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How can I file an E-2 petition while I have a pending I-526?

I filed an I-526 application for an EB-5 regional center project last week. I am worried that the EB-5 regional center program will sunset on December 21. I am considering applying for E-2 now. Is it possible at this point? Can I file the application with a pending I-526?

Answers

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    Ed Beshara

    Immigration Attorney
    Answered on

    You can file an E-2 application directly at the U.S. consulste for processing. You may show by evidence that it is your intent to return to your home country after your E-2 status will expire, and if the I-526 petition is approved then you will apply for conditional permanent residency only at the U.S. consulate.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    Yes.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    After filing an I-526 petition, it is problematic to file an E-2 application at a U.S. consular post abroad. Foreign nationals seeking E-2 status cannot have the specific intention to immigrate to the U.S.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    You can file E-2 even though an I-526 is pending.

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    Charles Foster

    Immigration Attorney
    Answered on

    You can file an EB-5 Investor Petition on Form I-526 at any time. The sooner the better for a variety of reasons but most importantly, the sooner you file the sooner you''ll get an approval. You would want to file prior to December 21st when the Regional Center Program sunsets, although it''s highly anticipated that the Regional Center Program will continue after December 21st. It''s almost certain that when Congress does pass a Continuing Resolution for a number of months, it will continue the EB-5 program as is. You can also apply for an E-2 non-immigrant visa at any time and you can do so with a pending EB-5 Petition on Form I-526. Your only issue is whether or not you have appropriate non-immigrant intent. However, in the case of an E-2 non-immigrant visa, you have a much stronger legal position to establish that you do have non-immigrant intent than in the case of a B-2 Visitor or non-immigrant F-1 Student.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    Yes. You actually can. Ideally, it would have been better if you had first filed for the nonimmigrant E2 visa, obtain it and then filed for the EB5 immigrant visa. That said, if you work with an experienced immigration attorney you should be able to proceed with an E2 application even now that you already filed your I-526 as part of your EB5 application as long as you clearly attest in your application your intent to leave the United States upon conclusion of your E2 status. The regulations as stated as in 8 CFR 214.2(e)(5) spell out the rule very clearly as follows: Nonimmigrant intent. An alien classified under section 101(a)(15)(E) of the Act shall maintain an intention to depart the United States upon the expiration or termination of E-1 or E-2 status. However, an application for initial admission, change of status, or extension of stay in E classification may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition. Furthermore, according to Foreign Affairs Manual of US Department of State, 9 FAM 402.9-4(C) as long as the alien expresses an unequivocal intent to depart the United States upon termination of E status that is normally sufficient to apply for the E visa.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    First, USCIS should honor I-526 petitions filed before the deadline. I doubt that they would retroactively reject cases. Second, it may still be possible to get an E-2, but that is a non-immigrant visa, and the consulate may consider the I-526 petition immigrant intent (even if they should not). Working with an immigration attorney will help you be prepared for the E-2 process.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    Possibly yes, but you will need to handle the issue of immigrant intent carefully. Your attorney will guide you.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Immigrant intent may be an issue if you file for an E-2 Nonimmigrant visa with a pending Immigrant Petition (I-526).

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    Jack C Sung

    Immigration Attorney
    Answered on

    Your immigrant intent will be an issue. E-2 does not allow immigrant intent. You may need to prove very strong ties to home country.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    Yes the filing of the I-526 does not bar a nonimmigrant E-2 but it still requires you to show that you have an intent to depart. 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 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.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    E-2 is a non-Immigrant intent visa, which means having an Immigrant petition filed would lead to visa consul denying your E-2 under the 214b. If your I-526 petition indicated that you will do consulate processing, you may be able to convince them that you intend to go back out to be interviewed for the Immigrant visa application once the I-526 is approved. The chances of you getting the E-2 now may be 50/50 at best.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    It will probably be fine especially if you selected consular processing so you can show intent to return.

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