+1-800-997-1228
Questions & Answers

Can an illegal immigrant qualify for an EB-5 visa?

My wife and I entered the United States illegally and currently do not have legal status. I own and operate a restaurant and have accumulated wealth. Could my wife and I qualify for an EB-5 visa?

Answers

  • Avatar

    Philip H Teplen

    Immigration Attorney
    Answered on

    Unfortunately, you still have a problem with the illegal status. We should chat to se if you can qualify for a waiver.

  • Avatar

    Roberto Ortiz

    Immigration Attorney
    Answered on

    Unfortunately, if you are out of status you will not be eligible to apply for the EB-5 visa. If you have any other questions, please do not hesitate to contact me. Thank you.

  • Avatar

    Christina Corbaci

    Immigration Attorney
    Answered on

    Unfortunately, it is unlikely that you would qualify for permanent residency through the EB-5 program in your situation. This is because even though an I-526 Petition may be approved (the first step in the process), when it comes time to apply for adjustment of status to permanent residency, you would face a number of bars. If you are not currently in lawful status, you cannot adjust to permanent resident status (unless you were the beneficiary of an I-130 or I-140/labor certification filed prior to April 30, 2001). Even if you left the U.S. and applied for an immigrant visa abroad based on the approved I-526, you would face a ten year bar on re-entering due to your prior unlawful presence. This ten year bar could only be waived if you have a US citizen or lawful permanent resident spouse or parent who you can demonstrate would suffer extreme hardship if you were not allowed to return to the U.S. In short, it would depend on your particular situation, but unless you have one of the circumstances I mention above, I think it is unlikely you could benefit from the EB-5 program.

  • Avatar

    Clem Turner

    Securities Attorney
    Answered on

    I do not believe you can qualify for an EB-5 Visa, as you must either be out of the country or apply to change the status of the visa you currently hold. You should speak with an immigration attorney to ascertain all options available to you.

  • Avatar

    Lynne Feldman

    Immigration Attorney
    Answered on

    In theory yes but at the next stage you will need to either show 245(i) eligibility or consular process with a waiver which means a qualifying relative. We would be happy to consult with you and get the details to properly advise you.

  • Avatar

    Margo Chernysheva

    Immigration Attorney
    Answered on

    In order to actually receive a Legal Permanent status, investor has to have a legal status in the US to adjust or has to be outside the US and have no entry bars. In your case, as you entered illegally and most likely have accumulated illegal presence, it will make you inadmissible and hence you won''t be able to qualify for an immigrant visa through EB5. Your best chance is to wait for an immigration reform and see if you can qualify for something as a part of the currently discussed immigration reform. Good luck.

  • Avatar

    Lei Jiang

    Immigration Attorney
    Answered on

    No. You will not receive benefit from EB-5 program. At this time you will not be eligible for conditional green card.

  • Avatar

    Karen Weinstock

    Immigration Attorney
    Answered on

    Unfortunately you will not be able to obtain permanent residence through this route under current laws.

  • Avatar

    Julia Roussinova

    Immigration Attorney
    Answered on

    Funds earned from activity in the US without a proper employment authorization will not be considered lawful source of funds to qualify for EB-5 visa, unless your funds are earned lawfully, such as lawful source of income outside the US, sale of property, gift, inheritance, dividend or capital distribution, or loan. Because you have entered without inspection and unlawfully in the US, you will not be able to adjust status to a conditional permanent resident even if your I-526 petition is approved, unless you qualify for Section 245(i) protection. If you depart the US to consular process an immigrant visa, you will be subject to a 3- or 10-year bar depending on whether you have been in the US unlawfully in excess of 180 days or 365 days. You may or may not qualify for a waiver. Facts are not sufficient. You should contact a licensed immigration attorney to review your specific situation to determine if you may qualify for a waiver before you apply for EB-5. Should you have further questions, please do not hesitate to set up a consultation with our office.

  • Avatar

    Gregory Romanovsky

    Immigration Attorney
    Answered on

    Thank you for your question. While nothing prevents you from investing and filing the I-526 petition with the immigration service, it sounds like you won''t be able to take advantage of that even if it is approved. If you entered illegally, you are most likely ineligible for adjustment of status and if you leave the country to consular process, you will be hit with a 10-year bar on reentry. It may be better to wait and see what happens with the immigration reform plans in Congress. Feel free to call us if you want to discuss this further.

  • Avatar

    Elizabeth Krukova

    Immigration Attorney
    Answered on

    EB-5 is an employment based immigration category, which are not exempt from the requirement of being in legal status when applying. So, unless there is some exception that applies to your case, EB-5 itself is not an exception.

  • Avatar

    Jinhee Wilde

    Immigration Attorney
    Answered on

    This could be tricky. You may not adjust (I-485 application after I-526 approval) to receive the green card while you still remain in the U.S. since you do not have any status. We may consider doing the consulate processing after returning back to your home country, if we could overcome the 3 and 10 bar for unlawful presence and utilize the new 601c waiver rule. Lastly, the issue of how you accumulated wealth also may be an issue since your assets were earned in U.S. while you were living here illegally. This will require some research and brainstorming with your immigration lawyer.

  • Avatar

    Laura A Edgerton

    Immigration Attorney
    Answered on

    You may qualify for an EB-5, but the problem you will have is completing the process through adjustment of status or consular processing. Extended periods of unlawful presence currently have a negative impact on your ability to become a permanent resident. I would recommend that you talk to an immigration attorney about your situation to find out if you may qualify.

  • Avatar

    Ed Beshara

    Immigration Attorney
    Answered on

    Based upon the facts, by being out of status you and your spouse can not apply for adjustment to conditional permanent residency. Also if you left the U.S. you and your spouse will not be successful in applying for conditional permanent residency through the U.S.consulate. That is, on the assumption you have been in unauthorized status in the U.S. for more than 6 months you and your spouse will be subject to a 3 year bar from the U.S. (unauthorized for more than 1 year subject to 10 year bar). Unless you can obtain a Waiver of the 3/10 year bar you will not be able to obtain the CPR.

  • Avatar

    Christian Schmidt

    Immigration Attorney
    Answered on

    An EB-5 petition is not an option for you because you will have to leave the US and apply for an immigrant visa once your immigrant petition is approved. By leaving you will trigger a 10 year bar the prevents you from being granted a visa. There is no waiver of the bar for investor and you would have to wait 10 years before you can receive the visa.

  • Avatar

    Charles H Kuck

    Immigration Attorney
    Answered on

    No, because you will have to depart the US for 10 years because of your unlawful presence.

  • Avatar

    Reza Rahbaran

    Immigration Attorney
    Answered on

    Prolonged unlawful status in the United States will prevent you from qualifying for the EB-5 visa. For further information please contact Rahbaran & Associates.

  • Avatar

    Rebecca White

    Immigration Attorney
    Answered on

    Unfortunately, the answer is no. There may be some other possible options to consider depending upon the specifics of your situation. I would be happy to set a consultation with you.

  • Avatar

    Susan Pilcher

    Immigration Attorney
    Answered on

    Funds accumulated from unauthorized employment in the U.S. cannot be used for EB-5 investment. Additionally, there are barriers to adjustment of status from inside the U.S. if you entered without inspection and are out of status, and departure from the U.S. can trigger barriers to reentry. So while it is legally possible for undocumented persons to secure I-526 petition approval, getting the green card may be very difficult. You should consult a knowledgeable immigration attorney who can evaluate all of your circumstances.

  • Avatar

    Alexander Lebedinski

    Immigration Attorney
    Answered on

    Being in the U.S. illegally should not bar filing an EB-5 petition, but will not allow you to automatically adjust status to a U.S. permanent resident or get an immigrant visa at a U.S. Consulate, even if your investment qualifies for EB-5. Depending on your situation, you may or may not be eligible for a waiver, and be eligible for an immigrant status (assuming no other issues) only if the waiver is approved and your illegal presence is ''forgiven.'' You should also consider that by filing for EB-5, USCIS would get information about you and your business, and there is a chance it (or ICE) would come knocking on your door.

  • Avatar

    Steven Anapoell

    Securities Attorney
    Answered on

    Generally, money earned without employment authorization is not considered lawful. Also, there is a separate problem of being eligible for the green card after the I-526 is approved. If they entered without inspection, they would not qualify for the green card.

  • Avatar

    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    If you entered the United States illegally, you are not eligible to adjust your status in the United States unless you are grandfathered under INA Section 245(i), which required that you have an immigrant petition or labor certification filed on your behalf (or your wife?s behalf) prior to 04/30/2001 AND that you were physically present in the United States on December 21, 2000. If you cannot take advantage of INA Section 245(i), then the only way you can obtain an immigrant visa (through an approved I-526/EB-5 petition or any other immigrant petition), is to leave the United States and consular process at the U.S. embassy or consulate in your home country. However, if you have been unlawfully present in the United States for more than 180 days and then leave the United States, you are barred from reentry for three years. Likewise, if you have been unlawfully present in the U.S. for more than one year and then leave, you will be barred from reentry for ten years.

  • Avatar

    Rakesh Mehrotra

    Immigration Attorney
    Answered on

    Sorry, the EB 5 program does not provide any special benefit to illegal immigrants.

  • Avatar

    Daniel A Zeft

    Immigration Attorney
    Answered on

    If a foreign national gains wealth while he or she does not have legal status in the United States, then such wealth cannot become part of an EB-5 investment.

  • Avatar

    Stephen Berman

    Immigration Attorney
    Answered on

    You may qualify for the visa, but you would have to leave the U.S. to get it, and you would be barred from returning for 10 years unless you qualify for a waiver.

  • Avatar

    Daniel P Hanlon

    Immigration Attorney
    Answered on

    Potentially, however, you must determine whether you would be eligible to adjust status or obtain an immigrant visa based on an approved I-5267 Petition before making any decisions.

  • Avatar

    Mona Shah

    Immigration Attorney
    Answered on

    To qualify for the EB5 visa, an investor cannot be out of status. The only way around this is if the investor qualifies for 245(i). There could be an issue with the source of funds. The funds must be earned lawfully and there are cases that suggest that a person out of status cannot lawfully earn money. However, there are ways to get around this. I suggest that you take advice from an attorney who is familiar with deportation as well as EB5.

  • Avatar

    Larry J Behar, Esq

    Immigration Attorney
    Answered on

    I am afraid that EB 5 is not a good alternative to stabilizing your US status.

  • Avatar

    Jeffrey E Campion

    Immigration Attorney
    Answered on

    Most likely, no. But there could be ways. It requires more in depth analysis and I am not sure if the money earned in the US will count.

  • Avatar

    Kenneth Byrd

    Immigration Attorney
    Answered on

    Yes, but you still may be subject to the 3/10 year bar unless you provide a waiver.

  • Avatar

    Grant Kaplan

    Immigration Attorney
    Answered on

    Thank you for your enquiry. You may well qualify for an EB-5 visa, but on the circumstances given, you may have to leave the USA and apply for a waiver for your overstay, etc. Please contact us for more information and we can take it from there.

  • Avatar

    Neville M Leslie

    Immigration Attorney
    Answered on

    No, an illegal immigrant cannot qualify for an EB-5 visa.

  • Avatar

    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    Such cases have been approved but lately immigration appears to take the position that the income was not lawfully earned. Also, unless you have section 245 (i) protection, when you leave you may trigger a 10 year bar to reentry.

Add your comment

Use a Facebook account to add a comment, subject to Facebook's Terms of Service and Privacy Policy. Your Facebook name, photo & other personal information you make public on Facebook will appear with your comment.