The EB-5 Visa Consular Process
Approval of the EB-5 Visa I-526 petition means that the alien and the alien’s spouse and children under the age of 21 years may apply for admission as Conditional Lawful Permanent Residents (CLPR).
Approval of the EB-5 Visa I-526 petition does not mean that the investor has been granted admission to the United States as a lawful permanent resident. Approval of an EB-5 Visa I-526 means that the investment documented by the I-526 petition has qualified the investor as an alien entrepreneur.
The CLPR application for admission is a separate and subsequent process that concerns issues common to all aliens who wish to live in the United States permanently.
EB-5 Visa Consular Processing
Consular processing is designed for aliens living outside of the United States, or prefer to process at a consulate for strategic reasons or as a matter of convenience or are ineligible to adjust status.
Typically, the consular post, which is designated at the time the EB-5 Visa I-526 petition is filed, is in the country of last residence, i.e., the last principal actual dwelling place. In very limited instances, usually involving a recognized hardship, a different consular post may process for lawful permanent residence.
In their sole discretion, consulates issue visas, a travel document, usually affixed to a passport, that authorizes the holder to seek admission to the United States at a port of entry. In an EB-5 visa case, the visa may be sought from a consulate only after the investor’s I-526 petition is approved. An EB-5 visa investor and the investor’s spouse and qualifying children are granted immigrant visas. Use of these visas to enter the U.S. results in a grant of Conditional Lawful Permanent Residence.
Before issuing an immigrant visa, the consular post must determine if each alien is admissible to the U.S. Approval of the I-526 petition does not by itself establish admissibility. An alien is admissible who proves that no grounds of inadmissibility exist and the alien has proper travel documents. Waivers are available for certain of the many grounds of inadmissibility, but the grant of a waiver is in the discretion of the government and aliens seeking waivers experience lengthy delays in adjudication of waiver applications. Investors should consult with immigration counsel to determine if any grounds of inadmissibility may affect the eligibility of the investor or the investor’s spouse or otherwise qualifying children for admission to the United States and if a waiver is available for such grounds of inadmissibility.
If the consular post finds that the investor is admissible, it will issue an immigrant visa to the investor. The consular post will also determine if the spouse and the qualifying children of the investor are admissible. A determination of admissibility must be made as to each visa applicant. If the investor is denied an immigrant visa, applications by the spouse and children of the investor for such a visa will also be denied. Notably, consular posts are administered by the U.S. Department of State (DOS), an agency unrelated to the Department of Homeland Security (DHS) and its sub-agency, U.S. Citizenship and Immigration Services (USCIS). Consular processing subjects both the visa applicant and the I-526 petition to the scrutiny of a second government agency whose decisions are not appealable. If the consular officer, based upon information not available to USCIS in its adjudications process, suspects fraud or misrepresentation in the I-526 petition process or if the consul doubts the eligibility for Lawful Permanent Resident Status, the consul may return the case to USCIS for re-adjudication of the I-526 petition. If USCIS reaffirms its approval, the consul is expected to issue an immigrant visa, assuming there are no other grounds of inadmissibility.
Consular processing begins when USCIS transmits the approved alien’s I-526 petition to the National Visa Center (NVC). At appropriate intervals, the NVC issues instructions and appointment packages and requests required documents and information. In time, the applicants will be instructed to obtain fingerprints and medical examinations and to report to a consular interview. Immigrant visas usually are issued shortly after the interview unless the consul detects problems in the visa application, the underlying I-526 petition or during the interview process. Visa applicants should allow about six to twelve months after the I-526 is approved to complete consular processing, although times for processing vary greatly among consular posts.
Security matters and high volumes of visa applications may delay processing of CLPR applications. The investor is advised to seek competent counsel for guidance on the processing experience and potential delays in the consul office handling investors’ application.
EB-5 Visa Issuance
Decisions by consuls are to be made in accordance with regulatory guidance on this process, consuls have broad authority and discretion under such regulatory procedures and their decisions are unreviewable. The investor should seek advice of competent legal counsel regarding visa issuance guidelines.
U.S. consuls advise that visa applicants should not change any living, employment, schooling or other lifestyle arrangements in their country of residence before they are issued an immigrant visa based upon an approved I-526 petition.
Admission to U.S. After EB-5 Visa Issued
A visa authorizes the holder to seek admission to the United States at a port of entry. However, admission is subject to U.S. Customs and Border Protection (USCBP) inspection discussed below. After issuance, immigrant visas generally remain valid for six months.
During the validity period, the holder of the visa must use it to apply for admission to the United States at a designated port of entry. The port of entry is frequently in an international airport. When the alien arrives at the port of entry, he or she will present the immigrant visa and accompanying consular documents to a U.S. Customs and Border Protection (USCBP) officer who has the authority to admit the investor to the United States as a CLPR. This process is known as inspection.
Generally, possession of a valid immigrant visa will result in an admission unless the inspecting officer suspects fraud, the alien’s travel documents are not in order or the alien has become inadmissible in the time between the date of visa issuance and the date admission is sought.
Admission After Investing, Filing The I-526 Or During Consular Processing
Admission to the United States as a visitor or in most other non-immigrant statuses is affirmed upon the intent to depart the country at the end of the period of admission.
Investors should consult with competent counsel to evaluate the risks associated with seeking temporary (non-immigrant) admission to the United States subsequent to making the investment or filing an I-526 petition or an applicant for an immigrant visa.