Several factors determine your EB5 eligibility:
- You must get approval for Form I-526 (Immigration Petition by Alien Entrepreneur). Your immigration attorney will file this and all other necessary forms for you.
- You must have legal permission to enter the United States.
- A visa number must be available (10,000 visas cannot already have been distributed to EB5 investors).
- You must not have a criminal record, or you must have it waived. You may not have committed any crimes within 20 years of applying for an EB5 investor visa. Obtain a police certificate on yourself and your derivatives, which includes all police records collected on you over the past 15 years, including a history of arrests and reasons for arrests. Examine your record with an immigration attorney to determine whether it renders you ineligible to participate in the EB5 investor visa program.
- You must not have severe and costly medical problems, or you must be able to prove that there is someone in the US who will be responsible for your care, proving you will not need government assistance.
You are advised to ask your immigration lawyer for help determining your EB5 eligibility before beginning the investment process.
Residents of almost all countries are legally granted EB5 eligibility, with the exception of North Korea. If you have the legally-obtained funds required to invest in the US, you should be able to participate. However, if your home country does not have consistent financial and tax documentation, if may be more difficult for your to get a petition for an EB5 green card approved. Talk with your immigration lawyer to learn the details of participating in the EB5 investor visa program for residents of your home country.
“Out of Status” EB5 Applicants
Immigration status plays an important role in EB5 eligibility.
If you are living in the US “out of status,” meaning your visa has expired, you cannot apply to participate in the EB5 investor visa program. “Out of status” is also referred to as “unlawful status.”
USCIS is primarily concerned with whether you obtained the funds you will invest in the EB5 program while living in the US illegally. If you have ever lived or worked in the US illegally, you will need to return to your home country or obtain a current visa before applying for an EB5 green card. You must also prove that you did not obtain any of your EB5 investment funds while living or working illegally in the US.
To prevent your visa from expiring, you must file for an extension of Form I-94.
If you are living in the US “out of status” but have already applied or petitioned for a green card through methods other than the EB5 eligibility program, your immigration attorney may be able to change your status. Paths you may have taken to apply for a green card include petitions filed based on family members or employment in the US. You may also have a 245(i) case, meaning you have obtained a labor certification, either by the 17th of January, 1998, or the 30th of April, 2001.
In either of these circumstances, your immigration lawyer may be able to get your status adjusted so you can make an investment and apply for an EB5 green card without leaving the US. Your immigration attorney may be able to help you ensure EB5 eligibility while you are living in the US “out of status.”
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