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EB-5 Eligibilities & Requirements: I-526, CPR & I-829


Who are eligible or ineligible to pursue EB-5 case, and what are specific requirements for each type of petition or application?

[Q] Can I apply for EB-5 case when I am in H-1B status and own a business?

[Q] I bought and is still the sole owner of a franchise as a H1-B visa holder currently, the biz is on "autopilot" and I don't get involved in actively managing the biz. Would this affect the EB-5 application?

No, you can be in H1-B status and still own a business, as long as you don't actively manage the business.

[HOT] [Q] If an Iranian national's investment money comes from an Iranian bank, then any additional requirement?

According to another EB-5 practitioner, Boyd Campbell, "although Iranian Transaction Regulations do not require a U.S. business to get an OFAC license in order to accept Iranian citizens' investments from Iranian banks, but USCIS requires the license anyway, and OFAC has obligingly issued them, citing no authority to do so."

[Q] My wife and I are currently in E-2 status with an approaching E-2 expiration date. Any issues in processing EB-5 case?

[Q] My wife and I are currently in E-2 status with an approaching E-2 expiration date. We are considering an EB-5 case. Any potential issues?

Whenever applicant in NIV status is considering an EB-5 case, there are issues involving maintaining NIV status. Therefore, a detailed paid consultation is recommended to elicit key facts and then decide on the best course of action.

What my George Washington tax law professor said about the tax law applies equally to immigration law: "Everything about tax law (substitute the immigration law here) and sex is about the timing."

The funny thing is that's the only thing I remember about the class.

[Q] Can Iranian nationals pursue EB-5 cases?

Yes, but it should be noted that certain banks in Iran are on the prohibited list of United States governmental agencies. You need to make sure the bank used to wire funds is not on this prohibited list. If the bank does appear on the prohibited list of banks, then you need to obtain a license clearance from a U.S. governmental agency.

[Q] Any issues with buying an existing car wash biz to pursue a $1 Million direct investment EB-5 case?

Yes, with any EB-5 case involving a purchase of an existing business, such as restaurants or car wash, the problematic issue is not with whether such business will qualify as a "new commercial enterprise" -- it will if the business has been originally established after November 29, 1990 -- but with how the EB-5 investor's investment into such business will create 10 additional, new full-time posit

[Q] Can I file I-526 now based on the investment made and jobs created in the past, let's say during my E-2 visa status?

[Q] I obtained E-2 visa 3 years ago by buying hotel for $2 Million USD and expanding and hiring additional 12 full-time jobs. Can I now go for EB-5 case based on this past investment and job creation?

Generally, the answer is YES, but how your investment for E-2 visa amount was spent and where it came from should be analyzed. For example, if the E-2 business itself invested its profit, then such investment would not qualify, because such spending would be deemed as "reinvestment" rather than a personal investment from the EB-5 investor. Also, if the investments were made little by little over a long period of time, that might pose some problems in demonstrating that you iinvested the requisite amount. You should also see if your business can maintain those jobs you created during your E-2 visa period for next several years. Then, if everything checks out, you can file I-526 petition to start the process rolling.

[Q] If I, the principal investor, dies after acquiring CPR, can my wife and kids get permanent green cards?

Yes, under the EB-5 law, if you, the principal investor, dies you and your family acquire CPR status, your dependents can apply for I-829 separately and are eligible to receive permanent green cards.

[Q] If I apply as a principal, who are eligible to immigrate with me via EB-5 case? Do they have to?

If you do EB-5 case, your spouse and unmarried children under 21 years old can immigrate together. Step-children qualify under if certain conditions are met. They do not have to immigrate with you, if they do not wish to.

No, your parents cannot immigrate with you. They can do a separate EB-5 case, however.

[Q] I have a DUI (driving while under influence of alcohol) records. Will this pose any problem with my pursuing EB-5 case?

Most DUIs do not make applicants ineligible to receive immigrant visas. However, in the event you have one DUI record during the last 3 years before the immigrant visa interview or total of more than two DUI records at any time, you will have to obtain a medical opinion letter from a designated medical doctor to show that you are not addicted to alcohol, before you receive immigrant visa. This may take additional month or two. Therefore, you may have to make plans accordingly.

[Q] I am in the middle of labor certification case. Can I still file EB-5 case?

Yes, under the U.S. immigration law, two separate cases to obtain green cards may be pursued at the same time, but you cannot obtain green card status through another classification if you already have a green card status until your green card status is terminated or abandoned. A careful evaluation of what stage you are currently in the middle of your labor certification and whether there is a real need for you to pursue the second avenue need to be conducted.

[Q] My daughter is 20 years and 7 months old. Can she immigrate as my dependent?

Yes, under the EB-5 law, a child under 21 years of age at the time I-526 is received by the USCIS qualifies to immigrate as a dependent, assuming of course that the I-526 immigrant petition is approved. Therefore, it is crucial for the USCIS to receive the I-526 petition before your daughter turns 21 years of age. Otherwise, your child will have to file as the principal applicant.

[Q] One of our family members has a criminal record. Can our family still pursue EB-5 case?

Under the U.S. immigration law, certain criminal records, especially those involving crime of moral turpitude, will not be eligible to receive immigrant visas or to qualify for I-485 adjustment. However, many facts must be ascertained, including whether the family member with the criminal record will need to immigrate, etc. Complicating the scenario is the fact that the criminal law among countries differ: What is criminal under one country might not be deemed to be criminal act that makes one ineligible to receive immigrant visa under the U.S. immigration law.

[Q] We have 21 year old son studying in the U.S. on F-1 visa. Can we have the son do EB-5 case on his own?

Yes, under the U.S. immigration law, when a child reaches 21 years of age, he or she cannot qualify to immigrate as a dependent of the parent who is the principal applicant. Therefore, there is no choice but to have the 21 year son proceed as the principal applicant. This means requisite funds probably has to be gifted to the son to meet the lawful source requirement.

[HOT] [Q] Is there a minimum age requirement? I know there is no maximum age requirement.

There is no specific minimum age requirement under the US immigration law, as far as we can see. Probably, the individual state's law on minimum age required to enter into valid contracts controls.