Can an EB-5 investor with a pending I-526 petition enter the United States on an I visa?

There are two kinds of visas; nonimmigrant visas and immigrant visas. The latter offers a direct path to U.S. permanent residency, while the former only permits temporary residence in the country. An important aspect of nonimmigrant visas is the intent that they carry. Those that are single intent require the holder to demonstrate strong ties to their home country and leave the United States upon visa expiration. Dual intent visas, however, permit the holder to pursue a U.S. green card during their stay.

The I visa is a nonimmigrant visa. While there are nonimmigrant visas that allow for dual intent, the I visa is not one of them. Therefore, entering the United States on the I visa may be challenging with a pending I-526 petition because a pending I-526 indicates an intent to immigrate. A visa does not guarantee entry into the United States, it only allows for travel out of a petitioner’s home country to the United States. Therefore, a customs and immigration agent can deny entry if they choose to. Moreover, investors residing in the U.S. on an I visa with a pending I-526 petition should also be aware that traveling abroad and reentering the U.S. is highly risky. An investor may be denied reentry due to the single intent nature of the I visa.

Oftentimes, the longest part of the EB-5 investment process is waiting for the I-526 petition to be approved. United States Citizenship and Immigration Services (USCIS) is the agency in charge of this process, and backlogs can lead to wait times that take months or even years. During this time, most EB-5 applicants wait in their home country. The exception to this is if the applicant was already in the United States on a different visa—such as an I—when they began the EB-5 process. In these scenarios, it is possible for an applicant to remain in the United States until their Form I-526 has been adjudicated. However, they would need to have a current visa status. Otherwise, they would need to return to their home country to consular process.