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Can a U.S. tourist visa holder apply for EB-5?

I have a B-1/B-2 visa. Am I eligible to apply for I-526 approval while in the country and still travel in and out of the U.S.? Is there any other documentation I need for travel? Please advise.

Answers

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    You can file the first step from wherever, but since you cannot concurrently file for a green card, you need to leave the U.S. at the end of your six months of B status.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You can start the process of preparing the I-526 petition. However, this will not grant you any immigration status or work authorization in the U.S. and, given the current lengthy processing times for I-526 petitions which average two years, it is unlikely I-526 will be adjudicated while you are in the U.S. on a tourist visa, which is generally up to six months. To that end, it is very important not to overstay your tourist visa and either apply for change of status to a different work visa, such as E-2 (if eligible) or L-1A (if eligible), or depart the U.S. prior to expiration of your tourist visa and consular process for an immigrant visa abroad when your I-526 petition is approved. It is possible to travel on a tourist visa while you have an immigrant petition pending, especially if you indicate you will consular process abroad in your I-526. However, it is never guaranteed and you should have proof of permanent residency and ties to home country, such as employment or school, immediate family, etc., when you attempt to get admitted to the US.

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    Barbara Suri

    Immigration Attorney
    Answered on

    Yes, a B-1/B-2 visa holder may apply for I-526 approval and still travel in and out of the U.S. No other documents are needed at this time to travel.

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    Charles Foster

    Immigration Attorney
    Answered on

    Yes, while in the U.S. in B-1/B-2 status, you may file an EB-5 investor petition on Form I-526. However, it does not give you any right to remain in the U.S. beyond the time you are authorized to stay in B-1/B-2 status. Yes, once you depart the U.S., you could re-apply for admission, but the fact that you had filed a petition to obtain permanent residency would be a factor in determining whether or not you're eligible for re-admission. However, under the concept of dual intent, you can argue that while you have a long-term plan to immigrate, you have a short-term intent to visit.

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    Phuong Le

    Immigration Attorney
    Answered on

    Even after you've applied for EB-5, you can generally apply for a B-1/B-2 if you have a valid (and short-term) purpose behind your trip.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    Absolutely. No problem with that. Just make sure that you do not extend your permitted stay period in the U.S. Once your visitor admission period finishes, you should depart the U.S. Once you apply for the EB-5, it will probably be difficult to get another non-immigrant visa to allow you to wait for the green card approval in the U.S. The best course of action would be to depart and wait for the approval overseas. If you absolutely need to come back to the U.S. temporarily while your I-526 is pending, you will need to prove that your intent is one of a visitor or businessperson and that you have sufficient ties back home that would incentivize you to go back. This could be tricky to prove with a pending I-526, so you should certainly work with an experienced immigration attorney guiding you along the process.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Yes, you may apply for an EB-5 petition while maintaining visitor status, and also continue to travel using the B-1/B-2 visa during the processing of the EB-5 petition.

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    Mitch Wexler

    Immigration Attorney
    Answered on

    A visitor can file an I-526 but upon conclusion of the visit, the visitor should depart the U.S. 526s can take two years to be approved. Visitor status cannot be extended nearly that long, especially with an immigrant visa petition having been filed. The applicant should then wait abroad to be issued the immigrant visa. Under certain circumstances, U.S. entries can be made during the process. This is where good legal counsel comes in.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    In theory, yes, but with each trip you must prove your ties to the home country and intent to return to consular process for your immigrant visa.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    Yes, a U.S. tourist visa holder can apply for an EB-5, but upon each entry you need to prove to the officer you have a legitimate temporary intent. You can't live in the U.S. on a tourist visa, but if you have a legitimate tourist or business trip, that might be possible if you can show you have an unrelinquished residence aboard.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    You can file an EB-5 petition while in B-1/B-2 status. Make sure you leave the U.S. before the expiration of the current visitor admission period.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Yes, you can file the I-526 petition while in the U.S. on a B-1/B-2 visa. However, you cannot stay in the U.S. while the petition is pending, as I-526 petition processing will clearly take longer than your B-1/B-2 visa. As a result, you will have to leave the U.S. On the other hand, if you want to visit the U.S. while your I-526 is pending, you may be granted permission to enter the U.S. Advisably, engage an EB-5 attorney for proper guidance on what you need to do for EB-5.

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