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How can I stay in the U.S. legally while my EB-5 application is processing?

I am a U.K. citizen and am planning to apply for an EB-5 visa so my 19-year-old daughter and I can live in the United States. However, my daughter wants to start university in the U.S. in August 2018 and I would like to spend several months during term time in the U.S. to be near her. Keeping in mind the EB-5 process may take around 18 months, should I start the EB-5 application before or after she gets an F-1 visa for her 4 years of college? Would I then be able to enter the U.S. under the visa waiver program and stay there for 90 days twice every year for 2 years in a row? Is there any alternative for me to be able to stay in the U.S. while the EB-5 visa is being processed? My daughter turns 21 in August 2019. Many thanks.

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You may travel on VWP to stay in the United States to visit your daughter if you indicate on your I-526 petition that you intend to consular process in your home country in the event your I-526 petition is approved. Frequent travel on VWP may present problems at the border, especially with a pending immigrant petition.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You can potentially apply for an E-2 to run your own business in the U.S. and stay here in that status.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    There are numerous work-related and investor visas. One worth investigating is the E-2 treaty investor option. Even better are the H-1B and L-1 company transfer options. Specifically, they authorize dual intent where you can be in the U.S. temporarily and have an intent to stay permanently.

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    Mona Shah

    Immigration Attorney
    Answered on

    Unfortunately, now there is no concurrent filing that would allow you to stay in the U.S. just because you filed an EB-5 petition. You can certainly come in on a visa waiver, but you may find that Customs and Enforcement may flag you as you try to re-enter on your second or third trip. It is advisable to file for a nonimmigrant status. As a citizen of the U.K., you are eligible for the E-2 visa. Also, please note that you must file for EB-5 before your daughter turns 21 to ensure that she is included in the petition.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    Two 90-day stays on VWP, if spread out (i.e., Jan-March and Aug-Oct), should be fine. Visits closer together would likely result in a brief admission period or refusal of admission. Note, however, that admission on VWP is discretionary and a CBP officer could decide on your admission otherwise. As a U.K. national, you can consider an E-2 visa to allow you and your daughter to live in the U.S. while the EB-5 visa is pending. E-2/EB-5 sequencing must be planned carefully, so please retain an attorney who can help you understand your options.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    The first thing to keep in mind is your daughter possibly aging out of the process if there are any delays in filing or adjudicating of the I-526 since she is 19. Yes, you may be able to enter under ESTA/visa waiver and remain 90 days subject to scrutiny by Immigration when entering the United States. Depending on how you plan to process for the EB-5 (direct vs. regional center), you may opt to obtain an E-2 investor visa using the investment that you will be using to go through the EB-5 to avoid the hassle when entering as a visitor on ESTA/Visa Waiver.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    There several alternatives to this plan. While the Visa Waiver Pilot program is one option, you may want to explore other non-immigrant visas. Prior to putting your plans in progress, it is advisable that you consult an immigration attorney to look at your available options, including but not limited to initiating the EB-5 petition as early as possible.

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    Mitch Wexler

    Immigration Attorney
    Answered on

    If you can, it is probably simpler if you file your I-526 EB-5 petition after she has secured her nonimmigrant F-1 visa. As a U.K. Passport holder, you can apply for entry to the U.S. pursuant to the visa waiver (ESTA) program but you should be cognizant of the conflict in the intents of a visitor versus a green card applicant. Fortunately, we have not heard reports of similarly situated visitors having any issues if they clearly show a return ticket home, sufficient funds for their U.S. holiday and a job overseas, etc. Of course, this view can change at any time so continue to be in touch with competent counsel.

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    Stephen Berman

    Immigration Attorney
    Answered on

    You can apply for a B1/B2 to spend up to 6 months in the U.S. You should know that it is not considered normal in the U.S. for parents to live with their children who are going away to college.

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