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How can I operate my U.S. business after filing for EB-5?

I have an LLC registered in the state of Florida. I have a B-1 visa. I visit Florida at least quarterly to manage my business. I have had difficult questionings by customs agents my last two visits and have been threatened with deportation, only to have my entry granted for a six month stay. If I apply for an EB-5 visa, will I be able to continue to enter the United States? If I were to get deported, would it affect the EB-5 application?

Answers

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    Answered on

    You cannot work in the U.S. without authorization. A B-1 visa has limited circumstances for working in the U.S. Once you have a green card (via EB-5 or otherwise), you can actually work in the U.S. Visiting too frequently or for too long may give rise to issues at the border like you are experiencing.

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    Answered on

    Assuming your U.S. business qualifies for EB-5 job creation and investment requirements, filing for EB-5 will not help you immediately as it currently takes USCIS on average 14 months to process I-526 petitions. An approval of the I-526 petition will not allow you to live and work in the United States immediately. You must first obtain an immigrant visa and enter the United States as a conditional permanent resident or otherwise adjust to a green card in the United States from another lawful immigration status. The B-1 visa does not allow you to be self-employed in the United States. You may have an employment authorized manager manage your U.S. business, but you are not authorized to manage it yourself on a B-1 visa. You may want to look into an E-2 visa and then apply for EB-5 visa if you are from a treaty country or into an L-1A visa if you are qualified for it. You should consult an immigration attorney to review your options.

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    Answered on

    Unfortunately, there is no easy answer to your question. As you have done, you may enter the United States as a prospective investor in conjunction with your business in B-1 nonimmigrant visitor status, provided that it does not appear that you plan to stay indefinitely nor does it appear that you are actually "working" in a position for which you would normally receive compensation. It is possible you could qualify for some interim status if you had another legal immigration option. You could make an alternative substantial investment provided you are a national of a country with which the United States has a Treaty Trader provision. We have no such treaty with the People's Republic of China. You cannot apply for your EB-5 visa until your EB-5 petition on Form I-526 is approved and you are scheduled once visa numbers are available either for your final interview at the American Consulate abroad or while in the United States you file for adjustment of status. Only then would you be eligible to be admitted as a Conditional Permanent Resident with work authorization or independently acquire work authorization based upon your application for adjustment of status. Yes, if you were deported, it could adversely affect your application. As long as you are truthful when you enter the United States, you should not be "deported" or removed from the United States with prejudice in a form called "expedited removal." You should always insist that you are coming just for "temporary business" to check up on your investment and have evidence that you do not plan to remain in the United States indefinitely.

  • Avatar
    Answered on

    Filing the EB-5 petition should not make a big difference at the entry, though you should be prepared to respond to questions about the EB-5 petition, if asked. Frequently traveling on a B-1 to supervise a business leads CBP to question whether you are working in the United States. You should always be able to demonstrate that the actual work in the company is performed by other people and that you are merely attending meetings in compliance with B-1 requirements and that you are not receiving a salary. I would highly advise to look into an E-2 visa in the interim, if you are a citizen of a treaty country.

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    Answered on

    Once you file the EB-5 immigrant investor petition, it is currently taking over 14 months for USCIS to adjudicate, and during these 14 months, you are not accorded any status to operate the business in which you invested. So, filing EB-5 in and of itself will not give you the visa status you are looking for in your case scenario. Even after the EB-5 petition is approved, if your priority date is current, you will need to file for and be issued a work permit (if you are processing for this last step in the United States) before you are authorized to work/operate the business. Deportation will not affect the EB-5 petition, but it will affect your ability to become a permanent resident.

  • Avatar
    Answered on

    It is possible to set up a business on a business visitor B-1 visa, but not manage it. This is because all visitors must show an intent to return home. You need to get another visa to run the business, such as an E-2 or L-1, if eligible. Their may be other options so you really need to consult a specialist immigration lawyer. Sadly, this is very complicated.

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    Answered on

    You might consider filing for an E-2 (if from a treaty country) or an L-1A to operate your business. I suggest a consultation.

  • Avatar
    Answered on

    You are in a difficult position and if Customs has already noted their concern you may experience a problem on your entry. I would recommend you consult with your investment immigration attorney. You may also want to consider putting management in place that would not require your presence.

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