Whether or not a foreign national seeking asylum in the United States should apply for an EB-5 visa will depend on a number of circumstances. It is, however, possible to pursue both asylum and an EB-5 visa at the same time. To apply for asylum in the United States, one must file Form I-589 within one year of their arrival to the country. Moreover, U.S. immigration law permits asylees to apply for lawful permanent resident status after they have been physically present in the U.S. for at least one year since being granted asylum. In other words, a foreign national can eventually obtain a green card through asylum.
Being granted asylum status will give an asylee a long-term right to stay in the United States. However, this right is conditional on the asylee’s fear of persecution in their home country. If the circumstances in an asylee’s home country change and there is no longer a risk of persecution, the asylee may have to return home. However, once an asylee obtains a green card, this condition doesn’t apply anymore. A foreign national may be concerned that they will be required to return to their home country before they can obtain a green card through asylum. This is where the EB-5 visa comes in; a foreign national seeking asylum may be able to obtain a conditional green card through EB-5 investment faster than they would through asylum.
Although a foreign national seeking asylum may concurrently pursue an EB-5 visa, they must have current nonimmigrant status when their I-526 petition is approved. Otherwise, they will need to return to their home country and consular process to obtain an EB5 visa. Naturally, this may present issues for an individual who is seeking asylum. If an asylee has current nonimmigrant status at the time of I-526 approval, they may file Form I-485 to apply for a green card while remaining in the United States.
