How can I qualify for EB-5 after living in the United States illegally?
My parents recently became American citizens. However, I have lived for about 22 years illegally in the United States. Since 2008, I have owned a U.S. restaurant business with over 80 employees. Would living in the United States illegally for that long disqualify me from EB-5? If not, could I make my EB-5 investment into this U.S. business I already own?
You should talk to a lawyer. The I-526 EB-5 petition can be approved with or without a legal status. But whether you can adjust your status or apply for an immigrant visa is another matter. You may be subject to waivers if you ever leave the United States. Another issue: you may have problems proving your investment funds come from a legal source if you have been illegally in the United States for 22 years and try to use the income from the restaurant to qualify you for EB-5 purposes.
It is likely that you are ineligible for adjustment of status and also, it appears that you may be subject to a ten-year reentry bar should you leave the United States. If someone petitioned for you or file a labor certification on your behalf prior to 04/30/2001 and you were physically present in the United States on 12/26/2000, then you might be grandfathered under Section 245(i) of the immigration act. This is a fairly complicated and serious situation, so you should consult with an experienced immigration attorney who can advise you on your options.
Without immigration reform or the return of the penalty green card - 245(i), even if you own and operate a restaurant in the United States, that alone will not get you through EB-5. For example, if you have not properly filed your personal income tax for lack of a social security number, the money you invested in this restaurant out of the fund you had earned in the United States that has never been subject to income tax will not be considered as from a lawful source. Most importantly you cannot overcome the requirement that in order to adjust status, you have to have a valid immigration status at the time of filing the green card application. On the other hand, being in the country for more than ten years and having your parents who are U.S. citizens, may qualify you to apply for a unique path for a green card. It is called Non Lawful Permanent Resident Cancellation of Removal. It goes without saying - find yourself a good lawyer.
While your 22 years of illegal presence will not necessarily make it impossible for you to get status under the EB-5 program, they will certainly make your application process more complicated. Under U.S. immigration law, anyone who has been "unlawfully present" in the United States for one continuous year or more since April 1, 1997 is subject to a ten-year period of inadmissibility to the United States. This would mean that you would not be eligible to get a green card under the EB-5 program until you had left the United States and remained outside the country for ten years. To avoid the inadmissibility period, you will need to apply to USCIS for an "unlawful presence waiver." In order to get an unlawful presence waiver, you will need to prove to USCIS that your absence from the United States would cause "extreme hardship" either to your parents or to your spouse (assuming that your spouse is a U.S. citizen or green card holder). Getting an unlawful presence waiver is complicated so, if you want to do that, you should get help from an immigration lawyer. If your U.S. restaurant business was founded after November 29, 1990, then you can make your EB-5 investment into that business. The rules governing EB-5 investments are complex, so consult with an immigration attorney before you try to make an EB-5 investment.
It seems that you could have inadmissibility or removal issues that need to be addressed. Depending on whether and how long you have accrued unlawful presence, you may have to address a 3 or 10 year bar issue. Also, you may have been working without authorization issues. Before you could consider EB-5, particularly utilizing your current business, you should consult with an experienced immigration lawyer on removal and inadmissibility, as well as any waiver which you may be able utilize.
There are statutory bars from anyone obtaining immigration benefits after certain periods of "unlawful" stay in the United States. There are exceptions/waiver possibilities (i.e., green card processing through a petition by a U.S. citizen spouse, etc.) however. But obtaining permanent residence through EB-5 after being unlawfully present in the United States for 22 years may not be a possibility. You should speak with an immigration attorney regarding the specific details/history of your case as the information provided here is very limited.
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