How can an EB-3 visa applicant currently in TP status apply for EB-5?

It may be possible that your case is being sent for revocation and may or may not be reaffirmed. If there was no fraud or misrepresentation in your consular processing stage, you may certainly pursue EB-5 visa option or other immigrant visa options.

You may pursue as many immigrant visa categories as you wish, but you can only be approved for one. You will have to decide which category ultimately gives you the best chance of approval. Consulting an experienced immigration attorney is vital to achieving your goal.

Like anyone else, no matter where you are, outside or inside the U.S., you are eligible to file an EB-5 Investor Petition on Form I-526. In each case, you must analyze which immigration path is the best—or which is the only real legal option that will help you acquire Lawful Permanent Residency. If you are already the beneficiary of a Labor Certification and an approved EB-3 Visa Petition, depending upon the availability of visa numbers, there may not be any benefit to pursuing a separate legal option under the EB-5 preference. In both cases, you must qualify for Adjustment of Status under Section 245 of the Immigration and Nationality Act. Should you wish to pursue EB-5 visa status, you should weigh the pros and cons of EB-5 direct investments and regional center investments. Then, via legal counsel, have an appropriate EB-5 Petition on Form I-526 prepared and filed.

There is nothing preventing you from pursuing more than one immigration path. However, to pursue the EB-5 path, you are locking up $500,000 of your assets for a minimum of 6 years, will spend close to $80,000 in various fees and will wait 2-3 years for a conditional green card. Then, after 2 years, you will wait another 2 years for the removal of conditions on that green card. If you go the EB-3 route, your TP case could be reaffirmed and your immigrant visa could be ultimately approved after about a year, depending on your EB-3 employer and the possibility of a solid, future employment with that employer. You should consult an experienced immigration attorney who is experienced in both EB-5 and EB-3 on which path is more appropriate.

It appears there may be a defect in your case, meaning it is possibly being sent back for revocation. Provided there is no misrepresentation or fraud, you can start the EB-5 application process. If you lied and they caught you, you would then need a waiver and to prove hardship regarding a close family relative to have a chance.

You can apply for EB-5 since your EB-3 has not been granted. However, you must be able to meet the basic EB-5 requirements, which include (1) a minimum of $500,000 (if the investment project is a Targeted Employment Area) or $1 million available for investment, (2) the investment fund must be from legal source(s) and (3) the investment must result in the creation of at least 10 full-time jobs within 2 years of investment. Also, be advised the EB-5 investment is an investment at-risk. Advisably, consult an EB-5 attorney to weigh your options. In addition, you only need one green card, whether it is from EB-3 or EB-5. Thus, once you secure a green card from either process, you will have to abandon the other.

You could certainly file a new application for a new immigrant visa based on your investment. The first step is to have $500,000 or $1 million dollars to invest, then you should locate the investment.