January 2023 EB 5 News and Updates

USCIS Issues Proposed Rule to increase I-526E form & other filing fees

USCIS ushered in the new year with some grim EB 5 news as they issued a new proposal on Jan 3 2023 to increase the filing fees on many of the immigration petition forms. The I-526E filing fee which is currently at $3,675 is proposed to be increased to $11,160. A whopping 200% increase. The proposed rule will not go into effect until after the notice and comment period ends on March 6, 2023. The USCIS will then consider the comments and publish the final rule within 30 days. USCIS included the following as one of the reasons for the proposed increase:

USCIS conducted a comprehensive biennial fee review and determined that its costs have increased considerably since its previous fee adjustment due to expanded humanitarian programs, higher demand, increased processing times, and a need for more USCIS employees. USCIS cannot maintain adequate service levels with the effects of the budget cuts and its current level of spending without lasting impacts on operations. DHS proposes to adjust USCIS fees, add new fees for certain benefit requests, establish distinct fees for petitions for nonimmigrant workers, and limit the number of beneficiaries on certain forms. DHS is also proposing additional fee exemptions for certain humanitarian categories and changes to certain other immigration benefit request requirements. If DHS does not adjust USCIS fees it will not have the resources it needs to provide adequate service to applicants and petitioners or be able to keep pace with incoming benefit request workload, and USCIS processing times and backlogs will not improve. DHS intends for this rulemaking to provide the funding required for USCIS to improve service levels.

EB 5 EAD card processing time reduced

In other EB 5 news, we have noticed that, USCIS has now seperated the process of adjudicating EAD/AP cards filed with EB-5 applicants I-485 petitions. The result has been that some of our clients have started receiving their EAD cards in as little as 3 months. After discussing with multiple attorneys, it is now clear that USCIS is processing the EAD cards within 3 to 6 months filing the concurrently filed I-485s or stand alone I-485s. The AP issuance time seems to be longer because of the need for biometrics. We anticipate AP cards to be processed in around 9 months from filing. As a reminder, as per the New EB-5 Reform & Integrity Act of 2022 (RIA), New EB-5 investors who are in the US can file their Adjustment of Status (AOS/I-485) concurrently with their I-526E EB-5 petition.

Visa bulletin for February 2023

The February 2023 visa bulletin was released a few days ago. The situation remains the same for backlogged countries. The reserved category visas are current for all countries including India & China. In the unreserved category, The Final Action Dates for China and India are respectively at 22-Mar-2015 and 08-Nov-2019 respectively. We don’t expect these dates to move forward substantially in the coming months. No other country including Vietnam is backlogged in the EB-5 unreserved category.

Differences between Rural & High Unemployment (TEA) EB 5 projects

The EB-5 Reform and Integrity Act (RIA) of 2022 introduced and categorized EB-5 projects into 3 categories. Investors are now able to choose between: Rural, High Unemployment (previously known as TEA), and infrastructure EB-5 projects. Currently there are no Infrastructure projects in the EB-5 industry, so all investors have to choose between the rural and higher employment options.

So what are the differences between these two categories?

Both rural and high unemployment projects have 20% and 10% reserved visas as per the new RIA. This means that investors who invest $800,000 in a rural or high employment EB-5 project can leapfrog previous investors who invested at the $500,000 and $900,000 and get to the front of the EB-5 queue. This is especially useful for investors from India and China, as both countries are backlogged in the unreserved categories. This is a huge advantage for new investors from these countries.

Rural projects have an additional advantage. The RIA mandates Rural projects should be adjudicated on a priority basis. So technically, anyone invested in a rural project should be adjudicated before anyone else invested in a high unemployment project. As of now, we don’t have an estimate on how much sooner priority processing can speed up an Investor’s I-526E petition.