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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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    Fredrick W Voigtmann

    Immigration Attorney
    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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    Julia Roussinova

    Immigration Attorney
    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

    Immigration Attorney
    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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    Jinhee Wilde

    Immigration Attorney
    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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    Ed Beshara

    Immigration Attorney
    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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    Salvatore Picataggio

    Immigration Attorney
    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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    Lynne Feldman

    Immigration Attorney
    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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    Karen-Lee Pollak

    Immigration Attorney
    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

    Immigration Attorney
    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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