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How can I change my petition from a family-based green card to an EB-5 direct investment?

In 2017, I went to the U.S. with a B2 visa and got married to an American citizen. My husband filed a family-based green card petition for me. However, things are not going well so now I am considering buying an existing business and filing an EB-5 application. Given my previous application, will there be any issues for me doing so? Can I stay in the U.S. while my I-526 is pending?

Answers

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    Dale Schwartz

    Immigration Attorney
    Answered on

    Nice to meet you! Generally, you can not stay in the U.S. while your I-526 is pending.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If the marriage was genuine but failed, you may be able to file a waiver case. If the marriage is not in good faith, nothing can save you and you are barred. Filing the I-526 does not on its own allow you to stay, nor does buying an existing business unless it qualifies as a troubled business. Existing businesses must meet the new job-creation requirements and very few do.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Be cautious about acquiring an existing business in the hopes it qualifies for EB-5 direct investment case. You will need to ensure it creates the requisite number of positions and qualifies for either the TEA or regular investment amount. You must also be able to demonstrate lawful source of funds for your EB-5 investment. A comprehensive EB-5-compliant business plan must also credibly support the requisite job creation. You may file a separate I-526 petition while your marriage-based green card case is pending with USCIS, which should not affect your EB-5 case unless there is a finding of marriage fraud or other inadmissibility issues. Please note that an I-526 petition will not afford you lawful status in the U.S. or employment authorization, and it is possible you need to consular process for an immigrant visa abroad. Since this question involves many specifics, consult an experienced EB-5 immigration attorney.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Depending on what stage of green card processing you are in with your family-based processing, you can start the EB-5 processing with the I-526 and withdraw the family-based petition/application. A pending I-526 does not give you status in the U.S.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    Filing of an EB-5 petition does not provide any immigration benefits. You need another visa in order to stay in the U.S. while the EB-5 petition is pending. I recommend that you consult with a qualified immigration attorney regarding your status. Just because "things are not going well" it does not necessarily mean that you will lose your marriage-based status.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    You essentially have two independent immigration cases. Be careful about buying an existing business for EB-5 purposes, however. You want to make sure it will qualify as a new commercial enterprise and that you can create new employment with your investment. The fact that you have a family-based case pending (assuming no finding of marriage fraud) will not affect your EB-5 case. Keep in mind, however, that a pending I-526 does not give you any immigration benefit, such as the right to work or even remain in the United States. As long as you filed an adjustment of status (Form I-485) with the marriage-based immigrant petition (I-130), you may remain in the United States while the I-485 is pending.

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    Charles Foster

    Immigration Attorney
    Answered on

    You can qualify in the U.S. through your U.S. citizen husband even if your B-2 non-immigrant status has expired. The risk of abandoning your application presumably for adjustment of status, based upon your husband's petition, would be that you could be deemed out of status. However, there's no reason why you cannot file a separate EB-5 investor petition on Form I-526 as a backup plan. The USCIS will take 12 to 18 months or longer to adjudicate same. For whatever reason, by that time, you have not been able to obtain permanent residency based upon your U.S. citizen husband's petition. You would then be able to apply once your EB-5 petition is approved, most likely abroad at the appropriate American consulate for your immigrant visa. You just have to make sure that you do not accrue more than six months of unlawful presence in the U.S.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    I believe you need to provide some additional facts on your situation. Do you have a conditional green card already? Or did you just apply for it through filing I-485? If you are at the adjustment of status state and decide to file I-526, you will need to withdraw the I-485, which will leave you with no legitimate way to stay in the US. In that case, you will need to leave the U.S. and pursue the EB-5 from overseas. Filing an I-526 application does not grant you permission to stay in the U.S.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You may have both pending, but the I-526 does not allow you to remain here while it is pending, so you will need to go overseas.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    Buying an existing business may not qualify for EB-5. Before you make such a purchase you should consult with a qualified investment immigration attorney. In light of your marriage petition difficulty I suggest you take action immediately.

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    Robert West

    Immigration Attorney
    Answered on

    There are lots of issues to be discussed with your attorney. EB-5 is not a quick fix.

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    Mark AM Catam, Esq

    Immigration Attorney
    Answered on

    This question requires additional facts and analysis. Did you receive the conditional green card based on the marriage petition? While your circumstances do not prevent you from filing an I-526 petition, having a pending I-526 does not grant you permission to stay in the U.S. while it is pending.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Do you have a green card already or no? Divorce during the conditional residency period can still allow for an application to remove conditions. Have you applied for the green card itself yet (the I-485?)? If so, you would have with withdraw that, leaving you without status and requiring you to leave the U.S. to pursue a new process. Do you just have an I-130 pending? You can have multiple immigrant petitions pending at the same time, but like I said above, you cannot also have multiple applications for adjustment (the I-485).

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    You can file an EB-5 petition. Since you are in the U.S. trying to adjust through your pending family-based petition, unless it is withdrawn, you can stay in the U.S. even if you file an EB-5 petition. However, if you withdraw the family-based petition you will no longer have any basis to stay in the United States and you must leave even though your EB-5 petition is pending.

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