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How can I start running my EB-5 business during the application period?

Will I legally be allowed to operate the business I want to open for my EB-5 investment while the EB-5 application is pending? If I want to create the new business, am I even allowed to open an LLC and bank account? Or am I expected to invest the $500,000 or $1 million in the United States and leave it sitting there for 1.5 years?

Answers

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    Echo Meisheng King

    Immigration Attorney
    Answered on

    If you are investing in a direct EB-5 business, you can set up a company and open a bank account. However, unless you are in the United States under a valid work visa to run your own business, (such as L-1 or E-2), you will need to hire a manager to run the business. Another option would be to partner with a company and form an LLC, and have the company act as the managing member while you are the investing member. You are allowed to start your business when you are awaiting I-526 approval abroad.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Setting up a business, such as working with legal counsel to form an LLC and opening a bank account is allowed on a B-1 visitor visa for business purposes. You may not start working in your business on a B-1 visitor visa. The E-2 visa may be an option to run a business if you meet the requirements. Otherwise, you have to have a partner or manager in the United States who is employment authorized, such as a U.S. citizen or resident, to run the business until your EB-5 petition is approved and you then obtain an immigrant visa to come to the United States and run your business.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    You can set up a business on a B-1 business visitor visa, but to work you will need an E-2, if you are from an E-2 treaty country.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    To work in the United States, you need employment authorization. If you are inside the United States, when you apply for adjustment of status (after I-526 approval), you can get work authorization before the green card is approved. If you are outside of the United States, you may consider having an agent in the United States manage your business until you can enter as a conditional permanent resident. Every case is different and unique, however, and you should retain immigration attorneys to assist you.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    This is one of the reasons that a direct EB-5 cases is difficult with the long processing times for the I-526. Unless you have a valid visa to be in the United States and working, the only way you could run your business is by having a U.S. person as a partner whom you could trust and rely on to follow your direction. You cannot come into the United States under any nonimmigrant visas, such as B-1/B-2, because you cannot legally work under those. Once you violate the nonimmigrant visa and that is found to be intentional, then you could have significant problems in obtaining the EB-5 visa later.

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    Jimena G Cabrera

    Immigration Attorney
    Answered on

    If you are overseas, you can hire somebody to start the business; if you are here, you cannot work unless you have the proper visa. I recommend you consult privately with an attorney to evaluate your choices.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    The filing of the I-526 petition does not grant any U.S. immigration benefits, so you cannot work in the United States while it is pending. You certainly can (and must for EB-5 purposes) create a new business (or buy an existing one), open a bank account, and even undertake some steps (meaningful business activity) prior to and after the I-526 filing. It helps to have a U.S. partner who is a citizen or permanent resident, but you are right, it is not easy to do this whole process from abroad or even in the United States in visitor or student status.

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    John J Downey

    Immigration Attorney
    Answered on

    You may operate the business, but make sure it is mentioned in your business plan. The business plan is the document that will determine how USCIS views your project and will determine if you have completed all of the conditions necessary to file the removal of conditions.

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    Daniel B Lundy

    Immigration Attorney
    Answered on

    Not only are you allowed to open your business, you must open your business in order to qualify for an EB-5 visa (unless you are investing in someone else's business, of course). The tricky thing is that unless you have unrestricted work access in the United States (unlikely if you are seeking an EB-5 visa, but not impossible), or your EB-5 business is your employer for the purposes of a temporary work visa, or is the E-2 company for your E-2 visa, you may not work in the United States for the company. In fact, there is a good chance you are not even in the United States to manage your business. Generally, things like forming an LLC, reviewing reports, opening bank accounts, and similar tasks are not "work." You are able to engage in some limited company formation activities under a B-1 visa, or B1/B2, or visa waiver. What is and is not work is a little tricky, and you should consult with an immigration attorney. The bottom line, however, is you really need to have a partner or manager handling the day to day activities while your EB-5 visa is pending. You can supervise from abroad, or have a limited oversight role if you are in the United States, but you cannot (either because you are not physically here or because you are not authorized to work) engage in the day to day management and operation of the company. Again, the distinction is tricky, so consult with an immigration attorney.

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    Ian E Scott

    Immigration Attorney
    Answered on

    You can set up an LLC and a bank account and the business can also operate in the United States. You cannot work while in the United States until you have a green card or work authorization, but you can hire staff to run the company on your behalf.

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