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As an immigrant seeking asylum, what options do I have if I want to apply for the EB-5 Program?

I am a citizen of Iraq. I came to America on an Arizona tourist visa with my family in 2013 seeking asylum. I was interviewed by the immigration officer and my papers were forwarded to the immigration judge because the officer was unable to decide whether to approve or refuse my application. The case has been postponed several times and my new court date is in June 2018. Can I apply for the EB-5 Program and is there any legal impediment to doing this? Is it illegal to stay in the United States while I am waiting for my court date? How can I pick the most successful project and will my seeking asylum affect my application’s success?

Answers

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    BoBi Ahn

    Immigration Attorney
    Answered on

    There are no restrictions for asylum applicants to apply for EB-5, as long as there are no unlawful presence periods. As far as picking projects, you should work with your immigration attorney to vet the projects you are interested in.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You should consult an experienced EB-5 immigration attorney. It will be important to know whether you had any unauthorized employment/unlawful presence.

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    Charles Foster

    Immigration Attorney
    Answered on

    Yes, you can apply for Lawful Permanent Residency through the EB-5 program even though you may have filed an application for asylum as well. There is absolutely no legal impediment in filing the EB-5 petition on Form I-526. If you are awaiting a court date, it tells me that your affirmative application for asylum was denied and you were put into removal/deportation proceedings. In the course of your proceedings before the Immigration Judge, you can remove your claim for asylum. The difficulty that you will encounter is, even if you have an approved EB-5 Investor petition, most likely you will not be eligible to adjust status and you will have to apply for your immigrant visa through the American Consulate in your home country. You should seek legal advice to determine whether or not, if and when you depart the United States, you will become subject to a 3-year or 10-year bar. The best way to pick a successful project is to invest through an EB-5 Regional Center with an experienced developer with a successful track record. You may need two different types of immigration counsel; one to represent you in the deportation proceedings and one to represent you in on your EB-5 petition.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Apparently, the asylum application should not prevent anybody, including yourself, from filing an EB-5 petition as long as you can meet the basic requirements which are an investment of $500,000 or $1million depending on the location of the project, the investment fund is from legal source(s) and the creation of at least 10 jobs in the project within 2 years. With regards to staying in the United States, since your asylum currently allows you to be in the U.S. until a final decision is made, you are in the U.S. legally. As a result, your presence in the country will not negatively affect the processing of your EB-5 petition. For further information, consult an EB-5 attorney on additional issues that may affect your qualification for EB-5, such as the selection of best project. Best of luck!

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    Lynne Feldman

    Immigration Attorney
    Answered on

    This could work, in theory, if you have no unlawful presence.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    EB-5 is a viable option for asylum applicants and should be considered. One key consideration is whether the money was lawfully earned, because one day of unauthorized employment results in unlawful presence accruing for the entire period that the asylum application was pending. A second key consideration is whether the person can adjust status (since there is no section 245(k) adjustment provision), or must depart and trigger a three-year or ten-year bar to being re-admitted.

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