EB-5 Integrity Fund
ALERT: NOTICE FOR FISCAL YEAR 2023 AND FISCAL YEAR 2024 INTEGRITY FUND PAYMENTS – DUE OCT. 1, 2023. The Department of Homeland Security (DHS) has published an alert about the EB-5 Integrity Fund that says that USCIS will use the EB-5 Integrity Fund primarily to administer the EB-5 Regional Center Program, as required by the EB-5 Reform and Integrity Act of 2022 (RIA).
USCIS published the “Notice of EB-5 Regional Center Integrity Fund Fee,” 88 FR 13141, Federal Register: Notice of EB-5 Regional Center Integrity Fund Fee, announcing March 2, 2023, as the due date for the Integrity Fund fee. We also said that we would not begin taking steps to terminate a regional center until May 31, 2023. We have still been accepting Integrity Fund Fee payments and, because information about the due dates and penalties might not have been clear, we will continue to collect the EB-5 Integrity Fund fee for fiscal year 2023 from all regional centers that have not yet paid the fee with a due date of Oct. 1, 2023. This extension includes regional centers designated before enactment of the RIA. This is an equitable measure recognizing that, under the Immigration and Nationality Act, we must terminate regional centers that failed to pay the fee by May 31, 2023.
As required by statute and as indicated in the previously published federal register notice, the EB-5 Integrity Fund fee for FY 2024, and for each year thereafter, will be due on and must be paid beginning Oct. 1 of the applicable fiscal year.
We must terminate the designation of any regional center that does not pay the required fee within 90 days after the date such fee is due. See INA 203(b)(5)(J)(iv)(II). Therefore, we will take steps to terminate any regional center that, on or before Dec. 30, 2023, has not paid the required EB-5 Integrity Fund fees for FY 2023 and FY 2024.
NOTE: We will reject Integrity Fund fee payments for FY 2023 and FY 2024 we receive after Dec. 30, 2023, including those made in response to a Notice of Intent to Terminate.
On March 15, 2022, President Biden signed the EB-5 Reform and Integrity Act of 2022 (2022 Act). The 2022 Act establishes a special fund known as the EB–5 Integrity Fund (the Fund).
DHS will use the fund to:
- Conduct investigations based outside of the United States, including monitoring and investigating program-related events and promotional activities and ensuring that a noncitizen’s investment funds came from a lawful source and through lawful means;
- Detect and investigate fraud or other crimes;
- Determine whether regional centers, new commercial enterprises, job-creating entities, and immigrant investors (and their eligible spouses and children) comply with U.S. immigration laws;
- Conduct audits and site visits; and
- Conduct other activities that DHS deems necessary.
Under the 2022 Act, we will finance the fund by collecting an annual fee from each designated regional center. The first fee payment is due by April 1, 2023.
Starting with fiscal year 2024, the fee will be due at the start of each fiscal year between Oct. 1 and Oct. 3.
The annual fee, as established in the 2022 Act, is $20,000 for each such regional center, except for those with 20 or fewer total investors in the preceding fiscal year (that is, Oct. 1-Sept. 30) in its new commercial enterprises, in which case the annual fee is $10,000.
For application of the different fee amounts, we interpret the phrase “20 or fewer total investors in the preceding fiscal year in its new commercial enterprises” to mean the total number of EB-5 investors who have invested (or are actively in the process of investing) in a regional center’s new commercial enterprises in any given fiscal year from the point of filing a petition for classification through the point of filing a petition for removal of conditions.
This means we intend to estimate the approximate number of total investors in a regional center in any given fiscal year by subtracting the center’s Form I-829, Petitions by Investor to Remove Conditions on Permanent Resident Status, filed on or before Sept. 30 of that fiscal year from all of the center’s pending and approved Form I-526, Immigrant Petitions by Alien Entrepreneur, submissions (filed on or before June 30, 2021) and Form I-526E, Immigrant Petitions by Regional Center Investor, filed in or before that same fiscal year. For example, if a regional center had a total of 30 associated Form I-526 petitions, 10 associated Form I-526E petitions, and 20 associated Form I-829 petitions filed on or before Sept. 30, 2022, we generally would estimate that the regional center may have 20 total investors in its new commercial enterprises for fiscal year 2022 for calculating the applicable Integrity Fund fee for fiscal year 2023 and would likely owe the reduced fee amount of $10,000.
The method of approximating investors described above is meant to guide USCIS adjudicators in this calculation. Our adjudicators retain their discretion to evaluate the Integrity Fund fee due and the number of investors on a case-by-case basis, accounting for any other facts or evidence in the record in the totality of the circumstances, including any evidence provided by a regional center that believes it has greater or fewer total investors.
Before April 1, 2023, and between Oct. 1 and Oct. 31 of each following year, each designated regional center must pay the annual fee online directly at Pay.gov, a system managed by the U.S. Department of the Treasury. Individuals may pay either with a valid credit or debit card or by debit from a U.S. bank account. Per U.S. Department of the Treasury guidelines, we can accept a payment of up to $24,999.99 from one credit card in one day.
The Federal Register notice and this webpage represent the official notice to designated regional centers of the amount they owe and when it is due. We will not send an invoice to the regional centers beyond this notice. Regional centers are responsible for determining their own respective total number of investors and whether they owe $10,000 or $20,000. If a regional center must provide evidence of payment of this fee, we will accept as proof a copy of the Pay.gov receipt or a notice or statement from the payer’s credit card issuer or financial institution.
In addition, the filing fee for Form I-526E, Immigrant Petition by Regional Center Investor, increased by $1,000 on Oct. 1, 2022 to incorporate the Integrity Fund fees.
Under the 2022 Act, we must impose a reasonable penalty fee 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. (See INA section 203(b)(5)(J)(iv), 8 U.S.C. 1153(b)(5)(J)(iv)). We will release the late penalty rates at a later date.
We will terminate the designation of any regional center that does not pay the required fee within 90 days after the date on which such fee is due.
We will not charge the late penalty for fees due in fiscal year 2023. However, we will terminate the designation of any regional center that does not pay the required fee within 90 days after March 2, 2023 (for example, if a regional center does not make payment or pays $15,000 instead of $20,000 or paying $5,000 instead of $10,000).
Beginning Oct. 1, 2023, we will take steps to terminate a center’s designation if the Regional Center does not pay the required fee by Dec. 30. Terminating the designation will not be automatic, and we will give the center a notice of intent to terminate and the opportunity to prove that the fee was paid in the proper amount by the due date before sending a notice of termination.