by Kate Kalmykov and Gianna Bove
If you were to ask the son of an EB-5 investor whose petition I was recently preparing his opinion on filing fees, he just might say that they are, in fact, a very good thing. Why? Because during the government shut-down we were still able to file his father’s petition before he “aged out,” which would have rendered him ineligible to immigrate with his family by virtue of his father’s investment. It was not until the recent federal government shut down in October of this year that the benefits of working with a fee-based agency became readily apparent.
When Congress failed to pass spending bills, all functions of agencies that run on government dollars came to a screeching halt. Those who work in and otherwise hold a stake in the immigration community, like the EB-5 investor’s aging-out child, were left wondering how this shutdown was going to impact the processing of immigration applications and petitions.
Luckily for the EB-5 investor’s son, EB-5 petitions are received by U.S. Citizen and Immigration Services (USCIS), a fee-based agency that uses the funds it collects for its services to entirely support its operations. During the shutdown, USCIS remained opened, accepted petitions and applications, and issued adjudications on pending petitions and applications. This meant that applicants submitting documentation to USCIS could at least meet the hard deadlines. In my EB-5 investor’s case, his son would still be able to qualify under the program’s guidelines. While USCIS was able to keep the processing of applications and petitions moving, it was slowed due to the agency’s interdependence on the Department of Labor (DOL).
Unlike USCIS, the DOL is a government-funded agency and was therefore forced to close during the shutdown. No PERMs, labor condition applications, prevailing wage requests or applications for temporary labor certification were processed during the shutdown. Additionally, the PERM and iCERT websites were not accepting applications nor were applications being accepted by mail. No deadlines could be met and the processing times were slowed dramatically. Because iCERT, the system that electronically processes Labor Condition Applications (LCA), was not accepting applications, H-1B petitions, which are standardly reviewed by USCIS, were affected. The LCA is the first step in preparing an H-1B petition and without iCERT functioning, it was impossible for USCIS to process any new H-1B cases until the funding was restored. This issue forced workers into undocumented status and made employers unable to file applications for new workers.
While fees may be viewed as one of the many hurdles foreign nationals have to overcome in order to become permanent citizens, it is now clear that fees can be beneficial. If USCIS did not charge a fee, my EB-5 investor’s son would not have been able to immigrate under his father’s Investment and would have had to make his own $500,000 investment to be eligible for a green card. Just goes to show, you do get what you pay for!