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How can I apply for EB-5 after starting a business on an EAD?

I already filed my I-485 application under EB-2 India, but it will take at least three years to reach my priority date due to the backlog. I am currently working on H-1B. Since I already have an EAD based on my pending I-485, I want to start a business on the EAD, and I will most likely invest less than $500,000. Can I later use this investment towards the EB-5 minimum direct investment requirement? Can I apply for EB-5 to maintain my legal status if I get laid off?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Filing an I-526 petition will not afford you any lawful immigration status in the United States. It is highly recommended to continue maintaining your H-1B status while an adjustment of status application is pending with USCIS. An EAD based on a pending AOS gives you authorization to work outside your current employer and you can invest capital over time to qualify for the required amount of investment. However, given the current processing times of about 17 months for I-526s and given the fact that you already have a pending AOS based on an approved I-140, it may not necessarily be worth going the EB-5 route and a possible conditional residence based on EB-5 rather than permanent residence based on the approved I-140 through your employer. You may extend your H-1B for three years at a time while your AOS is pending.

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    Charles Foster

    Immigration Attorney
    Answered on

    Yes, theoretically you could lawfully start a business while on your EAD in the United States and invest, and once you have brought up the investment to $500,000 and you can trace the total investment back to a lawful source of funds and show that you have created 10 jobs for U.S. workers, you could file a direct EB-5 I-526 petition if you meet all the other legal requirements. Filing the I-526 petition does not allow you to maintain lawful status unless and until the petition is approved and you can file for adjustment of status, but you must be in lawful status to file for adjustment of status on Form I-485.

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    John J Downey

    Immigration Attorney
    Answered on

    Filing for EB-5 does not grant you any status in the United States. Your EAD card would allow you to work on a project and your investment could be used toward your fulfilling the $500,000 qualification.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    In order to qualify for EB-5, you must invest the full amount of required capital (currently $500,000 in a business located in a TEA). You cannot invest less than the required amount and "grow the business" into being worth more than $500,000. Retained earnings do not qualify for EB-5 investment. You would have to take the earnings out as profit, pay tax on them, and reinvest them in the business (which does not make a whole lot of sense, but I am not a tax expert). You can invest the capital over time; it does not have to be invested all at once. So, you could invest $250,000 now, for example, and then $250,000 in two years and still potentially qualify for EB-5 if you meet all of the other requirements. Salary earned while you are legally working (under your EAD) in the United States would be considered lawfully obtained capital, so you could use that. If you were working without authorization, however, you could not use those earnings. An I-526 petition (filing or even an approval), by itself, will not keep you in status. You would have to have an approved I-526 with a current priority date and be able to file your I-485 adjustment of status in order to remain in the United States lawfully.

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    Jack C Sung

    Immigration Attorney
    Answered on

    No you cannot because you will invest less than $500,000. The EB-5 application, even if you invest in the lowered Targeted Employment Area (TEA), would require a $500,000 or more investment and the creation of 10 jobs.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If you plan to invest $500,000 you can file for an EB-5 now, and since there is no waiting line for EB-5 Indian-born, you will likely be able to process your green card much quicker. You need to meet with an experienced immigration lawyer who can structure the EB-5 investment to be compliant. You have a potential door open that will protect you in the event your employer pulls out, and you cannot port to the same or similar employment, or self-employment in the same filed.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    If you only have three years with an already-filed I-485, it may not be worth it to invest $500,000 or more and having that tied up for at least 5-6 years to get the green card through EB-5. Given that EB-5 cases take so long these days - 16+ months for normal I-526 adjudication - you will save perhaps one year? Meanwhile, your H-1B could be extended for three years at a time since you have the I-140 approval.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Concurrent immigrant petitions are allowed to be submitted. With EB-5, you have to wait until the I-526 is approved before applying to adjust status (and the I-526 now takes 17 months to be approved). Working with an immigration attorney will help you determine the best options for you based on your current situation and future goals.

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