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What happens to my EB-2 application if my EB-5 gets denied at any stage?

I am an Indian national in the U.S. with a priority date for EB-2 in 2013. If I apply for EB-5 now and get an I-526 approval, but then get denied at the I-829 condition removal stage for some reason, what would happen with my EB-2 application?

Answers

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If the EB-2 job offer remains valid, there is always the option to continue it, even after you become a conditional resident through EB-5, although that is slightly more complicated.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    While it is unusual to have an I-829 denial, if it happens, a pending EB-2 application is not going to be affected by the denial. However, be on notice that once a conditional permanent residency has been obtained through the EB-5, the USCIS may proceed to see that your EB-2 application would likely be closed. The USCIS has been inconsistent on this issue. Advisably, consult an attorney as you weigh your options.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    You remain in EB-2 status. However, it may be difficult to get an extension of the E-2 visa, given the fact that you applied for a permanent visa.

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    Blake Harrison

    Immigration Attorney
    Answered on

    You can continue to remain in line for the EB-2 visa to become available until your I-829 is approved. If the I-829 is denied, you could file an I-485 (adjustment of status application) based on your EB-2 (Form I-140) approval, once a visa becomes available.

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    Charles Foster

    Immigration Attorney
    Answered on

    If your EB-5 investor petition on Form I-526 is denied, it has no impact whatsoever on your EB-2 application.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    Your EB-5 case is a separate and distinct process from your EB-2 case. If your I-829 petition gets denied, then this will not affect your EB-2 case in any way.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Your EB-2 processing (based on your employment) has no connection/effect on your EB-5 processing (and vise versa), as long as the underlying labor certification has not expired and there still remains a job open for you by the petitioner and willingness from the petitioner to continue with the processing. There may be an element of timeliness here since you have limited time under which you can file for an immigrant petition after the labor certification is approved (under EB-2, unless this involves a national interest waiver).

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    The approval of an I-526 petition and/or your receiving conditional lawful permanent residency through EB-5 will not affect your pending EB-2 case. As long as the petitioner maintains its intention for you to take the full-time permanent job and as long as you intend to work for them in that job, the case remains valid. Keep in mind, however, that as a conditional EB-5 investor, you would not be eligible to adjust status in the United States, but would have to do an immigrant visa process at a U.S. embassy or consulate in your home country, unless your conditional resident status was first terminated.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Your approved I-140 does not go away. If you choose a regional center with proven track record in I-526 and I-829 in multiple projects, the risk of your I-829 getting denied after a conditional green card should be minimized.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    In theory, after I-829 denial and issuance of NTA, you may be able to fall back on your EB-2 and retain LPR status, assuming priority date is current at that time.

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    Stephen Berman

    Immigration Attorney
    Answered on

    The approved EB-5 should have no impact on the EB-2 application.

  • Avatar

    Lynne Feldman

    Immigration Attorney
    Answered on

    As long as you are not yet approved for conditional residency, the EB-2 will continue in the queue.

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