What happens when the government shuts down and its effect on EB-5 Program

January 9, 2019, Adhikari Law, PLLC. A partial government shutdown is currently in effect. Approximately 25 percent of government functions are shut down. Immigration-related agencies that are impacted by the shutdown include the Department of Homeland Security and its immigration-related components (CBP, ICE, USCIS, CIS Ombudsman), the Department of Justice (EOIR), and the Department of State. EB-5: Bureau of Consular Affairs has published the January 2019 Visa Bulletin. The EB-5 Regional Center category has been listed as “U” meaning unauthorized for issuance. The continuing resolution that was signed on December 7, 2018 extended EB-5 Regional Center Program authorization until December 21, 2018. As such the EB-5 visa category is currently listed as “Unavailable” for January. However, if there is legislative action extending the Program into 2019 the final action dates would immediately become “Current” for all countries except China-mainland born which would be subject to a September 1, 2014 final action data and Vietnam which would be subject to a June 1, 2016 final action date. DOL: Is NOT impacted by this government shutdown. On September 28, 2018, President Trump signed an omnibus appropriations bill funding DOL through the end of September 30, 2019. SSA: According to the SSA Contingency Plan for FY2019, during a shutdown the SSA would “except” 53,000 employees in order to maintain key functions including issuing of original and replacement Social Security number cards. E-Verify: E-Verify and related services are generally suspended. CBP: The CBP website is not being “actively managed” and was last updated on December 21, 2018. DOJ Civil Litigation: Civil litigation is “curtailed or postponed to the extent this can be done without compromising to a significant degree the safety of human life or the protection of property.” General Shutdown Information Based on Previous Shutdowns General Shutdown Information: Generally, if the government closes for budgetary reasons, all but “essential” personnel are furloughed and are not allowed to work. The following is an overview of how the immigration-related agencies have operated during prior shutdown periods. This assumes that: USCIS: USCIS is a fee-funded agency so if the government shuts down, it is generally business as usual. The exception to this is those programs that receive appropriated funds – E-Verify, the EB-5 Immigrant Investor Regional Center Program, Conrad 30 J-1 doctors, and non-minister religious workers, which are suspended or otherwise impacted. In the past, when the government reopened, USCIS accepted late I-129 filings provided the petition was submitted with evidence that the primary reason for failing to timely file an extension of stay or change of status request was the government shutdown. DOS: Visa and passport operations are fee-funded and should not be impacted by a lapse in appropriations, but operating status and funding will need to be monitored closely. If visa operations are affected, consular posts will generally only handle diplomatic visas and “life or death” emergencies. CBP: Inspection and law enforcement personnel are considered “essential.” Ports of entry will be open; however, processing of applications filed at the border may be impacted. ICE: ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees. EOIR: Immigration court cases on the detained docket will proceed during a lapse in congressional appropriations while non-detained docket cases will be reset for a later date when funding resumes. Courts with detained dockets will receive all filings but will only process those involving detained dockets. Courts with only non-detained dockets will not be open and will not accept filings. Members may want to check with their local chapters for court-specific instructions. DOL: The OFLC would cease processing all applications in the event of a government shutdown, and personnel would not be available to respond to e-mail or other inquiries. OFLC’s web-based systems, iCERT and PERM, would be inaccessible, and BALCA dockets will be placed on hold. CIS Ombudsman: The DHS Office of the CIS Ombudsman would close and would not accept any inquiries through its online case intake system. ---------------------------------------------- Note: This is a blog post by attorney Niranjan Adhikari, Adhikari Law PLLC, Washington, DC and should NOT be construed as a legal advice. The materials appearing on this are attorney advertising. This site is NOT intended to create an attorney-client relationship. If you or your employer want to learn more about this and other immigration law topics do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 459 2105, or email us at info@adhikarilaw.com

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