I am staying in Canada illegally. I would like to apply for the EB-5 visa to come to the United States without leaving Canada. Is it necessary to go back to my home country to file the application? Will my illegal status in Canada affect my EB-5 application in any way?
It is unlikely that your illegal status in Canada will have any effect on your EB-5 investment in the United States. If your I-526 petition is approved, then you have to either immigrant visa process at the U.S. embassy or consulate in your home country, or apply to adjust status in the United States if you are in valid nonimmigrant status.
Staying illegally in Canada will not affect you EB-5 petition. However in the second part of the process called consular processing, you will need to go back to your home country where you will be interviewed in the American consulate.
I would suggest returning to your home country. You are, in effect, breaking a law of Canada. It may not affect your EB-5 application, but if your application is accepted, you may have to explain the time in Canada during your interview for the conditional green card.
You should go back to your country to do the consulate processing, as you may not be able to go to the U.S. embassy/consulate in Canada without having a valid status in Canada.
The U.S. consulate in Montreal may not accept jurisdiction to process your final interview. Also you will need an RCMP police clearance, so you may have to interview in your home consulate.
Staying illegally in Canada may negatively affect the review of your petition. Even assuming you petition is approved, it is more likely that the eventual consular processing of your visa will be in your home country (i.e. country of origin) and will have to explain why you have been staying illegally in Canada. Consult an EB-5 attorney prior to initiating further action on your idea.
Having unlawful status in one country does not necessarily have an effect on the U.S. immigration process unless there are criminal issues involved.
You will have to go through consular processing in your home country and one of the questions typically asked is where you have lived in the past.
Your first EB-5 petition should not be affected by your status in Canada. What this does concern is where you can apply overseas for your visa upon approval of your I-526 petition. The I-526 petition is the first part of the process that must be approved before you can apply for the immigrant visa at a U.S. consulate or within the United States through a process called Adjustment of Status. So, while you can file the I-526 while you are in Canada, if you do not have legal residence in Canada, then you may be required to go to your home country to complete the consular processing of your case after your I-526 petition is approved. This ultimately is an issue that a competent immigration attorney can address with you before you apply.
