I am currently in the U.S. on an E3 Dependent Visa. Now my employer is willing to file an E3 Visa for myself and I will need to travel outside the U.S. for the consular process of the E3. However, I recently filed an EB-5 petition, which is pending. Will the E3 petition and the pending I-526 conflict with each other? Most importantly, how could I answer questions from the custom”s officer at the U.S. border regarding my EB-5 filing and the fact that I also applied for an E3 visa?
There is not a clear answer in the regulations on this topic. In practice, it is possible to receive a non-immigrant visa with a pending I-526 application if precautions are taken. You will want to discuss this with the attorney that filed your Form I-526.
The two cases should not conflict with each other except for the fact that you are an intending immigrant (at least at some point in the future), as expressed by your filing an I-526 immigrant petition, while the E3 visa is a nonimmigrant visa. If the consular officer determines that you currently are an intending immigrant, he or she could find you inadmissible as a nonimmigrant under INA 214(b) and deny your E3 visa application. The decision is subject to discretion and this type of finding is on a case-by-case basis. It is very fact-specific. If you have a while to go on your I-526 petition and you can demonstrate that you still have a residence in your home country which you have no intention of abandoning, you might still be able to get the E3 visa. It depends on the officer. Of course, you have to fully disclose the existence of the I-526 petition, but again, since you filed it recently, the processing time of about two years may work in your favor in terms of the E3 visa.
If you are an Australian national on an E-3 dependent visa and should you file an EB-5 Investor Petition on Form I-526, it is possible that you could have difficulty in either renewing the non-immigrant E-3 Dependent visa through the appropriate American Consulate abroad or even extending your status in the U.S., although less so. Should you apply for an E-3 non-immigrant visa abroad after you have filed an EB-5 Investor Petition on Form I-526, you would first and foremost have to disclose the fact that you filed such petition. Nevertheless, the American Consular Officer has the discretion to issue you the E-3 visa under applicable regulations if he finds that you would comply with your E-3 non-immigrant status in the United States and you would timely depart the U.S. on or before the expiration of your non-immigrant status. You are correct, when you enter the United States and you are subject to inspection at the airport by U.S. Customs and Border Protection Inspector, if asked you would have to truthfully answer that you have filed an EB-5 Petition on Form I-526. Remember if asked, the Immigration Inspector will already know the answer because that information is readily available in the database and would come up when your name and date and place of birth are put into the system. You would answer the question that yes, you have a long-term intent to become a Lawful Permanent Resident, but an immediate intent to work temporarily in the U.S. and that you would have complied with the terms and conditions of your non-immigrant E-3 visa and that would depart the U.S. on or prior to the expiration of your non-immigrant E-3 status.
Immigrant intent may be an issue when applying for E-3 visa; however, you need to clearly establish that your current/present intent is strictly for employment with the E-3 petitioner even if you have future intent for permanent residence under the EB-5.
E3 visa is not a dual intent visa. However, having an I-526 pending does not indicate your present immigrant intent; this is the explanation you would provide to the consular officer. You must always answer truthfully to questions by CBP/Consular Officer. If approached properly, I do believe you should be able to get the E3 visa despite the pending I-526.
E-3 is a Non-immigrant visa, which means your Immigrant petition filed that shows your Immigrant intent, will likely lead to 214b denial of that non-immigrant visa. If your I-526 application noted that you will do the Consulate Processing after I-526 is approved, then you could disclose the pending petition honestly and tell the officer that you intend to do the Consulate processing for Immigrant visa rather than filing I-485 adjustment of status. I have had many investors who were able to get other non-immigrant visas after filing I-526 with this method. The key is to show that current non-immigrant visa will not lead to violating non-immigrant intent as you will go through the proper immigrant visa application process when that time comes. However, if your lawyer noted that you will do the I-485 adjustment after I-526 because you are currently in a valid status as dependent of E-3, then you should not try to obtain a non-immigrant visa for yourself and I would advise caution on travel.
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