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How does the EB-5 adjustment of status process work?

Our I-526 will be approved any moment now. We plan to go to the United States next week on a tourist visa. How would we switch to an adjustment of status if we get the I-526 approval while we are in the United States? After that, how long does I-485 processing take? Can we travel outside the United States for short trips during that time? Do we need to attend any interview?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    If you enter the United States on a tourist visa with the intent to adjust status in the United States, you may be denied entry at the border and given permission to withdraw your application for admission on a tourist visa or, if they find visa fraud, you may be given expedited removal which can lead to very harsh immigration consequences. Tourist visas are nonimmigrant visas and when you apply for a tourist visa, you attest that you do not have an immigrant intent and will return to your home country after a temporary visit to the United States for pleasure or business. Because you had filed the I-526, you have demonstrated immigrant intent, which is the opposite. Check what you indicated on the I-526 - whether you will consular process your immigrant visas abroad upon approval of the I-526. If this is case, the safest route is to consular process in your home country when your I-526 is approved, and enter the United States as conditional permanent residents and receive your green cards and social security cards by mail in about 30-40 days after entry.

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    John J Downey

    Immigration Attorney
    Answered on

    I would first check to see if your approval will be sent to the U.S. consulate in your home country. If not, then you could seek to adjust here, but then you have to be concerned as to how long a stay you will be granted as a tourist. You could be caught up in a time lag and not be allowed to stay long enough for your I-485 to be processed. Then you would have to return to your home country and start from scratch. If you have a receipt for your I-485 application, you may request for advance parole to leave the country while it is being processed, but permission for advance parole also takes time to be processed.

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    Ian E Scott

    Immigration Attorney
    Answered on

    After your I-526 is approved, you will have two options available for obtaining a green card. If you are in the United States you can adjust status, and if you are outside of the United States you would obtain the green card through consular processing. The timing for adjusting status (I-485 petition) is approximately six months, but it could take more or less time depending on the speed of the security check, the number of petitions ahead of your petition, the processing center that the petition is at, and whether or not the government requires additional information from you. You will also have to complete a medical exam and go through bio metrics screening in the United States. You will likely not have to attend an interview, but the government does reserve the right to call any green card applicant for an interview at any time during the process. If you have to travel while your I-485 petition is pending, you can apply for something called advance parole which would give you the ability to travel. You must apply for advance parole before you leave the United States and if you leave without this, the government will consider your application abandoned. One very important thing to note about the process though is that based on what you have written, you are taking a very big risk. When you enter the United States on a nonimmigrant visa (you will enter on a tourist visa) you are saying to the government that you plan to stay in the United States on a temporary basis. If you enter with the intent to adjust status, border patrol will deny you entry. While an outstanding I-526 petition does not in itself prohibit entry to the United States, a clear intent to come to the United States to adjust status immediately after an I-526 approval could result in the denial of the green card and further U.S. immigration issues. The assessment of intent is fact-specific, but based on what you have written, entering the United States with the clear intent to adjust status once you arrive could jeopardize your green card.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    That is doable. You cannot leave the United States until your travel permit comes or you will be abandoning the adjustment process. This takes 75 - 90 days after filing.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    It is all about intent. When you come under a nonimmigrant visa, you need to have the intent to return to your home country. It is probably a better idea to get your EB-5 visa at a U.S. consulate office in your home country and enter as a conditional permanent resident.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If the priority date is current you can adjust in the United States - usually takes a few months, but if you enter and apply to adjust on a visitor's visa, they can deny you for visa fraud. Need to already be here on a student or other work visa.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Please note that a tourist visa is a nonimmigrant visa, which means when you travel under that visa, you are attesting that you do not have an immigrant intent, which is not the case with you as you have already filed the I-526 immigration petition. Thus, you should not try to come into the United States next week on that tourist visa if you intend to adjust your status by filing the I-485 after entering, as you will be lying to the Customs and Border Patrol officer, which is part of the Department of Homeland Security - same as USCIS. If you are found to have lied to the immigration officials, including CBP, then you could have complications, such as denial of the adjustment and removal as well as a permanent bar to any future immigration process. If your I-526 will be approved soon, you should wait until you could go through the consulate process and enter the United States with the immigrant visa legitimately.

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