The EB-5 Reform and Integrity Act of 2022 (RIA) introduced significant requirements for designated EB-5 regional centers, one of the most notable being the annual payment into the EB-5 Integrity Fund. Beginning on October 1, 2024, the USCIS is accepting these payments for Fiscal Years (FY) 2023, 2024, and 2025 using the Pay.gov platform. This update follows USCIS’s initial steps to streamline payments and enforce stricter compliance deadlines.
Annual Integrity Fund Fees and Payment Structure
Under the RIA, every designated EB-5 regional center is required to pay an annual Integrity Fund fee. This fee structure is tiered:
- $20,000 for regional centers with more than 20 investors in their new commercial enterprises during the preceding fiscal year.
- $10,000 for regional centers with 20 or fewer investors.
The government notes that these fees are essential for maintaining the integrity of the EB-5 program, as the Department of Homeland Security uses them to fund audits and to conduct site visits and overseas investigations related to EB-5 projects and stakeholders. Maintaining RIA-related directives, USCIS has committed to ensuring regional centers comply with these requirements, and failure to do so may result in significant consequences, including termination of the regional center designation.
Late Payment Opportunities for FY 2023 and 2024
In response to the challenges some regional centers faced, the agency extended the payment window for FY 2023 and FY 2024 Integrity Fund fees, allowing late payments from October 1 to October 31, 2023. The final deadline for these late payments was December 30, 2023. Over 100 regional centers that failed to meet the final deadline received a Notice of Intent to Terminate (NOIT) in June and July 2024. The NOITs sparked litigation as many regional centers claimed confusion or miscommunication about the deadline. Some centers were reportedly misadvised that the payments were not due by December 30, 2023.
Regional centers have challenged the NOITs. This week, we learned, via a court filing in one such case, the Northern Rockies Regional Center, LLC vs. Jaddou matter See, Northern Rockies Regional Center, LLC v. Jaddou, Docket No. 9:24-cv-00099 (D. Mont. Jul 15, 2024), that “The agency intends to accept Integrity Fund fee payments for FY 2023, FY 2024, and FY 2025 on pay.gov starting October 1, 2024. Payments made for the late payment opportunity for FY 2023 and/or FY 2024 will satisfy the annual Integrity Fund fee requirement for those respective years (a notice of opportunity to pay such fees will be issued shortly)”. The agency noted that this is a one-time opportunity, and it does not intend to accept payments more than 90 days after from the annual due date on October 1 in future years. Based on the USCIS filing in the Northern Rockies case, we expect that those regional centers that received NOITs will be afforded the opportunity to make any late integrity fund payments beginning October 1, 2024.
Key Dates and Deadlines for FY 2025
Beginning October 1, 2024, USCIS is collecting the FY 2025 Integrity Fund fees along with accepting late payment of the FY 2023 and FY 2024 fees. Regional centers should be prepared to make their payments promptly to avoid penalties or potential termination. Importantly, these payments must be made online through the Pay.gov platform and are due by December 30, 2024, 90 days of the annual October 1 due date. After this grace period, no late payments will be accepted, and the USCIS has stated that “(w)e 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” (emphasis added). The Pay.gov website does not open up until October 1 and will allow you to create an account to make your payment which is recommended.
Consequences of Non-Compliance
Failure to pay the Integrity Fund fees could lead to severe consequences, including the imposition of late fees or even termination of the regional center’s designation. This could have detrimental effects, particularly for centers with post-RIA investors. Under the RIA requirements, if a regional center is terminated for nonpayment (absent any other factors), any new commercial enterprises associated with it must align with a new, approved regional center in order for investors to remain eligible for residency. This could delay EB-5 investor applications and increase the complexity and costs for investors, who may need to file amendments to their I-526E petitions. Generally speaking, pre-RIA investors are not subject to the RIA requirements and may not need to take any action in order to remain eligible for benefits. Investors should collaborate closely with their attorneys to determine the required actions. See the USCIS Q&As for more information on retaining eligibility.
Avoiding Payment Issues
Several reports have highlighted payment processing issues experienced by regional centers leading up to the December 30, 2023 deadline. While the pay.gov platform should remediate most issues, to avoid any problems, regional centers should plan to pay early, ensuring there are no technical or banking issues that could delay the processing of their payment. Maintaining clear records of all transactions is essential in case USCIS requests proof of payment at a later date. Centers can register for an account or pay as a guest. Registering allows for viewing the payments made since the account was created, store payment information and allow for coping a form you already submitted the next time a payment is being made. This should assist ensuring confirmation of payment.
Final Thoughts: Plan Ahead for Compliance
Regional centers are encouraged to make their FY 2025 payments as soon as possible now that the window opened on October 1, 2024, and to be vigilant in ensuring their payment is processed without issue. As USCIS continues to enforce compliance, staying informed and prepared to meet all payment deadlines is crucial.
The importance of meeting deadlines and ensuring payments are processed cannot be overstated. Any delays or errors could result in severe consequences, including termination, which could disrupt the EB-5 process for both regional centers and investors.
