How can I apply for EB-5 with a B1/B2 status?

B1/B2 visa is not a "dual intent" visa. You might encounter some issues if attempting to adjust status while in the United States under the B1/B2 visa. Also, a B1/B2 visa is given a 6 month duration which is not long enough time for your I-526 to be approved, meaning you must file for an extension which runs the risk of being denied. Overstaying can be detrimental to your I-526 petition as you may be barred from entry to the United States.

While the EB-5 petition is pending, you can enter the U.S. with a B1/B2 visa with the temporary intent to perform permissible activities in the U.S. while in legal status. However, upon each entry into then U.S. your intent has to be of a Non-Immigrant and not have the intent to permanently reside in the U.S..

The information you have received may not be accurate as there are dual intent issues to address. If you would like a consultation to discuss specifics and your options on travel while you are pursuing legal permanent resident status, please contact my office.

If you apply while in the U.S. you will be adjusting your status, with that generally you cannot leave the country until you approval comes through. If you have a B1/B2 you may be able to travel back and forth, however you always run the risk where the immigration officer may deny your entry. In my experience we can not as lawyers guarantee you would be allowed to enter pending the application.

You might encounter a problem with your B1 visa because B1 does not allow immigration intent.

B-1/B-2 visas are for business visitors or tourists; they are not for intending immigrants. That said, as long as you do not make any misrepresentations as to your purpose and intended duration of stay, you may use your existing visitor visa to enter the U.S. (if you are coming for a business/tourist visit) while your I-526 petition is pending. You should not use your visitor''s visa as a way to immigrate early to the U.S. in the hopes of having your I-526 petition approved while you are in the United States, thus allowing for you to file a Form I-485 adjustment of status. Beware of any attorney''s advice to the contrary.

B-1/B-2 status is granted for up to 6 months at a time when you are inspected at the U.S. border. Visa validity period or ability to enter multiple times because you have a multi-entry B-1/B-2 visa is not relevant. A request for extension for up to an additional 6 months can be requested if you qualify and convince USCIS that you should be granted extension of B-1/B-2 status without departing the U.S. Currently, processing of I-526 petitions takes about 12.7 months. Filing I-526 petition will not give you any lawful immigration status in the U.S. If you file I-526 petition while in your initial 6-month period in B-1/B-2 status in the U.S., you will not have sufficient time for your I-526 petition to get processed. When you file I-526 petition, you also express intent to immigrate to the U.S. For tourist visa, however, you must show that you do not intend to immigrate and will return to your home country after a temporary visit to the U.S. To that end, there''s a risk your B-1/B-2 extension may be denied while your I-526 petition is pending. In that case you will need to depart the U.S. and consular process when your I-526 petition is approved to come back to the U.S. on immigrant visa and become a conditional permanent resident in the U.S. upon arrival. If you overstay your B-1/B-2 status, you will not be able to adjust to a conditional permanent resident of the U.S. even if your I-526 petition is approved. Overstaying is also risky because you may be barred from future entry to the U.S. Please do not hesitate to contact our office to discuss your specific situation in more detail.

Your question involves serious and complicated issues of dual intent, which in the general sense is not permitted on a B-1/B-2 entry. I suggest that you call me during the week to discuss.

With your B-1/B-2 visa, my advice for my clients is to indicate that they will do consulate processing and then come and go with that 10 year visa while I-526 is pending instead of coming in and then trying to extend the stay beyond 6 months to adjust. With the I-526 taking more than 12 months, it becomes problematic to stay until you adjust as USCIS may not extend B-1/B-2 beyond one time extension. With consulate processing indicated in the I-526, your intent to immigrate is not contradictory to temporarily visiting under B-1/B-2. Some of my clients, who have had multiple trips into U.S. with B-1/B-2 and then timely left without exceeding the 6 months period, were able to come and go during the pendency of the I-526 and then at the end enter and then adjust. However, making sure that the timing works out so that you don''t overstay may be difficult and I do not like that you are technically lying to the Border officer about your intention to immigrate when you enter. My usual advice is more conservative approach than your lawyer''s opinion, but I prefer 100% honesty in dealing with the government agency.

That is correct. You may still utilize the B-1/B-2 visa during the EB-5 Petition processing. As with all visas and entry into the U.S., it is intent at the time of entry that is the key. Since at the time of entering the U.S. using the B-1/B-2 your intent is to conduct preliminary business on a temporary/non-immigrant basis, and no contrary intent has been declared (i.e., no filing of Immigrant Visa or Adjustment of status), you can validly enter in that status. Even if questioned at the port of entry, you can fully disclose a pending EB-5 Petition, but that at the current time of entry you only intend or plan to limit your stay to the B-1/B-2 purpose.

I do not agree with the recommendation from your attorney. If you enter the U.S. with a B-1/B-2 visa you will get a 6 months stay. You can then apply for an extension of your stay, but no one can guarantee that it will be approved. Another option might be to do a student visa or another type of non-immigrant visa. if you have any other questions, please do not hesitate to contact me.

If I understand, the issue is that on the tourist visa, you should not apply for an adjusted status in the U.S. and always have the intent to return to your home country to receive the GC. So if you have that intent and do that, you should be fine. Of course, it is fact specific.

This is a very risky proposition. The filing of your I-526 application signals to the U.S. Immigration Service that you have ''immigrant intent'' to remain here permanently. Having either preconceived immigrant intent or both the intent to remain here temporarily and permanently under the B-1/B-2 Visa is not permitted. You should refrain from traveling into the U.S. while the I-526 is pending. If you continue to insist on the need to travel during the I-526 process, it would be best to have proper counsel to explain how to deal with CBP upon your application for admission as a non-immigrant. For more information, please contact me.