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Can a foreign national travel to the United States with a pending I-526E petition?

The I-526E petition is the first petition filed in the EB5 investment process, and it essentially acts as the EB5 program application. Once an investor files their petition package to United States Citizenship and Immigration Services (USCIS), they must wait for approval before applying for a conditional Green Card. However, I-526E processing times are historically long, with forms taking anywhere from months to years to be adjudicated. Fortunately, it is possible for a foreign national to travel to the United States with a pending I-526E petition, but the burden to prove nonimmigrant intent is greater.

The ultimate goal of anyone filing a I-526E petition is to obtain U.S. permanent resident status. However, many visas — including the B1 and B2 visitor visas — are single intent, meaning the holder must demonstrate an intent to leave the United States upon visa expiration. This can be an issue for individuals traveling to the United States with a pending I-526E petition because the pending application signifies an intent to immigrate to the country.

When applying for a visitor visa, a foreign national must disclose their pending I-526E petition on the application form. Whether or not entry to the United States will be granted ultimately comes down to the consular officer making the determination about the purpose of entry. If a foreign national can demonstrate strong ties to their home country and a legitimate reason to visit, the officer will likely approve their visitor visa application. However, if the officer believes that the pending I-526E petition and/or other factors indicate an intent to immigrate for that trip, they will likely deny the foreign national. Such visitor denial will not affect a foreign national’s EB5 case as long as they were truthful on their application.

Foreign nationals who need to enter the United States with a pending I-526E petition should consult with an attorney regarding documents to bring to the border.

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