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When should I apply for a status change from M-1 to EB-5?

Hi, I have M-1 visa active until 12/15/2018 and, because of my work schedule in my home country, I do get partial training. The last training course starts on 08/18/2017 and, after its completion, I would like to establish my own workshop/company. I have a couple questions about this process. First, can I apply to change my visa status to EB-5 while in the States with my M-1 visa? Second, if I complete the training within 30 days of arrival, what is the best time to apply for a status change?

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    Michael A Harris

    Immigration Attorney
    Answered on

    It sounds like you may be seeking to qualify for an EB-5 visa based on an investment in a company that you will oversee and control. Only after an EB-5 investor has been preliminarily approved for the EB-5 visa and is lawfully in the United States with nonimmigrant status such as the M-1 can that investor seek to apply for what is called Adjustment of Status. This is a legal process that allows for the investor to apply for the green card directly in the U.S. That being said, it is important to make clear that you can only do this when the 1st petition for the EB-5, called the Form I-526, is approved. Under the current procedure for EB-5 investors, we cannot simultaneously (or concurrently) file for your Adjustment of Status at the same time as the Form I-526 petition. This might change in the future if certain legislation passes. Additionally, based on the current estimated average processing times for the Form I-526, it may be at least 18 months or longer before it is approved. If the case takes that long and your status ends on 12/15/2018, then there may not be enough time for you to apply for Adjustment of Status while you are in M-1 status. If you were required to depart the U.S., then you would have to apply for the immigrant visa at a U.S. Consulate overseas. It would best to discuss this further with an experienced lawyer who specializes in EB-5 matters.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Yes, you can file an EB-5 petition while you are on an M-1 visa if you can meet its requirementseven while in the United States. However, be aware you need to be able to meet the following basic three requirements: (1) investment in the amount of a minimum of $500k or $1 million depending on the location of the project, (2) the investment must result in the creation of at least 10 jobs and (3) all the investment funds must come from legal source(s). Advisably, consult an EB-5 attorney for a further analysis of your plan.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You can apply for the EB-5 while still on M-1 status or in training. However, just applying will not allow you to remain in the United States while it is being adjudicated. You would need to find another nonimmigrant status in order to stay when training ends.

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    Charles Foster

    Immigration Attorney
    Answered on

    Once you are lawfully admitted into the United States in M-1 non-immigrant visa status, you could theoretically file an Application to Adjust Status to become a Lawful Permanent Resident based upon an approved EB-5 Investor Petition at any time. You would want to file while you are still in status before the expiration of your M-1 non-immigrant status. However, please note that you cannot file to change your status until your EB-5 Investor Petition on Form I-526 has been approved and a visa number is available. Generally speaking, a visa number will be available upon the approval unless you were born in the People''s Republic of China where there is a currently a backlog of several years.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    You can start your EB-5 Petitioning processing while you are on the M-1. The sooner you do this, the better! The adjudication of EB-5 Petitions is currently taking approximately 18 months. Once the Petition is approved, you can then file to "adjust" status to lawful permanent resident in the United States. You can invest the money and start the operation, but you yourself can not operate it until you are granted the permanent residence. You can hire a manager to run the business while your EB-5 Petition is being processed.

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    Irina Rostova

    Immigration Attorney
    Answered on

    You can adjust your status (form I-485) in the United States from M-1 to a resident after your I-526 application has been approved. If you have traveled outside of the U.S., you should not file an Adjustment of Status less than 60 days since your arrival to the U.S.

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