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How can an EB-5 investor avoid visa fraud issues after I-526 approval?

We began preparing and submitting documents for EB-5 in 2013, and on April 9th, 2015 we received the I-797 letter from USCIS stating that our I-526 petition was approved. All of our family members have been in the United States since March. We were told by one attorney that there might be a visa fraud issue if we file the I-485 in the United States while we are staying here with a B1/B2 visa. Is this true? How should we proceed to avoid jeopardizing our EB-5 visa?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    It depends on the facts and circumstances of how you entered the United States on the tourist visa, how you obtained it, and whether you stated on your I-526 form that you would consular process to obtain an immigrant visa to enter the United States as a conditional permanent resident or adjust status in the United States. The tourist visa is a nonimmigrant temporary visa to allow you to stay in the United States for pleasure or business purposes up to 6 months and you must demonstrate nonimmigrant intent. The I-526 petition is an immigrant petition and when you filed it, you demonstrated an intent to immigrate to the United States. If you indicated to a CBP officer at the time of your current entry on the tourist visa that you were entering on a tourist visa temporarily, but in fact intended to adjust in the United States and never return to your home country for the consular process after your entry on the tourist visa in March, then you lied to CBP and this creates an issue of visa fraud. If your I-526 was approved after you have entered on a tourist visa and you did not have any intent to immigrate at the time of your entry on a tourist visa, then there should not be an issue of potential visa fraud. Generally, it is always best to take the most conservative approach and, after analyzing all the facts of your situation, go the safest route, especially when there is so much at stake like an approved I-526 petition. Please consult an experienced immigration attorney to discuss the details of your case.

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    Rachel Lew

    Immigration Attorney
    Answered on

    In the United States, visa frauds are defined by several statutes, including; a.. 18 USC 1546 Fraud and Misuse of Visas, Permits, and Other Documents; b.. 18 USC 1001 False Statements or Entries Generally; c.. 18 USC 1028 Fraud in Connection with Identification Documents Under 18 USC Section 1546 (a ): "Whoever knowingly makes under oath, or as permitted under penalty of perjury under section 1746 of title 28, United States Code, knowingly subscribes as true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, or knowingly presents any such application, affidavit, or other document which contains any such false statement or which fails to contain any reasonable basis in law or fact" is considered a visa fraud. The investor in question submitted the immigrant I-526 petition in 2013 and then applied for non-immigrant B1/B2 visa and entered the United States in March of 2015. Thereafter, the I-526 petition was approved in April of 2015. Depending on which country this investor and his/her family come from, they may be subject to immigrant visa retrogression to adjust to immigrant status inside the United States. Additionally, to adjust to immigrant status within the United States within three months after entry with a B1/B2 non-immigrant visa can be construed as visa fraud as defined in 18 USC Section 1546 ( a) because the investor's intent to immigrate to the United States was already formed before the application of a non-immigrant visa. Any affidavit or statement made pertaining to depart from the United States in the investor's B1/B2 visa application can constitute false statements for the purpose of gaining entry to the United States to adjust to immigrant status. Also, visa fraud is determined case by case and may not apply to all investors in the same situation. This investor should consult his/her immigration attorney to determine if there is a visa fraud issue.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    It appears that your attorney is referring to the "preconceived intent" or "30/60 day" rule, which basically states that if you take action within a short period of time, say 30 days, after entering the United States and such action is inconsistent with the intent you expressed when you applied for and obtained your nonimmigrant visa, then the government might consider your nonimmigrant visa application to be fraudulent because you made a material misrepresentation when you claimed to be a nonimmigrant. The preconceived intent rule usually is not applied in adjustment of status applications in the United States (and there is even a case that says it should not be applied in immediate relative adjustment of status cases). If you had multiple previous entries on your B-1/B-2 visas (with no overstays or violations) and it has been more than 60 days since you entered the United States, you probably could file the I-485 as long as you are otherwise eligible for adjustment of status.

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    Roberto Ortiz

    Immigration Attorney
    Answered on

    There would be a visa fraud issue if you apply for the I-485 before 60 days from your entry. You cannot just enter the United States and state that you are entering as a tourist for pleasure and then the next day change your mind. I would recommend waiting until June to apply since that will be 90 days, to be on the safe side.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    The concern is that you had an immigrant petition pending while you entered as a nonimmigrant. The "fraud" for which he is concerned is on the entry under the B visa. The safest path may be to leave the United States and apply through the U.S. consulate, but it is technically possible to adjust while on the B visa.

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    John J Downey

    Immigration Attorney
    Answered on

    I assume that your I-526 approval will be sent to the U.S. consulate in your home country. It would be easier to return to your home country and process it there. Otherwise you would have to inform the consulate that you want the approval forwarded to the United States and this could cause complications with the State Department.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Since B1/B2 is a non-immigrant visa, the intent with which you entered in March will be an issue. In other words, if you told the Customs or Border Patrol (CBP) or consular officer in obtaining the visa or entering on that B1/B2 that you have no intent to immigrate or adjust but you lied, then it could be a visa fraud. What you have put on your I-526, whether you indicated that you will do the consular processing or Adjustment of Status will also indicate your intent. If you were simply entering into the United States for a short visit and your I-526 was approved unexpectedly, then your circumstances changed and you may file the AOS before your visitor status expires. However, if you had consolidated your life in your home country and entered without any intention of going back, then you would have lied to the consular officer or CBP officer on the intention of your current visit. Thus, it all depends on what you stated and how you entered. My recommendation is for you to take the more conservative route and try to avoid any possibility of challenges, if possible. The nice thing about getting EB-5 case approved is that you will be entering with an immigrant visa approved so that you do not have to commit any visa fraud.

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    Louis M Piscopo

    Immigration Attorney
    Answered on

    If you are currently legally in the United States (entered with a visa and have not overstayed or worked without authorization) you are eligible to file for adjustment of status (Form I-485) in the United States. As to whether there could be visa fraud as a result of you doing so, depends on the facts and circumstances surrounding how you obtained your visa. This is something that you should discuss with an attorney who can examine all of the facts, and they advise you on the dangers (if any) of filing Form I-485. Please note, if there was any fraud, it would be a problem whether you file Form I-485 or apply for your immigrant visa at the U.S. consulate in your home country.

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    Stephen Berman

    Immigration Attorney
    Answered on

    It is not at all likely you would be charged with fraud; however if you want to avoid any problems, simply leave and get your visas abroad.

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