Can a foreign national in the United States on a visitor visa apply for EB-5?

Prospective applicants of the EB-5 visa are permitted to take the first step and file Form I-526 from anywhere in the world, be it their home country or the United States. Similarly, a foreign national residing in the United States with a visitor visa is permitted to apply for an EB-5 visa and undertake all the required steps part of the process, such as conducting due diligence and hiring an immigration attorney.

That having been said, they must still abide by the stipulations of their nonimmigrant visa. Filing an I-526 petition and starting the EB-5 process does not entitle the foreign national to remain in the United States. If the EB-5 investor’s visitor visa expires before their I-526 petition is adjudicated, they will have to return to their home country. If the foreign national wishes to remain in the United States during the processing of their I-526 petition, they must explore the option of either renewing their expired visa or applying for a new one.

Foreign nationals who hold a visitor or work visa can apply to extend their stay or switch to a different nonimmigrant visa by filing Form I-539, Application to Extend/Change Nonimmigrant Status. United States Citizenship and Immigration Services (USCIS) has suggested on their website that foreign nationals should file Form I-539 at least 45 days before the expiration of their current visa.

If legally extending their stay in the United States is not a viable option, an EB-5 investor who has filed Form I-526 may have to return to their home country if their nonimmigrant visa is due to expire before their I-526 petition can be adjudicated. In this case, the EB5 investor would, upon approval of Form I-526, undergo consular processing in their home country. Consular processing involves filing Form DS-260, Immigrant Visa Electronic Application, and attending an interview at their home country’s U.S. embassy or consulate office.