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How can I apply for EB-5 while on a J-1 waiver?

I have completed my medical education on a J-1 visa and am currently in my third year of a J-1 waiver. How can I apply for EB-5 prior to my J-1 waiver completion?

Answers

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    Dale Schwartz

    Immigration Attorney
    Answered on

    Yes, you can. But you cannot get adjustment of status (green card) until you have fulfilled your H-1B requirement. But you better act fast, as Congress is proposing to reside the minimum $500,000 investment to $1.3 million.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Yes, you can apply. However, you are likely to need a waiver from the sponsor of your J-1 program in order to successfully utilize the benefits of EB-5. First, seek a waiver from your national government. Otherwise, you will not be able to switch to the EB-5 right away. The general rule is that a J-1 recipient is required to go back to his/her home country for two years of service and, upon completion, the recipient can re-enter the U.S. under any visa program including, but not limited to, EB-5. Advisably, consult an immigration attorney to before you put your plans together.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You may file I-526 petition for EB-5 visa now because it takes around two years to get a decision from USCIS. In the meantime, you will either have to obtain a J-1 waiver or complete the two-year residency requirement abroad to be able to either adjust status in the U.S. or apply for an immigrant visa abroad when/if your I-526 petition is approved. You should hire an experienced EB-5 immigration attorney to help you.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    You can file the EB-5 immigrant petition (I-526) while you are waiting for the waiver process. The EB-5 petition currently is taking close to two years from filing, so by that time, you would either have received the waiver of the two-year foreign residency requirement or have stayed abroad in fulfilling the requirement.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    You can absolutely file the I-526 petition that takes about two years to process. During that time you must complete your waiver application, or you would have to wait abroad for two years before you can pick up your green card. However, the fact that you subject to the two-year requirement does not bar you from applying for the green card now; it merely stops you from being able to complete the process until your J-1 waiver is approved, or until you have spent two years abroad.

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    Brian Johnson

    Immigration Attorney
    Answered on

    If you do not have the two-year home residency requirement, then you may be eligible to file an I-526 application if you have also invested or are actively in the process of investing the required amount in a new commercial enterprise. If you wish to do so at a regional center, you will need to do so by Sept. 30.

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    Stephen Berman

    Immigration Attorney
    Answered on

    If you do not comply with the conditions for your J-1 212 waiver, you cannot be granted adjustment of status, nor issued the immigrant visa through consular processing. If you have, then you can.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    Your current J-1 status does not impact your ability to file for EB-5. I suggest you immediately consult with a qualified EB-5 investment immigration attorney.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You may submit the I-526 while completing your J-1 waiver I assume on an H-1B. But you will not be able to file to adjust until the time is done.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    J-1 waiver is where a person who is subject to a two-year home country physical presence requirement could obtain a waiver of that requirement. Thus, there is no J-1 waiver status; you are either in J-1 status or not. A waiver only controls whether you could avoid having to go back home for two years after finishing J-1.

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    Charles Foster

    Immigration Attorney
    Answered on

    You can file an EB-5 investor petition on Form I-526 with the USCIS while on a J-1 waiver. There is no difficulty in doing so prior to the completion of your J-1 waiver. In fact, you should, given the time it takes to approve an I-526 petition. Of course, you still need to obtain your J-1 waiver before you apply for your immigrant visa based upon same.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    You can submit an I-526 petition, and since that takes nearly two years to be approved and you cannot apply for a green card concurrently, you will have plenty of time to plan for the next step. Work with an immigration attorney who can help you plan for all of the timelines.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    If you have a received a waiver of the home residence requirement (INA 212(e)), then you should be eligible for an immigrant visa. If you are in J-1 status and have not received the waiver approval from USCIS (after favorable recommendation from USCIS), then you will need to seek a waiver. There is nothing to prevent you from applying for EB-5 now by filing an I-526 petition. The waiver approval will be needed by the time you adjust your status or obtain an immigrant visa. Since the I-526 processing times are currently two years, it would be wise to start the process now.

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