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When should an EB-2 visa holder apply for EB-5?

I am currently working in the U.S. under an EB-2 visa. I submitted my green card application (I-140) in June 2012. I am from India. Is it worth applying for EB-5 at this point? What happens to the EB-2 I-140 application once I get a conditional green card through EB-5? What if the I-829 is denied? Could I lose my EB-2 priority date?

Answers

  • Avatar

    Daniel A Zeft

    Immigration Attorney
    Answered on

    A foreign national can proceed with both a permanent residency case based on EB-2 and a permanent residency case based on EB-5. The status or outcome of the EB-5 case will not affect your EB-2 case.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    Given the waiting period EB-2 Indian nationals are experiencing, if you can afford it, it is a very good idea for you to apply for the EB-5 alongside your pending EB-2 application. No harm will be done to your pending EB-2 application. Chances are you will get your permanent green card through the EB-5 process. In the unlikely, unfortunate case your I-829 is denied, you can always fall back to your EB-2 filing.

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    Phuong Le

    Immigration Attorney
    Answered on

    Filing for an EB-5 petition should not affect your EB-2 status/I-140 petition. They should be separate priority dates, but you may have to eventually choose which path to pursue for obvious reasons.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Each immigrant petition stands alone. Once one is approved and the priority date is current for that category, you can move forward with the second step (I-485 for the green card). I think EB-5 is definitely worth exploring.

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    Marisa Casablanca

    Immigration Attorney
    Answered on

    At this point, an analysis of processing times and visa priority dates has concluded that there will be a five- to seven-year wait time for EB-5 cases. I would suggest you keep the EB-2 process and also apply for the EB-5. You can later choose which one to keep.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    It is not clear what you refer to by working under an EB-2 visa. Assuming you are working in H-1B status and have submitted an EB-2 I-140, you do not lose the EB-2 priority date and can fall back on that if approved. It is a good idea to consider the EB-5 option for Indian nationals and then adjust if/when I-526 is approved, assuming you will have not been out of status in the U.S. You should have a comprehensive consultation with an experienced immigration counsel, as these issues are complex and cannot be answered via an online forum without further details.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Your claim that you are working in the U.S. under an EB-2 visa is partly incorrect and confusing because it appears you are simply stating you filed an EB-2 visa in June 2012. In actuality, it is a pending petition but not an approved petition. Otherwise, unless you are under a valid non-immigrant visa, your status may be illegal or in violation of immigration law. Turning to the EB-5 issue, there is nothing wrong in filing an EB-5 at this point if you can meet the requirements and you are in valid immigration status. Currently, most Indian national EB-5 petitions (I-526s) take about 20 to 24 months prior to approval. However, an EB-2 petition for an Indian petitioner languishes for 12 years from start to finish. If you obtain a conditional green card through EB-5, your pending EB-2 will not likely end up getting dismissed since you can pursue both green cards. If in the future your I-829 or permanent green card through EB-5 is denied, you can have the pending EB-2 petition to rely on along with its priority date. Advisably, consult an immigration attorney for further analysis of your plan prior to filing EB-5 petition.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    Nothing happens to the I-140 when you obtain CPR status. Assuming the job offer stands and the I-140 is not revoked, you can retain the priority date.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Since you are an Indian national and your I-140 was just submitted, there is no way you are already working legally under the EB-2. EB-2 category is another employment immigration visa for which Indian nationals have more than 10 years of visa retrogression. This means after your I-140 is approved, you must wait 10-plus years until the visa numbers become available to file for I-485 adjustment packet that will give you the work authorization. If you are holding a H-1B to work in the U.S. and filed I-140 under EB-2 recently, doing an EB-5 case is a good idea for you. Please discuss this with an experienced EB-5 immigration lawyer. Your I-140, once approved, does not go away. In the case of your I-829, you should be able use that for switching your residency status in an immigration court. Again, all these steps must be taken carefully and you need to work with an experienced immigration who is facile in EB-2 work as well as EB-5 and immigration court matters.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    You never lose your EB-2 priority date. If I-829 fails you can re-apply. A parachute is a good thing to have if you fly. A 2011 EB-2 India is about same as the EB-5 wait, but always good to have certainty and, if you can afford it, a good EB-6 is merely a seven- to eight-year loan. At 2012 or later, EB-5 is viable.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    I am confused what you mean about EB-2 visa holder. If you have a permanent visa then you do not need the EB-5. If you just have an I-140 approval, then applying simultaneously for the EB-5 may make sense. You will need to analyze the Visa Bulletin progress and your willingness to part with the funds.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    The priority date for Indian nationals - 2nd preference - is March 2009 for November 2018. EB-5 petitions are currently taking approximately two years to process. If you already have a solid EB-2 processing in the works since 2012, that may be the best way to go.

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