# U.S. Citizenship and Immigration Services Employment-Based Immigrant Visa, Fifth Preference (EB-5) Fee Rule > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2025-19642 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** October 23, 2025 - **Citation:** 90 FR 48516 ## Text 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. 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: https://www.regulations.gov. In accordance with 5 U.S.C. 553(b)(4), the summary of this rule found above may also be found at https://www.regulations.gov. 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 https://www.regulations.gov, 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 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 https://www.regulations.gov, 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 https://www.regulations.gov. Docket: For access to the docket and to read background documents or comments received, go to https://www.regulations.gov, 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: • Adjusting EB-5 program fees according to the schedule in Table 1; • Establishing the USCIS EB-5 technology fee; • Codifying EB-5 Integrity Fund fees and penalties; and • Establishing Form I-527, Amendment to Legacy Form I-526. • 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 Immigration benefit request Current fee(s) Proposed fee(s) $ Difference % Difference I-526 Immigrant Petition by Standalone Investor—Initial (with $95 technology fee) $11,160 $9,625 ($1,535) −14 I-526E Immigrant Petition by Regional Center Investor—Initial (with $95 technology fee) 11,160 9,625 (1,535) −14 I-526E Immigrant Petition by Regional Center Investor—Amendment 11,160 9,530 (1,630) −15 I-527 Amendment to Legacy Form I-526 0 8,000 8,000 N/A I-829 Petition by Investor to Remove Conditions on Permanent Resident Status 9,525 7,860 (1,665) −17 I-956 Application for Regional Center Designation—Initial (with Regional Center Termination cost) 47,695 28,895 (18,800) −39 I-956 Application for Regional Center Designation—Amendment (with Regional Center Termination cost) 47,695 18,480 (29,215) −61 I-956F Application for Approval of an Investment in a Commercial Enterprise—Initial or amendment (with Regional Center Termination cost) 47,695 29,935 (17,760) −37 I-956G Regional Center Annual Statement—Initial, amendment, or supplement 4,470 2,740 (1,730) −39 I-956H Bona Fides of Persons Involved with Regional Center Program 0 55 55 N/A I-956K Registration for Direct and Third-Party Promoters 0 2,740 2,740 N/A 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 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: • 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. • 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. • 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. 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). 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. 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. 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. 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: https://trumpwhitehouse.archives.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf. 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. 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). 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 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. 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), https://www.oig.dhs.gov/sites/default/files/assets/Mgmt/2014/OIG_14-19_Dec13.pdf; GAO, GAO-15-696, “Immigrant Investor Program: Additional Actions Needed to Better Assess Fraud Risks and Report Economic Benefit” (Aug. 12, 2015), https://www.gao.gov/products/gao-15-696; GAO, GAO-16-828, “Immigrant Investor Program: Progress Made to Detect and Prevent Fraud, but Additional Actions Could Further Agency Efforts” (Sept. 13, 2016), https://www.gao.gov/products/gao-16-828. 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), https://www.gao.gov/products/gao-22-105328; GAO, GAO-23-106452, “Immigrant Investor Program: Opportunities Exist to Improve Fraud and National Security Risk Monitoring” (Mar. 18, 2023), https://www.gao.gov/products/gao-23-106452. 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. 8 See USCIS, “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 (last updated Apr. 9, 2024). 9 See GAO, GAO-24-106786, “Yellow Book: Government Auditing Standards: 2024 Revision” (Feb. 1, 2024), https://www.gao.gov/yellowbook. 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 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). 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. 11 See USCIS, “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 (last updated May 13, 2025). 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: • 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)); • 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)); • 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 • 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 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, https://www.dhs.gov/ sites/default/files/2024-04/2024_0325_us_citizenship_and_immigration_services.pdf. 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 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 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: • 180 days after receiving a regional center application (Form I-956) or application for approval of an investment in an NCE (Form I-956F); • 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; • 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 • 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: • 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 • 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 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, http://files.fasab.gov/pdffiles/handbook_sffas_4.pdf (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), https://www.whitehouse.gov/wp-content/uploads/2018/06/a11.pdf (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, https://www.gpo.gov/fdsys/pkg/CRPT-108hrpt774/pdf/CRPT-108hrpt774.pdf . 22 See USCIS, FY 2022/2023 IEFA Fee Review Supporting Documentation with Addendum (Nov. 2023), available at https://www.regulations.gov/document/USCIS-2021-0010-8176 . 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 Form No. 23 Immigration benefit request Fee I-526 Immigrant Petition by Standalone Investor $11,160 I-526E 24 Immigrant Petition by Regional Center Investor 11,160 I-829 Petition by Investor to Remove Conditions on Permanent Resident Status 9,525 I-956 Application for Regional Center Designation (formerly Form I-924, Application for Regional Center Designation Under the Immigrant Investor Program) 47,695 I-956F Application for Approval of an Investment in a Commercial Enterprise 47,695 I-956G Regional Center Annual Statement (formerly Form I-924A, Annual Certification of Regional Center) 4,470 I-956H 25 Bona Fides of Persons Involved with Regional Center Program No Fee I-956K 26 Registration for Direct and Third-Party Promoters No Fee 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 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, 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 29 USCIS, Progress on USCIS Processing Times, https://www.uscis.gov/newsroom/stakeholder-messages/progress-on-uscis-processing-times (last reviewed/updated Apr. 30, 2024). 30 USCIS, All USCIS Application and Petition Form Types (Fiscal Year 2024, Quarter 3), https://www.uscis.gov/sites/default/files/document/data/quarterly_all_forms_fy2024_q3.xlsx (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,” https://www.uscis.gov/i-589 (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 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. • Assessing and documenting current USCIS workload projection methodologies; • 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; • Comparing VPC projections versus actual figures to determine what factors may account for material variances and to better refine its forecasting approach; • 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 • 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 Immigration benefit request Projected average annual receipts I-526 Immigrant Petition by Standalone Investor 225 I-526E Immigrant Petition by Regional Center Investor 3,500 I-527 Amendment to Legacy Form I-526 457 I-829 Petition by Investor to Remove Conditions on Permanent Resident Status 3,430 I-956 Application for Regional Center Designation 200 I-956F Application for Approval of an Investment in a Commercial Enterprise 450 I-956G Regional Center Annual Statement 500 I-956H Bona Fides of Persons Involved with Regional Center Program 2,100 I-956K Registration for Direct and Third-Party Promoters 400 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 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 Immigration benefit request Processing time goal (in days) I-526E Immigrant Petition by Regional Center Investor 240 (120 for TEA investments). I-829 Petition by Investor to Remove Conditions on Permanent Resident Status 240. I-956 Application For Regional Center Designation 180. I-956F Application for Approval of Investment in a Commercial Enterprise 180 (90 if NCE is located 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 each activity to estimate relevant completion rates. USCIS determined that, in general, it conducts the following activities when adjudicating EB-5 forms: • Intake of documents; • Sending receipt notices; • Performing background checks; • Inputting filing information into systems; • Reviewing and analyzing evidence, information on forms, results of database searches, and interviews (if applicable); • Drafting decisions; • Reviewing decisions at a supervisory level; • Issuing decisions; • Updating systems; • Conducting quality reviews, administrative investigations, site visits, and audits as applicable; • Processing records; and • 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] Immigration benefit request FY 2022/2023 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 Investor 5.01 16.30 11.29 225 I-527 Amendment to Legacy Form I-526 N/A 13.30 N/A N/A I-829 Petition by Investor to Remove Conditions on Permanent Resident Status 12.13 12.13 0 0 I-956 Application for Regional Center Designation 108.50 N/A N/A N/A I-956 Application for Regional Center Designation—Initial N/A 37.50 N/A N/A I-956 Application for Regional Center Designation—Amendment N/A 12.50 N/A N/A I-956F Application for Approval of Investment in a Commercial Enterprise N/A 40.00 N/A N/A I-956G Regional Center Annual Statement 4.60 N/A N/A N/A I-956H Bona Fides of Persons Involved with Regional Center Program N/A N/A N/A N/A I-956K Registration for Direct and Third-Party Promoters N/A N/A N/A N/A 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 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), https://www.gao.gov/products/GAO-08-386SP. 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), https://www.regulations.gov/document/USCIS-2016-0001-0466. 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) https://www.congress.gov/119/bills/hr1/BILLS-119hr1eas.pdf. 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 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. • 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); • 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. • 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 • 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. 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 Increases 43.3 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 Immigration benefit request Current IEFA fees (FY 2022/2023) Projected annual receipts Revenue with current IEFA fees (in 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 Resident Status 9,525 3,430 32.7 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 Enterprise 47,695 450 21.5 I-956G Regional Center Annual Statement 4,470 500 2.2 I-956H Bona Fides of Persons Involved with Regional Center Program 0 2,100 0.0 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 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 Immigration benefit request Revenue with current IEFA fees Total cost from ABC model $ Difference % Difference I-526/I-526E Immigrant Petition by Standalone/Regional Center Investor $41,571,000 $35,498,584 ($6,072,416) (15) 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 on Permanent Resident Status 32,670,750 26,963,151 (5,707,599) (18) I-956 Application for Regional Center Designation—Initial 2,384,750 918,041 (1,466,709) (62) I-956 Application for Regional Center Designation—Amendment 7,154,250 1,192,033 (5,962,217) (83) I-956F Application for Approval of Investment in a Commercial Enterprise 21,462,750 8,730,992 (12,731,758) (59) I-956G Regional Center Annual Statement 2,235,000 1,369,965 (865,035) (39) I-956H Bona Fides of Persons Involved with Regional Center Program 0 118,387 118,387 N/A I-956K Registration for Direct and Third-Party Promoters 0 1,095,971 1,095,971 N/A 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: • 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. • 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. • 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). • 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). • 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). • The proposed fee for Form I-956G, Regional Center Annual Statement, is $2,740. See proposed 8 CFR 106.2(d)(7). • 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). • 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 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. Table 9—Current EB-5 Integrity Fund Fees Amount I-526E EB-5 Integrity Fund Fee $1,000. Regional Center Integrity Fund Fee (88 FR 13141 (Mar. 2, 2023)) $20,000 or $10,000. 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 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). 56 The latest CPI-U data are available at https://data.bls.gov/toppicks?survey=bls (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 × 100 = 8.25 percent. 58 DHS rounds all fees to the nearest $5 increment. 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. 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 × 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 × 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): • 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. • 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. • 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 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 amou [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2025-19642. Public record. Not legal advice.