What are the challenges faced by immigrants with an E-2 visa who want to apply for EB-5?

A pending I-526 petition demonstrates immigrant intent. E-2 does require a showing of a nonimmigrant intent and a return to your home country upon termination of E-2 status/closure of E-2 business. You may extend E-2 status without departing the U.S. by filing a petition with USCIS instead of consular processing for an E-2 nonimmigrant visa abroad. It may be riskier to travel to consular process until you have I-526 approved and receive advance parole documentation based on your pending adjustment of status application. Currently, USCIS is processing I-526 petitions received as of 10/18/2015, so your case is not outside the published processing times.

Although the E-2 visa application does not require the foreign national to demonstrate that he/she intends to remain in the United States for only a temporary period, the E-2 process does require the foreign national to confirm that he/she will depart the United States when the E-2 visa expires (or eligibility ends). The pending I-526 should not prohibit you from confirming that you will depart the U.S. when the E-2 expires or you are no longer eligible because, without the approved I-526, you remain dependent on the E-2 and must comply with the terms of the visa. It is possible to submit an I-129 (nonimmigrant petition) to the USCIS to extend your status. Please contact an immigration attorney discuss any other questions relating to the EB-5 and E-2 programs.

To address your 3 questions, there is one overall issue that needs to be addressed: the fact that you have filed an I-526 Petition is an indication you have immigrant intent even though your current E-2 is a non-immigrant visa. Regarding Question #1: if you leave the U.S. with an E-2 without a parole document in hand may lead to problems when you try to reenter the U.S. because you had filed an I-526, which indicates an immigrant intent. Thus, leading to Question #2: rather than leaving the U.S., it is advisable to pursue an extension of your E-2 while in the U.S. rather than leaving and seeking reentry. As for Question #3: possible denial of reentry is the problem you may encounter. Advisably, consult an EB-5 attorney before you leave the U.S. to explore your options.

You have 2 options: you can either file a petition to extend E-2 stay/status with the USCIS while remaining in the U.S., or you can re-enter on valid E-2 visa and be admitted for 2 more years. A limited form of dual intent is recognized for E-2 visa holders. The USCIS position is that an application for initial admission, change of status or extension of stay in E classification may not be denied solely on the basis of an approved request for a filed or approved immigrant visa preference petition.

Although an E-2 visa is not a dual intent visa, it is often treated as such. Accordingly, you will be able to renew the visa with USCIS or leave the country and enter while the visa is current in order to receive a 2-year extension from the date of entry. However, you should consult an experienced immigration attorney to ensure that you do not negatively impact your status or your pending EB5 petition.

Possible problems relate to conflicting intent but, so long as the E-2 is valid, you can apply for a renewal by mail to USCIS and not travel until you have your EB-5 advance parole (travel permit).

If you have a valid E-2 visa, you should be able to leave and reenter the United States and obtain two years of E-2 status. Also, you can apply to extend your E-2 status within the United States by filing Form I-129 with the USCIS. A potential problem might by your immigrant intent: since you have a pending I-526 petition, the USCIS might question you about your intention when you file your extension of nonimmigrant (E-2) status. The requirement for an E-2 investor is to demonstrate a foreign residence which he or she does not presently intend to abandon and that he or she has the intention to depart the United States when/if the E-2 enterprise closes.

You should be able to maintain you E-2 status while waiting for the adjudication of your EB-5 Investor Petition filed on Form I-526. You can do so by remaining in the U.S. and simply filing for an extension of your E-2 status prior to its expiration. If you have a valid multiple-entry, non-immigrant E-2 visa, you can still travel in and out of the United States. Finally, you could travel abroad and renew your non-immigrant E-2 visa. While that is legally possible, there may be some slight risks, as all E-2s must demonstrate an intent to depart the United States upon the termination of their status and, yet, by having filed an I-526 petition, it is clear that you wish to remain indefinitely in the U.S. by becoming a Lawful Permanent Resident. Most Consular Officers and CBP Immigration Inspectors interpret that requirement to mean that you will depart the U.S. if you were to lose E-2 status. The simple answer is: you may file an extension of your E-2 status within the United States.

If you have an E-2 visa stamp that allows multiple entries, you should be able to leave, reenter and get a two-year extension. If you do not have the E-2 visa stamp, you should wait until you get an approval of your I-526 and only travel after you have an approved advance parole and work card. This stakes another 3-4 months after you file your adjustment. Note I-526 approvals routinely take at least 21-24 months so your case is not past due.

USCIS is currently processing I-526 petitions (EB-5 petitions) that were filed on October 18, 2015. If you filed today, it appears that you would be in line for about 21 months. Look at the date on your I-526 receipt. You can then estimate the time you will be in line for processing. The simple way to renew your E-2 is to leave the U.S. and return, as you indicated in your question. Yes, you can renew your E-2 without leaving the U.S. by filing with the USCIS to renew. If you are successful in your E-2 investment and have kept financial records, you should be able to renew through USCIS. You have not declared your intent to remain in the U.S. permanently. Your intent will be declared when you either file I-485 to adjust status in the United States or when you apply for your immigrant visa with the National Visa Center and consular process through the Embassy.

You would face a problem in that you are an intending immigrant. They could deny a nonimmigrant visa like an E2.