As we alerted previously, the U.S. federal government shut down at the end of the day on Dec. 21, 2018. Because the EB-5 regional program was not extended, government agencies such as USCIS and the U.S. State Department will no longer be able to approve adjustment of status (green card) applications and immigrant visas based on this program until the extension is passed and signed into law. Those investors whose immigrant-visa or adjustment-of-status interviews have been scheduled should expect that they may receive notifications of their cancellation. Importantly, if notification of cancellation of the interview is not received, investors and their family members should expect to attend their interview as scheduled, though it is likely that the Consular Post or USCIS may be unable to move forward due to visa unavailability. Investors should expect that their interviews will be rescheduled and immigrant visas and green cards granted once the program extension has been signed into law and the government shutdown has ended.
GT will continue to monitor the situation and provide updates as they become available.
On Jan. 3, 2019, the 115th Congress gaveled to a close, and the newly composed 116th Congress, with the House under control of a Democrat majority and the Senate continuing under Republican control, convened.
Appropriations legislation was among the first considered, with the House passing a bill that would open government by extending six outstanding agency Appropriations (see H.R. 21 for text) through Sept. 30 and fund the Department of Homeland Security Appropriation separately through Feb. 8 (see H. J. Res 1 for text). The main reason for the bifurcated treatment is the president’s insistence on $5.6 billion in border security enhancements, including walls and wall structures in the DHS Appropriations.
The package of legislation passed the House, with several Republicans joining Democrats.
Sen. Majority Leader Mitch McConnell (R-KY) has stated that the Senate will not consider any legislation that does not have the president’s agreement and support. As the House package does not have the support of the president, it is believed that this House-passed package will remain in legislative limbo for the unknown future. Without Senate action and a presidential signature (or potential veto override), the shutdown will continue, and EB-5 and other critical programs will remain suspended.
Ongoing negotiations will continue through the weekend in an effort to reach a solution. Please check back, as this matter will be updated.
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As an update to our blog on Dec. 24, USCIS has since clarified that while the EB-5 Regional Center Program expired at the end of the day on Dec. 21, 2018, due to a lapse in congressional authorization to continue the program, USCIS will continue to receive regional center-affiliated Forms I-526, Immigrant Petition by Alien Entrepreneur, and Forms I-485, Application to Register Permanent Residence or Adjust Status, after the close of business on Dec. 22, 2018. As of Dec. 22, 2018, USCIS will put unadjudicated regional center-affiliated Forms I-526 and I-485 (whether filed before or after the expiration date) on hold for an undetermined length of time. As we previously explained, and as is confirmed by USCIS in its update, all Forms I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, filed before or after the expiration date, will not be affected by the expiration of the program. Once further legislation is passed to extend the EB-5 Regional Center Program, USCIS will provide further guidance on affected cases.
The U.S. federal government shut down at the end of the day on Dec. 21, 2018, and the president did not sign into law the extension of the EB-5 program passed by the Senate. Until the shutdown ends, and the Regional Center EB-5 program extension is signed into law, no new I-526 petitions can be filed. To clarify, while EB-5 petitions may continue to be prepared, petitions cannot be mailed to USCIS until the conclusion of the shutdown and extension of the program. Please note, however, that investors must continue to file timely responses to USCIS Requests for Evidence (RFE) and Notices of Intent to Deny (NOID). In addition, investors may continue to prepare and file I-829 petitions.
With respect to the immigrant visa process, the State Department will cease to schedule new immigrant visa interviews until extension of the program is signed into law and the government resumes operations. If the interview was previously scheduled, and the Consular Post has not reached out to cancel said interview, the investor and family should still plan to attend. However, the immigrant visas will not be issued until the government resumes operations. The State Department will experience a significant slowdown and even cessation of all visa-issuing services during the period of the government shutdown. Furthermore, investors will be unable to file new DS-260 applications and supporting documents until the program is officially extended and the Visa Bulletin is updated.
With respect to the adjustment of status process, investors will be unable to file any new adjustment of status applications based on the I-526 petitions until the program is officially extended and the Visa Bulletin is updated. However, investors can continue to file renewals of employment authorization and advance parole, and should continue responding in a timely manner to USCIS’s RFEs relating to pending adjustment of status (I-485) applications. USCIS is unlikely to schedule any adjustment of status interviews until the conclusion of the shutdown and extension of the program.
The relatively smooth legislative waters of the U.S. Senate, which allowed for a six-week Continuing Resolution (CR) to pass on Dec. 19, ran into choppy seas in the House of Representatives. The Senate’s lack of funding for border security and the wall caused some factions in the president’s House majority party to rise and oppose the Senate bill. Throughout Thursday there were meetings, statements, and legislative activity. The result was a 59-page Continuing Resolution incorporating the Senate’s nine-page CR, with additional text providing for $7 billion in disaster funding in a new House CR, RULES COMMITTEE PRINT 115–88 TEXT OF THE HOUSE AMENDMENT TO THE SENATE AMENDMENT TO H.R. 695.
On Dec. 20, the House approved its CR version by a vote of 217-185. The measure now returns to the Senate for consideration. The current CR expires Dec. 21 at 11:59:59 p.m. We will continue to monitor this quickly moving situation.
The U.S. Senate filed Continuing Resolution, Senate amendment to H.R. 695 – Department of Defense Appropriations Act, 2018 [Further Additional Continuing Appropriations Act, 2019, legislation on Dec. 19 to extend government programs and operations through Feb. 8, 2019 and to prevent a partial government shutdown on Dec. 21.
From the Senate Appropriations Committee press release –
Temporary extensions included in previous CRs of expiring authorities:
- The National Flood Insurance Program, for the duration of the CR.
- The Violence Against Women Act, for the duration of the CR.
- The Pesticide Registration Improvement Act, for the duration of the CR.
- Temporary Assistance for Needy Families, for the duration of the CR.
- Immigration extensions (EB-5, E-Verify, Conrad 30 program for international medical school graduates, Special Immigrant Religious Workers program, and H2B returning worker authority for DHS), for the duration of the CR.
The Senate passed the Continuing Resolution late last night (Dec. 19). The legislation is pending consideration in the U.S. House. It is widely believed that Congress will present a Continuing Resolution to the president preventing a government shutdown or stoppage of critical programs, like EB-5, in a timely manner. We will continue to monitor this quickly moving situation.
The Department of State (DOS) January 2019 Visa Bulletin has resulted in mixed bag of retrogression for some and advancement for others. The EB-1 category moved forward approximately 3 months across the board. EB-3 China and India are both now at Dec. 15, 2016. The EB-2 category showed minor improvement for China to Aug. 1, 2015, but no movement at all for India, which is still set at April 1, 2009. It was a similar result in the EB-3 category, with China and India holding the same dates as last month’s Visa Bulletin. As mentioned in our November blog post, the EB-3 India final action date moved very rapidly over the past year, advancing almost a year and a half. The static nature of the past two months may reflect the continued processing of EB-3 India visa applications. In the EB-5 category the date for the non-regional center categories of China advanced to Sept. 1, 2014, and Vietnam advanced to June 1, 2016. The date for Vietnam in the EB-5 category has now advanced in this fiscal year from Jan. 1, 2016, in October 2018 to June 1, 2016, in this visa bulletin.
As has happened repeatedly in the recent past, the EB-4 religious workers and regional center EB-5 categories are listed as unavailable because the laws authorizing those categories are due to expire after midnight Dec. 20, 2018, and Dec. 21, 2018, respectively. Accordingly, no EB-4 religious workers visa may be issued, or a final action taken on an adjustment of status application, after midnight Dec. 20, 2018. Further, individuals seeking admission in this category must be admitted into the United States no later than midnight Dec. 20, 2018. If Congress, reauthorizes this category as is expected, the final action date would be current for all countries except El Salvador, Guatemala, and Honduras, which will be set at Feb. 22, 2016, and Mexico, which will be set at April 15, 2017.
Similarly, no EB-5 regional center visas may be issued, or a final action taken on an adjustment of status application, after Dec. 21, 2018. If Congress, reauthorizes this category as is expected, the final action date would be current for all countries except China and Vietnam. The China and Vietnam dates would be set at the same date as the nonregional center category, which is listed above. GT will be closely monitoring these advancements as they unfold.
Final Action Dates for Employment-Based Preference Cases
As an update to this reporting- House Introduces Two-Week Continuing Resolution to Extend Vital Programs such as EB-5, on Dec. 6, the House passed H.J. Res 143 – FY 2019 Continuing Resolution Through December 21, 2018, by unanimous consent. The measure proceeded to the Senate and was approved by unanimous consent approximately one-hour after passing the House.
Today, around 10 a.m., the House Appropriations Committee announced on Twitter that the President had signed the CR into law –
Congress will continue negotiating the year-ending, session-ending fiscal measures and we will continue tracking. Check back for further updates.
In the matter of Huashan Zhang, et al. v. United States Citizenship and Immigration Service, et al. (United States District Court for the District of Columbia, Nov. 30, 2018), plaintiffs challenged the decisions of the United States Citizenship and Immigration Service (USCIS) to deny their EB-5 immigrant investor visa petitions based upon USCIS’ erroneous interpretation of its own regulation. Plaintiffs also challenged USCIS’ denials of their petitions as violative of the Administrative Procedure Act (APA) and Immigration and Nationality Act (INA). Furthermore, plaintiffs moved for certification of a class.
Although it is too early to know if USCIS will appeal the decision or if other district courts will follow the ruling of the District of Columbia, as it stands, this is a significant decision favorable to EB-5 investors. The court found that USCIS’ interpretation of the term “capital” is “plainly erroneous, and its denials based on that interpretation are arbitrary and capricious.” (See Opinion at page 43). The court further found that USCIS violated the APA’s notice and comment requirement, as its interpretation was a legislative rule rather than an interpretative rule or statement of policy. In addition, plaintiffs’ motion for certification of a class was granted with certain modifications to the class definition; the modifications affect those petitioners whose petitions were denied solely based upon USCIS’ flawed interpretation as described in the USCIS Immigrant Investor Program Office’s released remarks on April 22, 2015.
To read the full GT Alert, click here.