How can someone with a visitor’s visa apply for the EB-5 Immigrant Investor Program while staying in the U.S.?

Your husband can start the process of preparing the I-526 petition. However, this will not grant him any immigration status or work authorization in the U.S. and, given the current lengthy processing times for I-526 petitions, it is unlikely it will be adjudicated while your husband is in the U.S. on a tourist visa. To that end, it is very important not to overstay his tourist visa and either apply for change of status to a different work visa, such as E-2 (if eligible) or L-1A (if eligible) or depart the U.S. prior to expiration of his tourist visa and consular process for an immigrant visa abroad when his I-526 petition is approved. It may be difficult to manage the direct EB-5 enterprise outside the U.S., so consult an experienced immigration attorney regarding the above work visa options while awaiting adjudication of I-526 petition.

He can initiate an EB-5 petition even though he is in the U.S. on a visitor visa. However, it needs to be pointed out that, considering the typical processing time for I-526 petition, which usually tends to be several months, an individual with a B visa lasting for just 6 months, will not be able to stay in the U.S. long enough while the I-526 is being processed. Advisably, an individual like your husband should not overstay beyond 6 months on his visa. Consult an EB-5 attorney on how to proceed further beyond your set of ideas.

It may be difficult for your husband to remain in the U.S. in B-1 or B-2 Visitor status during the time it would take to obtain an approval of an EB-5 Investor Petition filed on Form I-526, given the fact that it could easily take 18 months or longer once the petition is filed for it to be adjudicated. This is particularly true since this a direct EB-5 investment and your husband would have to go through the process of starting a new company that would require a substantial investment of a minimum of $1 million unless the business is located in a Targeted Economic Area (TEA) as determined by the governor of the state or the mayor or county official to which that determination authority has been delegated. Of course, it would have to be a business that would employ at least 10 full-time U.S. workers over a period of several years. If your husband was born in China, then it would be a very lengthy process and, again, it would be virtually impossible for him to maintain valid non-immigrant B-1/B-2 status while in the U.S. Yes, he may be able to stay in the U.S. for more than 6 months as he can file for a 6-month extension and, while that may be approved, it is unlikely any further extensions would be approved. The best bet would be if your husband is a national of a country with which we have a valid Treaty of Navigation, Friendship and Commerce that contains an E-1/E-2 non-immigrant investor visa provision. In that case, he could file both the I-526 petition as well as a change of status to E-2 based upon his substantial U.S. investment in a majority owned company.

Your husband can begin the EB-5 process while in the U.S. but he will not be able to remain in the U.S. beyond the allotted 6-month period. He would have to obtain another type of visa, such as an E-2 visa (if he is from a treaty country) or an L-1 visa, in order to stay in the U.S. longer than 6 months. An experienced EB-5 immigration attorney would be able to guide him in making the best decision for his particular case.

If your husband is considering direct EB-5 (without Regional Center participation), then he would be working with an immigration attorney that can guide him through this process. Direct EB-5 is complex and uncommon, so it is important that he pick an attorney with direct EB-5 experience. Your husband cannot stay longer in the U.S. on his tourist visa, however, he may have other temporary business visa options, such as an E2 or an L1, that could be available to him while he is developing the business.

He can start the process during his visitor's status in the U.S. in establishing the entity and investing funds; however, he may not work/operate the business until he either obtains a work authorized visa status (possibly an E-2) or until he is granted his lawful permanent residence through the EB-5 investment.

He will need to file for another visa such as an investor visa if he is from one of the 80 eligible countries. Then, if he has the correct intent, which must be temporary, that could over time change if needs change and could if planned correctly be converted to an EB-5 case.

Your husband can start the process from the United States but he cannot overstay his tourist visa if he does not file for the change of status prior to his authorized stay in the U.S. This is a very complex process, so you should at least consult with an attorney. In short, you have to invest $1 million, and that investment must create ten jobs in two years. There must be a source of funds identified (to prove with documentation where this $1 million came from), a business plan for your business (or $500K in high unemployment or rural area of the U.S.), and all sorts of other requirements.

As EB-5 petition (I-526) is currently taking more than 18 months to process once it is submitted to USCIS. There is practically no way your husband could stay while that is pending on a visitor's visa that is for 6 months or 12 months with an approved extension. He may start the company, prepare the business plan and other business side documents with the help of an experienced corporate lawyer who knows how to do EB-5 work, and then work with an experienced EB-5 immigration lawyer to prepare your I-526 petition packet to be able to file before the visitor's visa expires. Once he files the petition, he may be able to come and go on that multiple-year visitor's visa to monitor the progress of his business with the understanding that he will consulate process for the immigrant visa after I-526 is approved.

He can file for EB-5 while he is here but he will not be able to stay in the U.S. unless he also obtains a nonimmigrant extension of status or change of status after his current visitor stay expires.