How can I adjust my status to an EB-5 visa?

A B1/B2 visa is generally granted for a period of six months. The processing time for an I-526 petition is approximately 12-18 months, exceeding the duration of a visitor visa. However, you may file for an extension of your visitor visa, but it may be denied due to conflict of intent if you have filed an I-526 petition. A visitor visa holds a non-immigrant intent, which means the visitors intends to return to their home country. Filing an I-526 petition shows your intent to immigrate to the United States.

This is a complex question and requires detailed analysis. While you can change your status, there are issues that need to be dealt with. I would be happy to discuss this with you.

As you can see from the below response from the California CIS Service Center, it is taking in considerable excess of one year for the ageny to approve investor petitions. It is unlikely CIS will allow you to remain here in visitor status for that period. You might wish to consider changing to some other nonimmigrant status. The related timing of the different steps must be handled carefully.

Generally, B-1/B-2 status is up to 6 months (please look at your I-94 card to determine the date your period of admission to the US expires). You must either depart by this date or file for extension. Because B-1/B-2 status requires showing of a nonimmigrant intent (temporary stay in the US and ties to your home country), it is not guaranteed that your extension will be approved if you filed I-526 petition (immigrant intent). I-526 petition while pending does not give you any immigration status and you have to maintain some other immigration status to remain in the US lawfully while awaiting a decision on your pending I-526 petition. Currently, processing of I-526s takes about 15 months. Most likely you need to depart the US to your home country and await a decision on I-526 petition and then consular process to obtain your immigrant visa to enter the US as a conditional (2-year) permanent resident upon approval of your I-526. Should you have any questions, please do not hesitate to contact our office.

Processing time for an I-526 is lengthy; currently over one year of processing time is required. Therefore, it seems unlikely that you would be able to adjust status, and you probably should prepare for immigrant visa processing at the U.S. embassy or consulate in your home country. However, if your I-526 petition is approved and you are in the United States in a valid nonimmigrant status at that time, you would be eligible to adjust your status (assuming you are otherwise eligible). An experienced immigration attorney will be able to advise you in greater detail. Please feel free to contact me if you have more questions.

It is possible to adjust status if your B-1/B-2 can be extended. The process is normally more than 6 months.

You may now be in current legal B1/B2 status and during this legal status you may file an application I-485 for yourself to adjust to conditional permanent residency status in the U.S.,only after the I-526 is approved. Please note you may only be granted B-2 status for a 6 month period to be in legal status in the U.S. While the I-526 petition EB-5 process may take 12 months, and then you may proceed with the U.S.consulate process which may take another 3 to 4 months.

A B1/B2 visa will not give you enough time to get approval of an I-526 petition from USCIS. It is not likely that you will be able to adjust your status in the United States. But it''s possible.

There are three steps in order to obtain your green card through the EB-5 program: I-526, I-485/ Consular Processing, I-829. Once you file your I-526, you have showed your immigrant intent. However, if you have not obtained a B-1/B-2 visa, you may not be able to get one because of your immigrant intent. If you have had a valid B-1/B-2 visa, make sure that you will not make misrepresentations on your purpose of visit when you are inspected at the U.S.border. The current processing time for I-526 is more than 12 months, which will exceed your authorized stay in the U.S.on the B-1/B-2 visa. If you want to adjust your status in the U.S., you may need to come again after the I-526 is approved. However, there won''t be guaranteed approval for this status adjustment because USCIS may think you have mis-used your B-1/B-2 visa by filing a I-485 application in the U.S. I would strongly suggest you go through the consular processing instead.

Your EB-5 visa petition must be approved before you can proceed with Adjustment of Status. You cannot file the I-526 and I-485 concurrently, otherwise. Whether you are allowed to adjust status is a different question based on you maintaining nonimmigrant status at the time when you apply for adjustment. Entering the United States on a Tourist Visa with the preconceived intent to adjust status is forbidden.

Please note that currently USCIS is taking more than 15 months to adjudicate I-526 petition. You need that petition approved before you could submit the Adjustment application (I-485). Since B1/B2 visas are for 6 months usually and may be extended once or twice at most depending on the reason for extension, it is unlikely that you could remain in the U.S. until you could file the Adjustment application if you have not submitted your I-526 yet.

Answer: There are 2 steps for EB-5 Immigrant Investor processing. First is the EB-5 Immigrant Investor Petition, which can take approximately 12months to process. Once that is approved, you can take the next step, which is, filing of the Application for Adjustment of Status to Permanent Resident (if you choose to process while you are in the U.S.)(approximately 12-18 months for this step depending on where you file), or you can opt for the Immigrant Visa processing through a U.S. consulate while remaining abroad (approximately 6 - 12 months for this step depending on where you file). The choice of where you file is yours, and dependent on where you are at the time of filing this last step. Caveat - If you enter the U.S. under B-1/B-2 status, you will have to wait at least 90 days from entering before you file the adjustment application in order to avoid the fraudulent intent entry issue. Good luck with your processing.

If you are in a valid status in the US, you can adjust to conditional permanent residency upon approval of the I-526 petition. However, processing of the I-526 Petition could take 8-12 months or more. Retaining a qualified US immigration attorney can assist you will creating a US Immigration plan.

Given how long it takes to obtain approval of the I-526, you will need to either change your status to another category or leave the U.S. The timing and strategies should be discussed with immigration counsel in advance of any investment being made.