Eb5 Holdings Inc . v. Joseph Edlow , Director , United States Citizenship and Immigration Services

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 7, 2025 Decided February 13, 2026
No. 24-5237
EB5 HOLDINGS I NC ., ET AL.,
APPELLANTS
v.
J OSEPH EDLOW , DIRECTOR , UNITED S TATES C ITIZENSHIP AND
IMMIGRATION S ERVICES ,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:23-cv-01180)
Brad Banias argued the cause and filed the briefs for
appellants.
Alexandra McTague, Senior Litigation Counsel, U.S.
Department of Justice, argued the cause for appellee. On the
brief were Yaakov M. Roth, Acting Assistant Attorney General,
Glenn M. Girdharry, Assistant Director, and Alessandra Faso,
Senior Litigation Counsel.
Before: H ENDERSON and R AO , Circuit Judges, and
R OGERS , Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LEC RAFT HENDERSON , Circuit Judge: For more
than thirty years, federal law has set aside permanent resident
visas for immigrants who invest capital into “regional centers”
that promote economic growth by creating jobs and spurring
investment. In 2022, the Congress overhauled this program in
response to widespread reports of abuse. As part of this reform,
the Congress mandated that, moving forward, regional centers
participating in the program must contribute an annual fee for
the monitoring and reporting of fraud. The question in this
appeal is whether the 600-plus regional centers that have been
active since before 2022 are exempt from paying this fee. The
district court concluded that they are not and we agree. We
therefore affirm.
I. BACKGROUND
In 1990, the Congress established the EB-5 program—an
employment-based, fifth preference (hence the name) “visa
program for noncitizens who invest in a job-creating
enterprise.” Da Costa v. Immigr. Inv. Program Off., 80 F.4th
330, 334 (D.C. Cir. 2023) (citing Immigration Act of 1990,
Pub. L. No. 101-649, § 121(b)(5), 104 Stat. 4978, 4989
(codified at 8 U.S.C. § 1153(b)(5))). Since its inception, the
EB-5 program has allotted visas to immigrants who have
invested, or are in the process of investing, capital in a “new
commercial enterprise” that will create full-time employment
for at least 10 U.S. citizens or qualifying non-
citizens. 8 U.S.C. § 1153(b)(5)(A).
Two years after rolling out the EB-5 program, the
Congress established, in an appropriations rider, what is now
called the regional center program. Departments of

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Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act, Pub. L. No. 102-395, § 610(a),
106 Stat. 1828, 1874 (1992) (Appropriations Act of 1992).
Originally a pilot program, the regional center program offered
an additional pathway to obtain an EB-5 visa by setting aside
visas for EB-5 applicants who pooled together sufficient capital
to invest in “a regional center” for “the promotion of economic
growth.” Id. § 610(a), 106 Stat. at 1874. The main draw of the
program was that it relaxed the 10-person job-creation
requirement to secure an EB-5 visa. Immigrant Investor Pilot
Program, 58 Fed. Reg. 44,606, 44,606 (Aug. 24, 1993) (to be
codified at 8 C.F.R. pts. 103, 204). Immigrants who wished to
invest in a regional center could satisfy the 10-person
benchmark “not only by tallying all jobs directly created by
their enterprise but also based on economic projections of
direct and indirect job creation.” Aiteliyev v. Mayorkas, 717 F.
Supp. 3d 67, 70 (D.D.C. 2024); accord Appropriations Act of
1992, § 610(c), 106 Stat. at 1874.
The appropriations rider authorizing the regional center
program did not define “regional center” or “designate a
particular regional center” to participate in the program.
Immigrant Investor Pilot Program, 58 Fed. Reg. at 44,607. To
fill in that gap, the Immigration and Naturalization Service
(Service) promulgated an interim rule the following year. Id.
at 44,606–10. The rule defined a “regional center” as any
public or private economic unit “involved with the promotion
of economic growth,” id. 58 Fed. Reg. at 44,608, and
announced that the agency “w[ould] begin accepting proposals
from regional centers for participation in the” pilot program,
id. at 44,607. “Each regional center wishing to participate,” the
rule stated, was required to submit a proposal that “[c]learly
describe[d]” how the regional center would “promote
economic growth through increased export sales, improved

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regional productivity, job creation, and increased domestic
capital investment.” Id. at 44,609.
Although it was meant to last only five years, the Congress
repeatedly extended the regional center program over the
course of three decades, making it “a ‘pilot’ in name only.”
Behring Reg’l Ctr. LLC v. Mayorkas, No. 22-cv-02487, 2022
WL 2290594, at *2 (N.D. Cal. June 24, 2022). By 2021, “over
ninety percent of EB-5 applicants invested in the United States
through a regional center,” Del. Valley Reg’l Ctr., LLC v. U.S.
Dep’t of Homeland Sec., 106 F.4th 1195, 1198 (D.C. Cir. 2024)
(citation omitted), and the Service—succeeded by the U.S.
Citizenship and Immigration Services (USCIS)—had
designated over 600 regional centers to take part in the
program, Behring Reg’l Ctr., 2022 WL 2290594, at *2.
In time, however, the regional center program acquired a
poor reputation for “its susceptibility to fraud and abuse.”
Mirror Lake Vill., LLC v. Wolf, 971 F.3d 373, 378 (D.C. Cir.
2020) (Henderson, J., concurring). As more immigrants sought
to invest capital in regional centers, the USCIS had difficulty
confirming whether the funds were coming from legal sources.
Behring Reg’l Ctr., 2022 WL 2290594, at *2. The program
also faced criticism for its “appearance of favoritism and
special access” and concerns “mounted that regional centers
might be taking advantage of foreign investors,” id. (quotation
omitted), as several high-profile cases revealed that bad actors
had set up centers to lure EB-5 applicants, Audrey Singer &
Camille Galdes, Brookings Inst., Improving the EB-5 Investor
Visa Program: International Financing for U.S. Regional
Economic Development 2 (2014).
In 2022, the Congress reacted with the EB-5 Reform and
Integrity Act (RIA or Act). Pub. L. No. 117-103, div. BB, 136
Stat. 1070. Of relevance here, the RIA repealed the

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appropriations rider creating the pilot regional center program
and “reauthoriz[ed]” the program, § 103, 136 Stat. at 1075
(boldface deleted), with a “series of reforms designed to
strengthen oversight and combat fraud,” Behring Reg’l Ctr.,
2022 WL 2290594, at *2. Pursuant to the RIA, the statutory
authority for the new-and-improved regional center program is
now section 203(b)(5)(E) of the Immigration and Nationality
Act (subparagraph (E))—titled simply, the “Regional center
program.” § 103(b)(1), 136 Stat. at 1075 (codified at 8 U.S.C.
§ 1153(b)(5)(E)).
Subparagraph (E) begins, in clause (i), with a general
restatement of how the program works. “In general,” it states,
“[v]isas under this subparagraph shall be made available
through September 30, 2027, to qualified immigrants . . .
pooling their investments . . . in a program . . . that involves a
regional center in the United States, which has been designated
by the Secretary of Homeland Security on the basis of a
proposal for the promotion of economic growth.” Id.
§ 1153(b)(5)(E)(i) (boldface deleted). Clause (E)(iii) sets out
the requirements for the “[e]stablishment of a regional center”
under the reformed program. Id. § 1153(b)(5)(E)(iii) (boldface
deleted). As was the case under the pilot program, each
regional center hopeful must submit a “proposal” that
demonstrates how its “pooled investment will have a
substantive economic impact” on the geographical area where
the center will be located. Id. But unlike before, each regional
center applicant must include information in its proposal that
will help prevent fraud. See id. § 1153(b)(5)(E)(iii)(II)–(V).
For example, a proposal must describe what “policies and
procedures” the entity will put in place to “ensure compliance
with . . . all applicable laws, . . . including immigration laws,
criminal laws, and securities laws.” Id. § 1153(b)(5)(E)(iii)(II).
The proposal must also attest that every person “involved with
the regional center,” id. § 1153(b)(5)(E)(iii)(III), will be a U.S.

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national or lawful permanent resident, id.
§ 1153(b)(5)(H)(ii)(I)(aa), expressly excluding felons, id.
§ 1153(b)(5)(H)(i)(I)(cc).
The RIA also establishes an “EB-5 Integrity Fund” to
cover expenses for the monitoring and investigation of fraud.
§ 103(b)(1)(J), 136 Stat. at 1090 (codified at 8 U.S.C.
§ 1153(b)(5)(J)). Clause (J)(ii), the fee provision, directs the
Secretary of Homeland Security (Secretary) to “collect for the
Fund an annual fee” from “each regional center designated
under subparagraph (E).” 8 U.S.C. § 1153(b)(5)(J)(ii)(I). The
size of the fee depends on the number of individuals investing
in the center. Regional centers “with 20 or fewer total
investors” contribute $10,000. Id. §1153(b)(5)(J)(ii)(I)(bb).
Centers with more investors must pay twice that amount. Id.
§ 1153(b)(5)(J)(ii)(I)(aa). The fee provision also requires the
Secretary to “impose a reasonable penalty” on “any regional
center” that does not pay the fee within 30 days after the annual
statutory deadline and to “terminate the designation of any
regional center” that is more than 90 days late in paying the fee.
Id. § 1153(b)(5)(J)(iv).
After the RIA became law, the legal status of regional
centers designated pre-RIA was unclear. For a time, the
USCIS—acting for the Secretary—continued to treat these
centers as authorized to participate in the new program. See
Behring Reg’l Ctr., 2022 WL 2290594, at *2. But the agency
soon changed course, declaring in a public notice that, because
the RIA had expressly “repealed” the rider provision
establishing the pilot program, all “regional centers previously
designated” before the RIA’s passage were “no longer
authorized” and needed to seek re-designation. J.A. 69.
The USCIS never carried out its plan to treat pre-RIA
regional centers as de-authorized because a district court

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enjoined the agency from doing so. Behring Reg’l Ctr., 2022
WL 2290594, at *7. The Behring court, however, was careful
to qualify that its decision would not hamstring the USCIS
from “do[ing] whatever [was] reasonably necessary to ensure
that the existing regional centers comply” with the RIA. Id.
Following the Behring decision, the USCIS “agreed to rescind
its categorical deauthorization of pre-Act regional centers,”
provided that any such center “wish[ing] to continue
sponsoring new investment projects and new investors had to
submit a new application for a regional-center designation.”
Sunshine State Reg’l Ctr. Inc. v. Dir., U.S. Citizenship &
Immigr. Servs., 143 F.4th 1331, 1336 (11th Cir. 2025).
After Behring, the USCIS published a notice announcing
the Secretary’s plan to enforce the RIA’s fee provision for the
2023 fiscal year. Notice of EB-5 Regional Center Integrity
Fund Fee, 88 Fed. Reg. 13,141, 13,142 (Mar. 2, 2023). The
notice gave all regional centers until April 1, 2023, to pay the
fee. Id. For those centers that didn’t pay within 90 days, the
USCIS planned to “terminate the[ir] designation[s].” Id. at
13,143.
Appellant EB5 Holdings (EB5) owns two regional centers
that were designated by the Secretary before the RIA became
law. Shortly after the USCIS published the March 2023
Integrity Fund fee-collection notice, EB5 sued the agency in
district court under the Administrative Procedure Act (APA).
5 U.S.C. § 551 et seq. EB5’s sole contention was that the fee
provision did not authorize the Secretary to collect the annual
Integrity Fund fee from regional centers that received their
designations before the RIA was enacted. Thus, EB5
maintained, to the extent the USCIS’s notice sought to collect
the fee from these so-called “legacy centers,” it exceeded the
Secretary’s statutory authority under the RIA, was contrary to
law and was arbitrary and capricious under the APA. J.A. 15.

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EB5 moved for summary judgment and the USCIS cross-
moved for dismissal under Federal Rule of Civil Procedure
12(b)(6). The district court denied EB5’s summary judgment
motion and granted the USCIS’s motion to dismiss. The court
concluded that the fee provision’s requirement that “each
regional center designated under subparagraph (E)” must pay
the annual Integrity Fund fee “unambiguously” applied to
“both pre- and post-RIA regional centers.” J.A. 127. This
appeal followed.
II. ANALYSIS
We have jurisdiction under 28 U.S.C. § 1291 and our
review of the district court’s summary judgment denial and its
dismissal under Rule 12(b)(6) is de novo. Pub. Citizen v. U.S.
Dist. Ct. for D.C., 486 F.3d 1342, 1345 (D.C. Cir. 2007). The
fee provision of the RIA requires the Secretary to collect the
annual Integrity Fund fee from “each regional center
designated under subparagraph (E).” 8 U.S.C. §
1153(b)(5)(J)(ii)(I)(aa). The sole question in this appeal is
whether pre-RIA regional centers—those entities that became
regional centers before the enactment of the RIA—constitute
“regional center[s] designated under subparagraph (E).” Id. If
they do, then all parties agree that they must pay the annual fee.
EB5 contends that “designat[ion]” in the fee provision
refers to the discrete act of designation performed by the
Secretary at a singular point in time. Thus, according to EB5,
pre-RIA regional centers are exempt from the fee provision
because they were not “designated under subparagraph (E).”
They were designated under the 1992 rider provision—that is,
before subparagraph (E) became law. The USCIS replies that
the fee provision does not turn on the timing of a regional
center’s designation at all but instead on whether the entity is
currently “designated” to operate as a regional center. Thus,

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because all pre- and post-RIA regional centers are, at present,
“designated” to participate in the regional center program, they
all must pay the fee. We conclude the Secretary has the better
reading of the fee provision. In so holding, we align ourselves
with the Eleventh Circuit—the sole circuit to have addressed
the question until now. Sunshine State, 143 F.4th 1331.
“[W]e start where we always do: with the text of the
statute.” Van Buren v. United States, 593 U.S. 374, 381 (2021).
And we can end there as well because the statutory language is
clear: By using the past participle “designated” to describe the
regional centers subject to the fee, the fee provision’s focus is
on the entity’s current status as a designated regional center,
not on the discrete event of the center’s designation—and
plainly not on the timing of that designation. In ordinary
English grammar, we “routinely” use the past participle in this
sense—that is, as an adjective “to describe the present state of
a thing.” Henson v. Santander Consumer USA Inc., 582 U.S.
79, 84 (2017). Thus, for example, an “escaped” prisoner is
currently at large, a “broken” window is not yet fixed and a
“delayed” train has not yet arrived. When used “as [an]
adjective[] to describe the present state of [a] noun[],” id., the
past participle “gives no indication of the relative timing of
events,” Bernal v. NRA Grp., LLC, 930 F.3d 891, 895 (7th Cir.
2019) (citation modified).
We have applied this straightforward rule of grammar
many times, and to the same effect, in construing statutes. In
Gentiva Health Services, Inc. v. Becerra, 31 F.4th 766 (D.C.
Cir. 2022), the question before us was whether hospice-care
reimbursements “made under” Part A of the Medicare Act, 42
U.S.C. § 1395f(i)(2)(A), were limited to payments already
disbursed within a fiscal year. Payments “made,” we
concluded, “simply describes the present state of the ‘amount
of payment’ in question,” not “a discrete historical amount”

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paid at a specific point in time. Gentiva Health Servs., Inc., 31
F.4th at 776 (citation modified). In Bello v. Gacki, 94 F.4th
1067 (D.C. Cir. 2024), the issue was whether the Foreign
Narcotics Kingpin Designation Act, 21 U.S.C. §§ 1901–08,
imposed a “temporal requirement” for designating someone as
a Tier 2 drug trafficker based on his material assistance to a
“foreign person[] designated by the Secretary of Treasury” as
a Tier 1 trafficker, Bello, 94 F.4th at 1072 (discussing 21
U.S.C. § 1904(b)(2)–(3)); id. (“Bello argues that the statute’s
past participle ‘designated’ . . . necessarily means already
designated, that is, before [a] Tier 2 designation.”). We agreed
with the Secretary that the past participle “designated” did not
specify the timing of a predicate Tier 1 designation. Id. The
designation could occur either in the “past [or]
simultaneous[ly]” with a Tier 2 designation. Id. And in
Henson, the Supreme Court confronted whether, under the Fair
Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.,
collecting a debt “owed . . . another” included buying a debt
from a third party and then collecting it for itself. Henson, 582
U.S. at 81 (discussing 15 U.S.C. § 1692a(6)). It did not, the
Court reasoned, because a debt “owed . . . another” is a debt
currently, not previously, owed a third party. Id. at 84. We
believe the same holds true for entities “designated” as regional
centers in the fee provision. “Designated” regional centers are
simply those entities currently authorized to take part in the
regional center program. The timing of the center’s
designation is irrelevant.
Granted, the past participle is an “uncommonly flexible
device.” Bernal, 930 F.3d at 895. When paired with other
“closely associated . . . words, such as modifiers or
complements,” The Chicago Manual of Style § 5.115 (18th ed.
2024), it can describe something that happened in the past, see
Michael Swan, Practical English Usage § 493.2.b (1980)
(linking “time-adverbs” with the past participle can indicate “a

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past event”); e.g., Bernal, 930 F.3d at 895 (“[T]hose arrested
yesterday.”) (emphasis added). EB5 insists the fee provision
works in this way by qualifying that regional centers subject to
the fee are designated “under subparagraph (E).” To put a
grammarian’s gloss on EB5’s argument, “designated” is a past-
tense verb, not an adjective, and the prepositional phrase
“under subparagraph (E)” is an adverbial phrase—combine the
two and “designated under subparagraph (E)” describes not the
entity’s ongoing status as designated regional center but the
moment the Secretary designated the entity as one. Regional
centers are thus subject to the fee, EB5 submits, only if the
Secretary “designated [them] under subparagraph (E),” which
cannot include pre-RIA centers because the Secretary had
designated them “before enactment of ‘subparagraph (E).’”
Appellants’ Opening Br. 15.
The problem with EB5’s argument is that it ignores how
the past participle is used as a verb. To indicate an action or
event, we ordinarily pair the past participle with an auxiliary
verb: “was designated,” “is designated,” “will be designated.”
See Swan, supra, § 451.2. Or the past participle could be
followed with “by” to “introduce the agent (the person or thing
that does the action).” Id. § 453.5. Recall how the Congress
described regional center designation in subparagraph (E)’s “In
general” clause: Under that provision a regional center is an
entity “in the United States, which has been designated by the
Secretary of Homeland Security on the basis of a proposal for
the promotion of economic growth.” 8 U.S.C.
§ 1153(b)(5)(E)(i) (emphasis added). “Has been” works with
“designated” to denote a “past action[] . . . which [is]
completely finished” yet has “some present importance,”
Swan, supra, § 493.2.b, and “by the Secretary” describes the
action-taker—all textual breadcrumbs suggesting that
“designated” in this phrase acts as a verb to describe the
discrete act of designation by the Secretary. How the Congress

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conveys meaning in one part of a statute is typically a strong
indicator of how it meant to convey the same meaning in
another. So we expect the Congress would have used phrasing
similar to clause (E)(i) had it intended “designated” to focus on
the act of designation by the Secretary. The provision might
have read something like this: “regional centers [that have
been] designated [by the Secretary] under subparagraph (E).”
Id. § 1153(b)(5)(J)(ii)(I)(aa).
We nonetheless agree with EB5 that the “under
subparagraph (E)” language does some work in the fee
provision. It complements the past-participle adjective
“designated” by denoting the statutory source of every regional
center’s designated status. A prepositional phrase beginning
with “under” is often used to identify the legal basis of the
subject or object of the sentence. The Framers were fond of the
phrase; the original articles of the Constitution refer to subjects
as arising or existing “under the Authority of the United
States,” U.S. Const. art. I, § 6, cl. 2; id. art. VI, cl. 2, “under
this Constitution,” id. art. III, § 2, cl. 1; id. art. VI, cl. 1, or
“under the United States,” id. art. I, § 3, cl. 7 & § 6, cl. 2; id.
art. II, § 1, cl. 2; id. art. VI, cl. 3. When used in this sense,
“under” simply “means ‘subject or pursuant to’ or ‘by reason
of the authority of.’” St. Louis Fuel & Supply Co. v. FERC,
890 F.2d 446, 450 (D.C. Cir. 1989) (citation modified); accord
Nat’l Ass’n of Mfrs. v. Dep’t of Def., 583 U.S. 109, 124 (2018).
Here, it was entirely natural for the Congress to describe all
regional centers as “designated under subparagraph (E)”
because subparagraph (E) is the statutory source of the
“[r]egional center program.” 8 U.S.C. § 1153(b)(5)(E)
(boldface deleted). Thus, to be a “designated [regional center]
under subparagraph (E)” means the regional center’s legal
status flows from subparagraph (E), which is true for all
currently active regional centers. See Sunshine State, 143 F.4th
at 1340 (“To be ‘designated under subparagraph (E)’ is to be

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designated to participate in the regional-center program under
subparagraph (E).” (emphasis omitted)).
In EB5’s view, “designated under subparagraph (E)” does
more. EB5 argues that the phrase refers to the post-RIA
regional centers the Secretary has designated (or will
designate) pursuant to clause (E)(iii)—because that is the only
part of subparagraph (E) that “lays out the criteria a corporate
entity must satisfy to be designated as a ‘regional center.’”
Appellants’ Opening Br. 16 (quoting 8 U.S.C.
§ 1153(b)(5)(E)(iii)). But here again, EB5’s reading of the fee
provision is not the most natural one. If the Congress wanted
to cross-reference clause (E)(iii) in the fee provision, it would
have done so. Instead, it referred generally to regional centers
as designated under “subparagraph (E),” literally the statutory
placeholder for the “[r]egional center program” as a whole. Id.
§ 1153(b)(5)(E); see also Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 221 (2012)
(title-and-headings canon) (“The title and headings are
permissible indicators of meaning.”). There is no dispute that
pre-RIA regional centers are currently “designated” to operate
“under” the program. Indeed, EB5 has no choice but to
concede the point. If pre-RIA centers are not designated to
participate in the regional center program under subparagraph
(E), they are not bona fide regional centers because the “only
regional-center program” sanctioned to exist “is the one under
subparagraph (E).” Sunshine State, 143 F.4th at 1340.
Trying at it from a different angle, EB5 argues that if the
Congress intended the fee provision to apply to all currently
designated regional centers, it would have chosen an easier
formulation than “regional center[s] designated under
subparagraph (E).” “[A]ny regional center” would have made
more sense, according to EB5, because that is the phrase the
Congress went with elsewhere in the RIA. See, e.g., 8 U.S.C.

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§ 1153(b)(5)(G)(iii)(I) (USCIS “shall sanction any regional
center” for failing to submit an annual statement); id.
§ 1153(b)(5)(H)(iv)(I) (Secretary may suspend or terminate
“any regional center” for knowingly involving prohibited
persons in a commercial enterprise). EB5 thus relies on the
“presumption of consistent usage and the meaningful-variation
canon,” the interpretive principle that a change in statutory
language presumably indicates a change in meaning. Pulsifer
v. United States, 601 U.S. 124, 149 (2024) (quotation omitted).
The Congress knew to use the broadest language possible when
referring to all regional centers, the argument goes, but did not
do so in the fee provision, which necessarily means the
provision covers a narrower subset of regional centers.
This argument fares no better. Because it creates only a
rebuttable presumption, the meaningful-variation canon is
“particularly defeasible by context.” Scalia & Garner, supra,
at 171; see, e.g., Pulsifer, 601 U.S. at 151 (canon carries less
force if the disparately worded provisions were enacted
decades apart). And here, the RIA’s surrounding provisions
confirm that the Congress did not mean for “any regional
center” and “regional center[s] designated under subparagraph
(E)” to carry different meanings because the Congress used the
two phrases interchangeably in the RIA. Subparagraph (G), for
instance, provides that “[e]ach regional center designated under
subparagraph (E)” must submit an annual statement certifying
the center’s compliance with certain requirements of the Act, 8
U.S.C. § 1153(b)(5)(G)(i), and authorizes the USCIS to
“sanction any regional center . . . if [it] fails to submit an
annual statement.” Id. § 1153(b)(5)(G)(iii)(I) (emphasis
added). But there is an even better example: Subparagraph (J)
of the RIA equates “regional center[s] designated under
subparagraph (E)” with “any regional center” when describing
the fee requirement at the center of this case. After directing
the Secretary to “collect” the fee from each regional center

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“designated under subparagraph (E),” id. § 1153(b)(5)(J)(ii)(I),
subparagraph (J) requires the Secretary to fine or terminate
“any regional center” for failing to pay the fee, depending on
the length of non-payment, id. § 1153(b)(5)(J)(iv). “There can
be few better illustrations of the ‘defeasib[ility]’ of the
meaningful-variation canon,” Pulsifer, 601 U.S. at 151
(quoting Scalia & Garner, supra, at 171), than the Congress’s
change of statutory phraseology to express the same idea. It
may suggest a stylistic drafting choice. And if so, “the
presumption that a change in language indicates a change in
meaning does not apply.” United States v. Hillie, 38 F.4th 235,
239 (D.C. Cir. 2022) (per curiam) (Katsas, J., concurring in
denial of rehearing en banc) (quotation omitted).
More importantly, subparagraph (J)’s alternating use of
“any regional center” and “each regional center designated
under subparagraph (E)” deals the final blow to EB5’s case. If
“any regional center” means what EB5 says it means (all
regional centers, including pre-RIA centers), and if
subparagraph (J) allows the Secretary to fine or de-designate
“any” center for not paying the fee, 8 U.S.C.
§ 1153(b)(5)(J)(iv), the Secretary can plainly “collect” the fee
from any center in the first place, id. § 1153(b)(5)(J)(ii)(I). Or
to put it the other way around, EB5 cannot be correct that
subparagraph (J)’s references to “any regional center” and
“each regional center designated under subparagraph (E)” are
talking about different centers—all regional centers versus
only new ones. That would mean the Secretary could penalize
every regional center for not paying a fee that subparagraph (J)
requires only a subset of regional centers to pay.
EB5’s final parry is that reading the fee provision to apply
to pre-RIA regional centers violates the presumption against
retroactivity. Under that interpretive principle, we presume
that the Congress legislates only for the future. Scalia &

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Garner, supra, at 261. Thus, “absent clear congressional intent
favoring such a result,” we avoid a particular reading of a
statute if it “would impair rights a party possessed when he
acted, increase a party’s liability for past conduct, or impose
new duties with respect to transactions already completed.”
Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994). EB5
claims that applying the fee provision to pre-RIA centers would
retroactively impose a “new dut[y]” on those centers “based on
a [regional-center] designation from years before the [fee
provision] was enacted.” Appellants’ Opening Br. 27.
EB5’s argument fails because there is no retroactivity
problem with our reading of the fee provision. Our sole
conclusion is this: Pre- and post-RIA regional centers alike are
subject to the fee provision because they are all currently
“designated” to participate in the regional center program
authorized under subparagraph (E). Nothing about our holding
burdens pre-RIA centers more than their post-RIA counterparts
“based on” pre-RIA actions. Appellants’ Opening Br. 27.
Under our interpretation, a regional center designated 20 years
ago must pay the same fee as a regional center designated
yesterday—$10,000 or $20,000, depending on the number of
investors. 8 U.S.C. § 1153(b)(5)(J)(ii)(I)(aa)–(bb). EB5’s
observation that “there was no annual fee when [the] USCIS
designated” pre-RIA centers changes nothing. Appellants’
Opening Br. 27–28. A burden is not retroactive simply because
it is “new.” See Landgraf, 511 U.S. at 269–70, 269 n.24. It
must relate to some “past conduct . . . or transaction[]” or
“impair rights” already “possessed.” Id. at 280. Our holding,
by contrast, is purely forward-looking: If pre-RIA centers wish
to retain their designated status, they must pay the fee.
Sunshine State, 143 F.4th at 1346–47 (“A prospective fee for
continued participation in the regional-center program is not a
new duty with respect to a transaction already completed.”).

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* * *
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.

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