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How can we pursue both an EB-2 and an EB-5 visa?

My husband and I are both Indian-born professionals working in the United States and our employers have sponsored us for the EB-2 green card. In view of the current priority wait times we would like to explore the EB-5 option. Can we pursue both visa paths at the same time? If so, what will happen in the EB-2 process if the I-526 is approved, but two years later the I-829 is denied? Can the employer-sponsored EB-2 process be revived at that stage without losing the original EB-2 priority date?

Answers

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    Answered on

    Yes; you can pursue EB-5 while waiting for your EB-2. If the I-526 is approved and you obtain conditional lawful permanent resident status, but that status is terminated because of an I-829 denial, you may be placed into removal proceedings. Whether or not you are in removal proceedings, you may be able to pursue the EB-2 at that time, if the priority date is current and your and your employer''s intention is to have you work for them full-time under the terms and conditions of the PERM labor certification and the approved I-140. You should be able to retain the original priority date as long as your employer does not withdraw the I-140 or otherwise terminate the job offer. You should consult with an experienced immigration attorney who can advise you on the specific details.

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    Answered on

    You may pursue both employment-based options. You should conduct your due diligence in choosing a well-established and reputable regional center with the projects that have a well-established history of both I-526 approvals and I-829 approvals. If the regional center uses the same business model and same methodology for creating the required jobs in each project, it is highly unlikely an I-829 will be denied for such a project. Please consult an experienced EB-5 practitioner to discuss your case.

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    John J Downey

    Answered on

    Immigration usually frowns upon two separate applications; contact an attorney specializing in immigration. The attorney can look at your overall situation, including timelines, and then advise you as to the best alternative.

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    Answered on

    First, I-140 approval for E-2 case does not go away by having the I-526 approved for EB-5. So, you could pursue both options at the same time and obtain the green card through whichever visa numbers become open first. Second, if you choose an EB-5 option through a regional center with a consistent and repeated I-829 approval track record and their business model does not change for counting the job numbers, then your risk of not getting I-829 approval will be significantly reduced. However, if you invest in an unproven investment vehicle, then the risk for I-829 denial becomes greater. Thus, you should do your due diligence before choosing a regional center and the project. You need not start an EB-5 case with an outlook of the I-829 getting denied.

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    Answered on

    Your immigration attorney will be assisting you in the entire process and clarifying what you can and cannot do. On the basis you have an approved I-140 petition under the EB-2 category, but you have not yet filed your application for permanent residency, if the I-829 is denied and you no longer have conditional permanent residency, then when your I-140 petition''s priority date becomes current, you can apply for permanent residency under the EB-2 category.

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    Answered on

    You may be able to. If one process moves forward more quickly, you may be able to withdraw the other.

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    Answered on

    You are allowed to pursue both simultaneously. Once you get to the adjustment stage, you will need to choose which I-485 to pursue. If the green card is awarded from the I-526 approval, but then denied at the I-829 stage and you cannot preserve your green card in court, you can file a new adjustment based on the previous I-140, or file a new labor certification and I-140 recapturing that date, in my opinion - but USCIS has not been consistent on this interpretation and the regulations on it.

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    Answered on

    You can proceed through both avenues and let both processes run concurrently. If the I-526 is approved you can apply for adjustment of status and still wait for the EB-2 to run its course. I would not withdraw it, so if the I-829 is denied before adjustment through the EB-2 is adjudicated, then you can just continue with the EB-2. If for some reason the employer withdraws the EB-2 process, you can still rely on the priority date of the approved I-140 or Labor certification in starting a new EB-2 process.

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    Philip H Teplen

    Answered on

    It is not a question of reviving the EB-2, but running in concurrently and never withdrawing the EB-2.

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