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What other visas can be used before EB-5 application approval?

Prior to the approval of an EB-5 application, can applicants come to United States on other visas? If yes, what kind of visas can they be?

Answers

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    Ed Beshara

    Immigration Attorney
    Answered on

    Non-immigrant visas may allow you to live and work, or attend school, or visit the United States for a temporary period of time. If you enter the United States on a temporary visa you will have to have the intent to leave the United States and apply for conditional permanent residency through the U.S. consulate in your home country.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Other non-immigrant visas may be used if you independently qualify for a particular visa, such as B-1, E treaty trader/investor, L-1A intracompany transferee, L-1B specialized knowledge, H-1B worker, etc. Some visas require showing of non-immigrant intent and temporary stay in the United States, which contradicts with filing of the I-526 immigrant petition by an investor. To that end, you would need to demonstrate your intent to stay in the United States temporarily and then undergo the consular process when your I-526 is approved. Other visas allow dual (immigrant and non-immigrant intent), such as L or H-1B.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    An investor applicant may qualify for a number of nonimmigrant visas, including B-1 business visitor, E treaty investor or trader (if from a treaty country), H nonimmigrant worker, or L-1A manager or executive. Each of these nonimmigrant visa categories has its own qualifications. You should contact an experienced immigration attorney if you have specific questions about how to qualify for one or more of these visa categories. As an EB-5 investor, the applicant has indicated an intention to immigrate to the United States. Therefore, there is a high burden to show that the purpose of any entry or nonimmigrant visa application is temporary, but it is possible to visit the United States as a business visitor to check on investments, meet with developers and attend other temporary business meetings while the immigrant petition is pending. Also, there is dual intent (nonimmigrant/immigrant) allowed for both H-1B and L-1A visas, and for E visas, to a lesser extent.

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    John J Downey

    Immigration Attorney
    Answered on

    Most usually come on a B-2 visitor visa.

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    Michael A Harris

    Immigration Attorney
    Answered on

    Generally, those would be visa categories which allow for what is called "dual intent." Generally, visas such as tourist visas, only allow you to pursue a temporary visit when seeking to enter the country. Some visas, such as the H-1B and L-1, allow for dual intent, or to pursue a temporary visit and permanent residency. The Treaty Investor/Trader Visa (called the E-1 or E-2) has had a limited form of dual intent recognized by the legacy INS, but not the U.S. Department of State. Hence, having the intent to reside permanently in the United States when seeking the E-1 or E-2 visa at a U.S. consular section is forbidden. But many E-visa holders do seek residency while in the United States.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Most of the non-immigrant visas have prohibition against immigrant intent, which means if you have applied for an immigrant petition, such as I-526, the consulate officer will not approve the non-immigrant visa application. The H-1B and L-1 visas are the only ones with the dual intent visas that will allow you to have an immigration petition pending. However, if you already have multiple years'' valid non-immigrant visas, such as B-1/B-2, which are the most common visas, then you could travel to United States for short visits, as long as you intend on consulate processing for the immigrant visa after your I-526 is approved. Also, if you have an F-1 visa and are currently attending school in good standing, you could travel under that visa while the I-526 is pending. Again, both of these B-1/B-2 or F-1 visas should be obtained before you actually file the I-526.

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    Ying Lu

    Immigration Attorney
    Answered on

    Depending on your personal situation, the visa options vary. You may be able to come to the United States under H1-B, L-1 if you meet the requirements for those visas. Sometimes, you may still obtain a B-1/B-2 visa even if you have submitted the I-526 petition.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    L and H are dual intent visas; others require proving intent to return to the home country. If your I-526 is set up for consular processing, you should be able to convince the consulate of this.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    It would depend on where you are in the "EB-5 application" process. While the I-526 is pending, visitor visas or the Visa Waiver Program should be acceptable, but be wary of the requirement of any non-immigrant visa that you intend to return to your home country, as the I-526 petition is part of an immigrant (permanent) process.

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