Can an EB-5 investor and his or her family move to the United States before the I-526 petition is adjudicated?

Filing an I-526 petition does not confer immigration status on the EB-5 investor and their family. Therefore, if an EB-5 investor wishes to move to the United States while their I-526 petition is still pending, they must obtain a valid nonimmigrant visa. This extends to the EB-5 investor’s spouse and any unmarried children under the age of 21 who wish to relocate as well.

However, applying for a nonimmigrant visa after filing an I-526 petition poses its own challenges. For most nonimmigrant visas, there is a burden of proof on the part of the applicant to demonstrate nonimmigrant intent, which is the intent to depart the U.S. after a temporary authorized stay. Typically, this entails providing evidence of sufficient permanent ties to their home country, such as a property or home ownership, family or other significant personal relationships, financial or investment assets, or an offer of employment upon return.

For an EB-5 investor who has already demonstrated their intention to permanently immigrate to the United States through the act of filing an I-526 petition, proving nonimmigrant intent would be difficult. So unless the nonimmigrant visa being pursued carries dual intent, the possibility of approval decreases once the I-526 petition has been filed.

Nonimmigrant Visas with Dual Intent

The holder of a nonimmigrant visa with dual intent is permitted to express immigrant intent and pursue a green card while residing and/or working in the United States. Some of the most sought after nonimmigrant visas with dual intent include the H-1B, L-1A and L-1B visas. For H-1B visa holders, each individual qualifying family member may apply for an H-4 visa to accompany the visa holder.

Beyond the aforementioned considerations, any EB-5 investor who wishes to relocate to the United States with their family during the processing of their I-526 petition should consult an experienced immigration attorney for guidance on how best to proceed.