February 26, 2009

EB-4 Nonminister Religious Worker Program and EB-5 Pilot Investor Program Expiring on March 6, 2009

These two programs were extended until March 6, 2009 during the 110th Congress. Should the Congress fail to extend the programs again before March 6, 2009, USCIS has issued guidelines as to how it will process pending cases filed under these programs as follows.

EB-4 Nonminister Religious Worker Program: Individuals applying under the non-minister category of the program (including family members) must either adjust status to permanent resident or be admitted with an immigrant visa before March 6, 2009. The expiring category covers special immigrant religious workers in professional or non-professional capacities within a religious vocation or occupation, but does not include those workers entering the United States solely to carry on the vocation of a minister of a religious denomination. The expiration date also applies to spouses and children of these non-minister workers. USCIS continues to receive and process Special Immigrant Petitions (Form I-360) for those immigrant religious workers affected by the upcoming expiration date. USCIS is also, expeditiously processing Applications to Register Permanent Residence or Adjust Status (Form I-485), based on approved Form I-360 petitions for non-minister special immigrant religious workers. Absent a Congressional extension of the expiration date, USCIS will, beginning on March 6, 2009, suspend further processing of any pending Form I-360 and Form I-485 affected by the expiration date until further notice. Also, unless Congress extends the expiration date, USCIS will reject Form I-360 petitions, Form I-485 applications filed on or after March 6, 2009.

EB-5 Pilot Investor Program: The March 6, 2009 sunset date also affects all Regional Center Proposals, Immigrant Petition for Alien Entrepreneurs (Form I-526) and Applications to Register Permanent Residence or Adjust Status (Forms I-485) affiliated with Regional Centers relying on indirect job creation analyses. USCIS will continue to receive, process, and adjudicate as many Petitions as possible until the close of business on March 6, 2009. If the program date is not extended, affected Regional Center sponsors and certain Regional Center affiliated I-526 petitioners will not be able to benefit from indirect job creation under the expiring provisions as of March 7, 2009. No new Regional Center Proposals will be accepted as of March 7, 2009. All Forms I-526 received after March 6, 2009 must demonstrate that all ten jobs created will be direct, permanent, full-time (35 hours per week) jobs for qualified U.S. workers. Unless the program is extended, USCIS will hold unadjudicated/pending Regional Center proposals and Regional Center affiliated I-526 petitions that were received before the provisions sunset in abeyance for an indeterminate period of time pending further action by Congress. If Congress does not extend the program, final determinations will be made based on the evidence of “direct” job creation. The decisions will be made based either on the existing evidence of record or in response to a request for evidence, and denials will be issued for any pending Regional Center Proposals. USCIS has not made a final determination whether it may approve Regional Center affiliated adjustment of status applications after the provisions sunset and it will hold these Form I-485 applications in abeyance pending a final determination or Congressional action. If the sunset provisions are extended, adjudication of the held cases will resume promptly.