How can I apply for EB-5 with an E-2 visa?

The E-2 rules make it clear that having an immigrant visa petition on file is not a basis to deny an E-2. One has to meet the E-2 intent requirement that is a commitment to return home at the end of the investment. Here is the rule: An applicant for an E visa need not establish intent to proceed to the United States for a specific temporary period of time, nor does an applicant for an E visa need to have a residence in a foreign country which the applicant does not intend to abandon. The alien may sell his or her residence and move all household effects to the United States. The alien''s expression of an unequivocal intent to depart the United States upon termination of E status is normally sufficient. An applicant who is the beneficiary of an immigrant visa petition will need to satisfy you that his/her intent is to depart the United States at the end of his/her authorized stay, and not stay in the United States to adjust status or otherwise remain in the United States.

The renewal of E-2 should not necessarily result in a presumption of intent to stay. The E-2 may actually help your EB-5 petition. In any event, a rejection of EB-5 will not likely result in a rejection of future E-2 because the requirements and nature of each visa are different. Advisably, consult an EB-5 to discuss the details of your plans and examine all your options.

That is an issue but you an indicate you will always comply with all visa requirements and process EB-5 at consulate.

A pending I-526 on its own will not result in a denial of an E-2 visa.

The consulates are a little weird about E2 and "dual intent" while USCIS is less weird about it. There are strategies available to plan for situations like this that a qualified immigration attorney can assist with. It is a little complicated to discuss in a forum like this but there are strategies.

The consulate may question your intent if you have an immigrant petition pending. There are ways to establish eligibility for E-2 while one has an EB-5 case pending. An E-2 applicant must establish that he or she has a foreign residence which he or she does not intend to abandon. The pendency of the immigrant petition alone should not be grounds to deny your E-2 visa renewal. Seek the advice of an experienced immigration attorney before you begin your EB-5 case.

No one can guarantee this, but you should be OK.