble. Terminations of regional center designations are a
function of administering the EB-5 program generally for which USCIS
incurs costs and which may occur for a variety of reasons ranging from
voluntary withdrawal to non-compliance with various legal requirements
(which may be either discretionary or mandatory). See e.g. 8 CFR
204.6(m)(6)(vi); INA 203(b)(5)(E)(vii)(III), 8 U.S.C.
1153(b)(5)(E)(vii)(III); INA 203(b)(5)(F)(v)(II), 8 U.S.C.
1153(b)(5)(F)(v)(II); INA 203(b)(5)(G)(iii)(II)(dd), 8 U.S.C.
1153(b)(5)(G)(iii)(II)(dd); INA 203(b)(5)(H)(iv), 8 U.S.C.
1153(b)(5)(H)(iv); INA 203(b)(5)(I)(iv), 8 U.S.C. 1153(b)(5)(I)(iv);
INA 203(b)(5)(J)(iv)(II), 8 U.S.C. 1153(b)(5)(J)(iv)(II); INA
203(b)(5)(N), 8 U.S.C. 1153(b)(5)(N); and INA 203(b)(5)(O), 8 U.S.C.
1153(b)(5)(O). Prior to enactment of the EB-5 Reform Act and creation
of the EB-5 Integrity Fund, DHS paid for the costs of terminating
regional center designations through request fees for the former Form
I-924. DHS has continued to fund these costs through request fees for
Form I-956 and Form I-956F after the enactment of the EB-5 Reform Act.
The EB-5 Integrity Fund does not explicitly provide a separate revenue
stream to pay for such costs. Consequently, DHS will continue with its
historic practice and fund those costs from the request fees proposed
in this rule.

C. EB-5 Fee Study Projected Costs and Revenue

1. EB-5 Fee Study Cost Projections
In developing the EB-5 fee study cost projection, IEFA non-premium
costs were considered in addition to EB-5 program costs.\44\ Therefore,
the EB-5 fee study cost projection accounts for payroll and non-payroll
for on-board and new staff, inflation, resource requirements or
adjustments, and the removal of costs associated with temporary
programs. USCIS started with its general FY 2024 Operating Plan. USCIS
then made the following adjustments in the EB-5 fee study:
---------------------------------------------------------------------------

\44\ IEFA non-premium refers to USCIS costs and revenue in the
IEFA account excluding premium processing costs and revenue.
---------------------------------------------------------------------------

<bullet> Added $317,000 to account for COVID-19 mandatory cuts to
IPO expenses, including general expenditures, which represents all
costs that are not related to pay or employee benefits (e.g., supplies,
training, and travel);
<bullet> Added staffing to support the EB-5 program, for a total of
approximately 334 employees (FTEs) across multiple USCIS offices (237
FTEs in IPO, nine (9) FTEs in Administrative Appeals Office, two (2)
FTEs in Office of the Chief Counsel, 86 FTEs in Fraud Detection and
National Security Directorate). This new staffing \45\ is necessary to
meet the processing time goals of the EB-5 Reform Act;
---------------------------------------------------------------------------

\45\ The additional staffing figures are not current staffing
totals; the figures reflect the number of additional positions that
were estimated at the time of the EB-5 fee study.
---------------------------------------------------------------------------

<bullet> Accounted for pay inflation and promotions/within-grade
increases, which includes annual Federal employee pay, cost of living
adjustments, and new employees who are not related to the EB-5 program.
The assumed inflation rate was 2 percent for FY 2024 and FY 2025; and
<bullet> Considered net additional costs, such as the costs of
additional budget items. For example, USCIS added $50 million to the
operating plan in each year to increase the budget for the interagency
agreement with U.S. Department of State.\46\
---------------------------------------------------------------------------

\46\ USCIS has executed formal interagency agreements (IAA) to
govern the reimbursement of costs under the Economy Act, 31 U.S.C.
1535 and 1536. An IAA governs costs incurred by the State Department
in providing goods or services for or on behalf of USCIS in areas
where USCIS has no capacity or USCIS may receive reimbursement for
goods and services it provides. See 48 CFR 17.5; 31 U.S.C. 1535-
1536.
---------------------------------------------------------------------------

Table 6 below is a summary from the FY 2024 IEFA non-premium cost
projection to the FY 2024/2025 annual average cost projection. The FY
2024/2025 annual average cost projection is estimated to be
approximately $5,315.9 million.

[[Page 48528]]

Table 6--Cost Projection--FY 2024/2025 EB-5 Fee Study Cost Projection
[In millions]
------------------------------------------------------------------------

------------------------------------------------------------------------
Total FY 2024 IEFA Non-Premium Cost Projection.......... $5,095.4
Plus: Additional IPO Staffing....................... 56.8
Plus: Additional IPO Expenses \47\.................. 0.3
Plus: FY 2024 Additional Non-IPO EB-5 Staffing...... 2.5
Total FY 2024 EB-5 Cost Projection...................... 5,155.0
Plus: Pay Inflation and Promotions/Within-Grade 43.3
Increases..........................................
Plus: Net Additional Costs.......................... 278.5
Total FY 2025 IEFA Non-Premium Cost Projection.......... 5,476.8
---------------
FY 2024/2025 Annual Average EB-5 Cost Projection.... 5,315.9
------------------------------------------------------------------------

Additionally, USCIS incorporated biometric services costs into
proposed EB-5 fees, consistent with the approach in the FY 2022/2023
fee rule. See 88 FR 402, 484-485 (Jan. 4, 2023); 89 FR 6194, 6277-6278
(Jan. 31, 2024).
---------------------------------------------------------------------------

\47\ $0.3 million is the reestablishment of IPO general expense
funds that were cut during the COVID-19 pandemic.
---------------------------------------------------------------------------

2. EB-5 Fee Study Revenue Projections
USCIS' revenue projections are informed by internal immigration
benefit request receipt forecasts agreed upon by the VPC.\48\ To
project EB-5 program revenue, USCIS develops petition volume
projections using all available data at the time. USCIS uses
statistical modeling, immigration receipt data, and internal
assessments of future developments (such as planned immigration policy
initiatives) to develop workload volume projections. All relevant USCIS
directorates and program offices are represented on the VPC. The VPC
forecasts USCIS workload volume using statistical forecasts and
subject-matter expertise from various directorates and program offices.
Input from these offices helps refine the statistical volume
projections. The VPC reviews short- and long-term volume trends. In
most cases, time series models provide volume projections by form type.
Time series models use historical receipt data to determine patterns
(such as level, trend, and seasonality) or correlations with historical
events to forecast receipts. When possible, other, more detailed models
are also used to determine relationships within and between different
benefit request types. At VPC meetings, the committee members
deliberate on the provided forecast, consider alternatives, and agree
to forecast by group consensus.
---------------------------------------------------------------------------

\48\ VPC receipt projections change based on the data trends
(seasonality, overall trend, etc.) for each form type, or if there
is a change in policy surrounding a form or an anticipated policy
change to take into account.
---------------------------------------------------------------------------

USCIS then assumes a 100-percent fee-paying rate for each EB-5
petition type to reflect the fact that IEFA EB-5 fees are not eligible
for fee waivers or exemptions. Therefore, the projected revenue is
based on the IEFA fees USCIS currently charges for EB-5 immigration
benefits, which were established by the FY 2022/2023 fee rule, and the
anticipated EB-5 petition volumes for FY 2024 and FY 2025. USCIS'
current IEFA fees are expected to yield $4,192.3 million of average
annual revenue during FY 2024/2025, as seen in Table 7 of this
preamble.

Table 7--FY 2024/2025 Fee Review Annual Average Revenue With Current IEFA Fees
----------------------------------------------------------------------------------------------------------------
Revenue with
Current IEFA Projected current IEFA
Immigration benefit request fees (FY 2022/ annual fees (in
2023) receipts millions)
----------------------------------------------------------------------------------------------------------------
I-526 Immigrant Petition by Standalone Investor............... $11,160 225 $2.5
I-526E Immigrant Petition by Regional Center Investor......... 11,160 3,500 39.1
I-527 Amendment to Legacy Form I-526.......................... 0 457 0.0
I-829 Petition by Investor to Remove Conditions on Permanent 9,525 3,430 32.7
Resident Status..............................................
I-956 Application for Regional Center Designation--Initial.... 47,695 50 2.4
I-956 Application for Regional Center Designation--Amendment.. 47,695 150 7.2
I-956F Application for Approval of Investment in a Commercial 47,695 450 21.5
Enterprise...................................................
I-956G Regional Center Annual Statement....................... 4,470 500 2.2
I-956H Bona Fides of Persons Involved with Regional Center 0 2,100 0.0
Program......................................................
I-956K Registration for Direct and Third-Party Promoters...... 0 400 0.0
-------------------------------------------------
EB-5 Subtotal............................................. ................ 11,262 \49\ 107.5
All other IEFA non-premium revenue............................ ................ .............. 4,084.8
-------------------------------------------------
Grand Total............................................... ................ .............. 4,192.3
----------------------------------------------------------------------------------------------------------------

3. EB-5 Fee Study Cost and Revenue Differential
The EB-5 fee study identified the difference between anticipated
costs and revenue, assuming no changes in fees, to determine whether
the existing EB-5 fee schedule is sufficient to recover the projected
full cost of providing EB-5 immigration adjudication services or
whether a fee adjustment is necessary. Following a fee review, if the
revenue forecast is less than the budget forecast, then DHS will
generally propose new or increased USCIS fees to cover the budget-
revenue

[[Page 48529]]

shortfall. Otherwise, USCIS may reduce certain costs or services or
reduce reserves to cover the difference. Table 8 later in this preamble
summarizes the projected EB-5 program cost and current revenue
differential.
---------------------------------------------------------------------------

\49\ The sum of the rounded amounts in the Revenue with Current
IEFA Fees column for EB-5 is $107.6. However, the EB-5 projected
revenue of $107,478,500 is $107.5 in millions. The difference is
from rounding the other amounts in the table.
---------------------------------------------------------------------------

D. EB-5 Fee Study Results and Proposed Fee Adjustments

Through the EB-5 fee study, USCIS determined that, at current fee
levels, projected costs for EB-5 workload in the FY 2024/2025 fee
review exceed projected revenue but are lower than projected revenue in
other cases. One example of projected costs that exceed projected
revenue are the workloads for Forms I-956H and I-956K, which do not
have fees and thus do not generate revenue. DHS proposes to adjust the
fee schedule at a level that will enable USCIS to better align the
costs of administering the EB-5 program, attain the EB-5 processing
time goals as provided in the EB-5 Reform Act, and make improvements to
the information technology systems used to administer the EB-5 program.
In most cases, the proposed fees are lower than the current fees
because the proposed fees do not include cost reallocation, as
explained earlier in this preamble. See section IV.B.4.
After resource costs are identified, the ABC model distributes them
to USCIS' primary processing activities. See the fee study in the
docket of this rulemaking for more information on the ABC model,
activities, and results described in this section.
Next, the ABC model distributes activity costs to immigration
benefit requests. Each total cost result is based on the resources,
activities, and various drivers that contribute to the estimated cost
of its completion. The ABC model estimates total cost before
calculating unit costs. For total costs for EB-5 and other USCIS
workloads, see Appendix Table 1 of the fee study included in this
docket. For total cost by activity as unit costs, see Appendix Table 2
of the fee study included in this docket.
To focus the ABC model and study specifically on the EB-5 program
forms, the Department developed Table 8 of this preamble. Table 8 shows
the revenue estimate, by EB-5 benefit requests, based on the current
fees (set in the FY 2022/2023 fee rule), the total cost of adjudication
by EB-5 form type, and the dollar and percent difference between the
cost of adjudication and the revenue received for each EB-5 form type.
This difference shows that the revenue estimate with current fees
exceeds the full cost for these forms in most cases; in other cases,
the cost is higher than the revenue because the workload does not have
a current fee. As such, DHS is proposing to adjust the EB-5 benefit
request fees. Most proposed fees are lower than the current fees while
other proposed fees would recover the cost of EB-5 workloads that do
not have fees. See Table 1 earlier in this preamble. DHS is proposing
the fees in this rule to be aligned with EB-5 workloads, recover
projected costs, and achieve the processing time goals of the EB-5
Reform Act, as detailed in the fee study.

Table 8--Revenue With Current IEFA Fees Compared to Total Costs From EB-5 Fee Study Results
----------------------------------------------------------------------------------------------------------------
Revenue with
Immigration benefit request current IEFA Total cost $ Difference % Difference
fees from ABC model
----------------------------------------------------------------------------------------------------------------
I-526/I-526E Immigrant Petition by Standalone/ $41,571,000 $35,498,584 ($6,072,416) (15)
Regional Center Investor.......................
I-527 Amendment to Legacy Form I-526............ 0 3,656,842 3,656,842 N/A
I-829 Petition by Investor to Remove Conditions 32,670,750 26,963,151 (5,707,599) (18)
on Permanent Resident Status...................
I-956 Application for Regional Center 2,384,750 918,041 (1,466,709) (62)
Designation--Initial...........................
I-956 Application for Regional Center 7,154,250 1,192,033 (5,962,217) (83)
Designation--Amendment.........................
I-956F Application for Approval of Investment in 21,462,750 8,730,992 (12,731,758) (59)
a Commercial Enterprise........................
I-956G Regional Center Annual Statement......... 2,235,000 1,369,965 (865,035) (39)
I-956H Bona Fides of Persons Involved with 0 118,387 118,387 N/A
Regional Center Program........................
I-956K Registration for Direct and Third-Party 0 1,095,971 1,095,971 N/A
Promoters......................................
Regional Center Terminations.................... 0 6,846,310 6,846,310 N/A
---------------------------------------------------------------
EB-5 Total (IEFA only)...................... 107,478,500 86,390,276 (21,088,224) (20)
----------------------------------------------------------------------------------------------------------------

1. Proposed EB-5 Immigration Benefit Request Fee Adjustments
The EB-5 program currently encompasses Forms I-526, I-526E, I-829,
I-956, I-965F, I-956G, I-956H, and I-956K. In addition, DHS proposes to
create a new Form I-527, for legacy workloads, as described later in
this section. In accordance with the EB-5 Reform Act and the INA, DHS
proposes the following EB-5 immigration benefit request fee adjustments
in this rule:
<bullet> DHS calculated a proposed fee for Form I-526, Immigrant
Petition by Standalone Investor, and Form I-526E, Immigrant Petition by
Regional Center Investor, as $9,530 to recover full cost. See proposed
8 CFR 106.2(d)(2)(i). DHS is also proposing the EB-5 Technology Fee, in
the amount of $95, be added to the fees for Forms I-526 and I-526E. See
proposed 8 CFR 106.2(d)(2)(iii). The total proposed fee for Forms I-526
and I-526E is $9,625 in most cases. Later in this section, the
Department further discusses the EB-5 Technology Fee.
<bullet> DHS calculated a proposed fee for Form I-527, Amendment to
Legacy Form I-526, as $8,000. See proposed 8 CFR 106.2(d)(3). The
Department discusses the purpose of the proposed amendment in section
IV.B.3 of this preamble.
<bullet> DHS calculated a proposed fee for Form I-829, Petition by
Investor to Remove Conditions on Permanent Resident Status, as $7,860.
See proposed 8 CFR 106.2(d)(4).
<bullet> DHS calculated a proposed fee for Form I-956, Application
for Regional Center Designation, as $28,895 for initial filings and
$18,480 for amendments. See proposed 8 CFR 106.2(d)(5).
<bullet> DHS also proposes a $29,935 fee for Form I-956F,
Application for Approval of Investment in a Commercial Enterprise. See
proposed 8 CFR 106.2(d)(6).
<bullet> The proposed fee for Form I-956G, Regional Center Annual
Statement, is $2,740. See proposed 8 CFR 106.2(d)(7).
<bullet> The proposed fee for Form I-956H, Bona Fides of Persons
Involved with Regional Center Program, is $55. See proposed 8 CFR
106.2(d)(8).
<bullet> The proposed fee for Form I-956K, Registration for Direct
and Third-Party Promoters, is $2,740. See proposed 8 CFR 106.2(d)(9).
As discussed earlier, projected volumes and completion rates are
two of

[[Page 48530]]

the main drivers in the EB-5 fee study results. Staffing requirements
and costs change as volume or completion rate estimates change. The
proposed fees represent consistent application of the methodologies
previously outlined in this preamble. In each case, the EB-5 proposed
fees are based on the ABC model outputs that meet EB-5 Reform Act
processing guidelines.
2. EB-5 Technology Fee
The EB-5 Reform Act authorized USCIS to begin charging a technology
fee ``. . . in an amount that is not greater than one percent of the
fee . . . to make improvements to the information technology systems
used by the Secretary of Homeland Security to process, adjudicate, and
archive applications and petitions.'' See Public Law 117-103, div. BB,
sec. 106(c).
Through this rule, DHS proposes that the EB-5 technology fee will
only apply to Form I-526, Immigrant Petition by Standalone Investor,
and Form I-526E, Immigrant Petition by Regional Center Investor.\50\
First, DHS calculated the proposed fee of $9,530 for Forms I-526 and I-
526E, as described earlier in the preamble. One percent of $9,530 is
$95.30. DHS rounded $95.30 down to the nearest $5 increment to
calculate the proposed $95 EB-5 technology fee.\51\ As such, the
proposed $95 EB-5 technology fee is approximately 0.997 percent of the
proposed fees for forms I-526 and I-526E. This approach ensured that
the applicable immigration benefit requests did not exceed 1 percent of
the form fee and yielded a technology fee of $95 per form. See proposed
8 CFR 106.2(d)(2)(iii). This amount is included in the total form fee
for initial applications of Forms I-526 and I-526E, as noted in Table 1
of this preamble.
---------------------------------------------------------------------------

\50\ Section 106(c)(2) permits the charging of the EB-5
technology for filing ``a petition under section 203(b)(5) of the
[INA],'' which DHS interprets to mean only petitions for
classification under section 203(b)(5) of the INA, 8 U.S.C.
1153(b)(5) (Form I-526 and Form I-526E). Other filings under that
section of the INA are not referred to as petitions (e.g., Form I-
956F, Application for Approval of an Investment in a Commercial
Enterprise) and the only other type of EB-5 petition (Form I-829,
Petition by Investor to Remove Conditions on Permanent Resident
Status) is filed under section 216A of the INA, 8 U.S.C. 1186b.
\51\ In other fee rules, DHS typically rounds USCIS fees to the
nearest $5 increment. See, e.g., 88 FR 402, 450-451 (Jan. 4, 2023);
81 FR 73292, 73303 n.43, 73304 n.45 (Oct. 24, 2016); 72 FR 29851,
29866 (May 30, 2007). In this case, DHS rounded down to $95 to
propose an EB-5 technology fee that is less than 1 percent of the
proposed fees for Forms I-526 and I-526E.
---------------------------------------------------------------------------

USCIS will use this fee revenue to move IPO from a paper-based
filing system to a modern electronic process for the entire IPO case
life cycle and make other technological and infrastructure
improvements. DHS will review the adequacy of the technology fee along
with all other fees in each biennial fee review as required by the CFO
Act.
3. Form I-527, Amendment to Legacy Form I-526
Under section 203(b)(5)(M) of the INA, 8 U.S.C. 1153(b)(5)(M),
certain good faith investors may retain eligibility following
termination of their regional center or debarment of their NCE or JCE.
USCIS interprets section 203(b)(5)(M) of the INA to apply to investors
who filed Form I-526 petitions for classification before the EB-5
Reform Act was enacted. Therefore, USCIS proposes to create Form I-527,
Amendment to Legacy Form I-526, for investors who filed their petitions
before the EB-5 Reform Act was enacted who choose to amend their
petition in order to retain their eligibility under section
203(b)(5)(M) of the INA, 8 U.S.C. 1153(b)(5)(M), where their regional
center is terminated or their NCE or JCE is debarred. See section VI.J,
Paperwork Reduction Act (PRA), for a more complete description of Form
I-527.

V. EB-5 Integrity Fund Fees and Penalties

A. EB-5 Integrity Fund

The EB-5 Reform Act established a special fund to be known as the
EB-5 Integrity Fund. INA sec. 203(b)(5)(J), 8 U.S.C. 1153(b)(5)(J). The
Integrity Fund is to be used by DHS for the following:
(1) Conducting investigations based outside of the United States,
including monitoring and investigating program-related events and
promotional activities and ensuring that an investor's funds were
obtained from a lawful source and through lawful means;
(2) Detecting and investigating fraud or other crimes;
(3) Determining whether regional centers, NCEs, JCEs, and investors
(and their spouses and children) comply with U.S. immigration laws;
(4) Conducting audits and site visits; and
(5) For other purposes as DHS determines necessary.
INA sec. 203(b)(5)(J)(iii), 8 U.S.C. 1153(b)(5)(J)(iii).
In FY 2023, USCIS issued a statement of policy and interpretive
rule in the Federal Register regarding the EB-5 Integrity Fund Fee of
$20,000 or $10,000. See 88 FR 13141 (Mar. 2, 2023). The notice
explained how regional centers should determine the amount of the fee
and provided the process for how to pay it. USCIS imposed the EB-5
Integrity Fund Fee without soliciting public comment because the fees
are explicitly provided for in the EB-5 Reform Act.

B. Current EB-5 Integrity Fund Fees

The EB-5 Integrity Fund is a separate fund maintained at the U.S.
Department of the Treasury for collecting the fees designated in the
EB-5 Reform Act. The INA makes the funds available to the Secretary for
the permissible purposes outlined earlier. As USCIS solely administers
the EB-5 program, DHS proposes that USCIS will continue to determine
how to use these funds as appropriate to meet the statutory
requirements.
These fees are to be used by USCIS to execute auditing activities
for regional centers to ensure compliance with EB-5 requirements and
review the flow of investor capital into capital investment projects.
Table 9 identifies the fees as delineated in the EB-5 Reform Act.
Each Form I-526E filer is required to pay $1,000 to the EB-5
Integrity Fund, in addition to any form fees. USCIS began collecting
the new fee in 2022, as required by the EB-5 Reform Act. See 88 FR
13141, 13142 n.1 (Mar. 2, 2023). Each regional center is required to
make an annual payment into the EB-5 Integrity Fund in relation to the
number of total investors in its new commercial enterprises in the
preceding fiscal year. Per the new provisions of the INA added by the
EB-5 Reform Act, regional centers with 21 or more total investors are
required to pay $20,000 annually to the EB-5 Integrity Fund. Regional
centers with 20 or fewer total investors are required to pay $10,000
annually to the EB-5 Integrity Fund. The INA authorizes the Secretary
to increase these amounts by regulation as may be necessary to ensure
that the amounts in the EB-5 Integrity Fund are sufficient to carry out
its designated purposes. See INA sec. 203(b)(5)(J)(ii)(III), 8 U.S.C.
1153(b)(5)(J)(ii)(III). DHS is proposing to increase these amounts, as
discussed in the next section.
The measurement of the number of investors in a regional center and
the timing of EB-5 Integrity Fund Fee payments is discussed in Section
V.D.2.

[[Page 48531]]

Table 9--Current EB-5 Integrity Fund Fees
------------------------------------------------------------------------
Amount
------------------------------------------------------------------------
I-526E EB-5 Integrity Fund Fee.... $1,000.
Regional Center Integrity Fund Fee $20,000 or $10,000.
(88 FR 13141 (Mar. 2, 2023)).
------------------------------------------------------------------------

DHS believes that the INA's language is plain and clear that each
designated regional center must pay the Integrity Fund Fee annually to
avoid the penalties required by the Act. See INA sec.
203(b)(5)(J)(iv)(I), 8 U.S.C. 1153(b)(5)(J)(iv)(I) (``if any regional
center does not pay the fee required'') (emphasis added); INA sec.
203(b)(5)(J)(iv)(II), 8 U.S.C. 1153(b)(5)(J)(iv)(II) (``terminate the
designation of any regional center that does not pay the fee required
under clause (ii)'') (emphasis added). DHS notes that some stakeholders
have read the INA's language as excluding regional centers designated
before the EB-5 Reform Act from needing to pay the Integrity Fund Fee
because the INA orders DHS to collect the annual fee ``from each
regional center designated under subparagraph (D).'' INA sec.
203(b)(5)(J)(ii)(I), 8 U.S.C. 1153(b)(5)(J)(iv)(I). They state that
because pre-EB-5 Reform Act regional centers were not designated under
subparagraph (D), they are not subject to the new provisions and
requirements.\52\
---------------------------------------------------------------------------

\52\ Regional centers have sought to enjoin DHS's collection of
the EB-5 Integrity Fund fee from regional centers designated before
enactment of the EB-5 Reform Act. Following denial of the regional
centers' motions for preliminary injunction, U.S. District Courts in
the Southern District of Florida and District of Columbia
subsequently rejected this interpretation advanced by these regional
centers and granted DHS's motions to dismiss these lawsuits.
Sunshine State Reg'l Ctr., Inc. v. Jaddou, 23-cv-60795 (S.D. Fla.
Dec. 29, 2023) (order granting DHS's motion to dismiss), appeal
filed Jan. 1, 2024; EB5 Holdings, Inc. v. Jaddou, 23-cv-1180 (D.D.C.
Feb. 20, 2024) (order granting DHS's motion to dismiss).
---------------------------------------------------------------------------

DHS reiterates that the statutory language is clear in that these
new provisions of the INA added by the EB-5 Reform Act, including the
required fees and penalties, also apply to previously designated
regional centers as of the date of enactment. Section 103(a) of the EB-
5 Reform Act repealed section 610 of the Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies Appropriations
Act, 1993 (8 U.S.C. 1153 note), which was the authority that
established and formerly authorized the Regional Center Program, and
under which regional centers were previously designated. Public Law
117-103, div. BB, sec. 103. The EB-5 Reform Act moved the relevant
provisions regarding regional centers, including the authority for
their designation, to section 203(b)(5)(E) of the INA, 8 U.S.C.
1153(b)(5)(E), titled ``Regional Center Program.'' Section
203(b)(5)(E)(i) of the INA, 8 U.S.C. 1153(b)(5)(E)(i), then provides
for visa allocations for post-EB-5 Reform Act regional center investors
participating in the program involving regional centers ``which [have]
been designated by the Secretary of Homeland Security on the basis of a
proposal for the promotion of economic growth.'' The EB-5 Reform Act
also added various new provisions to the INA to regulate designated
regional centers in accordance with this newly codified statutory
designation authority, including the requirement to file an annual
statement under section 203(b)(5)(G)(i) of the INA, 8 U.S.C.
1153(b)(5)(G)(i), and to then pay an annual fee into the EB-5 Integrity
Fund under section 203(b)(5)(J)(ii)(I) of the INA, 8 U.S.C.
1153(b)(5)(J)(ii)(I). Applying these provisions of the INA added by the
EB-5 Reform Act, specifically the EB-5 Integrity Fund Fee and
penalties, prospectively to existing regional centers is the best
reading of the statute because they are designated regional centers
under (E), as there is no longer any other existing authority under
which they may be designated. Further, to deem them previously
designated, and not designated under (E), could create a legal fiction
and lead to arbitrary results. For example, that could mean that DHS
has no legal authority to regulate those entities, verify compliance
with EB-5 laws, protect the investors, and penalize regional centers
that commit fraud, among other important measures.
Lastly, DHS does not believe applying these provisions of the INA
added by the EB-5 Reform Act in this manner is impermissibly
retroactive. Although previously designated regional centers became
regional centers before the EB-5 Reform Act's enactment, the EB-5
Reform Act did not explicitly exclude them from meeting the new
requirements. A regional center is unlike a typical petitioner or
applicant who generally submits one benefit request and establishes
eligibility; rather, a regional center seeks a designation that they
must actively maintain and for which they must annually demonstrate
compliance to DHS.\53\ Because the previous regional center statutory
authority was repealed, those that seek to maintain their designation
must comply with the new requirements added to the INA by the EB-5
Reform Act. In accordance with the statute, DHS is proposing to
continue to apply these requirements prospectively, as of the date of
the EB-5 Reform Act's enactment, to all regional centers.
---------------------------------------------------------------------------

\53\ See, e.g., INA sec. 203(b)(5)(E) (providing authority to
designate regional centers for ongoing participation in the regional
center program and requiring, among other things, periodic
amendments to designation based on specified changes and ongoing
recordkeeping and audit obligations), INA sec. 203(b)(5)(G)
(requiring the submission of annual statements to provide
recertification of compliance with particular requirements and
provide periodic information regarding associated NCEs), INA sec.
203(b)(5)(I) (requiring periodic recertification of compliance with
securities laws), and INA sec. 203(b)(5)(J) (requiring the annual
payment of EB-5 Integrity Fund fees).
---------------------------------------------------------------------------

C. Proposed Inflation Adjustment to EB-5 Integrity Fund Fees

DHS proposes to increase EB-5 Integrity Fund fees by the rate of
inflation since enactment of the EB-5 Reform Act on March 15, 2022. The
EB-5 Reform Act authorized DHS to adjust the Integrity Fund fees as
necessary to ensure that amounts in the Fund are sufficient to carry
out the permissible uses of the fund. See INA sec.
203(b)(5)(J)(ii)(III), 8 U.S.C. 1153(b)(5)(J)(ii)(III); see also 8
U.S.C. 1153(b)(5)(J)(iii). While the authority for these fees is fairly
new, and USCIS is adjusting to this new revenue stream, increasing the
fees by the amount of inflation will allow USCIS to recover more of its
operating costs associated with maintaining the integrity of the EB-5
program and help sustain USCIS efforts in future years.
DHS has a long history of adjusting fees by inflation; therefore,
the rate of inflation is a particularly rational method on which to
base an adjustment of those fees. DHS regularly increases certain fees
by inflation because of specific statutory authority to do so. See,
e.g., 88 FR 89539 (Dec. 28, 2023) and 87 FR 18227 (Mar. 30, 2022). For
over 24 years,\54\ Congress has indicated that an increase in costs
through inflation, more specifically the

[[Page 48532]]

Consumer Price Index for All Urban Consumers (CPI-U), is a rational
reason for DHS to adjust a USCIS fee.\55\ In the FY 2022/2023 fee rule,
DHS limited some fee increases by inflation. See 89 FR 6194, 6212 (Jan.
31, 2024). In that same fee rule, DHS finalized a regulatory mechanism
to adjust USCIS fees by inflation when they are not set by statute. See
89 FR 6194, 6281-6282 (Jan. 31, 2024); see also 8 CFR 106.2(d).
---------------------------------------------------------------------------

\54\ See Public Law 106-553, App. B, tit. I, sec. 112, 114 Stat.
2762, 2762A-68 (Dec. 21, 2000).
\55\ See, e.g., 8 U.S.C. 1356(u) (premium processing fees), 48
U.S.C. 1806(a)(6)(A)(ii) (Commonwealth of the Northern Mariana
Islands education fee).
---------------------------------------------------------------------------

DHS proposes to adjust Integrity Act fees by using the change in
the CPI-U from the first half of 2022 to the first half of 2024. In the
first half of 2022, the CPI-U was 288.347, and in the first half of
2024, it was 312.145.\56\ Therefore, between the first halves of 2022
and 2024 respectively, the CPI-U increased by 8.25 percent.\57\ If this
percentage increase were applied to the current fees, the I-526E EB-5
Integrity Fund Fee of $1,000 would increase to $1,085; the $10,000
Regional Center Integrity Fund Fee would increase to $10,825; and the
$20,000 Regional Center Integrity Fund Fee would increase to
$21,650.\58\ See proposed 8 CFR 106.2(d).
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\56\ The latest CPI-U data are available at <a href="https://data.bls.gov/toppicks?survey=bls">https://data.bls.gov/toppicks?survey=bls</a> (last visited Dec. 11, 2024).
Select CPI-U 1982-84=100 (Unadjusted)--CUUR0000SA0 and click the
Retrieve data button.
\57\ DHS calculated this by subtracting the first half of 2022
CPI-U (288.347) from the first half of 2024 CPI-U (312.145), then
dividing the result (23.80) by the first half of 2022 CPI-U
(288.347). Calculation: (312.145-288.347)/288.347 = 0.0825 x 100 =
8.25 percent.
\58\ DHS rounds all fees to the nearest $5 increment.
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DHS considered different date ranges and the resulting percentage
change in CPI-U before determining the proposed inflation adjustment.
For example, DHS considered using the change in CPI-U from March 2022
to November 2024, which was approximately 9.74 percent.\59\ This
approach would use the most recent data at the time of this writing,
but it would also be subject to monthly volatility. Yet another
alternative approach would be to use June 2022 to June 2024, similar to
a premium processing fee increase, which would be approximately 6.03
percent.\60\ DHS proposes to use the 8.25 percent change from the first
half of 2022 to the first half of 2024 because it marks the 2-year
anniversary of the EB-5 Reform Act without relying on monthly variation
in the index. The proposed percentage increase may be considered a
midrange estimate for inflation because it is less than the inflation
changes using monthly data but more than the change between June 2022
and June 2024. In any case, it is likely that inflation will continue
to increase before DHS could adopt this proposed increase in a final
rule. Therefore, the fee amounts in the final rule will be based on
inflation as of the date the final rule is scheduled to take effect,
and they may increase slightly to account for the time required to
address comments, draft and publish a final rule. That increase will be
foreseeable and based on a non-variable calculation and a well-known
published source, and will, therefore, be a logical outgrowth of the
proposed rule. Otherwise, DHS would set fees in the final rule at a
level that would not recover the cost of inflation at the time of a
final rule.
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\59\ DHS calculated this by subtracting the March 2022 CPI-U
(287.504) from November 2024 CPI-U (315.493), then dividing the
result (27.99) by the March 2022 CPI-U (287.504). Calculation:
(315.293-287.504)/287.504 = 0.0974 x 100 = 9.74 percent.
\60\ Congress specified that DHS use CPI-U from June when
adjusting premium processing fees by inflation. See INA sec.
286(u)(3)(C), 8 U.S.C. 1356(u)(3)(C); see also 8 CFR 106.4(d). DHS
calculated this by subtracting the June 2022 CPI-U (296.311) from
June 2024 CPI-U (314.175), then dividing the result (17.86) by the
June 2022 CPI-U (296.311). Calculation: (314.175-296.311)/296.311 =
0.0603 x 100 = 6.03 percent.
---------------------------------------------------------------------------

Integrity Fund revenue has varied significantly, making it harder
for USCIS to plan how to use it. In FY 2023 and FY 2024, the Integrity
Fund collected approximately $8 million and $11 million, respectively.
In FY 2025, forecasts with the current Integrity Fund fees range from
approximately $10 to $14 million, which includes back payments from FY
2023 and FY 2024. The proposed increase to Integrity Fund fees may
provide approximately $1 million in additional revenue and better
protect the purchasing power of USCIS investments in staffing and
information technology for the EB-5 program.

D. EB-5 Integrity Fund Penalties

The EB-5 Reform Act directs DHS to impose penalties for failing to
pay and for late payments of the EB-5 Integrity Fund fees. INA sec.
203(b)(5)(J), 8 U.S.C. 1153(b)(5)(J). Specifically, the law requires a
reasonable penalty fee (to be paid to USCIS and deposited into the
Integrity Fund when collected) on a regional center that does not pay
the annual Integrity Fund fee within 30 days after the date on which
such fee is due. INA sec. 203(b)(5)(J)(iv), 8 U.S.C. 1153(b)(5)(J)(iv).
USCIS must terminate the designation of any regional center that does
not pay the fee within 90 days after the date on which such fee is due.
INA sec. 203(b)(5)(J)(iv)(II), 8 U.S.C. 1153(b)(5)(J)(iv)(II).
In its notice of March 2, 2023, USCIS articulated these
requirements. See 88 FR 13141, 13143-13144 (Mar. 2, 2023). USCIS
announced that it would comply with the requirement that it terminate
the designation of any regional center that does not pay the full
required fee within 90 days after the date on which such fee is due,
after providing a notice of intent to terminate and the opportunity for
a regional center to prove that the fee was paid in the proper amount
by the due date before sending a notice of termination. Id. However,
USCIS decided that, as a matter of discretionary enforcement policy, it
will not begin charging a late fee until the amount of the late fee, as
well as the process for collecting the late fee is finalized. Id. DHS
proposes the late fee as required in this rule and explains its
rationale for the amount of the late fee in the section that follows.
1. Proposed Penalties
DHS proposes to impose the following penalties for paying the
Integrity Fund fee late (31 days or more after it is due):
<bullet> Ten percent of the required integrity fee (e.g., 10
percent of $10,000 or $20,000, subject to adjusting such required
amounts for inflation) for a regional center that pays its fees on day
31 through and including day 60 after the due date.
<bullet> Twenty percent of the required integrity fee for a
regional center if their fee is paid on day 61 through and including
day 90 after it is due.
<bullet> Terminate a regional center designation if it fails to pay
the fee within 90 days of the date on which such fee is due.
By requiring a ``reasonable'' penalty fee in section
203(b)(5)(J)(iv) of the INA, 8 U.S.C. 1153(b)(5)(J)(iv), Congress has
assigned DHS the authority to give meaning to that statutory term. See
Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2263 (2024)
(``In a case involving an agency, of course, the statute's meaning may
well be that the agency is authorized to exercise a degree of
discretion. Congress has often enacted such statutes. For example, some
statutes `expressly delegate' to an agency the authority to give
meaning to a particular statutory term. Others empower an agency to
prescribe rules to `fill up the details' of a statutory scheme, or to
regulate subject to the limits imposed by a term or phrase that `leaves
agencies with flexibility,' such as `appropriate' or `reasonable.' '')
(internal citations omitted).
In determining what would constitute a reasonable penalty, DHS
considered two main factors. First, DHS looked to the EB-5 Reform Act
to find whether Congress codified any penalty percentages for this
program. The EB-5 Reform Act authorizes graduated sanctions of up to 10
percent of

[[Page 48533]]

petitioner capital for regional centers that fail to submit an annual
statement or that commit certain violations. INA sec.
203(b)(5)(G)(iii), 8 U.S.C. 1153(b)(5)(G)(iii). Although the 10-percent
penalty in the EB-5 Reform Act is a capped percentage of petitioner
capital per regional center, because Congress has designated that
percentage as appropriate, DHS believed that 10 percent was a
reasonable starting point in setting a penalty. Second, DHS considered
whether the dollar amount itself was reasonable. In this case, the 10
percent would amount to $1,000 or $2,000 based on the required amounts
prior to adjusting for inflation depending on the regional center,
which DHS believes is a reasonable late charge for failing to pay the
fee after 30 days. The 20 percent would amount to $2,000 or $4,000
based on the required amounts prior to adjusting for inflation
depending on the regional center, which DHS believes is a reasonable
late charge for failing to pay the fee after 60 days. The goal of the
proposed penalties program is to ensure that penalties are effective in
deterring noncompliance. In addition to the amount being consistent
with penalties that the law requires in similar contexts, DHS believes
that the proposed penalties effectuate the authority of the statute by
providing an amount that balances affordability, ability to pay, and
some measure of accountability for the violation. The amounts will
encourage payment and ensure timely collection of the EB-5 Integrity
Fund fees.\61\
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\61\ As discussed in more detail below, regional centers derive
revenue from several different sources including administrative fees
from each associated investor. This administrative fee is typically
10 percent of the individual investment amount, which would
typically equal $80,000 per investor based on the reduced required
investment amount of $800,000.
---------------------------------------------------------------------------

DHS recognizes that the statute did not explicitly set a separate
60-day penalty for failing to timely pay the fee. DHS proposes a
graduated fee structure because it is common that late fees for
payments of debts and fees generally increase as the delinquency period
increases and subsequent missed or delayed payments occur.\62\ Thus,
DHS decided to increase the late fee to 20 percent when the fee became
more than 31 days past due. As stated earlier, the proposed penalties
effectuate the authority of the statute and are sufficient to encourage
payment and ensure timely collection of the EB-5 Integrity Fund fees.
There is an operational burden on USCIS if it is forced to expend
resources on program integrity without timely receiving the funds
needed to administer the EB-5 program. As such, DHS believes there is
justification for a higher fee after 31 days.
---------------------------------------------------------------------------

\62\ See, e.g., Consumer Financial Protection Bureau, ``Why did
my credit card issuer increase my late payment fee?'' <a href="https://www.consumerfinance.gov/ask-cfpb/why-did-my-credit-card-issuer-increase-my-late-payment-fee-en-56/">https://www.consumerfinance.gov/ask-cfpb/why-did-my-credit-card-issuer-increase-my-late-payment-fee-en-56/</a> (last reviewed Sept. 23, 2022).
---------------------------------------------------------------------------

DHS believes it is equitable to provide another opportunity for
regional centers to remedy the failure to pay before proceeding to
termination. Further, a graduated late penalty will further support the
goal of encouraging payment and ensure timely collection of the
Integrity Fund fee, without resulting in a significant burden to the
agency. DHS believes that the proposed penalties are reasonable because
they strike the necessary balance between the need for the fees and the
financial ability of a regional center to pay them when required.
2. Calculation of Investors To Determine Amount Owed
The EB-5 Reform Act sets the standard annual fee at $20,000 for
each designated regional center. INA sec. 203(b)(5)(J)(ii), 8 U.S.C.
1153(b)(5)(J)(ii). However, for those with ``20 or fewer total
investors in its new commercial enterprises'' during the preceding
fiscal year (October 1-September 30), the annual fee is reduced to
$10,000. Id. Although ``investor'' is not specifically defined for
purposes of INA sec. 203(b)(5), 8 U.S.C. 1153(b)(5), it is used
extensively throughout that section to refer to individuals seeking
classification, or classified, under INA sec. 203(b)(5) 8 U.S.C.
1153(b)(5) (i.e. I-526 and I-526E petitioners). For purposes of INA
sec. 216A, ``alien investor'' is defined as ``an alien who obtains the
status of an alien lawfully admitted for permanent residence (whether
on a conditional basis or otherwise)'' under INA sec. 203(b)(5), 8
U.S.C. 1153(b)(5). See INA 216A(f)(1), 8 U.S.C. 1186b(f)(1). DHS
recognizes that there is no legal requirement that an investor remain
invested in an NCE within a specific time period after they file Form
I-829, Petition by Investor to Remove Conditions on Permanent Resident
Status. See INA sec. 216A(d)(1)(A), 8 U.S.C. 1186b(d)(1)(A). DHS has,
therefore, determined that the filing of the Form I-829 is an
appropriate demarcation for purposes of determining the number of
``total investors in the preceding fiscal year'' as intended by the EB-
5 Reform Act.\63\ The Department welcomes public comments on that
determination.
---------------------------------------------------------------------------

\63\ Though DHS recognizes that some EB-5 investors may remain
invested in a new commercial enterprise even after filing or
adjudication of their Form I-829 petition, determining when such
investment ceases would be impractical as it would require the
collection and validation of information regarding continued
investment beyond that which is required to be submitted to
establish eligibility for removal of conditions under section 216A
of the INA, 8 U.S.C. 1186b.
---------------------------------------------------------------------------

Accordingly, DHS proposes to define ``total investors'' in this
context to include investors from the point of filing a petition for
classification (Forms I-526, Immigrant Petition by Standalone Investor,
or I-526E, Immigrant Petition by Regional Center Investor) through the
point of filing a petition for removal of conditions (Form I-829,
Petition by Investor to Remove Conditions on Permanent Resident
Status). To calculate the total, DHS proposes to subtract the number of
Forms I-829 associated with the regional center filed at any time on or
before September 30 of that fiscal year (including filings from prior
fiscal years) from the total number of pending and approved Forms I-526
associated with the regional center (filed on or before June 30, 2021)
and Forms I-526E, Immigrant Petition by Regional Center Investor (filed
on or after June 1, 2022, the date USCIS published the form) associated
with the regional center filed at any time on or before September 30 of
that same fiscal year (including filings from prior fiscal years).
Proposed 8 CFR 106.2(d)(10)(i)(C). A Form I-829 that is filed
separately by a spouse or child of an investor that obtained
conditional permanent resident status based on their relationship to
the investor and was not included on the principal investor's Form I-
829 will be excluded from the total investor calculation. For example,
if a regional center had 30 associated Form I-526 petitions, 10
associated Form I-526E petitions, and 20 associated Form I-829
petitions filed on or before September 30, of a given year, USCIS would
estimate that regional center has 20 total investors in its NCEs for
the applicable fiscal year for purposes of calculating the applicable
Integrity Fund fee.
USCIS has followed this policy since it was initially developed
through the Notice of EB-5 Regional Center Integrity Fund Fee. As
described in the Notice of EB-5 Regional Center Integrity Fund Fee,
USCIS considered alternative methods of calculating the number of
investors; however, it determined that those options generally would
either not capture the entire population or involve manual calculations
that USCIS believes would place an unreasonable burden on the Agency's
limited resources and be confusing and burdensome to the investor or
regional center populations.

[[Page 48534]]

See 88 FR 13141, 13143 (Mar. 2, 2023). For example, USCIS considered
generally counting only the Forms I-526 that were filed within 2 years
of the applicable period used for determining the EB-5 Integrity Fund
fee given the expected 2-year minimum timeframe for the investment, or
sustainment period, under the EB-5 Reform Act. INA sec.
203(b)(5)(A)(i); 8 U.S.C. 1153(b)(5)(A)(i). However, that method would
likely be underinclusive given that many investors are actively in the
process of investing (i.e., not yet fully invested) when they file
their Form I-526 petition as permitted under applicable requirements
and, additionally, would not align with the sustainment period for
those who filed before the EB-5 Reform Act, which runs approximately to
the point of the Form I-829 filing, regardless of when they filed their
Form I-526 or made their investment. For Form I-526E petitions filed
after the EB-5 Reform Act, USCIS also considered generally counting
only Form I-526E petitions whose investments were still within the 2-
year period of investment expected under section 203(b)(5)(A)(i) of the
INA; however, manual verification of the time period of investment for
each regional center investor, rather than conducting a systems inquiry
for total petition filings, would exhaust valuable and significant
USCIS resources that the agency believes, in the balance, are better
used in ensuring timely processing.
USCIS acknowledges the practical limitations of determining how
many total investors may be in an NCE during any given fiscal year to
ensure that the correct fee is paid. Nonetheless, the Department
believes the proposed formula reflects the best interpretation of the
statute, ensures that USCIS' limited resources are used most
efficiently to ensure compliance with the EB-5 Reform Act, and
minimizes the burden on the affected regional centers. DHS notes that
445 Regional Centers successfully paid their FY 2023 Integrity Fund
Fees. 473 Regional Centers successfully paid their FY 2024 Integrity
Fund Fees. 531 Regional Centers successfully paid their FY 2025
Integrity Fund Fees. There have been no public concerns nor operational
concerns with the fee calculation process.
3. Timeline and Payment Process
The INA, as amended by the EB-5 Reform Act, provides that the
Integrity Fee is due each year on October 1. INA sec.
203(b)(5)(J)(ii)(I); 8 U.S.C. 1153(b)(5)(J)(ii)(I). As proposed in this
rule, the fee would be considered paid timely (i.e., without penalty)
if paid between October 1 and October 31, after which a late payment
penalty would apply. Each designated regional center would need to pay
the fee to USCIS online via the online form hosted on <a href="http://Pay.gov">Pay.gov</a> at
<a href="http://Pay.gov">Pay.gov</a> EB5--Annual Fee for Regional Center.\64\ Payment of this fee
would need to be made by an authorized individual on behalf of a
regional center. Proposed 8 CFR 106.2(d)(10)(i)(D). Each designated
regional center would need to pay the fee with either a valid credit or
debit card \65\ or by authorizing an Automated Clearing House Debit
transaction where the regional center provides its U.S. bank routing
and checking account numbers to have money debited directly from its
U.S. bank account. Id. DHS proposes to codify that fees must be paid
using these methods to reduce administrative burdens and processing
errors associated with fee payments. Requiring the use of a specific
form of payment would not prevent regional centers from paying the
required fees. Other payment methods, such as money orders and checks,
require time-intensive procedures to input, reconcile, and verify
receipts and deposits. USCIS can spend the time it would use for
complying with payment processing requirements to adjudicate requests
for benefits.
---------------------------------------------------------------------------

\64\ See <a href="http://Pay.gov">Pay.gov</a>, ``EB5--Annual Fee for Regional Center,''
<a href="https://www.pay.gov/public/form/start/1055128580">https://www.pay.gov/public/form/start/1055128580</a> (last visited Feb.
14, 2024).
\65\ U.S. Department of Treasury guidelines permit USCIS to
accept a maximum payment amount of $24,999 from one credit card in
one day, and a single obligation cannot be split into multiple
credit card payments over multiple days in order to evade this
limit.
---------------------------------------------------------------------------

For each fiscal year after this rule becomes final, payments
received November 1 through November 30 would require a late fee equal
to 10 percent of the Integrity Fee amount to be paid in addition to the
Integrity Fee. Payments received December 1 through December 30 would
require an additional 20 percent to be added to the Integrity fee
amount as a late fee.
If the regional center does not pay the full required fee,
including the relevant 10 or 20 percent late fee, if assessed, before
December 31, USCIS would initiate termination of the regional center.
Proposed 8 CFR 106.2(d)(10)(ii)(A)-(B). USCIS would terminate the
designation of any regional center that does not pay the full required
fee within 90 days after the date on which such fee is due (e.g., a
regional center does not make payment, or a regional center pays
$10,000 when it owes $20,000, by December 31 of the year the annual fee
is due). Proposed 8 CFR 106.2(d)(10)(ii)(C). Termination would not be
automatic and USCIS would provide a notice of intent to terminate and
the opportunity for a regional center to prove that the fee, and all
late fees if applicable, were paid in the proper amount by December 31
before sending a notice of termination. Proposed 8 CFR
106.2(d)(10)(ii)(C)(1). The termination of a regional center may be
appealed as provided by 8 CFR 103.3. Proposed 8 CFR
106.2(d)(10)(ii)(C)(2).

E. Technical Change

The proposed rule would clarify the process by which an immigrant
investor's spouse and children file separate Form I-829 petitions when
they are not included in the Form I-829 filed by the immigrant
investor.\66\ Generally, an immigrant investor's derivatives should be
included in the principal immigrant investor's Form I-829 petition.
However, there are situations in which derivatives may not be included
on the principal immigrant investor's Form I-829 petition, such as when
the immigrant investor dies during the conditional residence period, or
when the immigrant investor decides not to continue their conditional
permanent resident status. In such circumstances, if the immigrant
investor would have otherwise been eligible to have their conditions on
status removed, then the derivatives would remain eligible to apply to
remove the conditions on their status even if the immigrant investor
cannot or will not file a Form I-829 petition.\67\
---------------------------------------------------------------------------

\66\ DHS proposed and finalized this change as part of the EB-5
Immigrant Investor Program Modernization rulemaking. See 82 FR 4738
(Jan. 13, 2017) (proposed rule); 84 FR 35750 (July 24, 2019) (final
rule). On June 22, 2021, a U.S. district court vacated the rule on
grounds unrelated to this provision. Behring Regional Center LLC v.
Wolf, 544 F. Supp. 3d 937 (N.D. Cal. 2021).
\67\ See INA sec. 204(l), 8 U.S.C. 1154(l) (providing that upon
the death of the principal beneficiary, surviving relative petitions
and ``related applications'' must be adjudicated notwithstanding the
death of the principal beneficiary).
---------------------------------------------------------------------------

The regulations currently in effect do not clearly define the
process by which derivatives may file a Form I-829 petition when they
are not included on the principal's petition, including whether each
derivative in such cases should file their own separate Form I-829
petition or whether the derivatives should jointly file on the same
petition. This proposed technical change specifies that where the
dependent family members cannot be included in the Form I-829 petition
filed by the principal investor because that principal is deceased, all
dependents (spouse and children) of the deceased investor may

[[Page 48535]]

be included on a single Form I-829 petition. See proposed 8 CFR
216.6(a)(1)(ii). DHS also proposes that each dependent must file a
separate Form I-829 petition in all other situations in which the
investor's spouse and children are not included in the investor's Form
I-829 petition. See id. DHS notes that the Form I-829 Instructions
indicate that if one's spouse and children are not included on their
petition to remove conditions, ``each dependent must file [their] own
petition separately.'' \68\ DHS also recognizes that, for the less than
20 cases potentially impacted annually, there may have been an
inconsistent agency practice with respect to when dependents were
required to file a separate Form I-829 and seeks to clarify any
inconsistency through this rulemaking. Lastly, these technical changes
also propose to clarify that when a derivative beneficiary files a Form
I-829 petition separately from the principal investor who does not file
a Form I-829 petition (whether because of death or otherwise), the
timeframe to file such petition is any time within which the principal
investor would have been required to make such filing. This
clarification aligns with and accords derivative beneficiaries the same
process as the principal investor under the statutory requirements for
petition filing. See INA sec. 216A(d)(2), 8 U.S.C. 1186b(d)(2).
---------------------------------------------------------------------------

\68\ USCIS, Form I-829, ``Instructions for Petition by Investor
to Remove Conditions on Permanent Resident Status,'' p. 1 (expires
Mar. 31, 2027), <a href="https://www.uscis.gov/i-829">https://www.uscis.gov/i-829</a>.
---------------------------------------------------------------------------

VI. Statutory and Regulatory Requirements

A. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 14192 (Unleashing
Prosperity Through Deregulation)

Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review) direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. Executive Order 14192 (Unleashing
Prosperity Through Deregulation) directs agencies to significantly
reduce the private expenditures required to comply with Federal
regulations and provides that ``any new incremental costs associated
with new regulations shall, to the extent permitted by law, be offset
by the elimination of existing costs associated with at least 10 prior
regulations.''
The Office of Management and Budget (OMB) has designated this rule
a ``significant regulatory action'' under section 3(f) of Executive
Order 12866, although not economically significant under section
3(f)(1). Accordingly, the rule has been reviewed by the Office of
Management and Budget.
This rule is not an Executive Order 14192 regulatory action because
it is being issued with respect to an immigration-related function of
the United States. The rule's primary direct purpose is to implement or
interpret the immigration laws of the United States (as described in
INA 101(a)(17), 8 U.S.C. 1101(a)(17)) or any other function performed
by the U.S. Federal Government with respect to aliens. See OMB
Memorandum M-25-20, ``Guidance Implementing Section 3 of Executive
Order 14192, titled `Unleashing Prosperity Through Deregulation' ''
(Mar. 26, 2025).
1. Summary
The Department proposes to adjust Employment-Based Immigration,
Fifth Preference (EB-5) immigration benefit request fees charged by
USCIS. USCIS conducted an EB-5-specific fee study, as required by the
EB-5 Reform Act. The fees are proposed to be set at a level that USCIS
has determined would enable it to recover the costs of administering
the EB-5 program and to allow it to attain the processing time goals
and to ensure there are internal procedures and controls in place to
try to maximize the likelihood that the statutory goals are met. It
would also make improvements to the information technology systems used
by DHS to administer the EB-5 program. This rule also proposes to
codify elements of the EB-5 Reform Act in regulations, including the
establishment of Form I-527.
The fee schedule DHS is proposing could impact approximately 11,260
EB-5 program filings (FY 2024/2025 projected estimate) annually across
nine current forms and one new form. For the nine current forms
(amounting to 10,805 projected filings), the collective fees would
decrease from their current level by about 14.7 percent, or by about
$2,259.\69\ DHS estimates that the 10-year and annualized monetized
costs could be about $42.1 million and $4.2 million, in order, in
undiscounted terms. At a 3 percent discount rate, the figures would be
$35.9 million and $3.6 million, in order. At a 7 percent discount rate,
the figures would be $29.6 million and $3.0 million, in order. The
impacts are summarized in Table 10, in which population figures reflect
annualized averages over the 10-year period of analysis and the
monetized figures reflect the average annualized equivalence discounted
at 7 percent.
---------------------------------------------------------------------------

\69\ Volume presented is rounded from 11,262, comprising 10,805
projected current forms and 457 new Form I-527 filings.

Table 10--Summary of Possible Impacts of the Proposed Rule
------------------------------------------------------------------------
Summary of proposed change Potential impact
------------------------------------------------------------------------
<bullet> Fee changes for current EB-5 <bullet> Population: 10,805
program forms. filings.
<bullet> Impact type: Transfers
from requestors to DHS.\70\
<bullet> Estimate: $24.4
million.
<bullet> Creation of Form I-527, <bullet> Population: 457
Amendment to Legacy Form I-526. individual filers.
<bullet> Impact type: Costs
applicable to the filing fee
and time burden.
<bullet> Estimate: $3.72
million.
<bullet> Penalties for late filing of <bullet> Population: Maximum of
the Integrity Fund fee. 640 annual regional centers
plus 3,500 investors
affiliated with regional
centers.
<bullet> Impact type: Costs.
<bullet> Impact estimate:
Unquantified; unknown how many
regional centers or affiliated
investors would incur
penalties, as the penalties
are intended to act as an
incentive for compliance.

[[Page 48536]]

<bullet> Projected changes (increases) <bullet> Population: 10,805
in forms' time burdens. (across current forms).
<bullet> Impact type: Costs.
<bullet> Impact estimate:
$403,722.
<bullet> Dependents filing Form I-829 <bullet> Population: Less than
separate from principal investor 20 annually based on past
applicant. volumes.
<bullet> Impact type: Costs
applicable to the filing fee
and time burden.
<bullet> Impact estimate:
$88,591.
------------------------------------------------------------------------
Source: USCIS analysis (Apr. 28, 2024).

In addition to the impacts summarized in Table 10, and as required
by OMB Circular A-4, DHS presents the accounting statement showing the
anticipated costs and benefits associated with this proposed
regulation.\71\
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\70\ Transfer payments are monetary payments from one group to
another that do not affect total resources available to society. See
OMB Circular A-4 pp. 14 and 38 for further discussion of transfer
payments and distributional effects. OMB Circular A-4 is available
at: <a href="https://trumpwhitehouse.archives.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf">https://trumpwhitehouse.archives.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf</a>.
\71\ OMB, Circular A-4, ``Regulatory Analysis,'' p. 44 (Nov. 9,
2023), <a href="https://trumpwhitehouse.archives.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf">https://trumpwhitehouse.archives.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf</a>.

Table 11--OMB Circular A-4 Accounting Statement
[Millions, $2024; period of analysis: FY 2024 through FY 2033]
----------------------------------------------------------------------------------------------------------------
Primary Minimum Maximum Source/
Category estimate estimate estimate Notes citations
----------------------------------------------------------------------------------------------------------------
Benefits...................... N/A N/A N/A Not estimated.... NA.
Annualized monetized benefits:
3%........................ N/A N/A N/A Not estimated.... NA.
7%........................ N/A N/A N/A
------------------------------------------------
Unquantified benefits......... The proposed fees would recover the costs of ................. RIA.
administering the EB-5 program including the
costs to hire staff and put internal
procedures and controls in place within the
program office with the intent of maximizing
the likelihood that the statutory goals are
met. It would make improvements to the
information technology systems used by DHS to
administer the EB-5 program.
------------------------------------------------
Costs......................... $4.17 N/A N/A Applicable to RIA.
filing costs and
time burdens
associated with
the new Form I-
527 and a small
number of
dependents who
file their Form
I-829 separately
from the
principal
(investor);
Increase in
forms' time
burdens.
Annualized monetized costs:
3%........................ 3.6 N/A N/A N/A.............. RIA.
7%........................ 3.0 N/A N/A
Unquantified costs............ .............. .............. .............. Penalties and RIA.
fines applicable
to late
Integrity Fund
payments are not
estimated; Rule
familiarization
costs.
Transfers..................... N/A N/A N/A Applicable to RIA.
proposed fee
changes for the
EB-5 program
forms.
Annualized monetized transfers
(2%):
3%........................ 24.41 N/A N/A Transfers from RIA.
requestors to
DHS.
7%........................ 24.41 N/A N/A
-------------------------------------------------------------------
Effects on State, local, and No significant impacts to national labor force or to the labor RIA.
tribal governments. force of individual States is expected; DHS does not expect
impacts to tribal governments.
-------------------------------------------------------------------
Effects on small businesses... Based on available, but limited, data and information, most RFA.
regional centers and almost all NCEs and JCEs directly involved
in EB-5 investment activity would be small entities according to
Small Business Administration (SBA) size standards.\72\ However,
DHS cannot determine how the impacts found in this analysis
(comprising costs and transfers) would affect small entities, or
how they might respond to such impacts. As such, DHS cannot
determine how the impacts could possibly affect downstream
effects to investment activity or job creation. An important
caveat is that the number and proportion of the entities that are
truly small is likely to be lower than that found in the initial
determination, as DHS does not have complete data on the income
accruing to the EB-5 businesses.
-------------------------------------------------------------------
Effects on wages.............. None None None None............. NA.
Effects on growth............. None None None None............. NA.
----------------------------------------------------------------------------------------------------------------
Source: DHS, USCIS analysis (Feb. 14, 2024).

[[Page 48537]]

2. Economic Impacts
a. Monetized Impact Estimates
In introducing the analysis, DHS presents in Table 12 information
captured from the preamble (Tables 1-3) to show the current and
projected fees for the EB-5 program forms. As is shown, we calculate
weighting factor based on the volume for each form relative to the
annualized total to generate a weighted average change in fees (which
are accounted for as transfers), exclusive of the Form I-527, which
this rule is introducing.\73\
---------------------------------------------------------------------------

\72\ SBA size standards are found at: <a href="https://www.sba.gov/document/support-table-size-standards">https://www.sba.gov/document/support-table-size-standards</a>.
\73\ While there is a single Form I-526E, we have included two
columns to account for initial filings (``i'') and amendments
(``a''). The reason for parsing them out is that while their current
fee is the same, their proposed fees will be different (as is
explained below). In addition, the form I-956 is broken out the same
way.

Table 12--EB-5 Program Forms With Proposed Fee Changes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Form Volume Weight Current Proposed % Diff. Change Weight % Weight
--------------------------------------------------------------------------------------------------------------------------------------------------------
I-526........................................ 225 2.1 $11,160.0 $9,625.0 -13.8 -$1,535.0 -0.3 -$32.0
I-526E(i).................................... 3,395 31.4 11,160.0 9,625.0 -13.8 -1,535.0 -4.3 -482.3
I-829........................................ 3,430 31.7 9,525.0 7,860.0 -17.5 -1,665.0 -5.5 -528.5
I-956(i)..................................... 50 0.5 47,695.0 28,895.0 -39.4 -18,800.0 -0.2 -87.0
I-956(a)..................................... 150 1.4 47,695.0 18,480.0 -61.3 -29,215.0 -0.9 -405.6
I-956F....................................... 450 4.2 47,695.0 29,935.0 -37.2 -17,760.0 -1.6 -739.7
I-956G....................................... 500 4.6 4,470.0 2,740.0 -38.7 -1,730.0 -1.8 -80.1
I-956H....................................... 2,100 19.4 0.0 55.0 0.0 55.0 0.0 10.7
I-956K....................................... 400 3.7 0.0 2,740.0 0.0 2,740.0 0.0 101.4
----------------------------
-14.7 -2,258.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis (Jan. 13, 2025).

As is shown in the final columns of Table 12, based on the
projected volumes in Table 3, and proposed fees, the fees decrease by
$2,259 or by 14.7 percent.
The volumes shown represent the average annual forecasts based on
the USCIS VPC. The VPC predicts USCIS annual workload volumes using
various factors, including statistical forecasts, and subject-matter
expertise from various USCIS directorates and program offices,
including the IPO, USCIS service centers, the National Benefits Center,
and regional, district, and field offices.
The VPC makes projections 7 years out (FY 2024 through FY 2030). In
many rulemakings DHS uses a baseline of previous years, usually between
three and six. In this case, however, we think that projected volumes
present a more salient baseline because there are new forms involved,
and the EB-5 Reform Act made substantial changes in key areas of the
program. As a result, we cannot be reasonably certain that the past
will represent the future. Since the changes are not fully implemented
yet, there could be variation in the projections, but we rely on the
projected volumes.
Because DHS is normally required to estimate impacts over a 10-year
time horizon, for FY 2031 through FY 2033, we simply extend the
forecasted value to FY 2034 out from the VPC FY 2024 through FY 2030
Figures.\74\ Table 13 builds the economic impacts applicable to the
proposed fee changes for current forms. The final columns report the
annual total across all impacted forms, while the final rows report the
10-year average annual figures for each form, in order. While there is
a single Form I-956, we have included two columns to account for
initial filings (``i'') and amendments (``a''). The reason for parsing
them out is that while their current fee is the same ($47,695) their
proposed fees will be different ($44,600 and $28,525, in order). It is
noted that the new Form I-527, Amendment to Legacy Form I-526, with a
projected annual volume of 457, is not included in Table 13. The reason
is that this form will incur a different accounting protocol from the
other forms and is treated in a separate module. Specifically, the fee
impacts associated with this form will be accounted for as a cost while
the others will constitute transfers.
---------------------------------------------------------------------------

\74\ The VPC is situated in the DHS, USCIS, OPQ, Workload
Analysis and Resource Modeling (WARM) Division.
---------------------------------------------------------------------------

Table 13 presents the projected annual volumes as well as the
filing fees at the current and proposed levels. Table 13 is set up this
way because the volumes are projected to be the same each FY, and for
brevity each actual year is therefore not shown. The table also
presents the impact as the difference between current and future filing
fees, and the final column shows the 10-year totals per form.

Table 13--EB-5 Program Projected Filing Cost Impacts
[Millions, FY 2024 through FY 2033]
----------------------------------------------------------------------------------------------------------------
Annual volume Current Future Impact Ten year-
Form No. projection filing fees filing fees (difference) total
----------------------------------------------------------------------------------------------------------------
I-526................................ 225 $2.51 $2.17 -$0.35 -$3.45
I-526E(i)............................ 3,395 37.89 32.68 -5.21 -52.11
I-526E(a)............................ 105 1.17 1.00 -0.17 -1.71
I-829................................ 3,430 32.67 26.96 -5.71 -57.11
I-956(i)............................. 50 2.38 1.44 -0.94 -9.40
I-956(a)............................. 150 7.15 2.77 -4.38 -43.82
I-956F............................... 450 21.46 13.47 -7.99 -79.92
I-956G............................... 500 2.24 1.37 -0.87 -8.65
I-956H............................... 2,100 0.00 0.12 0.12 1.16
I-956K............................... 400 0.00 1.10 1.10 10.96
--------------------------------------------------------------------------

[[Page 48538]]

Annual............................. ............... 107.48 83.07 -24.41 ............
--------------------------------------------------------------------------
Ten-year total................. ............... 1,074.8 830.72 -244.07 ............
--------------------------------------------------------------------------
Annual average............. 10,805 107.48 83.07 -24.41 ............
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis (Jul. 20, 2024).

As Table 13 reports, based on the volume projections, at current
fee rates the costs associated with filing forms for the EB-5 program
would be $1,074.8 million over 10 years or $107.5 million annually in
undiscounted terms. Based on the proposed future fees, the filing costs
could be $830.7 million over 10 years or $83.1 million on an annually
in undiscounted terms. The impact (difference) could be a decrease of
$244.1 million over 10 years or a decrease of $24.4 million on an
annual basis (Table 13). The impacts attributable to the proposed fee
changes would represent a net decrease in transfers from requestors to
DHS.
b. Costs of the Proposed Rule
In addition to potential impacts pertinent to form related fees,
several expected impacts are accounted for as costs. DHS has determined
that there would be minor time burden changes applicable to the
existing EB-5 Program forms due to this rule. To estimate the
opportunity cost of time impacts, we need to rely on a wage bound. This
is difficult because EB-5 entities can involve complex business
activities. DHS does not have salient information on the jobs the
individual filers are involved in, but we assess that most individuals
involved in the program investments are primarily involved (for
regional centers, NCEs, and JCEs) in the business of arranging loans
and financing and managing these efforts applicable to business plans.
Therefore, we selected 20 occupations from the Bureau of Labor
Statistics (BLS) Standard Occupational Codes (SOC) that we think
reasonably capture the individuals involved in these activities. These
SOC titles and associated terms mean hourly wage for the detailed
industries are reported in Table 14.

Table 14--Occupation Titles and Hourly Wages for EB-5 Program Form
Filers
------------------------------------------------------------------------
BLS SOC title Wage ($)
------------------------------------------------------------------------
General and Operations Managers......................... $64.00
Advertising and Promotions Managers..................... 71.76
Marketing Managers...................................... 82.46
Sales Managers.......................................... 77.37
Public Relations Managers............................... 78.61
Fundraising Managers.................................... 66.01
Administrative Services Managers........................ 60.59
Financial Managers...................................... 86.76
Managers, All Other..................................... 72.06
Project Management Specialists.......................... 51.97
Management Analysts..................................... 55.15
Market Research & Marketing Specialists................. 41.58
Business Operations Specialists......................... 43.76
Accountants and Auditors................................ 44.96
Financial and Investment Analysts....................... 56.01
Financial Risk Specialists.............................. 57.66
Financial Examiners..................................... 49.83
Financial Specialists, All Other........................ 45.14
Lawyers................................................. 87.86
Real Estate Brokers..................................... 44.07
---------------
Midpoint wage....................................... 64.72
------------------------------------------------------------------------
Source: U.S. Department of Labor (DOL), BLS, Occupational Employment and
Wage Statistics, National Occupational Employment and Wage Estimates:
<a href="https://data.bls.gov/oes/#/industry/000000">https://data.bls.gov/oes/#/industry/000000</a>. (May 2024 data; analysis
updated July 1, 2025).

The minimum, mid-point, and maximum of the above range are $41.58,
$64.72,\75\ and $87.86, in order. However, working recursively, the
resulting monetized impacts are only very slightly affected by the wage
range and thus, for brevity we will rely on the midpoint to base our
estimates. DHS accounts for employee benefits by calculating a
benefits-burden applicable to the most recent BLS report detailing the
average employer costs for employee compensation for all civilian
workers in major occupational groups and industries. The current burden
to compensation from benefits is 45 percent.\76\ DHS will rely on this
burden

[[Page 48539]]

to estimate the full costs incurred by new employees, including
employee wages and salaries and the full cost of benefits such as paid
leave, insurance, retirement, and other benefits. With a benefits-
burden multiple of 1.45, hourly compensation is $93.84.\77\
---------------------------------------------------------------------------

\75\ This midpoint obtained by adding the minimum and maximum
value and dividing by two; it is proximate to the true mean of
$61.87. The wage data obtained from BLS, BLS, Occupational
Employment Statistics, ``May 2024 Occupational Employment and Wage
Estimates, United States,'' <a href="https://data.bls.gov/oes/#/industry/000000">https://data.bls.gov/oes/#/industry/000000</a> (last visited July 1, 2025).
\76\ See BLS, Economic News Release, ``Employer Costs for
Employee Compensation--December 2022,'' Table 1. Employer costs for
employer compensation by ownership, p. 4, <a href="https://www.bls.gov/news.release/archives/ecec_03172023.pdf">https://www.bls.gov/news.release/archives/ecec_03172023.pdf</a> (last visited Nov. 4, 2023).
The benefits-to-wage multiplier is calculated as follows: (Total
Employee Compensation per hour)/(Wages and Salaries per hour) =
$42.48/$29.32 = 1.45 (rounded). See BLS, Economic News Release,
``Employer Costs for Employee Compensation--December 2022,'' Table
1. Employer costs for employer compensation by ownership, p. 4,
<a href="https://www.bls.gov/news.release/archives/ecec_03172023.pdf">https://www.bls.gov/news.release/archives/ecec_03172023.pdf</a> (last
visited Nov. 4, 2023).
\77\ Calculation: Midpoint hourly wage of $64.72 x multiplier of
1.45 = $93.84.
---------------------------------------------------------------------------

The current, projected, and change in the time burdens (in hours)
are provided in Table 15.

Table 15--EB-5 Program Form Time Burden Impacts
--------------------------------------------------------------------------------------------------------------------------------------------------------
Form Annual Current Projected Burden hour Impact/opportunity cost Impact/opportunity cost Weight
----------------------------------- volume burden hours burden hours difference (annual) (ten-year) factor
---------------------------------------------------------------------------------------------------------------------
Heading A B C D E F G
--------------------------------------------------------------------------------------------------------------------------------------------------------
I-526............................. 225 1.650 2.400 0.750 $15,836.2 $158,361.8 0.0158
I-526E(i)......................... 3,395 1.650 2.270 0.620 197,532.2 1,975,322.0 0.1947
I-526E(a)......................... 105 1.650 2.270 0.620 6,109.2 61,092.4 0.1947
I-829............................. 3,430 3.620 4.090 0.470 151,285.9 1,512,859 0.1490
I-956(i).......................... 50 22.820 23.290 0.470 2,205.3 22,053.3 0.0024
I-956(a).......................... 150 22.820 23.290 0.470 6,616.0 66,160.0 0.0066
I-956F............................ 450 24.820 25.000 0.180 7,601.4 76,013.6 0.0076
I-956G............................ 500 15.850 16.180 0.330 15,484.3 154,842.6 0.0152
I-956H............................ 2,100 1.470 1.470 0.000 0.0 0.0 0.0000
I-956K............................ 400 2.042 2.070 0.028 1,051.1 10,510.5 0.0010
---------------------------------------------------------------------------------------------------------------------
Total......................... .......... ............ ............ ............ 403,721.6 4,037,215.80 0.5869
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: PRA and USCIS Analysis (Jul. 1, 2025). Column G value is product of the form-volume weight (Table 12, third column, ``weight'') and the ``Burden
hour Difference'' in the current table (column D).

To obtain the impact (opportunity cost) reported in Column E, the
volume is multiplied by the change in the burden and by the mid-point
compensation ($93.84). Columns F report the annual and 10-year impacts
per form, while the bottom rows provide the totals across forms. Based
on the information provided, the annual total cost could be $403,721.60
and about $4.04 million over ten years. In addition to the totals, a
weight factor is provided in the final column (G), which reflects the
weight factor per-form (see Table 12) multiplied by the projected
burden change (column D table 15). The weight factors sum to 0.5869
hours, which equates to about 35.2 minutes.
The new Form I-527 impacts would accrue to the direct cost of
filing plus the opportunity costs associated with the time burden of
filing. The proposed fee is $8,000 and the time burden is estimated at
1.44 hours, which, based on the burdened mid-point compensation
(discussed above of $93.84) yields a time-related impact of $135.14 per
submission. Adding the two components amounts to $8,135.14 per filing,
which, at the projected annual volume (see Table 7, projected receipts
457), generates possible impacts of $3.718 million annually or $37.18
million over 10 years.
For the few cases in which an immigrant investor's spouse and
children file separate Form I-829 petitions when they are not included
in the Form I-829 filed by the immigrant investor, as is stipulated in
the preamble, the proposed revisions to the existing regulations would
not impose any additional biometric, travel, or associated opportunity
costs. The only costs expected from the rule would be the separate
filing fee and associated opportunity cost. The proposed fee for Form
I-829 is $7,860 and the time burden is projected to be 4.09 hours. For
the dependents we would use a lower wage than was utilized for
investors. Without salient information concerning the wages these
applicable filers would earn, we will assume they are working at
various levels and will rely on the current average wage across all
occupations, which is currently $32.66, and is $47.36 when burdened for
benefits.\78\ Each filer would face a time burden cost of $176.48,
which when added to the filing fee would be $8,053.7. Based on 11
annualized filings' average over 9 years (FY 2015 through FY 2023),\79\
the monetized impact that could accrue to the individual Form I-829
filers would be $88,590.73 annually, or about $.089 million over 10
years.
---------------------------------------------------------------------------

\78\ U.S. DOL, BLS, Occupational Employment and Wage Statistics,
National Occupational Employment and Wage Estimates, All
Occupations, May 2024, available at: <a href="https://data.bls.gov/oes/#/industry/000000">https://data.bls.gov/oes/#/industry/000000</a>. (Jul. 8, 2024). Calculation: $32.66 x multiplier of
1.45 = $47.36.
\79\ USCIS IPO Office, Claims 3 and Global tracking system (Oct.
12, 2023).
---------------------------------------------------------------------------

c. Total Monetized Impacts
We can now compile the monetized potential impacts of the proposed
rule based on the impacts for which we can reasonably develop a
quantified estimate. The impacts associated with the current forms' fee
changes are categorized as transfers from requestors to DHS. They are
accounted for as transfers because a filing fee currently exists
(inclusive of the two forms in which it is currently $0) and the
requestor expects to recoup a direct benefit from filing. The impacts
associated with the new Form I-527 are classified as costs, as are the
changes in the forms' burdens and filings applicable to the Form I-829,
as discussed earlier.
In Table 16 the transfers and costs are listed individually since
they are categorized differently under the OMB Circular A-4 framework.
The transfers, payments made by EB-5 requestors when filing forms to
DHS (IEFA), reflect the fee changes proposed. The costs column
comprises the annual impacts, mainly to EB-5 requestors, accruing to
the new Form I-527 and the small number of separate I-829 dependent
filers, as well as the forms' burdens. The monetized impacts are
presented in Table 16 in order of terms undiscounted, then discounted
at 3 and 7 percent, in order.\80\ In Table 16 each FY is shown, since
the discounted terms for each year are not the same.
---------------------------------------------------------------------------

\80\ See OMB, Circular A-4, ``Regulatory Analysis,''<a href="https://obamawhitehouse.archives.gov/omb/circulars_a004_a-4/">https://obamawhitehouse.archives.gov/omb/circulars_a004_a-4/</a>.

[[Page 48540]]

Table 16--Monetized Impacts of the Proposed Rule
[Millions]
------------------------------------------------------------------------
FY Transfers Costs
------------------------------------------------------------------------
16a. Undiscounted
------------------------------------------------------------------------
2024.................................... ($24.41) $4.21
2025.................................... (24.41) 4.21
2026.................................... (24.41) 4.21
2027.................................... (24.41) 4.21
2028.................................... (24.41) 4.21
2029.................................... (24.41) 4.21
2030.................................... (24.41) 4.21
2031.................................... (24.41) 4.21
2032.................................... (24.41) 4.21
2033.................................... (24.41) 4.21
-------------------------------
10-year Total....................... (244.07) 42.1
-------------------------------
10-year Annual Average.......... (24.41) 4.21
------------------------------------------------------------------------
16b. 3% Discount Rate
------------------------------------------------------------------------
2024.................................... (23.70) 4.09
2025.................................... (23.01) 3.97
2026.................................... (22.34) 3.85
2027.................................... (21.68) 3.74
2028.................................... (21.05) 3.63
2029.................................... (20.44) 3.53
2030.................................... (19.84) 3.42
2031.................................... (19.27) 3.32
2032.................................... (18.71) 3.23
2033.................................... (18.16) 3.13
-------------------------------
10-year Total....................... (208.19) 35.91
-------------------------------
10-year Annual Average.......... (20.82) 3.59
--------------------

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