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Can I apply for EB-5 if I have a pending asylum application?

I filed an asylum case two years ago and it is still pending. Is it possible for me to apply for an EB-5 visa? Would EB-5 be a faster route to U.S. permanent residency? I am not from one of those countries that are subject to the EB-5 visa backlog.

Answers

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    In general, there is no restriction to apply for multiple cases under U.S. immigration law, as long as one meets the qualifications. In fact, sometimes it is a wise immigration strategy to apply for more than one immigration benefit, as long as they do not conflict with/contradict one another. You can still apply for EB-5, but there may be a question as to your ability to adjust status in the United States if you no longer maintain your underlying non-immigrant status. Furthermore, if you were to return to your home country for EB-5 consular processing, that would have a negative impact on your asylum case. You should consult with an experienced immigration attorney to determine the best strategy for your case(s).

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    Charles Foster

    Immigration Attorney
    Answered on

    Yes, you can always file an EB-5 petition on Form I-526, even if you have filed for an asylum case. The EB-5 petition potentially could be faster, depending upon the strength of your asylum case, although generally speaking, given the unprecedented number of Central Americans filing for asylum, there's a significant backlog in adjudicating asylum cases. Generally speaking, the EB-5 petition thus would not only be potentially faster, but almost certainly more certain, given the inherent uncertainties of the asylum process.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Yes, as long as the asylum application has no fraud finding, you can process for your lawful permanent residency through EB-5. However, unless you are maintaining lawful status, you may have to depart the country to process for your immigrant visa at a U.S. consulate once your EB-5 petition is approved.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    As an asylum applicant there are no inherent reasons that would make you ineligible for applying for the EB-5. That said, if you were in the U.S. unlawfully for over 180 days or worked illegally without proper authorization, you will not be able to adjust status. From your explanation, though, I gather that you are here totally lawfully. Given that you come from a country that is not experiencing any visa backlog, you should probably apply for the EB-5 if you have the financial wherewithal.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    You can proceed with an EB-5 case while your asylum case is pending.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    A person is eligible for permanent resident status 12 months after the approval of an asylum application. Through EB-5, permanent residence can be expected after approximately five years. Nothing in the law prevents you from filing an EB-5 petition while asylum is pending. You should discuss with your attorney, as there are other considerations in this scenario.

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    Hassan Elkhalil

    Immigration Attorney
    Answered on

    Pending asylum application provides an "authorized stay," a permission to stay and at some point engage in employment in the United States. A pending asylum application is not a legal non-immigrant status that will allow the holder to change extension of status. In short, you cannot change your status from asylum to EB-5. As to your second question, the EB-5 option is faster route than the asylum route to obtain your green card.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Yes, you may but unless you maintained a non-immigrant status while the asylum was pending, then you will not be able to adjust status in the year.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    This is a complex question for an online forum. It is possible you may apply for EB-5 but you need to analyze any possible unlawful presence issues with an experienced immigration attorney and determine if you are eligible for EB-5. Currently, it takes about two years for USCIS to adjudicate an I-526 petition.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If the asylum case is not frivolous and if you have not been unlawfully present, meaning that you were in status when the asylum application was filed and there have been no gaps in your employment authorization, then you will most likely not accrue unlawful presence when you depart the U.S. to consular process abroad and have your final interview. Unless you have maintained valid non-immigrant status, adjusting in the U.S. will not be possible.

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    Barbara Suri

    Immigration Attorney
    Answered on

    You may file for an EB-5 visa if you qualify. For details on your qualification, you should seek counsel from an experienced immigration attorney. The speed for acquisition of a EB-5 visa, of course, depends on how soon your priority date is reached.

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