2020 has been a rocky year for just about everyone, individuals and organizations alike, and United States Citizenship and Immigration Services (USCIS) has suffered significantly due to the lull in immigration spurred on by the COVID-19 pandemic. Family-based visa processing has been largely suspended, President Trump’s immigration ban on most types of employment-based immigrants has slowed down immigration to the United States, and fear, travel restrictions, and scarcely available flights have curbed tourism. Against this background, it’s no wonder that USCIS, which largely funds its operations through filing fees, has been struggling to stay afloat.
In August 2020, fears of a massive USCIS furlough, which would see 70% of its staff let go, were rampant among U.S. immigration professionals and prospective immigrants. With only 30% of its workforce left, the immigration body would hardly have had the resources to continue adjudicating EB-5 petitions, such as Form I-526. Fortunately, to the relief of EB-5 investors everywhere, USCIS managed to narrowly avoid the scheduled furlough by cutting expenses and upping revenue and receipts. How long the agency can continue to avoid such dramatic measures is unknown.
To address its financial woes, in August 2020, USCIS announced the August 2020 Final Rule, which included plans to increase the filing fees of certain petitions, set to go into effect on October 2, 2020. Fees for forms I-526 and I-829, filed by those who make an EB-5 investment, were set to increase by $335 and $150, respectively, and fees for Form I-924, filed by those who wish to launch an EB-5 regional center, were supposed to jump up by a whopping $1,430.
August 2020 Final Rule Enjoined
On September 29, 2020, a district court enjoined the August 2020 Final Rule, preventing it from being implemented. Thus, USCIS filing fees did not increase as planned on October 2, 2020. While this may initially come as a relief to those planning to make an EB5 investment, it could spell a disastrous future for the immigration body.
USCIS Deputy Director of Policy Joseph Edlow warned the enjoinment could have grave consequences for USCIS and the future of U.S. immigration. Each day the fee hike is enjoined, USCIS loses millions of dollars, which may trigger a furlough like the one averted in August 2020. USCIS funds itself primarily through filing fees, and every two years, the organization conducts a fee review to determine whether the fees need to be adjusted and by how much. Thus, Edlow stressed, the fee increase is completely normal. In fact, USCIS is behind in its biennial fee reviews, and the proposed fee increases are smaller than they have been in previous years. Blocking the fee hike from taking place could harm USCIS’s long-term endeavors and is overall bad for the United States and its development.
In lieu of the proposed fee hike, USCIS is now obligated, under the new Continuing Appropriations Act, 2021 and Other Extensions Act (H.R. 8337), to increase premium processing fees. The legislation was signed into law on September 30, 2020, and covered the extension and funding of various government programs, including the EB-5 Regional Center Program. USCIS also has the option of adding more premium fees, but whether the organization will do so is as of October 6, 2020, unknown. Either way, EB-5 investors are not included in any of the listed case types for premium fees, so any changes to premium fees are not likely to affect EB-5 investors.
