Can a visitor visa holder file for EB-5 during his stay in the U.S.? What are some challenges with that?
It is not advisable for a foreign national to file the I-526 petition, the first step of the EB-5 process, while the foreign national is in the United States in B-2 status.
You may certainly file for EB-5. But your authorized period of stay on a tourist visa, which is generally up to six months, will not allow you to lawfully stay long enough to adjust status in the U.S. if your I-526 is approved, because current processing times for I-526 are about two years. An appropriate option may be to file and depart the U.S. at the end of your authorized stay and then consular process for an immigrant visa abroad, when your I-526 is approved, then arrive as a conditional permanent resident. Another option may be to consider E-2 visa (if you are a national of a treaty country) and then apply for EB-5, assuming E-2 is structured to qualify for the later EB-5 filing. Consult an experienced EB-5 immigration attorney to review all possible options.
You can file an EB-5 petition while you are on a visitor visa, but you must process it through consular processing. You will have to return to your country to wait for the petition approval and immigrant visa, because your tourist visa is only valid for six months.
Working with an experienced EB-5 immigration lawyer, you should be able to file the I-526 petition while visiting, depending on the condition of your source of fund tracking. However, as the processing time for I-526 is 20 to 25 months, it will not be possible for you to remain in the U.S. during all that time. A visitor visa allows only six months stay. Even with one extension, your stay could be 12 months, far short of 20-plus months. If you overstay your visa and become out of status, you will not be able to adjust your status to a green card. Overstaying more than 180 could also lead to possibly making you barred from admission in the future.
There is no issue in filing an I-526 petition when in the U.S. on a visitor visa. The issue arises as to what you do after filing. Visitors are typically admitted into the U.S. for 90 days (if pursuant to ESTA) or six months (if pursuant to a B-2 visa). In most cases, it would be advisable to depart the U.S. (conclude your visit) within the time limit given upon entry, then wait abroad until your I-526 is approved and your immigrant visa appointment is scheduled with the U.S. consulate. If you need to physically be in the U.S. sooner, you should consult with competent counsel to come up with a sound and legal strategy to achieve that tandem objective with an appropriate non-immigrant visa.
Yes. Just make sure you leave the U.S. in accordance with your visitor visa status.
Yes, that is fine, provided you leave as required by the I-94 card underlying your visitor stay.
You can file while on a tourist visa, but that does not give you the right to stay. In fact, it makes it more difficult. So you would be advised to leave after six months and wait the additional two years or so abroad until your petition is approved.
You can file the I-526 at any time. When that is approved, you will have to see what your current status is. If you happen to have been in the U.S. in lawful status, you may be able to file for the green card from within the U.S. Otherwise, you will have to arrange to go to a U.S. consulate abroad.
Yes, someone in the United States in valid B-1/B-2 visitor status can certainly file an EB-5 investor petition on Form I-526 while in the U.S. There are no challenges in filing the petition but there may be challenges in remaining in the U.S. in valid B-1/B-2 status, which normally has a duration of six months. One could file for an extension, but the fact that you have an EB-5 petition on file would make obtaining the extension very difficult. So ultimately, given the backlog in adjudications, you may have to wait outside of the United States for final adjudication and apply for your immigrant visa abroad.
You can start the process and file during your visitor status in the U.S. However, since the processing time for an EB-5 immigrant investor is over a year, you will not be able finish the processing during your stay in visitor status. You will most likely be completing the process via immigrant visa processing at a U.S. consulate abroad.
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