What happens if I file for an E-2 visa during the EB-5 process?

While an I-526 is pending, it may be possible to get other nonimmigrant visas like an E-2, but be prepared for some questioning on your intent. You need to work with EB-5 immigration attorneys to properly plan your immigration processes.

This could work, but it would be better and make more sense to apply for the E-2 visa first and then file for the EB-5. You should make sure that you can meet the statutory and regulatory requirements for both (E-2 and EB-5) before you start the process. An experienced immigration attorney will be able to advise you during the early stages so the process can flow smoothly.

Even though you have an EB-5 petition on Form I-526 pending, you can apply for an E-2 nonimmigrant treaty investor visa at any time assuming you are otherwise eligible and you are a national of a country with which the United States has appropriate Treaty Trader provisions. You must independently show that you or other nationals of the same country have made a "substantial investment" in which you made the investment or you will serve as a manager or executive in a position based upon your "essential skills." Given the fact that you have demonstrated "immigrant intent," you must satisfy the American consular officer at the time of your E-2 nonimmigrant visa application that you would timely depart the United States at the end of your E-2 nonimmigrant status should it expire prior to obtaining permanent residency.

Best option is to file for E-2 first and then structure this correctly to file for EB-5 after you are in the United States in E-2 status. Otherwise, if you file for EB-5 now and then apply for E-2 at the consulate abroad, you have a high chance of refusal of the E-2 visa due to the immigrant intent issue.

You should file for the E-2 (nonimmigrant visa for investors) before filing for EB-5 (immigrant investor) in order to avoid denial of the E-2 for "immigrant intent" if the EB-5 is already filed/pending.

Yes, that should work.

Please note that the E-2 visa is a nonimmigrant visa category where you are promising to the consulate officer that you do not have an immigrant intent. Currently, I-526 processing time is 14+ months, which means if you file within next month or so, there is little chance that you could enter with the immigrant visa after I-526 approval by winter of 2017. With the I-526 already filed, you may have a problem obtaining the E-2 as you have already shown your immigrant intent. Perhaps if you promise not to file for adjustment and do the consulate process after I-526 approval, your E-2 could be approved.

While the regulations provide that an E-2 should not be denied because of having filed an EB-5, this is a reverse strategy that should not be encouraged. It might be possible to do an E-2, and if you plan it correctly, convert it to an EB-5. This has to be carefully structured, but can absolutely be accomplished.

An E-2 visa may not be granted if you have a pending I-526 petition outstanding. You would be better off applying for an E-2 visa and then applying for the I-526 once here. You still may have problems if you leave the country and try to renter with an E-2 (but not necessarily) but this is a good option if you plan to stay in the United States and wait for the EB-5 visa. EB-5 petitions are currently taking over 15 months to adjudicate.