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How can I manage my business while also applying for the EB-5 Program?

I have interest in setting up a small roasting industry for specialty coffees in the County of San Diego in California and would like to use this venture to obtain EB-5 visas for me and my family (my wife and 3 daughters). From asking around, I believe that such an enterprise requires an investment of around $1,100,000 distributed over a period of about two years. We could certainly employ 10 or more people to carry out this project. My intention is to plan out this business and prepare the necessary documentation during 2018. I would start with the investment and actual undertaking of the project in late 2018 or early 2019. Am I able to run the business while also applying for the EB-5 program? If this is not feasible, what is the better route to citizenship?

Answers

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    Irina Lust

    Immigration Attorney
    Answered on

    If you want to manage your own business, you may want to consider an L-1 (Non-Immigrant Intra-company Transferee) or E-2 Visa (Non-Immigrant Treaty Investor) if your home country qualifies. A mere filing of an I-526 petition does not confer valid status and you cannot legally work.

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    Shenila A Momin

    Immigration Attorney
    Answered on

    Unfortunately, while the initial petition I-526 is pending, you are not granted any status to work or to operate the business. However, you may have the E-2 investor option if you are a citizen of a country in treaty agreement with the United States. You can initially get the E-2 and then apply for the I-526 when your investment hits the $1 million mark.

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    Charles Foster

    Immigration Attorney
    Answered on

    Your question can present a very difficult issue and there is no easy answer. If your current country of nationality has a Treaty of Friendship, Navigation, and Commerce with the United States, it may have a nonimmigrant E-2 Treaty Investor provision which would allow you to qualify on a temporary basis for a 5-year, nonimmigrant status. If your nationality is such that no such treaty exists, it is possible that you could qualify for L-1 status if you could show that you are being transferred from the current company that you own to an affiliated company, which would be your new specialty coffee business in California. Otherwise, you will have to enter the U.S. with a B-1/B-2 visa. A B-1 visa shows you are entering the country for temporary business, which can include matters pertaining to an investment and the acquisition of an investment but does not allow day-to-day employment within such business.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Unfortunately, you are not authorized to operate the business until you are granted lawful permanent residence through the EB-5 processing, based on your scenario; however, depending on your nationality, you may be able to qualify for a nonimmigrant investor visa (E-2) to allow you the status you need to operate the business during the EB-5 process.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Whether you can run the business or not depends on a host of factors. Among those factors is your immigrant status, what type of visa are you seeking prior to EB-5 (such as E-1 or E-2, which is determined largely on if your country is a signatory to either of E visas), etc. Advisably, consult an immigration attorney for more details for your plan(s).

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    Processing an EB-5 immigrant visa application takes at least 2 years (unless you are subject to the mainland China quota, in which case it takes even longer) and, while the application is pending, you have no rights. Therefore, if you are from an eligible treaty country, you might want to consider applying for an E-2 treaty investor visa first.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    One option is to have a manager-controlled business entity structure for a direct EB-5 case. Another possible visa option you may consider is L-1A if you are eligible.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    Applying for EB-5 by submitting Form I-526 with the USCIS, does not give you any immigration benefits. In fact, even when the I-526 is approved, which will be 18 to 20 months after filing, you still do not have any immigration benefits until you obtain your conditional lawful permanent residence (two-year green card) or at least temporary work authorization if you are physically present in the United States in valid nonimmigrant status and you have filed Form I-485, adjustment of status. You can hire someone to manage the U.S. business for you and you can oversee it from abroad while visiting the U.S. on a B-1 visa for temporary business purposes, but not employment, until you have the authorization.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    These days, if the full investment amount is not invested by the time the I-526 is filed, the case may be denied. Thus, the business documents you prepare must be clear on the investment amount when the full investment amount will be submitted. Please work with experienced EB-5 business plan writers and EB-5 lawyers to prepare approvable case documents.

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    Mitch Wexler

    Immigration Attorney
    Answered on

    Depending on which country you are a citizen of, you might be eligible to obtain an E-2 nonimmigrant investor visa to launch and run your business while applying for a green card through EB-5. The EB-5 process is currently taking about 2 years. Another option might be an L-1 visa, a nonimmigrant visa that allows foreign nationals to relocate to an international company’s U.S. office. If you do pursue EB-5, because the project will be in San Diego, it will not be in a Targeted Employment Area (TEA), which means the investment amount will need to be $1 million. However, the investment amounts are likely to change on September 30, 2017, if not sooner. There might be other green card options for you to choose from, too, including in the O-1 nonimmigrant visa (extraordinary ability), a self-sponsored visitor visa or even the EB-1 visa. You should sit down with an experienced immigration lawyer and map out a realistic strategy.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    This answer may depend on what country you are from. Potentially, you can apply for an E-2 visa to run the business while the EB-5 is pending.

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