Does it matter if I apply for the EB-5 visa from my home country or the U.S.? I keep reading that U.S. consular interviews vary greatly. I’m from Brazil, but I live in Chile right now. Could I enter the U.S. on a tourist visa and then adjust my status there to begin the process?
Answers
Andres Echevarria
Find EB-5 Visa Lawyers: Immigration Attorneys DirectoryApplying for an EB-5 visa can be done either through consular processing or adjustment of status, and each option has its own considerations:
• Consular Processing: This is typically done at a U.S. consulate or
embassy in the applicant's home country or country of residence. Since you
are currently residing in Chile, you could apply at the U.S. consulate
there. Consular processing is generally required for those who are outside
the United States. The process involves an interview at the consulate, and
as you mentioned, the experience can vary depending on the location.
• Adjustment of Status: If you are already in the United States on a valid
nonimmigrant visa, such as a tourist visa, you may be eligible to apply for
adjustment of status to become a lawful permanent resident. The new EB5
law, the IRA, permits concurrent adjustment, which means you can file the
adjustment of status at the same time as the EB5 petitions (I-526) and stay
in the US. This is if you already are in the US on a non-immigrant visa
when you apply.
Consular processing might be more straightforward if you are currently residing outside the U.S., as it aligns with the typical process for those not already in the country.
Each option has its own timeline and procedural differences, so it's important to consult with an immigration attorney and consider your specific circumstances and any potential implications of your choice.
Marisa Casablanca
Find EB-5 Visa Lawyers: Immigration Attorneys DirectoryThe venue of where to apply such as the consulate or through adjustment of status through USCIS depends on the situation of the individual and family. There are pros and cons for each. For example, families with children who want them to finish school abroad or with businesses abroad may choose the consular processing path. Individuals with work visas or wishing to enter sooner, would choose the adjustment of status with USCIS path. You should carefully discuss the strategy with your attorney.
Karen-Lee Pollak
Find EB-5 Visa Lawyers: Immigration Attorneys DirectoryYou can adjust your status in the U.S. instead of consular processing. You would get work authorization 6 months after filing and a travel permit 9 months after filing.
Kirk A Carter
Find EB-5 Visa Lawyers: Immigration Attorneys DirectoryThe B-1/B-2 visa, commonly known as a tourist visa, is designated for those who intend to visit the United States temporarily and without any immigration motives. This visa requires holders to adhere to the 90-day rule, which underscores that visitors must enter the U.S. with a specific purpose aligned with their non-immigrant status and a clear intent to leave upon completion of their visit. This rule is critical in maintaining the integrity of the visa’s non-immigrant classification.
If an individual enters the U.S. on a B-1/B-2 visa and files for an EB-5 immigration petition and Adjustment of Status (AOS) within 90 days of their arrival, USCIS may perceive this action as deceptive. Since the applicant initially declared no immigration intent upon entry, a change of intent within such a short period could suggest that the initial declaration was not truthful. Misrepresenting your intentions at the time of arrival is a basis for inadmissibility and can result in the denial of your I-485, adjustment of status application.
Concurrent filing is possible after the 90-day period but is safest if your entry was on the basis of a nonimmigrant visa which does not require non-immigrant intention, or which permits dual intent - such as the H-1B, L-1 and O-1 visa. Even after the 90-day period USCIS may still determine that the initial entry was based on fraud or misrepresentation, thus it is risky to attempt AOS on a B-2 visa.
You will need to process your EB-5 visa first with USCIS and once approved, process your GC through the US consulate in your home country, which I understand to be Brazil.
Pleased let us know if you would like us to assist you in this process and help you avoid the many traps, pitfalls and fraudulent programs that exist within the EB-5 space.
Lynne Feldman
Find EB-5 Visa Lawyers: Immigration Attorneys DirectoryYou have options on where to apply but if you are requesting a consulate other than your place of birth or nationality you must show you can remain there legally to complete the process. Yes, the adjustment is an option if your Priority Date is current on the date, you file the I-485 and I-526 is on file or approved.
Gregory Romanovsky
Find EB-5 Visa Lawyers: Immigration Attorneys DirectoryWhether or not you're able to file for adjustment after entering the U.S. on a tourist visa will depend on the visa availability in the EB-5 category at that time. Please also keep in mind that you are not supposed to enter the U.S. on a tourist visa if you have no intention to return to your home country at the end of your stay. This warrants a detailed consultation with an experienced immigration attorney.
Michael A Harris, Esq
Find EB-5 Visa Lawyers: Immigration Attorneys DirectoryTo address your question regarding the EB-5 visa process, there are critical distinctions between applying from outside the U.S. (consular processing) and applying within the U.S. (adjustment of status).
1. Consular Processing in Brazil or Chile: Typically, applicants initiate the EB-5 visa process from their country of residence or citizenship, undergoing consular processing. This path involves completing the I-526 petition and, once approved, attending an interview at a U.S. consulate in your region. Consulates in different countries may vary in processing times and interview standards, which could influence how quickly the EB-5 visa is granted.
2. Adjustment of Status Within the U.S.: While traveling to the U.S. on a B-1/B-2 visa to research investment opportunities is permitted, it’s crucial not to enter with a preconceived intention to file for an adjustment of status, as this could raise concerns of “immigrant intent,” which is inconsistent with a tourist visa. However, if your intent to adjust status changes naturally after a significant time in the U.S. (typically after 90 days), it may be permissible to file for an adjustment of status while in the country, though it is best to consult an immigration attorney regarding timing and intent.
Given the specific considerations involved, consulting with an EB-5 immigration attorney is strongly advised to navigate these choices effectively and avoid potential complications.
Fredrick W Voigtmann
Find EB-5 Visa Lawyers: Immigration Attorneys DirectoryYou cannot enter the United States with a visitor’s visa if you have the preconceived intention to immigrate/adjust your status to permanent resident.
Better to wait for consular processing at the U.S. embassy or consulate in your home country.
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