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How can I apply for EB-5 if I am not eligible for the DACA program?

I was brought to the U.S. from Mexico when I was 14 years old. Now I am 42. I am not qualified for the DACA program due to my age. Is it possible for me to change my status through the EB-5 regional center program? Will there be any issues?

Answers

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Change status? You may need some very strong waivers of unlawful presence for any green card process and may still need to leave the U.S. You need an attorney to assist you.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    From your question detail I am concluding that you are not eligible for the 245(i) grandfather protection. Since you have been in the U.S. unlawfully for so long, the only way you could cure that is if you leave the country and stay overseas for 10 years or more. You could then apply, but even then, you might have issues with source of funds if you try to use the income you earned while you were in the U.S. illegally. Please consult with an experienced immigration attorney to receive sound advice on this before considering any kind of EB-5-related investment.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You must show maintenance of status at all times in the U.S. or be eligible to pay the penalty under Section 245(i) based on a failing prior to April 30, 2001.

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    Charles Foster

    Immigration Attorney
    Answered on

    As a practical matter, since you have been in the U.S. for more than 12 months out of status, you have the right to file an EB-5 petition on Form I-526, but would have to depart the U.S. to apply for your immigrant visa based upon the approval of your I-526 petition. At that point you would be subject to a permanent 10-year bar or prohibition from re-entering the U.S., thus discouraging anyone from seeking to qualify for a lawful status once they are in the U.S. in unlawful status for more than six months. After six months, one is subject to a three-year permanent bar as well.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You are not eligible to adjust status in the U.S. from no status, even if your I-526 petition is approved. Please schedule a comprehensive consultation with an experienced immigration attorney to review all possible immigration options and inadmissibility issues as applicable based on your specific situation. Your question is complex it is not appropriate for a forum.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    EB-5 cannot cure unlawful presence or other inadmissibility issues. Consult with a lawyer to see if you qualify for any immigration relief.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    If you are unlawfully present in the U.S. (for >365 days), you will be subject to the statutory bars from receiving immigration benefits (for 10 years after you have departed the U.S.), so EB-5 processing would not be an option.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Unfortunately, if you are not in legal status, you are not able to change the status unless there is some amnesty provided that will allow you to do that. If you had not had any actual denials of any immigration adjudication, there is an argument to be made that you have not actually accrued any unlawful presence to bar your admission back. Thus, if you are to leave and start over, there may be a chance. However, please note that USCIS may question the legal source of funds if you have been working in the U.S. without proper work authorization.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Unfortunately, it does not appear that you would qualify, as your illegal resident status for well over a year would be an impediment to any EB-5 petition.

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    Stephen Berman

    Immigration Attorney
    Answered on

    Yes, if you qualify for 245(I) or an unlawful presence waiver.

  • Avatar

    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    In order to adjust status in the U.S. based on an EB-5 petition, you must not have been out of status for even one day, unless you have section 245(i) grandfather protection because you were the beneficiary of a green card petition filed before April 30, 2001. If you want to process a green card abroad, you will likely trigger a 10-year bar, or worse. So you need to see if you eligible for an unlawful presence waiver. This waiver requires you to have as close anchor relative with U.S. citizenship or at least permanent residency, in addition to other factors. So while there is no easy path, there may be a viable but difficult path.

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