August 21, 2018

August 21, 2018

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August 20, 2018

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Government Shutdown

The federal government has officially shut down as of 12:01 a.m. on Saturday, January 20, 2018. The House of Representatives, for its part, passed a continuing resolution (CR) funding the federal government to February 16, 2018, on Thursday. The Senate, however, failed to reach an agreement before midnight. The House bill would have reauthorized the EB-5 regional center program until February 16, 2018.

The disagreement is over Deferred Action for Childhood Arrivals or DACA. The Senate Democrats, led by Senator Chuck Schumer (D-NY), want a promise that DACA relief will be a part of a “must pass” spending bill. The Republican Majority Leader Mitch McConnell (R-KY) counter-offered a shorter CR of two weeks to February 8 with a promise of immigration negotiations. However, he declined committing to include DACA relief in a spending bill.

As of Monday morning, January 22, we are in Day 3 of shutdown amid mixed signs.

What does this mean for USCIS and the EB-5 Immigrant Investor Program? USCIS as a fee-for- service agency will remain open for business as announced on the USCIS homepage. This includes the basic EB-5 program not involving regional-center- based filings.

However, the EB-5 regional center program, along with the religious worker and two other immigration programs, has lapsed with the CR. USCIS released an e-mail today distinguishing the sunsetting programs from its other fee-funded activities. The e-mail bears the subject line “Lapse in Federal Funding for Certain USCIS Operations” and indicates that “several USCIS programs will either expire or suspend operations, or be otherwise affected, until they receive appropriated funds or are reauthorized by Congress. These include [the] EB-5 Immigrant Investor Regional Center Program.”

There is no public announcement yet from USCIS or any other official post that I have found with more specifics on how USCIS will handle EB-5 regional center cases during the shut-down. However, USCIS updated its religious workers information page with a more specific announcement, indicative of how it would probably handle EB-5 regional center cases.

On religious workers, USCIS states:

This program was not reauthorized before the Jan. 19, 2018, expiration date. Starting Jan. 20, 2018, USCIS will reject any Form I-360 Special Immigrant petitions for Non- Minister Religious Workers.  Petitions received by USCIS prior to Jan. 20, 2018, but not issued a final decision before Jan. 20, 2018, will be placed on hold in case the program is reauthorized.

This is consistent with USCIS’s handling of EB-5 regional center cases in a prior sunset context. Assuming USCIS will follow the same protocol, the vast majority of pending regional-center- based EB-5 petitions, numbering 94,976 as of September 30, 2017, will be placed on hold until another spending bill is passed. Adjudication of the 1,769 or so I-924 and I 924A applications will likely also be suspended. All regional-center basedI-526 petitions and I-924 applications filed on January 20, 2018, and thereafter will likely be rejected.

There is an open question about regional-center- based I-829 petitions, however. In 2009, USCIS indicated that it would continue to process I-829 petitions notwithstanding sunset. Accordingly, we will need confirmation that USCIS will hold this position this time, if the shutdown persists.

For its part, the State Department reported in the latest Visa Bulletin that no regional-center- based visa may be issued overseas, or final action taken on adjustment of status cases, after January 19, 2018. The visas when issued, however, will be issued for the “full validity period,” usually around six months.

Another important open question is whether Customs and Border Protection (CBP) will admit EB-5 investors and family members seeking admission with valid visas. In the past, CBP indicated that it would so admit, but, in the current restrictive environment, there is uncertainty. Clarifying guidance on this point would allow investors and family members to land in the U.S. with greater assurance.

The hope now is for the Senate to pass a CR, either to February 16 or to February 8. If the shutdown is drawn out, we will need more specific guidance from the mentioned agencies on what EB-5 stakeholders may expect until reauthorization.

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About this Author

Carolyn S. Lee, Immigration Attorney, EB-5 Lawyer, Miller Mayer, New York, Law firm
Partner

Carolyn Lee is a Partner in Miller Mayer’s EB-5 practice group.

Ms. Lee is currently the Chair of the American Immigration Lawyers Association (AILA)’s national EB-5 Committee and has previously served as Vice-Chair and Chair. Ms. Lee's current advocacy focuses on long-term reauthorization of the EB-5 regional center program and workable reform. Ms. Lee has represented Regional Centers, developers, funds, and investors for over a decade. A prominent author and lecturer on EB-5, Ms. Lee has written numerous in-depth publications on "material...

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