Questions and Answers > EB-5 Investments

Can I stay in the U.S. while going through the EB-5 program?

I am new in the U.S. I intend to get my EB-5 visa by investing $500,000 in a regional center. My current visa is valid to 4-27-2013. Can I stay in the U.S. if I find a good regional center and file the I-526 form before my visa is finished? Or is it necessary to go back home if I do not receive approval before that?

Answers

• Ekaterina Powell

  Immigration Attorney

  Answered on January 14, 2013

  The dates on your visa are not relevant. Visa is only good to enter the U.S. but is not evidence of your legal status in the U.S. You need to look at your I-94, Arrival-Departure Card stapled to your passport. At the port of entry, the officer should have put the expiration date on it. This is the last day when you can stay in the U.S. Filing Form I-526 to qualify you as an EB-5 investor does not extend your stay in the U.S. If you do not receive an approval of I-526 and file for your green card before your status expires, you need to go home. If you would like to stay in the U.S. while the petition is pending, you need to be on another valid nonimmigrant status. If your I-526 is approved, you may then file for your green card application if you are in the U.S.

• Mark Urbanski

  Immigration Attorney

  Answered on January 10, 2013

  In theory you could remain in the U.S. and adjust your status if your EB-5 visa is approved, but given current processing times it is unlikely that you would have enough time to process your I-526 before your visa status expired.? Therefore, unless you are able to extend or change your status to remain longer in the U.S., you would need to leave and process your immigrant visa through the U.S. consulate in your home country.

• Shahzad Q Qadri

  RC Creator

  Answered on January 8, 2013

  Yes –you remain in status pending the adjudication of the I-526.

• Jennifer Parser

  Immigration Attorney

  Answered on January 7, 2013

  You cannot be in the US except in a valid visa status. You cannot stay in the US with an expired visa even with an EB-5 petition pending. It is best to wait outside the US while the EB-5 is pending. Attempted entry with a pending EB-5 petition, even in valid nonimmigrant visa status, could appear to US immigration authorities you have unauthorized permanent immigrant intent when you are in nonimmigrant status as you would be as a business visitor. This so-called ''duality intent'' is not permitted, except for some work visas which you presumably would not have if you are using the EB-5 program.

• Kristina Rost

  Immigration Attorney

  Answered on January 3, 2013

  Your right to stay in the US is determined not so much by your US visa (which only gives you a right to enter the US) but by your non-immigrant status as evidenced in your Arrival-Departure record I-94. Also, filing of your I-526 petition that qualifies you as an investor for immigration purposes would not confer a valid status in the US upon you - you have to maintain one independently from I-526 process. It is highly unlikely to assume that your I-526 will be approved by the end of April, so the answer to your question would really depend on whether you would be able to maintain your status during the I-526 pendency.

• Julia Roussinova

  Immigration Attorney

  Answered on January 3, 2013

  It is unlikely your I-526 petition will be approved and you will be eligible to file for adjustment of status (green card) in the US before your current lawful immigration status expires in April 2013 unless you can change or extend your lawful immigration status to remain in the US while your I-526 petition is pending. Currently, it takes about 8 months for I-526 petitions to be processed by USCIS. If you do not plan to have your current lawful immigration status extended or changed to a different lawful immigration status, then you will need to depart the US before the expiration date on your I-94 departure record and consular process when your I-526 petition is approved by USCIS in order to return to the US on immigrant visa based on your approved EB-5 petition.

• Laura Danielson

  Immigration Attorney

  Answered on January 2, 2013

  Yes, an individual can stay in the US provided he or she is in lawful status for the entire time that the I-526 application is pending. You do not say what type of visa you have, which has a bearing on the strategic planning. Also, the validity date of the visa is not as important as the validity date of one?s I-94 departure card. In any case, an I-526 application will not likely be adjudicated by 4/27/2013. An I-526 application cannot be filed concurrently with the application to adjust status (I-485).

• Laura A Edgerton

  Immigration Attorney

  Answered on January 2, 2013

  You need to maintain a valid status in order to be in the U.S. while your EB-5 immigrant process is pending. After your current status expires, you will need to have your adjustment of status filed at a minimum in order to legally remain here. The pendency of an I-526 by itself is not enough to allow you to remain here legally.

• Taher Kameli

  Immigration Attorney

  Answered on January 2, 2013

  Your I-526 needs to be approved and you need to apply for I-485 before the expiration 4/27/2013. Please note that currently it may take 6-9 months for the USCIS to adjudicate your application.

• Marisa Casablanca

  Immigration Attorney

  Answered on January 2, 2013

  Your question is a bit difficult to respond to in an email. You should ask your attorney to strategize the dates you have in the US in order to file the I-526. For example, we have to coordinate time lines for our clients regarding issues such as school schedules for minor children, sale of property abroad, and the type of visa the client has. If a client enters with a B visa they are usually given 6 months. This is for the most part too short to process a petition and application for residency. However, one of our clients received her permanent residency in 3 1/2 months. This is were your relationship with your attorney is extremely important because you are the client and an attorney with extensive knowledge in the process and experience in catering to their clients needs is essential for a successful relationship. We are available if you need further information.

• Rana Jazayerli

  Immigration Attorney

  Answered on January 2, 2013

  You can only remain in the US if you have a valid visa in another category. The filing of the I-526 petition does not extend any status or grant any status to remain in the US while it is pending. Adjudications of I-526 petitions are generally taking 6-8 months, so remaining in the US on a visitors visa until it is adjudicated is generally not possible.

• Mahsa Aliaskari

  Immigration Attorney

  Answered on January 2, 2013

  Whether or not you may remain in the U.S. while completing the permanent residence process through EB-5 will depend on the type of visa you are currently in the U.S. For example, if you are in the U.S. in H-1B or L-1 status, you may continue in that status. However, if you are in the U.S. as a visitor this may not be an option.

• Edward Litwin

  Immigration Attorney

  Answered on January 2, 2013

  You will probably have to go home. However, if you are still in status when the initial application is approved (form I-526), you will be able to remain in the U.S. I assume that you are here on a visitors visa, but that may be extended or you may qualify for other visas. Have you chosen which regional center you will be investing in? I strongly suggest that you call my office to schedule a consultation to discuss your stay and status in the u.s. so that I can give you better and more specific advice. There is a fee of $150 for the consultation and you will be very pleased with the amount of information that you receive.

• Daniel McCarthy

  Immigration Attorney

  Answered on January 2, 2013

  Yes, you can stay in the U.S. before your EB-5 visa is finished. It is not necessary to go back home before receiving approval.

• Jinhee Wilde

  Immigration Attorney

  Answered on January 2, 2013

  If you are in the U.S. with a valid visa status, then you may stay while you are going through I-526 application and then apply for I-485, Adjustment of Status application after you received I-526. However, as the I-526 application is taking more than 8 months to adjudicate and your visa expires in April, that does not give you much time. If your visa expires and it is not extended, then you may accrue unlawful presence after your visa expires, which may trigger 3 and 10 year bar for re-admittance back into U.S. Depending on what kind of visa you have, you should consult an immigration attorney to see if that visa could be extended and for how long. This will give you a better idea of whether you should go back home to get consulate processed back in or whether you could file I-485.

• Igor Serbinin

  Immigration Attorney

  Answered on December 28, 2012

  Yes you can. You need to make sure that you are not falling out of status however. Filing initial petition with USCIS though regional center will start the process but at the same time you may need to file extension for your current status whether it is a visitor or some other nonimmigrant classification. If the extension of status or change of status is not accomplished prior to expiration of your current status in the United States you will need to depart in order to not jeopardize your EB5 application. Good luck!

• Farah Abbas

  Immigration Attorney

  Answered on December 27, 2012

  You must remain in lawful status during your entire stay in the U.S. That means that you need to be living in the U.S. - with a valid visa - while you file the Form I-526 and during the entire processing time after filing. Your visa must remain valid up until the time your Form I-526 would get approved and you would file the Form I-485 to adjust your status to permanent resident. In your case, with your visa expiring on 4/27/2013, that means that you would have to go back to your home country before that date (even if you file the Form I-526). Given current USCIS processing times for the Form I-526, it is highly unlikely that your Form I-526 would be adjudicated before then.

• Louis M Piscopo

  Immigration Attorney

  Answered on December 27, 2012

  The filing of the I-526 does not permit you to remain in the U.S. after the expiration of your current non-immigrant visa status. In order to remain in the U.S. during the whole process your I-526 would have to be approved and would have to file for adjustment of status before your current visa stay (as shown on your I-94) expires. If you entered the U.S. without a visa under the Visa Waiver Program you cannot file to change or adjust your status in the U.S. (except under very limited circumstances). In your situation, if the I-526 is not approved before 4/27/2013 and your stay is not extended, you would have to consular process in your home country.

• Clem Turner

  Securities Attorney

  Answered on December 27, 2012

  It is possible to adjust your status from a valid visa to an EB5 conditional green card, however you should seek immigration counsel regarding what you will need to do if your I-526 application has not been approved prior to the expiration of your current visa.

• Gregory Romanovsky

  Immigration Attorney

  Answered on December 27, 2012

  If you want to adjust your status in the U.S. (without leaving the country), you will need to maintain valid non-immigrant status until the I-526 is approved and you''re able to file for permanent residence (I-485 Application). Please call us if you want to discuss this further.

• Bita Hamidi

  Immigration Attorney

  Answered on December 27, 2012

  At this point USCIs is taking 8 months to adjudicate I-526 applications so you do not have enough time given your limitations. You may use this time to research Regional Centers and begin the application process but you must leave before the end of your visa term and continue your process through the Consulate in your country.

• Larry J Behar, Esq

  Immigration Attorney

  Answered on December 27, 2012

  There is nothing to prevent you from staying in the US but note that your intent has now changed from nonimmigrant to immigrant intent. If you have not started the EB 5 process, you will most likely need an extension of your visa. It is best to seek the opinion of a qualified EB 5 attorney in your city in the US.

• Elizabeth Peng

  Immigration Attorney

  Answered on December 27, 2012

  If your current visa expires on 4/27/13, you will need to go home to do consular processing of your immigrant visa based on EB-5 petition unless you can file a change of status to extension of status beyond 4/27/13. The I-526 petition is currently taking 8-9 months to get approved, and you can only file for adjustment of status in the U.S. after the I-526 approval if you have a valid nonimmigrant visa status at the time of the I-526 approval. Therefore, whether you can stay in the U.S. to adjust your status to green card will depend on whether you can have a valid nonimmigrant vsia status that remains valid at the time of your I-526 approval.

• Darren Silver

  Immigration Attorney

  Answered on December 27, 2012

  You will need to abide by the terms of the period of stay as is posted on your I-94.

• Charles H Kuck

  Immigration Attorney

  Answered on December 27, 2012

  No, that will not be possible, you will need to leave, or change to another visa to remain in the US beyond April.

• Anthony Ravani

  Immigration Attorney

  Answered on December 27, 2012

  If you do everything and have your attorney file the EB-5 case right away, and also be able to extend your visiting visa for another 6 months, then you do not have to go out and can file adjustment of status.

• Stephen Berman

  Immigration Attorney

  Answered on December 27, 2012

  You should be able to do it and you can stay when the application is pending.

• Neville M Leslie

  Immigration Attorney

  Answered on December 27, 2012

  You can stay during the process.