PRACTICAL MATTERS
Many Indian investors have children who are studying in the
U.S. Once their I-526 petition was approved and the family
was scheduled for a visa interview at the consulate, the family
would be hesitant to pull their child out of school. They would
either elect to postpone the child’s interview or the entire
family’s visa interview until a holiday break. In some rare
cases, the investor and other family members would attend
the interview at the consulate and, upon their entry into the
U.S., the child would file an adjustment application in the U.S.
While this was fine in the past, I would caution against such
practices, especially as we get closer to July 2019. I would
advise investors and their families to obtain their visas at the
earliest date possible to minimize the risk that one family
member would be stuck in a visa backlog.
Current policy requires the investors to stay invested
throughout their conditional residency period. If an
investor is subject to the visa backlog and cannot begin
the conditional residency period for 5-6 years after I-526
filing, their eligibility to get a return of investment will also
be delayed.
Many Indian investors in the U.S. want to know whether
they should file an EB-5 petition - especially when they
have an approved I-140 petition. It is a personal matter
that requires a balancing of several factors, including
the investor’s financial ability to invest $500,000. But
there are a few immigration fac tors that investors
should consider:
The priority date of the underlying EB-2 petition. Per
Oppenheim, it is likely going to take another 5 years to get
through all the visas for Indian EB-2s with priority dates
before January 2011. Investors should therefore determine
whether they are comfortable renewing their underlying
H-1B until their EB-2 priority date becomes current.
"If prospective EB-5
applicants are directed
in increasing numbers
to the E-2, it is likely
that Consular Officers
will notice it and
become increasingly
demanding"
Aging-out issues: Many investors whose children were
under 10 years old when they started the EB-2 process
now risk the possibility of aging-out if they wait for the
EB-2 priority date to become current. Investors should
discuss this issue with their at torney to determine
whether filing for a greencard through an EB-5 petition
could potentially protect children who risk aging- out
during the EB-2 process.
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EB5 INVESTORS M AGAZINE
While India EB-5 visas are expected to hit a backlog
in mid -2019, it is still a viable and at tractive option
for many Indian nationals who are otherwise facing a
multi-decade backlog in other categories. If an Indian
national is considering EB-5 as their route to a green
card, it is important to do appropriate due diligence on
the entire process and timeline to see if this is the right
option for them.
Anusree (Anu) Nair is a partner at
Klasko Immigration Law Partners and
manages the investor division of the
firm's EB-5 practice. She is responsible
for the filing of all EB-5 petitions at
the firm. Nair’s command of investor-
related issues is recognized within the
industry and she is frequently called on to
review cases prepared by other firms to
ensure compliance with USCIS’ rigorous
standards. Nair has attained a 99% approval rate on all petitions
and applications filed with the government.
Sources:
1
These are projections made by the Department of State based on their current data and there is
a possibility that the backlog can hit earlier or later than predicted or could be for a shorter or
longer period of time than predicted.
EB5 INVESTORS MAGAZINE