EB-5 investors should maintain their eligibility for conditional permanent resident status, especially during any period of visa backlog occurring in between the time of I-526 Petition approval and when the investor’s priority date becomes current.

This is the second post in a series that discusses how EB-5 investors and their dependents can maintain eligibility for permanent residence. This post focuses on criminal issues and material misrepresentations on visa applications.

Criminal Issues

President Trump’s Executive Order, along with a Department of Homeland Security (DHS) implementation memorandum, prioritizes removable aliens who:

• Have been convicted of any criminal offense;
• Have been charged with any criminal offense that has not been resolved; and
• Have committed acts that constitute a chargeable criminal offense.

Importantly, a criminal conviction is not required for USCIS to start the deportation process for an EB-5 investor or any of his or her dependent family members. Additionally, any arrest or conviction that occurs during any period of visa backlog, during or after I-526 Petition approval, while the investor and dependents are waiting for the immigrant visa interview, can impact the issuance of the immigrant visa by the U.S. Consulate or the approval of Form I-485 by USCIS. Any investor or their dependent who has been arrested anywhere in the world for any infraction should reach out to his or her immigration attorney to determine the best course of action.

EB-5 investors and their dependents should disclose to their attorney all arrests and encounters with law enforcement. Even if previous visa applications have been approved in the past, or if an arrest or conviction occurred a very long time ago or for a very minor infraction, such arrest can lead to the initiation of deportation proceedings in the U.S. Failure to disclose arrests or convictions can lead to an immigrant visa denial, a Form I-485 denial, or a Form I-829 Petition denial, and the start of deportation proceedings.

Misrepresentations on Visa Applications

A material misrepresentation or fraud on a visa application is a bar to entry to the U.S. on a nonimmigrant visa or a green card. It is very difficult to overcome a finding of material misrepresentation and only very limited waivers are available.

Any visa applications filed by the EB-5 investor or the dependent family members must be filed accurately and with truthful information, including nonimmigrant visa applications. An EB-5 investor with a pending or approved I-526 Petition should consider the following:

1. Disclose the pending or approved Form I-526 on any DS-160 Application for a nonimmigrant visa, including visitor visas;
2. Disclose all arrests and convictions on a visa application, regardless of how much time has passed since the commission of the crime or however insignificant the infraction, and even if the conviction was later removed from his or her record; and
3. Answer employment, academic, and residency history questions consistently with the Form I-526 Petition filed on his or her behalf.

Importantly, obtaining a B visitor visa to give birth to a child in the U.S. can be used as a basis to deny the green card at the immigrant visa interview by the U.S. Consulate. Also, enrolling children in school in the U.S. on a B visa can result in a finding of permanent ineligibility on the part of the parent.