A J-1 or J-2 visa holder is permitted to begin the EB-5 process and file Form I-526. The only potential complication is if the J-1 or J-2 visa holder’s status is subject to the two-year home residency requirement. After filing Form I-526, the J-1 or J-2 visa holder will not be allowed to adjust status and receive a conditional green card until they have complied with the two-year home residency requirement. To fulfill the requirement, the prospective EB-5 investor must either return to their home country for a minimum of two years upon completion of the exchange visitor program or obtain a waiver exempting them.
Who is Subject to the Two-Year Home Residency Requirement?
J-1 or J-2 visa holders may be subject to the two-year home residency requirement if any of the following are applicable to them:
- The visa holder participated in a government funded exchange program.
- The visa holder participated in a program that required specialized skill or knowledge in the interest of advancing development in a specific field or area of study in their home country.
- The visa holder participated in a program of graduate-level medical training or education.
Waiver Eligibility and How to Obtain One
If the J-1 or J-2 visa holder is unable to fulfill the two-year home residency requirement, they may apply for a waiver. Any of the following qualify as valid bases for recommendation of a waiver: a no objection statement; special request through an interested U.S. federal government agency; belief of persecution upon return to home country; proof that departure would cause exceptional hardship to the visa holder’s U.S. citizen spouse or child; or special request through a designated State Public Health Department.
To apply for a waiver, the J-1 or J-2 visa holder needs to submit an electronic application through the U.S. Department of State website along with supporting documents and the application fee. Depending on the basis of their recommendation, they may also need to file Form I-612.
Applying for an EB-5 Visa
Once the two-year home residency requirement has been met, the J-1 or J-2 visa holder may apply for an EB-5 visa. The first step would be to hire an experienced immigration attorney and conduct due diligence on the available EB-5 investment projects.