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Questions & Answers

Can a DACA recipient apply for EB-5?

I came to this country legally, although I am currently on the Deferred Action for Childhood Arrivals (DACA) program. How can I apply for EB-5 to gain a green card without going for consular processing?

Answers

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Unless the current regulations governing DACA have changed, you can't avoid consular processing.

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    Barbara Suri

    Immigration Attorney
    Answered on

    Current immigration law requires that you consular process.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If you entered without inspection the only way to adjust status is if you were granted advance parole, left and were inspected upon re-entry. The problem is EB-5 does not allow you to adjust under section 245(K), so unless you have section 245(i) protection, it is unlikely you will be able to adjust in the U.S.

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    Charles Foster

    Immigration Attorney
    Answered on

    Yes, a DACA beneficiary can file an EB-5 investor petition on Form I-526, but upon approval of same, the DACA beneficiary may not be eligible for adjustment of status and may have to apply for an immigrant visa abroad. There would also be issues about whether or not the applicant, upon departing the U.S., would become subject to a 10-year bar or prohibition from re-entering the United States. Thus, the benefits of an approved EB-5 petition may have limited value unless you can apply for adjustment of status or an immigrant visa. You should consult with an immigration attorney, preferably board-certified with years in immigration, and with experience in representing not only EB-5 applicants, but those individuals who have been out of status.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    I would not advise it at this point. You can process for the EB-5 petition, but when it is time to file for the next step (upon approval of an EB-5 petition), you will have to depart the U.S. and consular process (since you are not eligible for adjustment of status to lawful permanent resident in the U.S. due to your prior unlawful presence in the U.S.) for immigrant visa processing, with a a waiver of the unlawful presence.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    DACA generally may not adjust status in the U.S., including based on an approved I-526 petition. Please schedule a comprehensive consultation with an immigration attorney to discuss your specific case.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    Unfortunately, even though you came to the country legally, the fact that you are on DACA program now makes you ineligible to apply for the EB-5 program without leaving the United States. In order to apply for the EB-5 program within the United States, you need to have maintained non-immigrant status continuously.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    To file to adjust status, you must show you have always maintained non-immigrant status, which DACA can't do. You may be able to consular process without a waiver, depending on your age when you applied for DACA.

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