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Can I stay in the U.S. while waiting for my I-526 to be approved?

I am from the Philippines and hold a 10-year multiple entry U.S. tourist visa. The regional center I contacted has an exemplar project available and they said previous investors have their I-526 petitions approved within 11 months. If I file my EB-5 petition while under a tourist visa in the U.S., can I stay and wait for the result considering the adjudication could be fast?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Current average processing times for I-526 is 20 to 26 months. If anyone guarantees you a shorter processing it is more likely than not a gimmick. We have cases that go through I-526 processing faster than others but it is never guaranteed. Even if you have a 10-year visa, your I-94 record controls your authorized period of stay in the U.S., which is usually up to six months on B visa. You must either extend for up to another six months or depart before your current stay expires to avoid accrual of unlawful presence. If you file I-526 petition and then try to extend B status, it will not be approved by USCIS. Consular processing upon approval of I-526 is the best route unless you consider other visas, such as E-2 if from an eligible country, F-1, etc. and change status and then file I-526. Consult an experienced immigration attorney to review all possible options.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Under current laws and regulations, no. If you have a legitimate reason to extend your six-month visitor status, you can request an extension, but filing the I-526 investor petition does not give you the right to remain in the U.S. until approval. If you happen to be in the U.S. and in status when the I-526 is approved and you can file for the green card (adjustment of status) here, then you can remain until that application is approved.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    Most likely not. We have had certain clients whose I-526 petitions were approved in less than one year. That would mean that theoretically you could stay in the U.S. for 12 months by six months under your current status and one possible six-month extension. Chances are high, though, that your six-month extension request would have been denied since through your I-526 application you would have had already indicated your immigrant intent. For all of those reasons, if you decide to move forward with the project, you should wait for your I-526 approval overseas.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    Simply filing an I-526 petition and having it pending adjudication does not confer any immigration benefits. Therefore, you would need to make sure that you do not overstay your temporary period of authorized stay under your B-1 or B-2 status. Furthermore, if you apply to extend your non-immigrant status, it is unlikely that USCIS will consider a pending I-526 as a valid reason for such extension. As such, it does not appear that you would be able to remain in the United States during the full period of time necessary to complete your I-526 petition. You should seek immigration legal counsel from an experienced immigration attorney who can advise you on your options (either a change of status or advice regarding likely immigrant visa processing n your home country) should your I-526 be approved.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Although I had clients who had their I-526 approved within 13 months or less, I have some who waited 27 months or more. The current normal processing time published by USCIS is 20 to 26 months, and no regional center may be able to guarantee that your application would be approved within 12 months or less. If you are here on a tourist visa, at most you could stay is 12 months with one extension filed before your six months is out. Thus, it would not be likely that you will be able to stay until your I-526 is adjudicated. Overstaying your visa and possibly accruing unlawful presence that may bar you for three years or 10 years would be worse than if you leave and visit often during the I-526 adjudication.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    Unfortunately, your filing of your I-526 in itself does not give you any immigration status. In your case you would need to return to the Philippines to await your approval. If you wish to remain you would need to change your status in the United States. You must remain in status at all times. If you overstayed your tourist visa you would have unlawful presence and that could prevent you from getting your green card.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    No.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Not unless your I-94 card is still valid. You can apply for a B-2 extension, but it is likely to be denied because you have indicated immigrant intent. Best to go home and consular process.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    No. Merely filing an EB-5 case does not give you any right to stay in the USA. You need to explore other ways to remain here.

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    Blake Harrison

    Immigration Attorney
    Answered on

    A pending I-526 application does not give you the ability to legally remain in the U.S.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    You can''t stay and wait in the U.S. for the result of your I-526 petition with a tourist visa. Typically, tourist visa will only allows you to stay in the U.S. for as much as six months unless you get an extension. The 10-year multiple-entry U.S. tourist visa you possess simply means you can enter the U.S. during the period (assuming you do not violate the terms of entry you made during the period), but it does not mean you can enter and reside in the U.S. for just any amount of time up to 10 years. Advisably, consult an immigration attorney on all your options before you enter the U.S. and not leaving just because an EB-5 petition has been filed on your behalf.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Having a pending I-526 petition does not give you any lawful status in the U.S., so unless you can maintain the tourist visa status (i.e., by filing extensions of stay), you are not authorized stay in the U.S. by having filed the I-526. The current processing time for I-526 petitions are around two years, so the 11-month processing time may not be a realistic timeline.

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    Charles Foster

    Immigration Attorney
    Answered on

    It will be difficult for you to stay indefinitely in the U.S. in B-1/B-2 status as a visitor for the time it would take for your EB-5 petition on Form I-526 to be approved, given the fact that you are admitted for only six months. It is true that prior to the expiration of six months you can file for an extension of your visitor status, but the fact that you will have on file a pending I-526 petition that demonstrates immigrant intent would in most cases disqualify you from maintaining your temporary non-immigrant status. Furthermore, given the backlog of adjudications even if you received one six-month extension, it might be necessary to file for an additional extension, ich would be even more problematic. You could certainly stay in the U.S. as long as you are maintaining your valid B-1/B-2, but would need to timely depart.

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