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Can I change status from B1/B2 to E2 with a pending EB-5 case?

I submitted my EB-5 petition in 2017 and it is still in process. I plan to travel to the U.S. with my B1/B2 visa and change my status to E-2 to start my small business while waiting for my I-526 to get approved. Will this be possible? Will this impact my EB-5?

Answers

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    Entering on a visitor's visa with an intention to change status may result in your falling under the 90-day entry fraud rule unless you disclose your plan to the officer upon inspection and have proof therefore. You would be smarter to apply for an E-2 at a county abroad so you can travel and not have to face visa fraud. Unless found guilty of entry or visa fraud it should not impact your EB-5 application.

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    Barbara Suri

    Immigration Attorney
    Answered on

    You may apply for whichever benefits you qualify for at the time of filing.

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    Phuong Le

    Immigration Attorney
    Answered on

    The obvious danger is immigrant intent. It's clear that you already have an I-526 pending, and unless you navigate this road correctly, it's easy to trigger denials. Best to consult with immigration counsel before moving forward here.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Assuming you are from an eligible treaty country, you may change status in the U.S. from B-1 to E-2. It may be difficult for you to enter the U.S. on B-1 if you have a pending EB-5 immigrant petition because it requires that you show non-immigrant intent and ties to home country. You may want to work with an experienced immigration attorney to consular process for E-2. Please note E-2 does require showing non-immigrant intent and returning to your home country upon termination of E-2 status. Please consult an experienced immigration attorney to advise you more specifically. Applying for E-2 would not affect a pending EB-5.

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    Charles Foster

    Immigration Attorney
    Answered on

    Yes, you may apply for and obtain an E-2 non-immigrant visa, even though you have a pending EB-5 petition on Form I-526. Technically, you should not travel to the U.S. as a visitor under your B-1/B-2 non-immigrant visa, if you intend to file an application for change of status to E-2. When you do apply for an E-2 for non-immigrant at the appropriate American consulate, the fact that you have a pending EB-5 petition will nevertheless be a factor, regarding your intent to return upon the completion of your E-2 Investment. However, it's still possible to obtain an E-2 non-immigrant visa, the same issue may arise when you seek admission on your E-2 visa at a U.S. port of entry.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    What you are proposing is legal, although you should be aware of the requirement under the E-2 category to have a residence abroad which you do not intend to abandon. You must demonstrate that your present intention is to remain in the United States only as long as your E-2 business is operating and that you will return to your home country/residence when the E-2 company ceases operations or your E-2 status is no longer operative. Also, you should be aware that most consular officers take a dim view of B-1/B-2 visa holders who travel to the United States and change status, even though that is legal. If you need to travel, you will have to apply for the E-2 visa at the U.S. embassy or consulate in your home country and you may face some difficulty obtaining the visa once the consular officer realizes you changed status. You may have to explain your intentions and prove that you are not an intending immigrant notwithstanding the pending I-526 petition. The better option may be to apply for the E-2 treaty investor visa directly with the consulate and be upfront about your intentions. The fact that you have a pending I-526 alone might not result in the consular officer finding you ineligible for the E-2 visa. You should definitely consult with an immigration attorney experienced in both E-2 and EB-5 cases.

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    Hassan Elkhalil

    Immigration Attorney
    Answered on

    Anytime you have a pending immigrant application, an immigrant intent EB-5 visa, I will be careful in entering the U.S. on B-1/B-2 non-immigrant intent visa. Consult with your EB-5 attorney for specific advice on your specific situation.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Yes, but you need to show non-immigrant intent at the visa interview.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    This is something you should really be careful about. Going from one non-immigrant intent visa to another non-immigrant intent visa or going from a non-immigrant intent visa to an immigrant intent visa is seen quite often. For example, from B-1/B-2, which is essentially non-immigrant intent tourist visa, you could change to a F-1 student visa since that is also a non-immigrant visa. Similarly, you could go from an F-1 student visa, which is a non-immigrant visa, to EB-5, which is an immigrant intent visa. But your case is different. You have a pending EB-5 application that is probably close to being approved. You are either at the I-526 stage or waiting for your conditional green card. In either case, if you were to apply for the E-2 visa now, which is a non-immigrant intent visa, while waiting approval of your immigrant intent visa, you might create serious issues with your pending EB-5. If you are determined to investigate this path, I strongly recommend that you hire a competent immigration attorney experienced in these complicated situations.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    A few things: Making an entry as a visitor with preconceived intent to change status is not a good look and may get you refused at the border. Changing status to an E-2 with a pending I-526 would be pretty difficult, as the I-526 is an immigrant process. USCIS somewhat recognizes dual-intent with E-2s, but it would be really challenging. The EB-5 process wouldn't be affected unless you are refused at the border. That will have to be explained at your visa interview at the consulate.

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