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How can you applying for a B1 or B2 visa while filing for an EB-5 visa?

My sister who lives in the states is filing an EB-5 visa for her daughter. However, she wants her daughter to visit the United States for Christmas, so she has applied for a B1/B2 visa for her. Is it possible for her daughter to be granted this visa while she is on filing?

Answers

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    Reza Rahbaran

    Immigration Attorney
    Answered on

    Yes, she may apply for a visitor visa. However, it may be denied due to a conflict in intent between the I-526 petition and a visitor visa.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    You may run into the problem of dual intent. The EB-5 program is for permanent residency. The B visas are for temporary visits. One of the requirements for the B is to show intent to return to the home country. How can one show that intent with a concurrent process to obtain U.S. permanent residency?

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    Shahzad Q Qadri

    RC Creator
    Answered on

    There is no law prohibiting it. However, it is at the discretion of the consulate. If they consider her a high risk, they may very well deny it.

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    Jeffrey E Campion

    Immigration Attorney
    Answered on

    Nothing prohibits her from obtaining a tourist visa. But, she should be prepared to explain to the consulate that her intention is purely one of vacation on this entry and that she intends to depart, receiving her residency at the consulate.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    Yes; it is possible. If the purpose of the visit to the United States is temporary, for business or pleasure, then the appropriate visa category is the B-1/B-2. If the purpose of her entry is to immigrate to the United States, then she must wait in her home country for the immigrant visa processing to be completed.

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    Ed Beshara

    Immigration Attorney
    Answered on

    On the basis the mother is filing an I-526 petition as the principal investor, the daughter can still apply for a visitors B-2 visa to temporarily visit the U.S. for pleasure especially during the Christmas holidays.

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    A Mina Tran

    Immigration Attorney
    Answered on

    She can apply but may be denied because she cannot show non-immigrant intent or the intention to leave the U.S. once the visa period is over.

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    Walter Gindin

    Immigration Attorney
    Answered on

    The B1/B2 visa is a non-immigrant visa, which means that the alien applying for the visa must have the intent to return to his/her foreign residence prior to the expiration of the visa. An EB-5 visa, however, as an immigrant visa, which means that an alien applying for the visa intends to immigrate to the United States. When applying for the B1/B2 visa, the daughter may be asked by the consular official if she is presently seeking any other benefit in the U.S. If the daughter has filed an EB-5 petition or is in the process of filing an EB-5 petition, the consular officer could potentially assume that she has immigrant intent, and therefore not grant the B1/B2 visa. Beyond this risk, the daughter can come in on a B1/B2 visa while her EB-5 petition is pending (assuming she receives a B1/B2 visa). It is important to keep in mind that simply filing an EB-5 petition does not authorize one to remain in the U.S.; thus, the daughter will have to depart the U.S. prior to the expiration of her B1/B2 visa.

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    Roberto Ortiz

    Immigration Attorney
    Answered on

    It is possible. However, please make sure that the daughter responds all of the DS-160 applications questions truthfully. I believe there is a question on the application, which asks if the applicant has applied for an immigrant petition and the answer should be yes. If you have any additional questions, please do not hesitate to contact me.

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    Kripa Upadhyay

    Immigration Attorney
    Answered on

    These are separate visa categories. A B visa needs to be applied for via the Consulate in the home country whereas an EB-5 application is filed with USCIS. A B visa requires you to prove ties to the home country and that you do not have Immigrant intent. So if she has a filed & pending EB-5, she may have a harder time getting the B visa as the consulate could question her intent to return to the home country.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    It would be best for her to apply for the B-1/B-2 visa BEFORE you file the EB-5 case. But if you have already filed the EB-5, she can still apply to come for the holiday by showing a round-trip ticket to the U.S. consul.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    If the EB-5 petition (I-526) indicates that she will Consular Process for immigrant visa rather than filing an Adjustment of Status (I-485), then she should be able to enter.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    It's possible but she will need to convince the consulate and the Port of Entry Officer that she is just coming temporarily and returning home to await the approval of the EB-5 case.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    Yes it is possible but at all times in communication with the consulate she must tell the truth to any questions asked.

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    Joseph Best

    Immigration Attorney
    Answered on

    Yes, so long as they can prove that the daughter has non-immigrant intent required to get a visitor visa. However any misrepresentations made to anyone at anytime by the petitioner for the EB-5 would render the petitioner inadmissible. So be very careful what is stated. Contact our firm if you want legal advice on how to proceed. Good luck.

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