All immigration processes require two separate steps: first, filing an immigrant petition with United States Citizenship and Immigration Services (USCIS) and second, either adjusting your status (requiring an I-485 form) if the petitioner is already in United States through USCIS or consular processing. Once this occurs, the next step upon approval of the petition will be to apply for the immigrant visa. As an investor you will be applying for consular processing.
Consular processing refers to a specific pathway for individuals residing outside of the United States and seeking entry as a permanent resident. The idea of consular processing is to examine the petitioner to verify if he or she is eligible to receive a visa that has been set aside when the I-526 was approved as well as to grant her or him along with the family a visa to enter the United States as a conditional permanent resident. Below we will break down the steps for this process.
1. Determining Your Eligibility for Immigration
The very first step in Consular processing involves deciding if you are qualified to apply for a U.S. Green Card, which grants the holder legal permanent residency status in the United States. Eligibility can be acquired through several avenues, including a family member or employer petitioning on your behalf. Other paths include the U.S. EB-5 Immigrant Investor Program, which grants qualified applicants and their dependents a U.S. Green Card in exchange for an investment into the economy.
2. File the Appropriate Immigrant Petition
There are a number of different immigrant petitions that can be filed; however, we will focus on the employment-based immigrant petition that must be filed as a candidate for the U.S. EB-5 Immigrant Investor Program. As mentioned above, applicants must have their immigrant petition approved before moving forward in Consular processing. For the EB-5 Program, this petition is called the Immigrant Petition by Alien Entrepreneur, or I-526 Petition. This form is designed for individuals who intend to invest a minimum USD $500,000 in the U.S. economy in exchange for permanent residency status.
The main purpose of an I-526 Petition is to demonstrate that an applicant has invested (or is in the process of investing) the appropriate capital in an EB-5 Program project, whether as a commercial enterprise or government-approved Regional Center.
3. Wait for a Decision from USCIS after Your Immigrant Petition is Filed
The status of your I-526 Petition is decided by the USCIS. If your petition is approved as a foreign investor living outside of the U.S., you and your immediate family will be eligible for Conditional Permanent Residence for 2 years. The petition will be sent to the Department of State’s National Visa Center (NVC). Once the petition is received, it will remain at the National Visa Center pending the issuance of an available visa number.
If the I-526 Petition is denied, USCIS will provide a notice that outlines the reasons for its denial, including whether or not you are eligible to appeal the decision.
Based on the above, you should expect notice from USCIS stating that your I-526 petition has been approved and the visa was sent to the NVC (National Visa Center, a division of the U.S. Department of State).
4. Wait for a Decision from the Department of State’s National Visa Center
As mentioned in the previous step, the I-526 Petition will be sent to National Visa Center (NVC) where it will wait for a decision. When the petition is received, the petitioner will be notified by the NVC and notified at a later date when an immigrant visa number is nearing availability. One of the main functions of the National Visa Center (NVC) also includes gathering supporting documents for the I-526 Petition, as well as collecting the required visa application fees. For this step, the NVC will notify the petitioner when immigrant visa processing fees are due and when supporting documentation must be submitted. An overview of this step is as follows:
- You will receive an email from NVC stating that filing fees (USD $345) for each family member are required and can be paid electronically. Upon receipt of the filing fees, NVC will provide a bar code with which you may access the information and submit the DS-260 immigrant visa applications for you and your family.
- After NVC reviews the DS-260 documents and is satisfied, they will send the visa on to the U.S. Embassy or Consulate in your area and assign an interview date for you with that U.S. Embassy or Consulate there. You will receive notice of the interview date by e-mail.
- Your immigration representative will then provide instructions on the required medical exam and prepare you for the interview.
If the NVC determines the applicant’s file is complete, the office will send the complete file to the U.S. Consulate in the applicant’s home country. When an immigrant visa becomes available, the U.S. Consulate abroad will schedule an interview to determine your eligibility for the immigrant visa.
It is important to note that a scheduled U.S. Consulate interview does not guarantee an immigration visa until the interview is completed by the main applicant/petitioner and his or her dependents and then assessed by the U.S. Consulate for a final determination.
At the interview date, you will be examined. If approved you will instruct on fingerprints and submit your passport; a visa will be affixed and then returned to you for use in entering the United States.
After the immigrant visa is issued you go online and pay the immigrant visa card processing fee to USCIS and enter the United States before the immigrant visa expires (generally you have 6 months to enter the United States after receiving your conditional immigrant visa).
6. Notify the NVC of any Changes to Your Petition
This step may or may not apply to you as a petitioner. However, if there are any changes made to the I-526 Petition, the petitioner must immediately notify the NVC. Changes can include changes in marital status, a residential address, or even a dependent that was under the age of 21 upon submission of the petition but has since turned 21.
Eligibility for immigration or the availability of an immigrant visa can be affected by changes made to your petition. For this reason, it is imperative you contact the NVC if any changes must be applied to your original petition.
Please keep in mind that it is not necessary to contact the NVC regarding your petition. The NVC will contact you if additional information or documentation is needed.
7. Granting an Immigrant Visa
A Consular officer will provide a “Visa Packet” if an immigrant visa is granted. This packet can only be opened once the appropriate USCIS Immigrant Fee is paid. Again, do not open your Visa Packet prior to paying the fee, as the fee is used to process your Visa Packet and issue a Conditional U.S. Green Card. As recommended by the USCIS, those who need to pay their Immigrant Fee is encouraged to do so online prior to departure to the United States.
Upon arrival to the U.S., the Visa Packet must be handed over to an officer for U.S. Customs and Border Protection (CBP) for inspection. At this stage, the CBP officer will determine whether or not you will be granted entry to the United States as a legal permanent resident. If approved, you will be admitted as a legal permanent resident, along with the right to live and work anywhere within the United States.
Note: U.S. Green Cards for conditional or permanent residency are not issued by U.S. Customs and Border Protection (CBP); admitted individuals and their family members will receive their physical U.S. Green Cards at a later date by mail.
8. Issuance of a U.S. Green Card (Conditional and Permanent)
Conditional U.S. Green Cards are issued only after the USCIS Immigrant Fee is paid (whether before or after departure) and mailed to the recipient* after he or she arrives in the United States. If all steps are met, EB-5 Program investors and their immediate family receive their Conditional Permanent Residence U.S. Green Cards, which grants conditional resident status in the United States for up to two years.
The conditional residency status can be removed by submitting an I-829 Petition to USCIS 90 days before the Conditional U.S. Green Card expires. The purpose of the I-829 Petition is to demonstrate that all program requirements for the EB-5 Program have been fulfilled, including the creation of 10 full-time jobs for Americans. If the petition is approved, the investor and his or her immediate family will receive new Green Cards as legal permanent residents of the United States.
*Generally speaking, U.S. Green Cards can take around 45 days to be issued and sent by mail after your arrival. Should the waiting period exceed this time frame, call the USCIS National Customer Service Center or make an appointment at the nearest USCIS field office.
While the U.S. EB-5 Immigrant Investor Program Consular process may seem tedious and time-consuming, following the proper steps outlined above will help alleviate stress and anxieties that accompany immigration and related processes. One of the most important things to remember is to have patience; immigration is by no means quick and easy, and this is why working with a qualified immigration lawyer or consultant is imperative, as he or she will provide step-by-step guidance and assistance throughout your journey.
The time required for consular processing depends upon many factors including (but are not limited to):
- The effectiveness with which you respond to, supply documents or information, and competence of your responses;
- It depends upon the number of other petitioners ahead of you who have just filed with NVC;
- The staff assigned to processes at the NVC, and;
- The backlog for interview appointments at the U.S. Embassy or Consulate in your area.
If you are considering immigration through the U.S. EB-5 Immigrant Investor Program, contact our office today to discuss your options with one of our immigration specialists.
For more information on the U.S. EB-5 Immigrant Investor Program, please click here.
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