Traveling On Visitor Visas During EB-5 Process
Travel.
Some EB-5 investors will have valid B-1/B-2 visas in their passports,
or are otherwise from visitor visa-waivered countries. During the
pendency of the EB-5 petition (Form I-526), investors are advised not to
travel in reliance upon their B visas, or their visa waiver.
The filing of the EB-5 petition is evidence of “immigrant intent,” or
the intent to reside permanently in the United States. To be admitted as
a visitor, the individual must satisfy the port of entry inspector that
s/he possesses “nonimmigrant intent,” or the intent to only remain in
the U.S. temporarily for purposes of traveling for business or pleasure
and will duly return to the home country prior to the expiry of the stay
given on the I-94 card.
Because of the contrary intents evidenced by the EB-5 petition filing
and the attempt to enter as a visitor, the port of entry inspector may
raise questions about whether the visitor applicant has the required
nonimmigrant intent. To avoid possible refusal, we advise against
reentering as a visitor during EB-5 pendency.
If an emergent travel need arises, we may equip the investor with a
“pocket letter” setting forth arguments for why the investor qualifies
for visitor classification, notwithstanding the filing of an EB-5
petition. However, such a letter is no guarantee of admission.
If the adjustment process or the consular process for an immigrant visa
has already begun, following the EB-5 petition approval, there is an
absolute bar from travel, unless (1) the investor holds an H or L visa,
or (2) the advance parole (travel permit) pursuant to the adjustment
application has issued and is in possession of the traveler.
Extensions of Visitor Status. If the investor is already in the
U.S. when the EB-5 petition is filed, s/he may attempt to extend the
B-1/B-2 status to enable him/her and dependents to remain in the U.S.
until the petition is decided, so the family can adjust in the U.S. Note
that such an extension also requires satisfaction of “nonimmigrant
intent,” and thus may be denied. The B extension also typically takes
4-6 months to be adjudicated, during which time the investor has no U.S.
status after I-94 expiry, though the investor has “lawful presence.”
Those entering as visa waivered tourists may not extend their visitor
status.
If you have any questions, please contact Carolyn Lee (csl@millermayer.com), Steve Yale-Loehr (syl@millermayer.com), or Nick Hinrichsen (nh@millermayer.com).