Currently, I live in Portland working under an F-1 (OPT) visa, while my wife is pursuing her medical residency training under a J-1 visa which has a two-year home residency requirement (HRR). Since the EB-5 process would presumably take at least 12-15 months from now before I am granted a temporary green card, I am planning to convert my visa into a J-2 as my wife''s dependent in order to continue working here in United States. Would I be able to enroll into EB-5 from my J-2 visa? I understand my wife would still stay in her J-1 even if I applied for EB-5. How would I apply for EB-5 on a J-2 while she is still on her J-1?
You may file for an EB-5 visa while under J-2 visa status. As a J-2 visa holder, you may also be subject to the two-year home residency requirement. However, you and your wife may apply for a waiver for the home residency requirement. Please note that you may also apply for an EB-5 visa while under F-1 visa status.
I am unclear what you mean by "how." Provided you qualify and have no restrictions on your J-2 visa, you will be applying for change of status that will allow you to switch from the J-2 to the EB-5.
You would not be able to adjust status or obtain an immigrant visa unless and until you and your wife either comply with the two-year home residence requirement or you receive a waiver of the requirement. You should consult with an experienced immigration attorney, such as myself, to guide you and advise you in this matter.
A J visa with a residency requirement has to have a waiver granted by the State Department before you can adjust. In order to obtain that waiver, your country Embassy would also need to sign a no objection letter stating that they need not have your wife, a doctor, come back to the country to share her knowledge gained through the J-1 program.
You can file the I-526, but will not be allowed to adjust until your spouse completes either the two year period back home or is able to obtain a waiver and then completes that requirement. In the meantime, you would need to maintain your underlying status. There may also be dual intent issues so you need to consult with an immigration attorney on these issues.
You can file an EB-5 I-526 petition whether you are in or outside the United States.
By converting to J-2 status, you too will become subject to the 2-year foreign residence rule. You will both have to spend 2 years in your home country while your EB-5 case is pending. The timing of the process should work out okay for you both, with proper planning. Let me know if we can assist you.
I think your idea to change status before filing the I-526 petition is good. You can file the I-526 under a nonimmigrant status (like the J-2) and indicate that you wish to adjust status upon approval (filing the I-485 application with USCIS). If there is some delay and your nonimmigrant status expires, you can still go through consulate processing at a U.S. consulate in your home country.
You absolutely should not seek a J-2 visa, as that will subject you to the 212e two year hone residence requirement. You should either apply for an H-1B visa or seek other interim investment visas. Please call me to discuss further.
You need to speak with an experienced immigration counsel to properly plan, and to discuss your wife's J-1 Visa. If your spouse is subject to the two-year foreign residence requirement, you may also as well. Aside from that, if you are in lawful nonimmigrant status and have not violated the terms of your stay, then you may be able to seek the green card after your EB-5 is approved. For more information please feel free to contact me.
