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How should an asylum applicant start the EB-5 process?

Can an asylum applicant apply for a green card through EB-5? If the answer is yes, which route would lead to a green card faster? How should the asylum applicant begin the EB-5 process? The applicant is from Indonesia. Thank you!

Answers

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    Ed Beshara

    Immigration Attorney
    Answered on

    The filing and adjudication of the I-526 petition may take 24 months. Once approved, the foreign national can apply for conditional permanent residency in the U.S. only if the investor has maintained their non-immigrant status in the U.S. Obtaining a green card through Asylum may take several years.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    An asylum applicant should have a comprehensive consultation with an immigration attorney prior to investing and filing an I-526 petition. There are several issues here. An asylum applicant is generally in the US in an authorized period of stay while awaiting adjudication of his or her asylum case. “Authorized period of stay” is different from an immigration status. In order to adjust to a green card holder in the US after the approval of the I-526 petition, a petitioner must have maintained a lawful underlying immigration status. This will be problematic for the asylum applicant. Alternatively, you need to ensure an asylum applicant can consular process for an immigrant visa abroad after approval of I-526 petition, and is not subject to inadmissibility issues and 3- or 10-year bars.

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    Charles Foster

    Immigration Attorney
    Answered on

    An asylum applicant is free to file an EB-5 investor petition on Form I-526 at any time. There is always a significant advantage with EB-5 given the fact that it is highly predictable, and the prospective investor has the option of investing in a number of very solid projects which have prior approvals and an approval track record in terms of repaying investors. The asylum process is inherently discretionary and is not nearly as certain. The problem may be that, if the asylum applicant is out of status, even if the I-526 petition is approved, that could be a bar to adjusting status and obtain Permanent Residency in the U.S. If the asylum applicant has been out of status for more than 6 months, he could be subject to a 3-year bar and if out of status for more than a year, a 10-year bar should he or she departs the U.S. to apply for their immigrant visa at the American Embassy in Jakarta.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    In order to receive conditional permanent resident status (the two-year green card) after I-526 approval, the EB-5 investor must either adjust status in the United States or do immigrant visa processing at the U.S. embassy or consulate in his or her home country. The issue for asylum applicants is that they usually are not in a valid nonimmigrant status, so they cannot adjust status in the United States. Also, they cannot return to their home countries because they have a well-founded fear of persecution there. If a third country consulate could accept jurisdiction over the person's immigrant visa processing, then it might work. This assumes that the person is not subject to any reentry bars (three/ten-year bars) and that he or she is otherwise admissible to the United States. As for processing time, most asylum applications take several years, depending on the location of the application. The I-526 petition processing takes almost two years and then an adjustment of status or immigrant visa processing takes an additional few months (usually five or six months).

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    EB-5 cases have two separate components to prove: one is the business or project that will create 10+ full-time, permanent jobs; and the other is tracking and proving the legal source of funds. If you are seeking asylum based on persecution and other hardship, proving the source of funds may be difficult. If you have that much money, your asylum application may be questioned. This situation would require a detailed consultation with an experienced EB-5 immigration lawyer to develop a comprehensive strategy so that one action will not jeopardize another.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    The EB-5 process is the same for everyone. Assuming the asylum applicant is in the US, regional centers may have specific requirements for investor accreditation on account of your presence in the US. If a frivolous asylum app was filed, this would present a problem at the adjustment stage. Consult with an attorney.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You can only do EB-5 if you have maintained status.

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