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How can I apply for EB-5 while on OPT?

Hi, I just graduated and am on OPT now, which expires next May. I want to invest one million to buy a company and apply for EB-5 green card for myself. Will I encounter any issue such as dual intent?

Answers

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    Reza Rahbaran

    Immigration Attorney
    Answered on

    Yes, you may apply for EB-5 while on your OPT. Dual intent issue may come up if there is to be a need to re-apply for a student visa. But, if you apply for an EB-5 visa and approval of I-526 is within the time frame of your OPT, then you will get conditional residency and no longer be an F-1 visa holder.

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    Roberto Ortiz

    Immigration Attorney
    Answered on

    You can apply for an EB-5 while on your OPT. If you have any other questions, please do not hesitate to contact me.

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    Mahsa Aliaskari

    Immigration Attorney
    Answered on

    You will need to address the dual intent issue and consider the impact of filing the I-526 and subsequent approval on your ability to travel international in F-1 status, as well as consider and plan for maintaining your status beyond May of next year if you are not far enough along with the EB-5 process.

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    Lei Jiang

    Immigration Attorney
    Answered on

    You can apply for EB-5 while on F-1. Dual intent will be an issue if you want to apply for F-1 or other non-immigration visa after your EB-5 application.

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    Shahzad Q Qadri

    RC Creator
    Answered on

    Based on the limited information that you have provided, there should not be an issue. However, we would need much more detail to make a final determination.

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    Philip H Teplen

    Immigration Attorney
    Answered on

    Dual intent is indeed in conflict with student visa; however, if you are not traveling then it does not create a problem.

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    Rohit Kapuria

    Immigration Attorney
    Answered on

    I would be less concerned about the intent issue and more concerned about the application period. Given the time it will take for you to buy the company and address all the corporate law implications, by the time you actually get around to filing the I-526 (after getting a business plan done, etc), you will be very close to the end of your OPT term. The actual I-526 application is currently taking at least 14 months. Therefore, unless you are able to adjust to an H-1B or similar visa, you would have to leave the U.S. during the time the I-526 application is pending. Of course, you can always hire a manager to oversee the company in your absence, but I would highly recommend you retain experienced immigration counsel to guide you through the process.

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    Rachel Lew

    Immigration Attorney
    Answered on

    It is OK to apply for EB-5 immigrant benefits when you are on non-immigrant status, such as F-1/OPT. But if your I-526 petition is not approved or if you are denied of entry into the U.S. due to inadmissibility issues, you may be unable to apply for non-immigrant visas in the future because these visas conflict with your immigrant intent through EB-5 petitions.

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    Jeffrey E Campion

    Immigration Attorney
    Answered on

    Yes, you can file your I-526 while here on your OPT. With respect to dual intent, we have students all the time that adjust to that of permanent resident. But, with all issues, please seek out competent legal advice.

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    Ying Lu

    Immigration Attorney
    Answered on

    You can apply for EB-5 while you are on your OPT. After you submit your I-526 application, if you travel outside of the U.S., you may not be able to get back with your F-1 visa during your OPT.

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    Michael Okechuku

    Immigration Attorney
    Answered on

    You will apply for EB-5 while on OPT the same way it is done if not on OPT. That, however, leads us directly to the fears raised by the next question. Filing an EB-5 at the end-stage of your student visa status surely does raise dual intent of returning home at the completion of your studies and intending to reside in the United States permanently through adjustment of status implicit in an EB-5 category. My advise will be to file your Form I-526 but seek consular processing of your immigrant visa under the EB-5 and return to your home country upon completion of the OPT. Ultimately, do not violate the terms of your non-immigrant visa, as you are required to maintain your F-1 status in order to be eligible for the EB-5. Keep in mind also that even though you may not have accumulated periods of unlawful presence, the consulate staff may not process your immigrant visa application - which can be a nightmare. Yes, dual intent remains an albatross for any non-immigrant in the United States, such as yourself. You are required to maintain your F-1 status until the I-526 petition is approved. When approved, you become eligible for adjustment of status. However, I foresee a problem with maintaining your status as an F-1 because of the completion of the Optional Practical Training (OPT). As such, make it clear that you will be seeking consular processing instead of adjustment of status in the United States. In other words, you must leave the country at the completion of your OPT and seek an immigrant visa through the consular post / embassy in your home country.

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    Margo Chernysheva

    Immigration Attorney
    Answered on

    Congratulations on your graduation. You can apply for an EB-5 visa while on OPT as you did not have an intent to immigrate when you came here on your student visa, so dual intent is not going to be an issue in your case based on the fact you provided here. But you should hire an experienced attorney to assist with your immigration process.

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    Ed Beshara

    Immigration Attorney
    Answered on

    You can file an EB-5 petition while you are in legal OPT status or while you are outside the U.S.. The Petition I-526 may take 12 months of adjudication and therefore at this time your OPT may have already ended. You may wish to leave the U.S. or maintain another legal status in the U.S.. Please note you can only file an EB-5 adjustment application in the U.S. if you are maintaining a legal status in the U.S.. If you are not, you will have to apply for conditional permanent residency outside the U.S. through the U.S. consulate process.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Since the I-526 adjudication is taking more than 14 months, it is unlikely that your case will be approved before your OPT expires. Thus, if you are going to do an EB-5 case, I would suggest that you apply with consular processing to get the green card option after I-526 gets approved. If you tell USCIS, that you will consular process, there will be no issue of showing immigrant intent.

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    Neena Dutta

    Immigration Attorney
    Answered on

    You are indeed able to apply for an EB-5 as an F-1 student, but you must be mindful of the timing. You are correct that there is a dual intent issue. However, if you have been in the country for no less than 60 days but to be on the safe side, 90 days, you may apply. It is worth noting that you will not be able to travel until you obtain a travel permit as part of your adjustment of status.

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    Karen Weinstock

    Immigration Attorney
    Answered on

    You need to time your application in a way that would not jeopardize your F-1 status. You may also want to talk to an attorney regarding a backup option.

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    Charles H Kuck

    Immigration Attorney
    Answered on

    You will likely need to change status, or leave the U.S. during the process, and current processing times for the I-526, and subsequent I-485 will exceed your available time on the OPT/F-1. Depending on your country of birth, you may qualify for an interim E-2, or an H-1B, depending on your time. A consultation can provide verifiable options after additional information is provided.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    Your intent will not be the issue. There may be other issues involved in your purchasing an existing company. The company must be a new commercial enterprise (established after 11/29/1990) and, unless it qualifies as a troubled business, you must show that the new commercial enterprise will create new employment for at least 10 qualifying workers. Existing employment cannot be counted unless it is a troubled business. Also, if your I-526 petition has not been approved by the time your OPT (plus grace period) expires, you will not be eligible for adjustment of status in the United States, and you would have to complete the immigrant visa process abroad at the U.S. embassy or consulate in your home country once the I-526 petition is approved. You should retain an experienced EB-5 immigration attorney to represent you in this matter.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    If you are still on your F-1 Status, note that the F-1 status does not have dual intent. If you become a conditional permanent resident through an EB-5 investment, you will no longer be an F-1 visa holder. But by then, you?d be a conditional permanent resident anyway. Creating a U.S. Immigration strategy that works best with your needs, timelines, and goals is important, which is why I always stress consulting with and retaining experienced EB-5 immigration counsel, like the attorneys at our law firm.

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    Stephen Berman

    Immigration Attorney
    Answered on

    If you are already in the U.S., there is no issue of dual intent.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    There is no reason why you can''t apply for EB-5 while on OPT. We have done several of these cases. The dual intent issue might come up if you needed a new student visa in your passport or traveled outside the USA with the EB-5 petition, but we have had some clients that did not encounter problems with this. Your mileage may vary.

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