Can I Travel While My I-526 is Pending? How Does an Immigrant Visa Petition impact Travel?

EB5 Overview
The EB-5 process is a 3 step process. At each step a government form and supporting documentation will be filed with the United States Citizenship & Immigration Services (USCIS). The steps are as follows:

  1. File Form I-526, Immigrant Petition by Alien Entrepreneur
  2. File Form I-485, Adjustment of Status for a Conditional Permanent Resident (or proceed with Consular Processing if you are outside the United States)
  3. File Form I-829, Removal of Conditional Residency

We have outlined the EB-5 steps below:

Form I-526, Immigrant Petition by Alien Entrepreneur
Filing Fee: $1,500

Form I-526 with supporting documentation is filed showing the source of funds, path of funds and that the required investment has been made in the Regional Center or Company. The Regional Center or Company will provide a significant amount of documentation to submit with this petition, documenting the New Commercial Enterprise and explaining how the investment will create 10 full-time jobs. Currently USCIS is taking 13.4 months (on average) to adjudicate I-526 petitions. USCIS may approve the petition, issue a Request For More Evidence, or deny the petition.

Form I-485, Adjustment of Status for a Conditional Permanent Resident
Filing Fee for I-485: $1,070

After approval of the I-526, if you are in the United States we can file Form I-485, Application to Register Permanent Residence or Adjust Status. Once the I-485 is approved you will receive a Conditional Green Card for two years. The I-485 cannot be filed concurrently with the I-526. If you are outside the United States you can file an application with the U.S. Department of State and receive your conditional green card through Consular processing. The I-485 Application may take several months, as may Consular Processing. If you are in the United States and apply for the I-485 you can also submit an application for work authorization (I-765) and an application for a travel permit (I-131) along with the I-485. You would receive a decision regarding the work authorization and travel permit within 90 days of filing the application. If you are outside of the U.S. or are in the U.S. and decide to process your green card out of the U.S., you will do so using a process called Consular Processing.

Form I-829, Removal of Conditional Residency
Filing Fee: $3,835

Form I-829 will be filed in the 90 day period before the expiration of your Conditional Green Card. We will submit supporting documentation showing that the investment has been sustained throughout the two year conditional residency period and that the investment created 10 full-time jobs. This is the last step. Once this petition is approved the conditions will be removed from your Green Card. Currently USCIS is taking 14.7 months to process I-829 petitions.

What is Impact of the I-526 petition on Travel?

Once the I-526 is filed it will be extremely difficult to obtain a new non-immigrant visa (eg. a B visa) from a U.S. Consulate or renew a nonimmigrant visa, as the I-526 can be viewed as evidence that you intend to move to the U.S. permanently.

You may be able to travel on a previously obtained ESTA or a B visa (or other non-immigrant visa such as an F-1 Visa), but you could receive additional scrutiny at the border and may be denied entry if the border official is concerned about immigrant intent. Every time you attempt to enter the U.S. you are applying for entry and border officials have discretion to refuse admission. There is no prohibition against leaving and re-entering the U.S. while the I-526 is being processed, but you may encounter issues with border officials regarding your intent if you enter with a nonimmigrant visa (such as a B visa or ESTA), as the filing of the I-526 can be viewed as evidence that you intend to immigrate to the U.S. permanently.


We always recommend avoiding travel in and out of the U.S. while you have an outstanding petition with USCIS, up until you receive your conditional green card or travel authorization through an approved I-131.


If you need to enter the U.S. while the I-526 you should consult with an attorney regarding documents to bring to the border. Among other things, you would need to be able to show a return ticket and evidence of ties to your home country. Unfortunately, there is no guarantee that you will be admitted at the Port of Entry.

Can I Travel After My Conditional Green Card is Issued?

You will be free to travel in and out of the United States once your Conditional Green Card has been issued. This will occur after the I-485 is approved or Consular processing at the Consulate is complete. Either process can take several months. If you have a visa that allows you to remain in the U.S. in valid status during the filing of the I-485, you may be able to apply for travel authorization, which would allow you to leave and re-enter the United States while the I-485 is pending.


Kelly Rose LeGrand Weiner, Esq. is an Associate Attorney at Scott Legal, P.C. She can be reached at kweiner@legalservicesincorporated.com or 646.527.7292 Ext. 148.

For more practical information and legal advice contact Scott Legal, P.C. Call 212-223-2964 or email info@legalservicesincorporated.com for a consultation.


 

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