EB-5 Visa Immigration Questions

Questions

What is the EB-5 Visa?
Must I have previous business experience or education?
Must I speak English?
Must I be in good health?
What are the benefits of the green card?
What is meant by the requirement that the investor’s assets be “lawfully gained”?
Can money gifted by a parent or other relative be used for an EB-5 Investment?
What is the difference between 'conditional' and 'unconditional' green cards?
What is a 'Conditional' Green Card?
If my I-526 petition is approved by USCIS, what is the purpose of the Consulate application and Interview, and how soon do I get my “Green card”?
Can I apply if I have been rejected or terminated in the past by USCIS for a L-1, E-2, B, or other visa?
Family Relationships and the EB-5 Visa
After petition approval, can members of the family interview in different countries?
Who receives the permanent residency ('green card')?
EB-5 Visa Job Creation
What issue caused the most problem when applying for an EB-5 visa
How long must I remain in the United States each year?
What is the difference between permanent residency and citizenship?
Can my Green card be taken away from me? - How to Keep Your Green Card After You Get It!
I need to travel out of the US for more than a year. Is there nothing I can do?
How long is a Green Card valid for?
Are any countries excluded from eligibility for the EB-5 Visa program?
What is an 'escrow' account, and when does the investor transfer the money to this account?
How does the bank 'escrow' account protect me against the risk of losing my money?
Can I apply if I am currently out-of-status (i.e., I live in the United States, but do not have a current visa)?
What is a Designated Regional Center?
The I-526 Petition Process?
Consular Processing or Adjustment Of Status
What is Consular Processing?
Admission to the United States After Investing, Filing the I-526 or During Consular Processing
What is Adjustment of Status?
Overseas Travel During I-485 Adjustment Of Status Processing
Employment During The I-485 Adjustment Of Status Processing
I-829 Petition Removal of Conditions for EB-5 Investor

Answers

What is the EB-5 Visa?

Congress created the EB-5 immigrant investor visa category in the Immigration Act of 1990 in the hopes of attracting foreign capital to the US and creating jobs for American workers in the process. There are 10,000 visas available in the category each year, 5,000 of which are reserved for people who participate in a EB-5 pilot program designed to target low employment areas such as the programs featured on this website.

There are three basic requirements for an EB-5 visa:

First, the alien must establish a business or invest in an existing business that was created or restructured after November 19, 1990
Second, the alien must have invested $1 million (only $500,000 when investing in a USCIS designated regional center) in the business
Third, the business must create full-time employment for at least 10 US workers

Must I have previous business experience or education?

The investor is not required to have any prior business experience. Likewise, the investor is not required to demonstrate any minimum level of education. The only requirement for the investor is that he or she has the required net worth and capital.

Must I speak English?

Must I be in good health?

Yes

What are the benefits of the green card?

Each person has his or her own reason for wanting permanent residence in the United States , and having a green card provides many benefits that accomplish these goals:

All legal permanent residents under the EB-5 Investor Program enjoy the same benefits as every other United States resident.
The U.S. is a safe harbor for your family as well as your personal and business investments. Any member of the family with a “green card” can enter the U.S. at any time and stay as long as he or she wishes.
Investors have constant and easy access to the United States for personal, trade and business purposes.
Permanent residents travel to the U.S. without the need of a visa. Investors may work, live, or own their own proprietary businesses anywhere in the United States.
The U.S. has internationally recognized colleges and universities for both basic education and graduate study. As a resident, the investor can benefit from lower tuition costs.
The cost of living in the U.S. is less than most large industrial nations. Consumer goods, services, and housing are significantly less expensive than comparable services and goods in most other countries.
Students may work in the U.S. while they attend college and then continue to work afterwards, enabling the student to pay for part of his education and to work while attending graduate and postgraduate studies.
The U.S. provides many financial, social and education entitlements: public schools, health and medical attention, social security, and education.
The Investor has the ability to bring other family members to the U.S. after proper application, and can obtain U.S. citizenship after 5 years.
The permanent residency requires no renewal or re-application. Other U.S. non-immigrant visas, such as E-2 and H may never result in permanent residency, have time limits, and require additional filings with USCIS or Department of State. Furthermore, U.S. immigration laws may change and prevent future approval when a renewal of visa is required.

What is meant by the requirement that the investor’s assets be “lawfully gained”?

Under USCIS regulations, the investor must demonstrate that his assets were gained in a lawful manner. This requires the investor to prove his investment funds were obtained through lawful business, salary, investments, property sales, inheritance, gift, loan, or other lawful means.

Can money gifted by a parent or other relative be used for an EB-5 Investment?

Yes, provided that any applicable gift taxes are paid. It must be demonstrated that the gift is an actual arms length transaction and is a not a mere ruse or that the gifted funds will be given back after permanent resident status is granted.

What is the difference between "conditional" and "unconditional" green cards?

Under the regulations, an investor who is approved for the EB-5 immigrant visa receives a “conditional” green card, which must be reissued after two years, subject to removal of conditions. Otherwise, the two cards offer the same rights and privileges.

What is a 'Conditional' Green Card?

In order to deter fraud, EB-5 Visa immigrant investors, their spouses and dependent children are subject to conditional permanent residence for a two-year period. The EB-5 alien must file a petition to remove the conditions during a 90-day period prior to the second anniversary of the alien's lawful admission as a permanent resident. The INS will examine the business at the end of the two-year period to determine whether or not the alien has complied with all of the requirements.

When the immigrant investor application is submitted to the INS, it must include the following:

Evidence to show that a new commercial enterprise has been established, such as articles of incorporation, business license, or evidence of the transfer of the required amount of capital when purchasing an existing business.
Evidence that the proper amount of capital has been placed at risk, such as bank statements showing the deposit of funds into the business's account, evidence of equipment purchased for use in the business; evidence of property transferred to the business, and evidence of money transferred to the business in exchange for shares of stock. This stock cannot include terms requiring the business to redeem the stock at the holder's request.
Evidence demonstrating that the capital invested was lawfully gained, such as foreign business registrations, tax returns, or certified copies of criminal or civil judgments, where appropriate.
Evidence that the investment has created at least ten full-time jobs, such as tax records, Forms I-9, or if employees have not yet been hired, a detailed business plan demonstrating that the nature of the business will require the hiring of ten employees within two years. If the business is a troubled business, the applicant must submit evidence that the currently existing number of employees will be maintained for at least two years.
Evidence that the investor will be engaged in the management of the enterprise, such as evidence that the applicant is a corporate officer or member of the board of directors. If the business is a limited partnership, the applicant will be considered to have a management position only if the partnership agreement provides that the applicant will have the rights, powers and duties normally granted to limited partners under the Uniform Limited Partnership Act.

If the application is granted, the alien is given conditional permanent residence and after two years is eligible to file for removal of the conditions. The alien must also show that he or she "sustained the actions required for removal of the conditions" during his or her residence in the United States.

An alien entrepreneur will have met this requirement if he or she has "substantially met" the capital investment requirement and has continuously maintained this investment during the conditional residence period. The entrepreneur's residence may be terminated at the end of the two-year period or earlier if it is found that the business was not established, or was established solely to evade immigration laws or that the requirements were otherwise violated.

If, in the application to removed conditions, the alien demonstrates that the business was established, that the required amount of capital was invested, and that 10 full-time jobs either have been or will be created, the conditions will be removed and the alien granted full permanent residence and a permanent Green Card is issued.

If my I-526 petition is approved by USCIS, what is the purpose of the Consulate application and Interview, and how soon do I get my “Green card”?

Upon approval of I-526 Petition, you must wait for notification from the US Consulate in your home country to prepare documents for the Visa interview. The purpose of this procedure is to ensure that the investor and his or her family undergo medical, police, security and immigration history checks before the conditional permanent resident visas are issued. At the interview, the consulate officer may address these issues and information printed on the I-526 application, including asking the investor to summarize the nature of his or her immigrant investment. If the investor and his or her family are in the United States, then you may apply for adjustment of status by filing form I-485, and supporting documents, the application may be filed at the appropriate office of the USCIS.

Can I apply if I have been rejected or terminated in the past by USCIS for a L-1, E-2, B, or other visa?

Rejection in the past does not disqualify the applicant, unless the reasons related to immigration fraud or other major problems. It is most important that all criminal, medical, or U.S. immigration history problems be disclosed to the limited partnership and legal counsel in advance of application.

Family Relationships and the EB-5 Visa

spouses of the investor may accompany or follow to join an investor who has been granted conditional lawful permanent residence provided that the investor and the spouse, deemed a derivative beneficiary, were married at the time of the investor’s first admission to the united states as a conditional lawful permanent resident or following adjustment of status to lawful permanent residence. Cis will not recognize common law marriages for the purpose of permitting a spouse to be a qualifying derivative beneficiary. If the relationship is one in common law, the “spouse” of the investor may not acquire lawful permanent resident status on account of the relationship.
children or step-children of the investor may accompany or follow to join an investor who has been granted conditional lawful permanent residence provided that the investor can establish parentage or step-parentage at the time of the investor’s first admission to the united states as a conditional lawful permanent resident or adjustment of status to lawful permanent residence. Failure to comply with all applicable requirements may result in the separation of a child from the investor or the investor’s spouse for protracted periods, in some instances for years, while other immigration opportunities are attempted in an effort to reunite the family.
a “child” is someone under the age of 21 years who is unmarried. If a child becomes age 21 or marries before being admitted to the u.s. As a lawful permanent resident or adjusting to lawful permanent resident status, the former child, now deemed a son or daughter, may not be eligible to accompany or follow to join the investor. In some circumstances, the child status protection act may assist a son or daughter to qualify as a child by reducing the deemed age of the son or daughter to less than 21 years. Failure to meet the requirements of the child status protection act may result in the separation of a son or daughter from the investor or the investor’s spouse for protracted periods, in some instances for years, while other immigration opportunities are attempted in an effort to reunite the family.
under some circumstances a child who becomes 21 years of age or marries while holding conditional lawful permanent resident status, or the spouse of the investor who is divorced from the investor while holding conditional lawful permanent resident status, may be eligible to remove conditions by being included in the investor’s i-829 petition or filing a separate i-829 petition. Failure to meet qualifying conditions, which may not be within the child’s or divorced spouse’s control, and, about which the law and regulations do not provide clear guidance, will result in the child or divorced spouse being placed in removal proceedings and may require the child or divorced spouse to depart the united states.
upon the death of an investor holding conditional lawful permanent resident status, a spouse and qualifying children of the investor also holding such status are entitled to seek removal of conditions by submission of the same evidence demonstrating compliance with required criteria that USCIS requires of an investor seeking to remove conditions. Failure of each member of the family to establish these criteria will result in the denial of the application to remove conditions, placement of the family members in removal proceedings and their mandated departure from the united states.
it is unclear under cis procedures if a child who becomes a son or daughter before the death of the investor is entitled to seek removal of conditions. Cis regulations are silent on this matter. If cis does not extend this benefit, such a son or daughter will be denied an application to remove conditions and will be placed in removal proceedings and may be mandated to depart the United States.

After petition approval, can members of the family interview in different countries?

Family members can interview in different countries. The country of origin or where the family has current ties is the standard interview site. Often one member of the family is located in another country, such as a student attending school in the U.S. The student does not have to return to the country of origin and can adjust status in the United States at the district office of the USCIS.

Who receives the permanent residency ("green card")?

Husband, wife and any unmarried children under the age of 21. It is possible for adopted children to be included in the family. Upon approval you will receive a form evidencing approval and a travel document. You should also receive a temporary green card in the mail.

EB-5 Visa Job Creation

The EB-5 Visa investment must create at least 10 full-time jobs for US citizens, lawful permanent residents or other immigrants lawfully authorized to be employed in the United States. Full-time employees are defined to include workers working at least thirty-five hours per week. This includes conditional residents, temporary residents, asylees, refugees, and recipients of suspension of deportation, but does not include nonimmigrants. In calculating the required number of employment positions, the investor may not include spouses or children, but may include other family members who are employed by the business.

The 10 positions must be full time. This means employment of a qualified employee in a position that requires a minimum of 35 working hours per week. Although two employees may share a full-time position, part-time employment is specifically excluded. Therefore, a combination of two or more part-time positions will not qualify, even if they collectively meet the 35-hour per week requirement.

What issue caused the most problem when applying for an EB-5 visa

The most common problem area has been insufficient documentation of the source of funds. Many people try to disclose the least possible information only to have the file returned with a request for further information. It is better to provide too much information rather than too little information. In this era of terror alerts, and suspicions about money laundering, CIS case examiners require a well-documented source of funds.

How long must I remain in the United States each year?

The first requirement of any investor after they receive the visa at the United States overseas consulate office is to enter into the United States within 180 days of visa issuance from the consulate. The investor must then establish residency in the United States . Evidence of intent to reside includes opening bank accounts, obtaining a driver’s license or social security number, paying state and federal income taxes, renting or buying a home. The United States resident may work overseas if required based upon the nature of the business or profession. However, all permanent residents must remain in the US for more than 6 months each year, or they may be deemed to have abandoned their permanent residence status.

What is the difference between permanent residency and citizenship?

Once you obtain a green card, and become a legal permanent resident, you have most of the rights and obligations of U.S. citizens, except that you cannot vote and are not entitled to some public benefits. You are subject to the same tax filing requirements and entitled to the same tax rates and deductions as U.S. citizens.

Your "green card" is your most important travel and identification document. When your green card arrives, please look at it carefully. You may need to extend it in 10 years. If you need to replace it before then because it is lost, stolen or dilapidated, you may file a form with the INS.

"Abandonment of residency" rules are an important restriction to which legal permanent residents are subject. Abandonment can occur when you are outside of the United States for more than six months without informing the INS of your plans in advance. The law provides that you are free to travel abroad, provided that your trip is "temporary." Generally, the INS views any absence from the United States for longer than six months as not temporary. Thus, it is advisable to obtain a "re-entry permit" before your departure.

One of the most important rights legal permanent residents possess is the right to obtain U.S. citizenship after five years. There are two ways to become a U.S. citizen. One is by being born in the U.S. or being born to a U.S. citizen. The other way is by naturalization. The first step in becoming a U.S. citizen through naturalization is to become a Legal Permanent Resident (LPR). Being an LPR for 5 years is one of the basic requirements for qualifying the naturalization. A second requirement is being physically present in the U.S. for 30 months during the 5 years prior to the naturalization application. Once becoming a U.S. citizen, an individual is entitled to benefits including the right to vote and hold public office.

Can my Green card be taken away from me? - How to Keep Your Green Card After You Get It!

Once you receive a green card, there are only two conditions required to keep it for life. First, you must not become removable or inadmissible. The most common way of doing this is to be convicted of a serious crime.

The second requirement is that you not abandon the United States as your permanent residence. As long as you are not planning to make your home somewhere else, then legally you are still a resident of the United States. Problems may arise, however, because the INS will try to judge your intention by the way you act.

As a general rule, if you have a green card and leave the United States for more than one year, you may have a difficult time reentering the country. That is because the INS feels an absence of longer than one year indicates a possible abandonment of U.S. residence. Even if you do return before one year is up, you may run into trouble. To avoid a full-scale inspection, you should return within six months.

It is a common misconception that to keep your green card all you need to do is enter the United States at least once a year. The fact is that if you ever leave with the intention of making some other country your permanent home, you give up your U.S. residency when you go. Once again, the INS will look to your behavior for signals that your real place of residence is not the United States.

On the other hand, remaining outside the United States for more than one year does not mean you have automatically given up your green card. If your absence was intended from the start to be only temporary, you may still keep your permanent resident status. However, you may no longer use your green card as a U.S. entry document. You must either apply at a U.S. consulate for a special immigrant visa as a returning resident or you must get what is known as a reentry permit.

I need to travel out of the US for more than a year. Is there nothing I can do?

You can apply for a reentry permit (on form I-131) before you leave the US. You can depart before the reentry permit is approved.

With such a reentry permit, you can return to the US even after one year until the reentry permit's expiration date. Reentry permits are issued for two years. You cannot renew a reentry permit, but you can return to the US for a short time and apply for a new one. The second such reentry permit will be granted for two years ago, but subsequent ones may only be approved for one year at a time.

How long is a Green Card valid for?

There are several answers to this question.

If you received your Green Card through marriage, and have not been married for two years when you got your Green Card, you should have a conditional Green Card that is good for two years. Also, if you received your Green Card through investment (EB-5), you should have a conditional Green Card for two years.

You must apply for removal of the condition within 90 days before the two years are up. Once that is approved, you have a regular unconditional Green Card. If you apply either too early or too late, you have a problem and should consult with an attorney for advice.

If you do not have the condition removed, the Green Card will become invalid at the end of two years, and your permanent resident status will be terminated.

Unconditional Green Cards are good for ten years. This does not mean that after ten years, you stop being a legal permanent resident - only the card itself becomes invalid. You must apply for a new one using form I-90. Without a current Green Card, you cannot use the Green Card to travel out of the USA, and you also cannot use the Green Card as evidence that you are permitted to work.

Are any countries excluded from eligibility for the EB-5 Visa program?

The EB-5 Visa is open to all nationalities.

What is an "escrow" account, and when does the investor transfer the money to this account?

An Escrow Bank Account is a legal, interest-bearing account established in a bank. This type of account is commonly used in the sales of real estate, businesses and personal property.

How does the bank "escrow" account protect me against the risk of losing my money?

The initial cash deposit from the investor is placed in a legal, interest-bearing Escrow Bank Account. When an Escrow Bank Account is established, the funds continue to belong to the investor. The attorney or bank has an agreement with the investor that requires the funds to be released from the account only when the petition is approved by the USCIS.

Can I apply if I am currently out-of-status (i.e., I live in the United States, but do not have a current visa)?

Out-of-status nationals are no longer permitted to apply for permanent residency from within the United States. They must first return to their country of origin and apply through the United States Embassy there. Examples of "out-of-status" individuals are students, tourists, E-2 treaty investors who no longer have valid visas because they remained in the United States after their visas expired or were revoked.

What is a Designated Regional Center?

A "Regional Center:"

Is an entity, organization or agency that has been approved as such by the Service;
Focuses on a specific geographic area within the United States; and ,
Seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.

The I-526 Petition Process?

For investors seeking lawful permanent residence, the first step in the process is to file an I-526, Petition for Alien Entrepreneur, together with accompanying evidence in support of the program’s requirements. CIS adjudicates I-526 petitions by reviewing these criteria, among others:

New Commercial Enterprise: There must be evidence that shows that enterprise is new, and authorized to transact business.

Investment Capital: The petition must be supported by evidence that the petitioner has invested (or is actively in the process of investing) the minimum required capital. CIS expects these funds to be “at risk”, connoting an irrevocable commitment to the enterprise. The funds must be used by the enterprise exclusively to create employment. Funds used to pay administrative costs or other obligations undertaken to promote the investment in the enterprise are not deemed “at risk”.

Source of Capital: Evidence must support the legal acquisition of capital. Funds earned or obtained in the United States while the investor was in unlawful immigration status are not deemed to be lawfully acquired. If funds are not lawfully acquired, they may not be deemed “at risk”.

Amount of the Investment: The petition must be supported by evidence that the required minimum sum has been invested. This sum may be reduced currently from $1,000,000 to $500,000 if the enterprise is located in a TEA.

Employment Creation: There must be evidence that 10 jobs will be created on account of each EB-5 investment. See the earlier discussion about qualifying jobs and investment in a Regional Center, which may permit counting employment created outside the qualifying enterprise.

The I-526, Petition for Alien Entrepreneur will be approved only if CIS is satisfied that the foregoing criteria have been met. The determination of whether these criteria have been established is within the discretion of CIS. It is also within the power, if not the discretionary authority, of CIS to seek information about other aspects of the investment and the relationship of the investor to the enterprise. CIS frequently reinterprets the meaning of qualifying criteria. There can be no certainty that compliance with the foregoing criteria, supported by appropriate documentation, will lead to the approval of an I-526.

Consular Processing or Adjustment Of Status

Approval of the I-526, Petition means that the alien and the alien’s spouse and children under the age of 21 years may apply for admission as conditional lawful permanent residents (CLPR). Approval of the I-526 Petition does not mean that the investor has been granted admission to the United States as a lawful permanent resident. Approval of an I-526 means that the investment documented by the I-526, Petition has qualified the investor as an alien entrepreneur.

The application for admission is a separate and subsequent process that concerns issues common to all aliens who wish to live in the United States permanently. Admission as a conditional lawful permanent resident may be sought using one of two methods: consular processing or adjustment of status.

What is Consular Processing?

Consular processing is designed for aliens who are living outside of the United States, who prefer to process at a consulate for strategic reasons or as a matter of convenience or are ineligible to adjust status. Typically, the consular post, which is chosen at the time the I-526, Petition is filed, is in the country of last residence, i.e., the last principal actual dwelling place. In very limited instances, usually involving a recognized hardship, a different consular post may process for lawful permanent residence.

consulates issue visas, a travel document, usually affixed to a passport, that authorizes the holder to seek admission to the United States at a port of entry. The visa is issued for an immigration status that a consul believes the visa applicant is qualified to hold. In an eb-5 case, the visa may be sought from a consulate only after the investor’s I-526 petition is approved. An eb-5 investor and the investor’s spouse and qualifying children are granted conditional Lawful Permanent resident visas initially

Before issuing an immigrant visa, the consular post must determine if each alien is admissible to the U.S. Approval of the I-526, Petition does not by itself establish admissibility. An alien is admissible who proves that no grounds of inadmissibility exist and the alien has proper travel documents. (See below, for a non-exhaustive list of the grounds of inadmissibility). Waivers are available for certain of the many grounds of inadmissibility, but the grant of a waiver is in the discretion of the government and aliens seeking waivers may experience lengthy delays in adjudication of waiver applications. Investors should consult with immigration counsel to determine if any grounds of inadmissibility may affect the investor’s admission or the admission of the investor’s spouse or children to the United States and if a waiver is available for such grounds of inadmissibility.

If the consular post finds that the investor is admissible, it will issue a conditional lawful permanent resident visa to the investor. The consular post will also determine if the spouse and the qualifying children of the investor are admissible. A determination of admissibility must be made as to each visa applicant. If the investor is denied a EB-5 visa, applications by the spouse and children of the investor for such a visa will be denied.

Consular processing begins when CIS transmits the approved alien’s i-526 petition to the National Visa Center (NVC). At appropriate intervals, the NVC issues instructions and appointment packages and requests required documents and information. In time, the alien will be instructed to obtain fingerprints and a physical examination and to report to a consular interview. CLPR visas usually are issued shortly after the interview unless the consul detects problems in the visa application, the underlying I-526, Petition or during the interview process. Visa applicants should allow about six to twelve months to complete consular processing, although times for processing vary greatly among consular posts.

Admission to the United States After Investing, Filing the I-526 or During Consular Processing

Admission to the United States as a visitor or in most other non-immigrant statuses is predicated upon the intent to depart the country at the end of the period of admission. This non-immigrant intent may be difficult to establish once an investor has paid funds into an EB-5 project or files an I-526, as the sole purpose of this investment and petition is to establish that the investor qualifies within a program that awards lawful permanent residence. Investors should consult with competent counsel to determine how to maximize the likelihood of a temporary (non-immigrant) admission to the United States subsequent to making the investment or filing of either of these cases.

What is Adjustment of Status?

The Adjustment of Status (AOS) procedure is designed to permit aliens who have been admitted to the United States as nonimmigrants or who have been paroled into the country to apply for admission as permanent residents without leaving the country. These nonimmigrants must establish that they are admissible permanently, meeting the same standards as aliens who use consular processing to obtain a permanent resident visa. (See the discussion, above, on Consular Processing and see the section on Immigration Risk Factors Aliens, below).

Aliens seeking AOS must also comply with requirements peculiar to the AOS process. Aliens who do not meet these additional requirements will be required to use consular processing to obtain a CLPR visa, which will necessitate a departure from the United States. Aliens admitted in certain non-immigrant statuses may encounter more difficulties (and may not be successful) adjusting status than aliens admitted in other non-immigrant statuses. Investors should consult with immigration counsel regarding these issues before the I-526, Petition is filed.

An alien investor or the investor’s spouse or children who are eligible for CLPR may not be eligible for AOS if they: (1) are or were employed in the U.S. without authorization; (2) were not in lawful status on the date their AOS application was filed or if they failed to maintain lawful status thereafter; (3) were ever out of status during earlier admissions to the U.S.; (4) are admitted in certain non-immigrant statuses, such as “A”, “G”, “E” or “J” (unless the two-year foreign residency requirement does not apply or a waiver of the requirement has been obtained); (5) have been in removal proceedings in the ten years prior to seeking AOS; (6) were admitted under the visa waiver program at the time AOS is sought;, (7) obtained CLPR as the spouse of a U.S. citizen or as the son or daughter of a spouse of a U.S. citizen and have not abandoned this CLPR prior to seeking AOS; or, (8) obtained admission to enter the U.S. as a non-immigrant (temporarily) by misrepresenting that they would depart the U.S. when their temporary period of admission expired. Unless the adjustment applicant is admitted to the U.S. in H-1b, L-1 or O-1 non-immigrant status, This misrepresentation is deemed to have occurred if the alien investor, admitted as non-immigrant, demonstrates immigrant intent within 60 days after admission. Making the investment, filing the I-526 or applying for AOS within this 60 day period may be viewed by CIS as evidence of immigrant intent and may result in the denial of AOS. In such an event, the investor will be required to depart the U.S. and will need to seek a CLPR visa through consular processing. In this process, the consul may require the investor to seek a waiver of exclusion for having misrepresented the purpose of entry upon the admission as a non-immigrant. Waivers are granted in the unreviewable discretion of the CIS and the processing time for waiver applications is frequently significant.

There may be additional reasons why an alien may not adjust status, which is a benefit granted in the discretion of CIS. There is no appeal from a denial of AOS; the only relief available is a request to re-open or re-consider the AOS application. Investors should consult with immigration counsel to determine if they, their spouse and their children are eligible for AOS.

During AOS processing, the applicant will be required to submit a medical examination and will receive instructions from CIS regarding biometric data collection and an interview. The interview may be waived by CIS.

Overseas Travel During I-485 Adjustment Of Status Processing

An alien investor who leaves the United States without advance permission while an AOS application is pending is deemed to have abandoned that application unless the applicant has been admitted in and continues to hold valid H or L non-immigrant status pending adjudication of the AOS application.

Advance permission to depart the U.S. is issued routinely if the alien articulates a bona fide need to travel. It is not necessary to demonstrate an emergent need to travel; any purpose not contrary to law is usually deemed sufficient. Advance permission, known as Advance Parole, is usually granted for multiple entries during the time required to complete the AOS process, but not longer than one year. It may be necessary to re-apply for Advance Parole if the AOS process is not complete within a year.

Advance Parole is not available to aliens who are outside the U.S. It is important for AOS applicants who wish the right to travel to make application for Advance Parole while they are in the U.S. They must remain in the U.S. until Advance Parole is granted to avoid abandonment of the AOS application. Advance Parole applications may take about 60-90 days to be granted. Processing times may be longer if an applicant is subjected to extended background checking. In demonstrated emergent circumstances, an AOS applicant may seek expedited Advance Parole.

Alien investors admitted to the United States in any non-immigrant status who have obtained Advance Parole during the AOS process should consult with immigration counsel before traveling. Re-admission to the U.S. using the Advance Parole document may jeopardize the non-immigrant status of the alien’s family members who did not travel. The consequences, if any, of this situation should be examined prior to travel.

Employment During The I-485 Adjustment Of Status Processing

Applicants for AOS who wish to work in the United States must obtain employment authorization unless they have been admitted to the U.S. in a non-immigrant status that confers employment authorization and does not end before AOS is granted. Self-employment requires employment authorization.

Employment authorization applications currently take 60-90 days to be adjudicated. Processing times may be longer if an applicant is subjected to extended background checking. Employment authorization is usually granted during the time required to complete the AOS process, but not longer than one year. It may be necessary to re-apply for employment authorization if the AOS process is not complete within a year. To avoid a lapse in employment authorization re-applications should be made sufficiently in advance of the expiry of existing authorization. Employment without authorization at any time in the U.S. is a violation of immigration status and may jeopardize the right to adjust status.

I-829 Petition Removal of Conditions for EB-5 Investor

Approval of an AOS application or the grant of an EB-5 visa followed by entry into the U.S. in EB-5 status means that the investor and the spouse and qualified children of the investor have been granted Conditional Lawful Permanent Residence (CLPR) for two years. The “conditions” must be removed so that the aliens may reside in the U.S. indefinitely. Failure to remove the conditions results in the termination of CLPR status and will likely result in the commencement of removal proceedings.

Removal of conditions is sought by the filing of a petition in the 90 day period immediately preceding the second anniversary of the grant of CLPR status. In support of the petition, the alien investor must demonstrate full investment in the enterprise and compliance with the requirement that 10 jobs have been created as a result of the investment. The investor must also demonstrate maintenance of the investment continuously since becoming a CLPR. The General Partner of the Project will provide documentation upon request by the investor as reasonably necessary and available in support of investor’s application for Removal of Conditions

During the pendency of the petition, aliens admitted in Conditional Lawful Permanent Resident (CLPR) Status remain in valid status even if the petition is not decided before the expiry of the two year period of admission. CLPR is USUALLY extended in one year increments or until the petition to remove conditions is adjudicated.

These FAQ’s are for informational purposes only.

EB5GreenCard.com, its owners and associates, do not function as attorneys or legal counsel and do not attempt to interpret immigration law and do not provide or offer legal advice or legal services or investment advice. Anyone considering an investment based visa should seek independent professional advice. The information on this site is intended to be general on the subject of the EB5 investment visa green card program and should not be relied upon for any specific situation. Any reference to designated regional centers on this website is posted as reference material only.