How can I apply for an EB-5 visa as an asylee?

If you were out of status when you applied or worked without permission for even one day, then you will accrue unlawful presence, making you ineligible to adjust. When you leave, you will trigger either the three- or 10-year bar.

An application for asylum has never been an obstacle to EB-5 filing. You can file a petition for EB-5 while you are in asylum proceeding. However, if your asylum application were to be denied and you are ordered to leave the U.S., it will mean that you cannot stay in the U.S. to process your EB-5. Thus, you must leave the U.S. while your EB-5 is being processed. Advisably, consult an immigration attorney to consider all the facts related to your case, purposely to examine whether in the light of your asylum you can successfully re-enter the U.S. with an approved EB-5 petition.

There are many complex issues in your case and it is advisable that you consult with an EB-5 immigration attorney to review your case, including unlawful presence issue, and advise you whether or not you may be eligible for adjustment of status when/if your I-526 is approved. It is also advisable that your EB-5 immigration attorney coordinates with your removal defense attorney.

Based the facts provided, I doubt filing an I-526 petition can help you. In immigration court, you can apply for relief available to you, such as adjustment of status based on an approved I-526 (EB-5) petition. However, it takes about two years for USCIS to approve an I-526 and your hearing is in two months. The IJ is most likely not going to reschedule your case for two years out just so you can get an approved I-526. This depends a bit on where your case is, but in this anti-immigrant climate, it is unlikely a judge would do it. You can still file I-526 now, leave the U.S. until it''s approved and then consular process your visa. Make sure to take a voluntary departure. And, of course, make sure you do not have a frivolous asylum application. Oh, and, get a lawyer!

You can file your EB-5 investor petition on Form I-526 at any time and it will not delay or impact its adjudication. However, once adjudicated, you may not be eligible for adjustment of status; it would depend upon whether or not you had an argument that you have maintained lawful status since your entry into the United States. Alternatively, you may have to depart the U.S. and apply for your immigrant visa based upon your approved EB-5 investor petition at the appropriate American consulate abroad. Of course, the fact you applied for asylum may mean that you cannot return to your home country; even so, you would have to be careful that you were not subject to a three-year or 10-year bar from re-entering. Anyone who remains in the U.S. in unauthorized status for more than six months is subject to a three-year bar and for more than 12 months is subject to a 10-year bar.

Not unless you have maintained a non-immigrant status while your asylum case was pending or you have less than 180 days out of status. Then you need to go home.

Once you file your I-526 petition, you or your attorney should ask the immigration judge for a continuance to allow USCIS to adjudicate it, as you may be eligible for relief in the form of adjustment of status (when/if the I-526 is approved). Since you appear to have a merits/individual hearing coming up within the next two months, it will be important for your attorney to file a motion asking for a reset date to allow sufficient time for adjudication. You should coordinate this between EB-5 counsel and removal counsel so that you can minimize the risks of receiving a final order of removal.

You should consult with an immigration lawyer. There are many possible pitfalls, including unlawful presence.

If you have under 180 days of unlawful presence, you may be eligible to file for adjustment of status on an approved EB-5 application.