A federal judge has ruled that the US Citizenship and Immigration Services (USCIS) unlawfully increased EB-5 visa filing fees without completing a congressionally mandated fee study, rolling back rates to pre-April 2024 levels.
The Ruling
US District Judge Charlotte Noelle Sweeney issued her decision on November 11, 2024, finding that USCIS violated both the Administrative Procedure Act (APA) and Section 106 of the EB-5 Reform and Integrity Act (RIA) of 2022. The ruling grants immediate financial relief to investors and regional centers through a §705 stay blocking the contested fee increases.
The American Immigrant Investor Alliance (AIIA) filed Moody et al. v. Mayorkas et al. in March 2024 in Colorado District Court. Attorneys Matthew Galati of The Galati Law Firm, Jonathan Wasden from Wasden Law, and Jesse Bless from Bless Mitigation represented the plaintiffs.
What USCIS Did Wrong
USCIS announced the fee increases on January 31, 2024, implementing them by April of that year. The agency justified the adjustments as necessary to account for inflation, increased form complexity, and staffing fluctuations.
Congress had mandated otherwise through the RIA. The 2022 legislation required USCIS to conduct and publish a fee study on EB-5 fees before implementing any changes. USCIS did not complete this study until February 2025, nearly a year after raising the fees.
The Legal Battle
AIIA initially sought a Temporary Restraining Order (TRO) to prevent the fee increases from taking effect. The court dismissed the TRO, disagreeing that the increases would cause irreparable harm between April 1, 2024, and post-trial.
USCIS challenged AIIA’s associational standing to bring the case. Government attorneys argued that the organization’s theory of harm relied on speculation about independent actors and members not before the court, rendering the organizational harm legally non-cognizable.
The court applied a three-part associational standing test. At least one AIIA member had suffered concrete injury by paying the increased fees.
The interests AIIA sought to protect aligned with its stated purpose of advocating for EB-5 investors. The organization could assert claims without requiring individual member participation in the lawsuit.
Judge Sweeney found that the way USCIS had acted was “arbitrary, capricious, and not in accordance with law.” Nothing absolved the agency from completing the required fee study before implementing increases, she ruled.
“Congress telling USCIS to hang tight while USCIS completed the mandatory fee study doesn’t mean USCIS could do whatever it liked until the study was completed,” Sweeney wrote. “Moreover, the Court is under no obligation to adopt USCIS’s incorrect interpretation.”
A “Refreshing” Reminder
Matthew Galati observed that “the drumbeat from Washington these days is that ‘immigrants need to follow our laws or face the consequences.'” Yet this case demonstrates that DHS and USCIS, whether run by Republicans or Democrats, “seem to think that clear legislative directives and deadlines do not apply to them.”
Galati called the fee raises “brazenly illegal and at odds with the RIA.” He finds it “refreshing to see the Judiciary hold these agencies accountable and remind us all that the US is a nation of laws.”
Financial Impact
AIIA’s successful lawsuit against USCIS represents a turning point for the EB-5 program, creating immediate financial relief and strategic advantages for both migration agents promoting EB-5 investment offerings and individual investors.
The ruling delivers immediate cost savings:
For Individual Investors:
- Form I-526E (Immigrant Petition by Regional Center Investor): dropped from $11,160 to $3,675, saving investors $7,485 per petition
- Form I-829 (Petition to Remove Conditions): decreased from $9,525 to $3,750, a reduction of $5,775
- Total savings per investor: exceed $13,000 across the complete EB-5 immigration process
For Regional Centers:
- Form I-956 (Regional Center Designation): fell from $47,695 to $17,795
- Form I-956F (Investment Project Approval): dropped from $47,695 to $17,795, saving nearly $30,000 per project
- Form I-956G (Annual Statement): decreased from $4,470 to $3,035, reducing annual costs by over $1,400
The DOJ has confirmed these lower fees are legally in effect, and USCIS has updated its website accordingly.
What Comes Next
While the current fee schedule is in effect, there remains uncertainty about future adjustments. DHS has proposed a new fee rule (with public comment period closing December 22, 2025) that would reduce fees compared to the April 2024 levels but keep them higher than the current restored rates. The proposed fees would set I-526E at $9,625 and I-829 at $7,860, still considerably higher than today’s rates.
All in all, this is good news for all EB-5 stakeholders, at home and abroad. Lower operating costs improve the economic viability of smaller regional centers and project developers. These lower fees help make the program a little more affordable to prospective EB-5 investors and ease the burden on intermediaries that help them with the process.
For existing investors who paid the higher fees, AIIA has organized a class action lawsuit seeking refunds for investors and regional center operators who paid the elevated rates.
