The Government Shutdown and Future of EB-5

For the past few weeks, the news of the government shutdown has been the major focus of the media often creating anxieties for people who rely on the proper functioning of the federal government agencies for their applications. On a positive side, at least for immigration-related matters, the U.S. Citizenship and Immigration Services (USCIS) and the Department of State will both remain open despite the shutdown. The USCIS has announced earlier that it will continue to accept most petitions and applications and the field offices will continue their work and scheduling interviews. The USCIS does not get affected by the lapse of federal funding like other agencies because they receive a filing fee with most applications, which covers the bulk of their operational cost. Another good news is that the Department of Labor will also remain open. Although the DOL does not charge fees for its immigration-related applications, their funding has already been appropriated earlier in 2018. This means that prevailing wages, labor condition applications, and labor certifications necessary for certain employment-based petitions will not be affected.

The one area in immigration that has been impacted the most by this shutdown, however, would be the EB-5 investor program. Since its implementation in 1990, the EB-5 program has been a popular choice for many foreign investors interested in obtaining permanent residency through starting or buying a business in the U.S. The requirement is that the foreign national makes an investment of $1,000,000 or more in a U.S. business that will also create at least 10 jobs for American workers. If the foreign investor is willing to make the investment in a targeted employment area (TEA), such as an area with higher unemployment rate, the minimum investment amount gets lowered to $500,000. As other employment-based immigrant visas started to get bogged down with lengthy backlogs and frequent retrogression, especially for foreign nationals born in certain countries such as China and India, the EB-5 investor program has been gaining more popularity over the years. This is especially the case for the EB-5 Regional Center program. This program allows investors to make their investment in an already established economic unit called “regional centers” as approved by the USCIS, so foreign nationals who do not have the time or interest to find and manage a business on their own can still invest their money in a large scale project and benefit from the EB-5 program.

This popular program, however, is now facing an uncertain future due to recent the lapse of federal funding, making it one of the very few USCIS programs affected by the government shutdown. The EB-5 investor visa program itself does not expire, but the Regional Center program under EB-5 was scheduled to sunset on December 21, 2018. This Regional Center program has been successfully extended several times in the past years so the expectation was that the program will get another extension. But with the lack of federal funding, the EB-5 Regional Center program is on hold as of December 22, 2018 until further notice. The USCIS announced that it will continue to accept individual EB-5 petitions related to a regional center, but will not adjudicate them and will put them on hold for an undetermined length of time. It will also stop receiving applications for new regional center designations. This announcement will not affect investors affiliated with regional centers who already received approval on their petition. These investors can continue to file petitions to Remove Conditions on Permanent Resident Status even after the December 21, 2018 and the USCIS will continue to process them normally.

At this point, the future of the EB-5 Regional Center program is a bit unclear. Even if the program gets a temporary authorization after the federal funding gets released, discussions over amending the Regional Center program will continue. It is important to note that this only affects the Regional Center program of EB-5, and regular EB-5 petitions by individual investors are not affected at all.

For more information about the government shutdown, see here.