Currently I have a pending political asylum. We had a lawful entry into the US, so do we still have to go back to India in order to process EB-5? How long does the process take usually? And can the funds be a secured loan(for example: lets say I wanted to buy a hotel and I apply for a loan, would that be considered a proper source of funds?)
Nothing in the regs prevents you from filing an EB-5 petition while your asylum application is pending. An attorney needs to evaluate whether or not you would be able to adjust status or have to consular process a green card. An attorney should also evaluate your asylum application in case it makes you ineligible for a visa. A loan must be secured by the personal (and identifiable) asset of the investor.
It is advisable that you have a comprehensive consultation with an immigration attorney before you plan to invest and file I-526 petition. Issues to be considered will include whether you have accrued any unlawful presence and how many days, and whether you worked without employment authorization. If you have not accrued unlawful presence or worked without employment authorization, you should be able to consular process for an immigrant visa outside the U.S. if and when your I-526 is approved. A secured loan collateralized with your personal assets may be a valid source of funds for an EB-5 case but this needs to be evaluated during a consultation with an immigration attorney knowledgeable in EB-5 matters.
Yes, one can file an EB-5 petition even if there is an ongoing asylum case.
With a pending asylum, the only way to adjust is through asylum. Another process like EB-5 would require consulate processing. But, you can file the I-526 from here.
Several points. If the asylum case is deemed frivolous, you could be barred from all future benefits. One question that is critical is whether you were in lawful status at the time you applied for asylum and whether you have worked without permission while the asylum case was pending. Regarding the EB-5, it is unlikely you will be eligible to adjust and if you have accrued unlawful presence by being out of status, or working without permission, you will likely trigger a 10-year bar to reentry when you leave to apply for a green card abroad. You may be eligible for an unlawful presence waiver but there are insufficient facts to determine this. Unsecured loans or loans secured on the business are unlikely to succeed and purchasing an existing business unless deemed troubled by virtue of prior losses is not a basis for an EB-5 job creation visa.
You might have to return to India. Depends on whether you have any unlawful presence in the U.S. and how much, including working without authorization.
