Questions & Answers

How could a pending EB-5 application impact my TN status?

I am a Canadian working in the U.S. with a TN status. I want to apply for EB-5 to obtain permanent residency. I have to travel frequently between Canada and the U.S. for my work. When my EB-5 is in process, can I still travel between Canada and the U.S. freely? Will my TN become invalid because of the pending EB-5?

Answers

• Bernard P Wolfsdorf

  Immigration Attorney

  Answered on May 13, 2019

  The TN will not be invalidated. But since the TN is a temporary work visa, you need to show you have a residence abroad that you have no intention of abandoning. Bottom line is it is possible but you still need to be careful to show you have ties abroad and if your green card is not approved, you will return to Canada. Make sure the approval notice does not show an intent to adjust status and must be marked for consular processing, provided of course that is your real intention.

• Barbara Suri

  Immigration Attorney

  Answered on May 13, 2019

  The filing of your I-526 will not affect your EB-5 application in any way. If you choose to adjustment status in the U.S., that application will be affected if after filing your I-485, you leave the U.S. without first obtaining an advance parole document to return you to the U.S. to continue your application.

• Fredrick W Voigtmann

  Immigration Attorney

  Answered on May 10, 2019

  An I-526 petition is an immigrant petition expressing your intention to permanently reside in the United States. A TN holder is allowed to temporarily work in the United States and must establish sufficient ties to his or her home country. Therefore, the EB-5 and the TN are somewhat contradictory. At some point, you may be questioned about your intentions and whether or not you are intending immigrant. You can still travel between the United States and Canada on your TN; it is not automatically invalidated by the pending EB-5 case. Just be aware of the intention issue.

• Marko Issever

  EB-5 Broker Dealer

  Answered on May 10, 2019

  The EB-5 application, through the I-526 petition, could cause issues with your TN visa. This is because while TN is a non-immigrant intent visa, EB-5 is an immigrant intent visa. Once you have disclosed your intention to immigrate through the filing of I-526 petition, you are making a statement. On the return to the U.S., it might be difficult to convince the immigration officer that you do not intend to remain in the United States.

• BoBi Ahn

  Immigration Attorney

  Answered on May 10, 2019

  Yes, you can hold and travel under the TN status with a pending EB-5 application. It is the present intent of travel that governs when you enter/travel on TN. As long as at the time of entry your intent is temporary (albeit with long-term goals of immigrating to the U.S.), you can still utilize the TN.

• Julia Roussinova

  Immigration Attorney

  Answered on May 9, 2019

  Your TN will not become invalid. TN status requires showing a non-immigrant intent. When you file an EB-5 immigrant petition (I-526), you should indicate consular processing. Please discuss with an experienced immigration attorney.

• Dale Schwartz

  Immigration Attorney

  Answered on May 9, 2019

  Having a pending EB-5 case does not automatically affect a TN visa. That having been said, an immigration officer at our border could say, "You have expressed a desire to remain in the USA permanently, and I will not let you come in on your TN visa." However, our firm has done a large number of EB-5 cases, many of which were for clients that held various non-immigrant visas, including TN visas. None of them have been denied entry to the USA merely because they had EB-5 cases pending.

• Mitch Wexler

  Immigration Attorney

  Answered on May 9, 2019

  It will not become invalid, but on any entry into the U.S., the requisite "non-immigrant intent" for your TN visa may be challenged when they see from their system that an immigrant visa petition (I-526) has been filed. We have not seen this fatally play out, but it certainly can upon any U.S. entry. You would be in a stronger position if you are challenged on this if your I-526 indicated "consular processing" rather than adjustment of status. This shows you must depart the U.S. to obtain your immigrant visa.

• Belma Chinchoy

  Immigration Attorney

  Answered on May 9, 2019

  Immigrant intent will become an issue. Discuss the timing of filings with your attorney.

• Lynne Feldman

  Immigration Attorney

  Answered on May 9, 2019

  It puts a higher burden on you to show you intend to return to Canada. Be sure on the I-526 you set up for consular processing.

• Salvatore Picataggio

  Immigration Attorney

  Answered on May 9, 2019

  It may become more challenging, as the I-526 petition is technically an immigrant petition. However, seeing as you cannot actually apply for the green card until the I-526 is approved, travel while that petition alone is pending may be possible. That said, you will have to continue to argue very strongly for yourself that you are maintaining non-immigrant intent.

• Hassan Elkhalil

  Immigration Attorney

  Answered on May 9, 2019

  A TN visa is non-immigrant status and EB-5 is an immigrant status. A TN visa is not a dual-intent visa, meaning that applying for permanent resident status can cause issues when traveling outside of the United States or seeking an extension of your TN visa. A pending application for permanent residency can be the basis of an initial denial of TN status. I think you should have a plan to remain in the U.S. until your EB-5 is approved.