BY KATE KALMYKOV
At midnight this morning, the United States government entered into a partial government shutdown. As a result, nearly every federally run agency has had to scale back operations in some way. The obvious question among those involved in the EB-5 process is how this shutdown will affect them. Fortunately enough, U.S. Citizenship and Immigration Services (USCIS) has not been significantly affected by the shutdown. USCIS offices around the world will remain open, meaning EB-5 Investors can continue filing petitions and pending EB-5 petitions will continue to be processed.
However, during the shutdown E-Verify the optional government program used to verify the work eligibility of new hires often used by EB-5 businesses employing a direct approach will be unavailable. In response, USCIS has issued several policy changes: The “three day rule” is suspended for any case affected by the shutdown. Employees looking to resolve Tentative Non-Confirmations (TNCs) of work eligibility status will now have an extended time period with which to do so. And, employers are prohibited from taking action against an employee because of their E-Verify interim case status—including when an employee’s case is in an extended interim case status due to the shutdown. Employers should note that the suspension of E-Verify will not affect the Form I-9 requirement, which will remain in effect pursuant to the provisions of the 1986 Immigration Reform and Control Act (“IRCA”). Employers are still required to complete the I-9 no later than the third business day after an employee begin working for pay.
Furthermore, some government agencies also responsible for administering immigration benefits will halt some or all of their regular business. The Office of Foreign Labor Certification (OFLC) has said that they will not process any applications or related materials during the shutdown. The Executive Office for Immigration Review (EOIR) has indicated that will continue Immigration Court functions that support the detained caseload, and 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. The Department of State has indicated that they will carry on with regular operations as much as possible.
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