Can a foreign national in the United States with a pending asylum petition pursue the EB-5 Program?

An asylum claim and the EB-5 program may be pursued concurrently. Therefore, a foreign national with a pending asylum petition is permitted to begin the EB-5 process by filing Form I-526.

Note, however, there are a number of factors to be taken into consideration in this situation. For instance, while the pending asylum petition grants the petitioner an authorized stay in the U.S., it does not confer any form of legal nonimmigrant status. So unless the asylum seeker has managed to maintain lawful nonimmigrant status in the United States, it will not be possible for them to adjust status as an EB-5 investor after the approval of Form I-526. In this case, the EB-5 investor would need to return to their home country for consular processing. However, the act of returning to their home country may have a negative impact on the pending asylum petition. Furthermore, if the prospective EB-5 investor had previously accrued unlawful presence as an asylum seeker or worked without proper authorization, this could affect their eligibility for the EB-5 program. Finally, the asylum petition must be fully legitimate and non frivolous—any fraud findings could affect the prospective investor’s EB-5 application, pending asylum petition, and have long term consequences.

Any prospective EB-5 investor with a pending asylum petition should seek counsel from an experienced immigration attorney before proceeding to fully understand the potential risks and consequences.

Asylum in the United States

Individuals who are physically present in the United States and do not have U.S. citizenship may apply for asylum. To be eligible for asylum, the applicant must be a person who is unwilling or unable to return to their home country for fear of prosecution due to race, nationality, religion, political opinion or membership in a particular social group.

The applicant may apply for asylum affirmatively, defensively, or through expedited removal proceedings. Generally, the asylum seeker is required to apply for asylum within one year of their most recent arrival in the United States. To apply, the applicant must file Form I-589, Application for Asylum and for Withholding of Removal.

Once asylum status has been granted and maintained for at least one year, the asylee may apply for lawful permanent resident status.