The COVID-19 pandemic ripped through the world mercilessly in 2020, leaving economies and livelihoods across the globe in ruin. Even now in January 2021, the pandemic rages on, with strict lockdowns and rigorous border restrictions from the UK to Japan. The EB-5 Immigrant Investor Program and the thousands of foreign nationals involved in active EB-5 investments were not spared, as the pandemic-induced temporary shutdowns of U.S. embassies and consulates effectively halted the issuance of new EB-5 green cards.
The development and distribution of COVID-19 vaccines, which, as of January 2021, is already being rolled out in developed countries with strong health care systems, such as the United States, is expected to curb the debilitating impacts of the crisis and trigger a much-awaited return to normal life. However, a large-scale vaccination initiative sufficient to bring about herd immunity is likely to be lengthy, and the ultimate result depends largely on the effectiveness of the vaccines.
Until the pandemic has finally subsided and the world can get back to living, those involved in EB5 investments will need to adjust to the ever-changing circumstances as they progress toward a better life in the United States. Unforeseen obstacles are likely in the midst of the COVID-19 pandemic, but fortunately, United States Citizenship and Immigration Services (USCIS) has introduced special accommodations for EB-5 investment participants affected by the COVID-19 pandemic or the resulting restrictions.
The various shutdowns resulting from the pandemic can delay—or, in some cases, render impossible—the execution of certain tasks, even though that may be necessary for the EB5 investment journey. The unpredictable nature of the pandemic further means that new lockdowns or restrictions could be implemented at any time, potentially cutting off an EB-5 investor’s access to resources.
USCIS has responded to this unprecedented period of uncertainty with deadline extensions for requests for evidence (RFEs), notices of intent to deny (NOIDs), and certain other notices the agency sends. Anyone who receives an RFE or NOID between March 1, 2020, and January 31, 2021, is given an extra 60 calendar days to compile and submit a response. Note that the deadline indicated on the notice will be the regular deadline—simply add 60 days to determine the due date under the extended deadline.
Case-By-Case Considerations for Extenuating Circumstances
Various problems related to EB-5 investment and immigration can arise as a result of the COVID-19 pandemic at no fault of the individual investor. USCIS has taken a compassionate stance on such cases, stating it will consider extenuating circumstances on a case-by-case basis.
As an example, the pandemic could impact the ability of a foreign national residing in the United States and participating in an EB5 investment domestically to extend or change their immigration status as initially anticipated. Such an EB-5 investor may present their case to USCIS, who may deem their action or lack thereof as justified given the special circumstances. USCIS added that it may excuse delays in changing or extending immigration status if the delay was similarly due to special circumstances.
Accommodations for Missed Interviews or Biometrics Appointments
As scores of EB-5 investment participants experienced in 2020, attending a visa interview or biometrics appointment is often impossible in the new era of COVID-19. Acknowledging this limitation, USCIS has taken to offering accommodations for those who have missed certain interviews or biometrics appointments as a result of COVID-19 circumstances.
USCIS stresses that EB5 investment participants should aim to make their appointments but recognizes the pandemic could present unsurmountable obstacles to doing so. For example, if an EB-5 investor tests positive for COVID-19 or develops symptoms reflective of COVID-19, USCIS will deny them entry to its facilities. The immigration body similarly advises anyone with an illness similar to COVID-19, such as a cold, to cancel their appointment and reschedule. USCIS will not penalize anyone for rescheduling their appointment for illness-related reasons.