How can I help my parents apply for the EB-5 Program?

If your parents entered the United States without inspection and are not grandfathered under INA 245(i), which expired on 04/30/2001, then your parents are not eligible to adjust status in the United States. Likewise, they are likely subject to a three-year or ten-year bar to reentering the United States should they leave the United States voluntarily. The best course of action would be for you to retain an experienced immigration attorney to consult with and advise you on if your parents may be eligible for an I-601A waiver based upon extreme hardship to a qualifying U.S. relative. EB-5 will not help their situation.

As you know, as an adult citizen of the United States over the age of 21, you have the right to petition for your parents and, if their last entry into the U.S. was not with an appropriate visa such as a B-1/B-2 Visitor visa, then they would have to be scheduled for their final interview in their home country. As you indicated, by being here illegally, they would become subject to a 10-year bar and you would need to obtain a waiver in order to apply for their immigrant visas. Before they depart, they would have to obtain such waiver, which, under current law, may not be possible. Unfortunately, having them file an EB-5 Investor Petition does not change that particular problem. So, in your case, there would be no advantage to having one of your parents file an EB-5 Investor Petition on Forum I-526.

First, the hiring of an experienced Immigration attorney will be able to advise you of the details of an approvable solution. Second, the illegal entry does not allow the parents to adjust status in the U.S. The parents will have to apply for a residency visa at the U.S. consulate. If they leave the U.S. they will be subject to a ten-year bar from re-entering the U.S., unless they obtain a waiver of the ten-year bar. They can apply for the waiver while they remain in the U.S. and achieve a result. Third, it is better to rely on the I-130 petition rather than the EB-5 petition. Both achieve the same result but the I-130 is quicker.

Unfortunately, they will have the same status problem if you apply for EB-5. You can consult to see if they qualify for some type of waiver; typically, the family categories are more generous in that regard.

The question of how your parents entered the U.S. will always be an issue under current Immigration Law when it comes down to actually qualifying for a green card. You will be able to obtain an approval on the I-130 and on the I-526 (if the project and the required funds are proven) but they will definitely have problems when it comes to obtaining approval on their own visa application.

Whatever way you apply for them, they will need a waiver. Get an experienced lawyer to help them with the waiver.

The immigration laws are clear on admissibility. Because your parents are here illegally, they must apply for a 601 waiver that you called “forgiveness.” This waiver is also called an extreme hardship waiver, which means, if the illegal immigrants are not forgiven, there will be an extreme hardship to U.S. citizen relatives. The extreme hardship must be deeply psychological, medical or other humanitarian reasons, not just financial or merely emotionally difficult. Such a threshold is high and will be even more difficult to obtain under this administration.

Since you are a US citizen, that qualifies your parents as immediate relatives and they may qualify for provisional waivers of inadmissibility relative to their unlawful entry. EB-5 is more restrictive regarding forgiving unlawful entry. You should hire a waiver specialist and move to obtain lawful status for your parents as soon as possible.