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How do applicant qualifications differ for EB-5 versus F-1 visas?

I was arrested for a "Resisting Law Enforcement" Class A Misdemeanor in the United States in 2011 and recently I came back after renewing my F-1 visa. Now I would like to know if I am able to get an EB-5 visa, considering my U.S. criminal record, as I feel that applying for EB-5 is different from simply getting a student visa. If I qualified for the F-1 renewal with a misdemeanor, will I also qualify for an EB-5 visa? What are the minimum qualifications for EB-5 visa applicants versus F-1?

Answers

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    Barbara Suri

    Immigration Attorney
    Answered on

    In respect to the Class Misdemeanor, there is no difference. If you qualified for the F-1 visa, you will also qualify for the EB-5 visa.

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    John J Downey

    Immigration Attorney
    Answered on

    The difference being an F-1 is a non-immigrant visa while EB-5 is an application for an immigrant visa. The requirements are stricter for an immigrant visa. However, I believe the Misdemeanor conviction should not preclude you from applying for EB-5 status. You may wish to inquire from an attorney licensed in the state where the offense happened to determine if the violation falls under the category of a crime involving moral turpitude.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    I would expect you will be fine, but best to have an immigration attorney review the actual criminal documents for any issues of inadmissibility.

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    Rachel Lew

    Immigration Attorney
    Answered on

    To qualify for being an EB-5 investor, an individual or a married couple must have a net worth of $1 million, or individual income of $200,000 or more, or a minimum joint income of $300,000, in each of the two previous years; and has future income and assets of a reasonably expected comparable level. The process begins with a successful I-526 petition approval, which requires the showing of the followings: a.. Evidence that the investor has invested in a "for profit" new commercial enterprise as defined by 8CFR section 204.6(h); b.. Evidence that the investor will be actively involved in the management of the new commercial enterprise (day-to-day or through policy); c.. Evidence that the investor has invested or is in the process of investing the amount required ($1 million or $500,000) [there may be an increase of the required amount after 09/30/2015 to $800,000 or $1,200,000]; d.. Evidence that the investment funds were obtained through lawful means and that the capital used was legally acquired; e.. Evidence that the new commercial enterprise will create at least 10 full-time positions - not including yourself, your spouse, sons or daughters, or any temporary or nonimmigrant workers, or individuals who are not authorized to work in the United States by submitting a comprehensive business plan. EB-5 visa differs from an F-1 visa in that it is an immigration visa rather than a non-immigrant visa. A foreign national is inadmissible to the United States if s/he has been convicted or, or who admits having committed, or who admits committing acts which constitute the essential elements of either (1) a crime involving moral turpitude; or (2) an offense relating to a controlled substance. Although a foreign national has been successful in getting the F-1 visa renewed after committing a Class A Misdemeanor, it may still carry immigration consequences that the EB-5 immigrant visa application gets denied as a result of the criminal background check in the application process. Whether a Class A Misdemeanor constitutes a conviction for immigration purposes depends on how the matter was resolved. If a foreign alien entered a plea of guilty or there was a finding of guilt and the court has ordered any kind of penalty or restraint, including probation, a conviction has occurred for immigration purposes even if it is not a conviction according to the state law where the offense took place. Also, a guilty plea plus imposition of probation, fee, jail or counseling requirement will equal a conviction for immigration purposes, even if the plea is later withdrawn upon successful completion of these requirements. However, an acquittal or dismissal under a pre-plea diversion program (not a deferred prosecution, verdict, or sentence) does not constitute a conviction for immigration purposes. Absent more facts on the resolution of this Class A Misdemeanor and the totality of circumstances surrounding the "Resisting Law Enforcement" charge, the outcome of an EB-5 visa application cannot be assessed.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    You must disclose the arrest on all immigration forms and applications, but it is unlikely that such a crime would make you inadmissible to the United States. You should obtain a court-certified disposition document and review it with an experienced immigration attorney to determine your options. EB-5 and F-1 are very different categories, so the requirements are quite different.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    After the I-526 approval, when applying for the visa itself or adjustment of status, you will need to fully disclose the details of the arrest and any results/final determinations.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    EB-5 is an immigrant visa where you are able to obtain permanent residency (green card). Once your conditional residency is approved after filing the I-526 and that condition gets removed after filing the I-829 two years later, then you are able to live and work anywhere in the United States permanently. The only thing that you cannot do is vote. F-1 is a non-immigrant visa and the visa is only good while you are enrolled and attending school. Once your studies are done, you are expected to leave the United States unless you have changed or adjusted your status to another visa category, such as EB-5. As to your misdemeanor record, if it was a criminal record that makes you inadmissible, you would not have been allowed to get the visa under F-1. Any criminal record that makes you inadmissible is the same for any visa category, not just F-1 or EB-5. Therefore, the fact that you were allowed back in under the F-1 recently makes you eligible to obtain EB-5 also if you invest the requisite amount in a project that creates 10+ full-time permanent jobs using your investment and you could prove the legal source of funds for that money.

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