+1-800-997-1228
Questions & Answers

How would asylum applicants obtain conditional EB-5 green cards?

I flew from India with my wife and children last year to the United States on a B-1/B-2 visa. We have filed for asylum before our authorized stay expires. Are we in a lawful immigration status? If my uncle gifts me capital for an EB-5 visa, will I be eligible to file for adjustment of status? Or will I have to eventually go back for consular processing?

Answers

  • Avatar

    Charles Foster

    Immigration Attorney
    Answered on

    You are in quasi-lawful status if you have a bona fide application for asylum on file. If your uncle gifts you for an EB-5 investment and your I-526 investor petition is approved and visa numbers are available under the quota, you can only file for adjustment of status if you are in valid nonimmigrant status. Most likely, you will have to return home to consular process. Remember, visa numbers may not be available for Chinese nationals for 3-4 years.

  • Avatar

    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    There is no consular processing for asylum seekers. If they are qualified, they will simply adjust their status and obtain green cards in the United States. However, you current status raised quite an eyebrow; both of you came in on B-1/B-2 visiting visas, but you eventually shifted to become asylum seekers. Now, turning to the EB-5 option, while you may apply for an EB-5 visa with a gift from an uncle based in India, your current status as tourists who became asylum seekers will feature prominently in the U.S. Citizenship and Immigration Services (USCIS) consideration of your EB-5 petition. If for any reason there is an appearance of a violation of U.S. immigration laws, including but not limited to, fraud and misrepresentation with any of your current and future immigration benefits, your EB-5 petition is not likely to be granted. In order to successfully obtain an EB-5 green card, it is advisable that you consult an attorney on this issue before you proceed further.

  • Avatar

    Julia Roussinova

    Immigration Attorney
    Answered on

    A pending asylum application is not a valid immigration status, but rather an authorized period of stay while you await a decision from USCIS, and you are not accruing unlawful presence. To that end, you will not be eligible to adjust status in the United States because you have no underlying immigration status maintained as your B-1/B-2 expired and you do not have any other underlying nonimmigrant status, such as a work visa. You will need to consular process abroad when/if your I-526 is approved. If your asylum application is approved in the United States, you may file for adjustment after one year. If your asylum application is not approved by USCIS, it will be referred to an immigration court.

  • Avatar

    John J Downey

    Immigration Attorney
    Answered on

    This all depends on the timing and final adjudication of your asylum claim as well as the timing of the EB-5 adjudication. You may file for EB-5 at this time, but if your application fails before your EB-5 is granted you would need to return to India.

  • Avatar

    Salvatore Picataggio

    Immigration Attorney
    Answered on

    If you were granted asylum, you are eligible to file for adjustment of status after one year directly from the asylum status. As an asylee, you are protected from removal from the United States.

  • Avatar

    Steffanie J Lewis

    Immigration Attorney
    Answered on

    An asylum applicant would obtain a conditional EB-5 green card in the normal fashion, either by adjusting status in the United States or through consular processing. If you wish to stay in the United States (green card), you must be currently in status at the time you file to adjust your status. Filing for asylum does not give you any status. However, you can use your EB-5 petition as insurance in the event your asylum claim is not granted. If your asylum application is granted before your I-94 visitor status expires (six months from your entry date), you will be in the status of an asylee. One year from being granted asylum you can file for your "green card." You can then withdraw your Form I-526 petition if USCIS processing on it has not begun. If your visitor status will expire before you become an asylee, you may change your visitor status to B-1 (business status) while you oversee and prepare for your EB-5 investment opportunity. Remain in B-1 status until your Form I-526 is approved. Upon approval, you can file Form I-485 while you are in B-1 status. You will not be accruing unlawful status while you wait for your I-485 application to be approved. "Green Card." If your asylum claim is denied while you are in visitor or business status, you can remain in your business status until your Form I-526 is approved and you file Form I-485. Should your asylum claim be denied on a date at which you are not in B-2 or B-1 status, you will be placed in Immigration Court, where you can reassert your asylum claim or take voluntary departure to leave the United States. If you leave, you would obtain your EB-5 conditional status through consular processing. To leave the United States, you may need a visa to enter another country because you fear returning to India. So long as your asylum application is processing and throughout Immigration Court proceedings, you will not be accruing unlawful status. However, there is a legal distinction between accruing unlawful status and actually being in lawful status. At that point you definitely need a good immigration attorney with court experience.

  • Avatar

    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If you filed a good faith asylum application before your visitor visa expired, and you have not worked without permission, you will not be accruing unlawful status. However, in order to adjust status under the EB-5 program, you must have valid nonimmigrant status - so you will not be eligible to adjust status, so you will have to immigrant visa process abroad. If your asylum application is found to be frivolous, you will be barred from future immigration benefits.

  • Avatar

    Stephen Berman

    Immigration Attorney
    Answered on

    You are not in lawful nonimmigrant status and you would need to consular process to get the EB-5 visas.

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.