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Where should an investor apply for the EB-5 visa?

I was thinking of first entering the United States with a B1/B2 visa and then applying for a change of status to EB-5, but I am not sure yet. Is it better to apply for EB-5 while abroad, or after entering the United States? Which is faster? If I apply abroad, should I look for an immigration attorney in my home country, or in the United States?

Answers

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    J Bruce Weinman

    Immigration Attorney
    Answered on

    Neither is "better." How soon do you want to come here? What kind of investment do you want to make? Do you want to come here and meet everyone or just wire the money and sign the documents from your home country. You should work with an experienced immigration attorney that you are comfortable with. Only you can decide whether that should be someone in your home country or here in the United States.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    The processing time for the first stage of EB-5, which is the I-526 petition, is the same whether the petitioner is in the United States or not. The maximum authorized period of stay on a B-1/B-2 visa is six months (extensions are rarely approved and only in certain situations). The average processing time for an I-526 petition is 14.2 months. A pending I-526 petition does not give you the right to remain in the United States, and it does not give you any other immigration benefits unless and until it is approved. This means that you cannot wait in the United States in B-1 or B-2 status while your I-526 petition is being processed. If you have questions about changing status or planning a strategy for visiting the United States while your I-526 is pending or right before it is approved, you should talk to an experienced immigration attorney so you can comply with all U.S. laws and regulations and not jeopardize your EB-5 case.

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    Ed Beshara

    Immigration Attorney
    Answered on

    You may file your I-526 petition whether you reside in the United States or not. The EB-5 immigration attorney may reside in the United States, regardless of where the EB-5 investment takes place or the investors decide to live.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    The tourist visa will not allow you to stay in the United States long enough to adjust status in the United States upon approval of the I-526 petition, because current processing times for the I-526 are 14.2 months. If you are from China, there are important considerations regarding immigrant visa retrogression as well. The best approach may be to file the I-526 and then consular process to obtain the immigrant visa abroad to enter the United States as a conditional permanent resident upon approval of the I-526. Other options may be to obtain a student or other work visa that would allow you to remain legally in the United States in another immigration status and then adjust status after approval of the I-526. You should consult an experienced immigration attorney for further details.

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    Oliver Huiyue Qiu

    Immigration Attorney
    Answered on

    At least you are asking the question at the right place. You cannot enter with the B-2 visitor visa, then file EB-5 to change your status. The action of filing for EB-5 will not extend your B-2 visitor status or provide any lawful status to you. It will not expedite the processing of I-526 either. These are great preliminary questions, but going forward it should benefit you to have experienced legal counsel. This is not going to be an easy undertaking.

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    Sara Wang

    Immigration Attorney
    Answered on

    You will not be able to do a "change of status" to EB-5 from B1/B2. EB-5 is a completely separate application. You should not plan on waiting for the processing of the I-526 (initial application for EB-5) in the United States if you do not have a legitimate legal status to remain in the United States for a long duration of time. Some people can file for an adjustment of status (AOS) in the United States if they are already in the United States with another visa that allows them long-term stay (for example, F1, L1, H1B, etc.). However, if you cannot remain in the United States for a long duration of time, you will have to go through the National Visa Center (NVC), then the overseas consulate. Currently, the processing time for I-485 versus NVC/consulate is roughly the same, with I-485 being a little faster. But again, you should not do this unless you already have a legitimate status to stay in the United States. The last thing you want to do is to overstay your tourist visa while waiting for the approval of the I-526 and pending of the I-485. If you plan to have an immigration attorney help you with your EB-5 (which is always advisable, it is a lot of detailed paperwork), you should always hire one with a U.S. license practicing in the United States. A lot of overseas attorney help with the filing process, but they are not necessarily familiar with all the U.S. immigration laws. More importantly, if you received bad advice or your filing is mishandled, a non-US attorney cannot be really held liable, especially as an explanation to the USCIS.

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    Steffanie J Lewis

    Immigration Attorney
    Answered on

    A foreign attorney may have difficulty accessing U.S. courts or further processes with DHS/USCIS. You do not need to be in the United States to engage a U.S. immigration attorney working in the area of EB-5 investment visas. Entering on a B1/B2 means you intend to return to your national country. If you do not so intend, you would be misrepresenting yourself at the border when you enter. Misrepresentation creates an inadmissibility to be admitted as a U.S. permanent resident. If you happen to be in the United States at the time your EB-5 petition is approved you can change your mind about returning to your national country. You can then apply for U.S. conditional permanent residency while remaining in the United States.

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    John J Downey

    Immigration Attorney
    Answered on

    Your B-1/B-2 visa would not permit you enough time in the United States to apply for and receive an EB-5 status. Apply from abroad; a U.S attorney would be a better choice as they are in the same country as the investment.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Since the EB-5 process takes at least a year and a half, there is no way that you could enter with a B1/B2 and then change your status within 6 months. Also, as the B1/B2 is a non-immigrant visa, entering with an intention of immigrating through EB-5 would be a violation of the non-immigrant intent visa. If you really wish to immigrate to the United States and have eligibility for EB-5, I would suggest that you start the process from where you are and then enter with an immigrant visa, which will get you the conditional residency (green card) about a month after entering. Further, while there may be a U.S. lawyer who could do immigration law practice in your country, EB-5 processing work is a highly specialized area of immigration law with many business and finance documents to file as supporting documents for the I-526 petition. Thus, you may want to work with an EB-5 lawyer located in the United States.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    There would be no difference in speed, but there will be a difference in this all working. Entering under a nonimmigrant visa with the intent to immediately apply for an immigrant process may mean you entered with "fraudulent intent" which is really bad. If you are already here, however, you can move forward with the I-526. Retain U.S. immigration counsel, as the EB-5 program is an U.S. immigration process.

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