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What happens if I file for an E-2 visa during the EB-5 process?

I will be starting the EB-5 process immediately. My plan is to move to the United States at the end of 2017. I know I cannot move to the States until I have my I-526 approved and my conditional green card. My plan is to wait for a few months to get an idea of the wait I still have for the I-526 approval. If I see I will not yet be approved by winter 2017, I will begin the E-2 process so I can move to the States as planned and wait for my I-526 approval and conditional green card. Can I do this?

Answers

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    While an I-526 is pending, it may be possible to get other nonimmigrant visas like an E-2, but be prepared for some questioning on your intent. You need to work with EB-5 immigration attorneys to properly plan your immigration processes.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    This could work, but it would be better and make more sense to apply for the E-2 visa first and then file for the EB-5. You should make sure that you can meet the statutory and regulatory requirements for both (E-2 and EB-5) before you start the process. An experienced immigration attorney will be able to advise you during the early stages so the process can flow smoothly.

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    Charles Foster

    Immigration Attorney
    Answered on

    Even though you have an EB-5 petition on Form I-526 pending, you can apply for an E-2 nonimmigrant treaty investor visa at any time assuming you are otherwise eligible and you are a national of a country with which the United States has appropriate Treaty Trader provisions. You must independently show that you or other nationals of the same country have made a "substantial investment" in which you made the investment or you will serve as a manager or executive in a position based upon your "essential skills." Given the fact that you have demonstrated "immigrant intent," you must satisfy the American consular officer at the time of your E-2 nonimmigrant visa application that you would timely depart the United States at the end of your E-2 nonimmigrant status should it expire prior to obtaining permanent residency.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Best option is to file for E-2 first and then structure this correctly to file for EB-5 after you are in the United States in E-2 status. Otherwise, if you file for EB-5 now and then apply for E-2 at the consulate abroad, you have a high chance of refusal of the E-2 visa due to the immigrant intent issue.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Please note that the E-2 visa is a nonimmigrant visa category where you are promising to the consulate officer that you do not have an immigrant intent. Currently, I-526 processing time is 14+ months, which means if you file within next month or so, there is little chance that you could enter with the immigrant visa after I-526 approval by winter of 2017. With the I-526 already filed, you may have a problem obtaining the E-2 as you have already shown your immigrant intent. Perhaps if you promise not to file for adjustment and do the consulate process after I-526 approval, your E-2 could be approved.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Yes, that should work.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    You should file for the E-2 (nonimmigrant visa for investors) before filing for EB-5 (immigrant investor) in order to avoid denial of the E-2 for "immigrant intent" if the EB-5 is already filed/pending.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    While the regulations provide that an E-2 should not be denied because of having filed an EB-5, this is a reverse strategy that should not be encouraged. It might be possible to do an E-2, and if you plan it correctly, convert it to an EB-5. This has to be carefully structured, but can absolutely be accomplished.

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    Ian E Scott

    Immigration Attorney
    Answered on

    An E-2 visa may not be granted if you have a pending I-526 petition outstanding. You would be better off applying for an E-2 visa and then applying for the I-526 once here. You still may have problems if you leave the country and try to renter with an E-2 (but not necessarily) but this is a good option if you plan to stay in the United States and wait for the EB-5 visa. EB-5 petitions are currently taking over 15 months to adjudicate.

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