For the first time in 17 years the United States government has entered into a partial shutdown. All but “essential” government employees will be furloughed, and many government agencies will cease operation—including immigration agencies. Consequently, a number of aspects of the EB-5 process will be significantly delayed, or suspended altogether. Below is an outline of how the EB-5 process will be affected.

USCIS

• USCIS offices worldwide are OPEN. Investors can continue to file petitions and can expect pending petitions to be processed. In addition, individuals should report to any scheduled interviews and appointments. However, E-Verify will be unavailable.
  • The “three-day rule” for E-Verify cases has been suspended for cases affected by the shutdown. Note: This does not affect the Form I-9 requirement—employers must still complete Form I-9 no later than the third business day after an employee starts work for pay.
  • The time period during which employees may resolve Tentative Non-confirmations (TNCs) will be extended. Days the federal government is closed will not count towards the eight federal government workdays the employee has to go to SSA or contact DHS.
  • Employers may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case is in an extended interim case status due to a federal government shutdown.

 Additional Agencies

• The Department of State will carry on with normal operations as much as possible.
• The Office of Foreign Labor Certification (OFLC) will not process any applications or related materials.
• The Executive Office of Immigration Review (EOIR) has indicated that Court functions that support the detained caseload will continue, but other functions are suspended. The Board of Immigration Appeals (BIA) is processing emergency stay requests as well as cases where the alien is detained, including case appeals, motions, federal court remands, and bonds.