I am a beneficiary of the DACA program. I am currently residing in the United States. If I were to successfully acquire a qualifying business that meets all the requirements of EB-5, would I be eligible to file an application and adjust my status upon approval without having to leave the country?
Only if you have always maintained your status and had a legal entry. If you got DACA before you were 18 years old, then you can go through consular process without the need for a waiver; otherwise, if you have no legal entry or fail to maintain status, you can get permanent residency, but it would require consular processing and a waiver with a qualifying relative (a spouse or parent who is a permanent resident or U.S. citizen).
The answer will have to be affirmative. Also, make sure you coordinate your plan with your EB-5 attorney who should be keeping current of the legal and political proceedings on DACA that is in the U.S. Supreme Court. The outcomes from both the court and Congress will determine the fate of DACA members including yourself on what they can and can''t do particularly with regards to their immigration status and benefits.
You can process for the EB-5 petition, but when it is time to file for the next step (upon approval of an EB-5 petition,) you will have to depart the U.S. and go through the consular process, unless you have maintained your lawful status in the U.S. throughout your presence in the U.S.
As a DACA beneficiary, you are protected from being deported. However, you do not have a legal status in the United States. Since you do not have legal status, you would not be able to adjust status without leaving the United States.
Most likely you would have to apply abroad and could be subject to the 10-year bar; if you were paroled in the U.S. under certain circumstances, you could be eligible for adjustment of status based on a minimum $900,000 investment.
You have to file an EB-5 petition first, and obtain approval before you can file an application for conditional permanent residency. The application for conditional permanent residency can be filed in the U.S. for adjustment if you are currently in legal status in the U.S.
In order to adjust status, you have to be in valid nonimmigrant status since there is no 245(k) protection for EB-5 investors. There is a narrow class of persons who have had advance parole and reentered as a parolee who may be eligible to adjust in certain locations in the U.S. These are tricky cases.
