I live in Brazil, but am currently visiting Canada on a temporary resident visa, which just expired. I do not want to go back to Brazil. After speaking with family, I am more interested in applying for EB-5 and moving permanently to the United States. How can I apply for EB-5 if I am out of status in another country? Will I have to go back to Brazil to apply?
Your being out-of-status in another country would not affect your eligibility to participate in the EB-5 program. Usually, applying for a U.S. visa outside the home country will require the applicant to provide legal status in the third country. Therefore, when the visa petition is approved, you will need to return to your home country for the consular processing. To give you an estimate of time for returning to Brazil, please know that there is currently a backlog of 14 months in the USCIS processing of I-526 applications in the EB-5 program.
You can apply from Canada, but will have to go back to Brazil for the consular interview.
Regardless of your country of present residence, you can file your investor's petition with the USCIS in the United States. Being out of status in another country will not affect your application for conditional permanent residency.
You might be able to apply from Canada, but you would need to return to Brazil to receive your visa if you are approved.
Your immigration status in Canada, whether legal or not, has no impact on your ability to participate in the EB-5 program in the United States. As a practical note, you might have to return to Brazil for the visa processing after the I-526 is approved.
You can submit the petition while you are in Canada, but you will have to go back to Brazil for the consulate interview.
Most likely, you will have to go back to Brazil for your immigrant visa interview after your I-526 petition is approved.
The EB-5 program is not concerned with where you are located at the time of application and whether you are in status in that country. You will not be able to process your immigrant visa (upon approval of your I-526 petition) at the U.S. Embassy in Canada if you are out of status in Canada. If you are located in the United States - in lawful status - at the time your I-526 approved, you can apply for adjustment of status. Otherwise, you need to process your immigrant visa at the U.S. Embassy in Brazil. It is possible to process the visa in a U.S. Embassy in a third country, but that would require lawful status. Please make sure to consult with an immigration attorney to remain eligible for the U.S. immigrant visa.
To obtain the conditional permanent residency EB-5 visa (after getting your petition approved with USCIS, which can be done from anywhere), you have to go through a U.S. consulate. Usually this is done in the petitioner's country of residence, so heading back to Brazil for the consulate interview would probably be the way to go.
You may apply from wherever you like. However, since you are a citizen of Brazil and do not have legal status in Canada, you will have to go back to Brazil to obtain the U.S. immigrant visa after approval of your EB-5 petition. Additionally, being out of status in Canada may cause you criminal problems which may adversely impact your U.S. visa process.
If you are allowed to legally remain in the third country, you can process your green card in that country. If not, you will need to process in Brazil.
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