What are the residence restrictions at the beginning of the EB-5 process?

A foreign national can file an EB-5 petition whether they are in the U.S. or residing in another country such as Brazil. Some foreign nationals have student visas in order to learn English and are in lawful status while they are studying in the U.S.

You can apply while in the United States. However, applying for an EB-5 visa does not allow you to stay in the U.S. So, you will have to either leave the U.S. or get some other type of visa which allows you to remain here.

You may file an I-526 petition and then either consular process for an immigrant visa abroad when the I-526 is approved or adjust to a conditional green card holder status in the U.S. if you maintain another lawful immigration status in the U.S. while waiting for I-526 approval. A pending I-526 petition will not afford you any immigration status or work authorization in the U.S. Currently, it takes USCIS about 2 years to adjudicate I-526 petitions. Generally, the Visa Waiver Program (VWP) or tourist visa will not help you stay in the U.S. until I-526 is adjudicated. Therefore, you may either consider other work visas, such as L-1A or H-1B while waiting for I-526 petition approval or wait outside the U.S. until your I-526 is approved and you consular process for an immigrant visa in your home country.

You can file for the EB-5 Petition while in the U.S.; however, unless you have a visa status that allows you to remain in the U.S. during the initial stages of EB-5 petition processing (which can take 18-24 months for the petition to be adjudicated), you will not be able to remain in the U.S. after filing the EB-5 Petition, based merely on the status of having a pending EB-5 Petition.

You may apply from the United States but will need to maintain a valid nonimmigrant status while in the United States. Your valid nonimmigrant status may be F-1 student visa, Optional Practical Training (OPT) for students (up to 12 months or up to 24 months for STEM students), H1-B visa or any other valid nonimmigrant visa. Once your I-526 is approved, you will be able to adjust your status while in the United States without having to leave for Brazil. You may also apply from Brazil (which is called consular processing) in case you are not able to maintain your valid nonimmigrant status while in the United States.

If you are in the U.S. legally (on a valid nonimmigrant visa), you can apply and stay here while your EB-5 petition is being processed. Otherwise, you can just apply and head back to Brazil. However, under no circumstances should you overstay your status in the U.S. To address all concerns in detail, consult an EB-5 attorney.

As a Brazilian, as with other nationalities apart from Chinese, it may be feasible to file while you are in the U.S. If you maintain valid, non-immigrant status such as an F-1 student visa or an H-1B work visa, there is nothing wrong with residing in the U.S. and filing your individual EB-5 Investor Petition on Form I-526. If it is approved, after approximately a year and a half or perhaps longer, you would then be eligible to file an Application for Adjustment of Status on Form I-485 and you can obtain your Lawful Permanent Residency (green card) while you are in the U.S. If you are unable to maintain your non-immigrant status, you will have to go back to Brazil to wait for the approval of the petition before you file for your immigrant visa at the appropriate U.S. Consulate.

You may apply from either location provided you have legal status to be in the U.S. and maintain nonimmigrant status until your conditional residence is approved.

The initial EB-5 application (I-526 petition) does not afford you immigration status. As such, if you do not have any type of underlying visa or status that will allow you to stay in the U.S, you will need to travel back to your home country and Consular Process your green card via an immigrant visa.

If you are in the U.S. with a valid nonimmigrant visa at the time your I-526 petition is approved and there is a green card available for applicants from your country, you can apply to adjust your status in the U.S. You do not have to go back to the U.S. Consulate in your home country. I would not advise you to do this if you are currently in the U.S. as a visitor.

You can apply from in or outside the U.S. If you are in the U.S., you need a visa to stay for two years. Once you have the green card, you are expected to live here.