Can an EB-5 investor stay in the United States while the I-526 petition is pending?

A pending I-526 petition does not confer any sort of immigration status on the filer of the petition. Therefore, a prospective EB-5 investor who is awaiting adjudication results from United States Citizenship and Immigration Services (USCIS) on their I-526 petition and wishes to enter and stay in the United States is best served applying for a separate nonimmigrant visa.

If the EB-5 investor wishes to stay in the United States temporarily as a visitor while their I-526 petition is pending, a number of nonimmigrant visas are available. The most common include the B-1, issued primarily for short-term business trips, and the B-2, for traveling and tourism purposes. Investors should note that these visas do not carry dual intent and, as such, because the EB-5 investor’s pending I-526 petition is indicative of their long-term desire to relocate permanently to the United States, applying for one of these nonimmigrant visas will require considerable evidence that their entry is strictly temporary.

Most EB-5 investors intend to permanently relocate to the United States, so they should ideally obtain a nonimmigrant visa that holds dual intent. Certain visas, such as the H-1B and the L-1 visa, hold dual intent and will allow the EB-5 investor to remain in the United States with a pending I-526 petition. If the investor acquires a nonimmigrant visa without dual intent, they will likely have to acquire the visa before filing Form I-526, and they run the risk of being unable to renew the visa while their I-526 petition is being processed.

If a prospective EB-5 investor wishes to enter and remain in the United States during consular processing of their I-526 petition, they should plan ahead and apply for a nonimmigrant visa, ideally one that holds dual intent. Investors should seek counsel from an experienced immigration attorney if they have any questions about the required qualifications for a nonimmigrant visa.