How can I make an EB-5 investment under TN nonimmigrant status?
I am a Canadian Citizen and have an offer of employment in the United States starting in June 2015. I will have TN nonimmigrant status. I wanted to invest through an EB-5 regional center in the state where I will be employed. Can I make an EB-5 investment while I’m employed as a NAFTA professional? Should I make my EB-5 investment prior to commencing my U.S. employment? What will happen to my employment status once my I-526 is approved?
TN is a nonimmigrant visa requiring nonimmigrant intent. It may be best to file the I-526 after you have secured TN status. When your I-526 is approved, you may adjust status to a conditional permanent resident from TN status by filing for adjustment of status and also obtaining an employment authorization and a travel document as part of adjustment of status filing. You should retain an experienced EB-5 attorney before proceeding with I-526 filing.
While you can make the investment and file the I-526 petition, you may have to leave the United States and obtain your conditional permanent residency through the U.S. consulate. We strongly advise you to retain a lawyer for the process.
A good question. Under TN visa, you are only authorized to work for the company that hires you. However, the EB-5 program requires the immigrant investor to be engaged in the management of the new commercial enterprise, either through the exercise of day-to-day managerial responsibility or through policy formulation. It is not enough that the immigrant investor maintains a purely passive role in regard to his or her investment. In your situation, if your involvement contains "the exercise of day-to-day managerial responsibility," that is definitely unauthorized employment in violation of your TN status. Luckily, most regional centers only have you involved in "policy formulation" and give you pay-out in the form of dividend, not salary. In my opinion, such policy formulation saves you from falling into the traditional concept of employment for immigration law purpose. To be on the safe side though, once the I-526 is approved, by filing the I-485 adjustment of status, you should also request an Employment Authorization Document.
I would recommend you make the investment after you commence your TN position. Once your I-526 is approved your TN will terminate, as that is a non-immigrant visa.
The filing of an I-526 immigrant investor petition is evidence of the intent to immigrate to the United States. The TN visa is a non-immigrant visa. If you file an EB-5 immigrant investor petition (I-526) while in TN status you may have difficulty renewing your TN status or reentering the US if you travel. I recommend you change to an H-1B or other "dual-intent" visa status.
Once your EB-5 I-526 petition has been filed, the U.S. government will view your immigrant intent as permanent and this could impact your reentry. While this will not directly impact you if you are in the United States (as long as you enter with the intent to stay here temporarily), you may have a tough time reentering on the TN visa during the adjudication process (which could take one year). This is certainly the case once your I-485 petition has been filed and your entrance to the United States (or denial) is governed by the intent at the time of entering. (The fact that you have filed an immigrant petition would strongly suggest that your intent is permanent).
Jinhee Wilde
Immigration Attorney
Answered on
Please note that TN is a non-immigrant visa (usually three years) requiring that you do not have immigrant intent. However, if you do decide to invest in an EB-5 regional center after being in that area and doing due diligence on the business, and then decide to go through the EB-5 investment immigrant process, then your employment will continue as TN until your status could be adjusted after the I-526 is approved. Thereafter, your employment will be as a permanent resident.
Yes, you may make the investment while in TN status. It would likely cause less of an issue if you did it after your obtained your TN status. If you are in TN status when the I-526 petition is approved and the priority date for EB-5 is current, you can file for adjustment of status from TN to conditional permanent resident ("green card").
Investing money does not violate one''s nonimmigrant status. If you are granted adjustment of status as an EB-5 applicant, you will be a conditional, lawful permanent resident.
