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Who are eligible to adjust status in the U.S. for the EB-5 program?

I am an EB-5 investor. Recently, I received my I-526 approval notice on the exact day that I was flying to the U.S. with a tourist visa. I had no issue entering the border though. I am wondering if I am eligible to apply for adjustment of status in the U.S.?

Answers

  • Avatar

    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    It might be better to wait at least three months before you file your adjustment of status (Form I-485). Also, keep in mind that you should not leave the United States while your I-485 is pending unless/until you receive your advance parole travel document (or EAD combo card).

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    Barbara Suri

    Immigration Attorney
    Answered on

    Generally, anyone present in the U.S. in legal status may apply to adjust status. You must have been truthful in your answer to the question as to why you were visiting the U.S.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Yes, you can adjust status in the U.S. There is, however, an issue with "fraudulent intent" if you enter with the visitor's visa and immediately file for adjustment status to lawful permanent residency. You should wait at least 90 days after entering to get your medicals and file for adjustment of status so that there is no such issue.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    It is necessary to know what you stated as the purpose of visit was on a tourist visa. Best to consular process. If you attempt to adjust within 90 days of entry, you may have issues with immigrant intent/visa fraud. Consult an immigration attorney.

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    Charles Foster

    Immigration Attorney
    Answered on

    You may be eligible to apply for adjustment of status in the United States, having made a lawful entry and being in lawful status once you have your EB-5 investor petition approved, and assuming that visa numbers are available. However, if you just entered the United States, for you to apply for adjustment of status within 90 days could raise an issue of preconceived intent, and you could be deemed to have made a material misrepresentation at the time you entered as a tourist, as to whether or not you are bona fide a visitor to the United States. However, after 90 days, it would be highly unlikely for the immigration examiner to raise such an issue.

  • Avatar

    Marko Issever

    EB-5 Broker Dealer
    Answered on

    Since you entered into the U.S. with a tourist visa, that is with a non-immigrant intent, even though you have an I-526 approval already, to be on the safe side you should go back and adjust status through consular processing. Unless you have a very good reason that forces you to take the risk of adjusting of status while being in the U.S., that would be the most sensible path to take.

  • Avatar

    Lynne Feldman

    Immigration Attorney
    Answered on

    Yes, you are. If you have family members processing at the consulate though it is best to all process there.

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    Mitch Wexler

    Immigration Attorney
    Answered on

    It is a bad idea. There will be significant risks of an allegation of visa fraud. It is definitely best to go with the consular process.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    Probably yes. Discuss with an attorney.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Even though it may appear you may be able to but, it is advisable you should not attempt it because of a myriad of legal challenges.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If you enter with an intent to adjust status and file to adjust within 90 days of arrival, USCIS could conclude you entered with an intent to adjust and they can possibly find visa fraud which is a 99-year bar.

  • Avatar

    Phuong Le

    Immigration Attorney
    Answered on

    You may have an issue with immigrant intent if you have been here less than 90 days. Best to consult with immigration counsel.

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