Tourist Visa to EB-5 Green Card With Adjustment of Status

From A Tourist Visa To A EB-5 Green Card

Full Video Transcript

It’s not impossible to come in as a tourist and then a few months later apply for an adjustment of status. You need to be very careful in the way you structure your application because if the immigration officer who is adjudicating your green card application thinks that you’ve lied to the CBP officer at the border, at Customs, at the airport, and you entered with the intent of getting a green card, then that’s fraud. That’s misrepresentation. Your green card application could be denied, and you can have a criminal record on you, and your visa could be canceled. There could be devastating consequences. 

So the question is, what’s okay and what’s not okay? If you look online, there’s all sorts of different advice, and they’re conflicting. So in this video, I’m going to try to explain everything to the best of my ability using the case that we just did. I hope you enjoy. Let’s go.

Hi, everyone. My name is Joseph. I’m the managing partner here at Tsang & Associates, where we solve legal problems with creative solutions. So the legal problem in this case, and, in these types of cases, is that your intent changed. You came in as a tourist, but after a couple of months, now you’re filing for a 485 application to get your green card. And different people are filing adjustment of status applications in different ways, but the problem is the same. You entered as a tourist; you need to prove that you had a legitimate change of mind. If the officer sees you quit your job two weeks before you came to the U.S, that kind of seems like you are intending to stay in the U.S. If they look at your luggage, they write it in their notes, and then later on USCIS takes a look at it, it’s like, “Oh, wow, you brought like everything with you, like 10 suitcases. It looks like you’re planning on staying. You’re not here for a two-week Disneyland vacation like you said you were coming for.” So you really have to be careful because these fact patterns can impact your case, and I’ve seen it happen before.

Our client in this case, they invested in the EB-5 program, and so they waited years and years and years, and they didn’t know their priority date was going to become current because every month it changes. So after they entered the U.S., the priority jumped forward. They were able to now file adjustment of status in the U.S., but they only had one month to prepare for it. 

When they’re coming into the U.S., the reason is that their U.S citizen daughter gave birth. Now, this is the tricky part because you can’t say, as the mother, “I’m gonna take care of my daughter,” because they had a baby, because you are now competing with American nannies, right? You are competing for a U.S. job. That is something you’re supposed to pay for. I’ve seen so many tourist visas get denied on that basis. 

So there was that particular issue, and then there’s the whole extension issue. Well, how long are you going to stay before you file for the adjustment of status? They needed to stay just long enough so that they can file it, and they need to do an extension. 

It was all very difficult, and we needed to prove why she needed to stay for that long, and we did not want to lie. We never want to lie, and so we don’t want to say she was just going to Disneyland when she was not obviously going to Disneyland. She was living with her daughter. So in doing this case, we got to understand the family situation, the dynamic, exactly what they’re doing, and it turns out the daughter had postpartum depression, right, as many, many young mothers do. It’s a very, very difficult time. So it’s perfectly legitimate for the mother to take care of her daughter, not as a doctor or nurse, right, because nobody can replace a mother. She came to be a mother, and that’s how we structured the case, the extension, and the reason for the adjustment of status. She could not go back to China to wait for the consular processing because God knows that could take another year and a half to two years. So we were able to structure everything and file for the adjustment of status in the U.S, even though the mother came as a tourist. 

This isn’t a crazy difficult case; a lot of law firms do these. We do these all the time, change of status, adjustment of status. The key point is you really want to document your intention, the reasons why, and you really want to paint a picture. It’s not just about filling the forms; it’s not just about saying, requesting certain things because the officers, this is what they’re supposed to review. And so if you just do a poor job of putting documents together and filing it, and then the officer catches something that you didn’t think they would know, that’s when problems arise, and then the consequences are so severe. 

For this family, if we didn’t do it correctly and it failed, they would not be able to stay in the U.S. The mother would have to go back and wait several more years before they could be reunited. 

The consequences would be devastating because basically, the baby would be able to grow up without seeing the grandmother for like years and years and years, and the mother would continue to suffer the psychological hardships. So if you do it correctly, now they’re able to stay together, and they’re happy. All right, that’s it. If you have any questions, feel free to reach out. Take care. Bye.

 

Coming into the US as a tourist and filing an adjustment of status while you are here is fraud if your original intention was to stay in the US when you first arrived. But what happens if you were here as a tourist and your intentions change? Is it possible to go from tourist to EB-5 green card holder with an adjustment of status? In this case, we review how our client came to the US with a tourist visa, extended her stay for family reasons, and was able to stay with a green card under the EB-5 Immigrant Investor program.

TIME FRAME

 

The time frame for this case spanned several months. Enough time that our client had originally arrived to visit their new granddaughter and be with their US citizen daughter to visit. During their visit a previously filed EB-5 priority date was updated and they were closer to this date than they originally were. This, along with a family issue that arose, changed the original intention of their visit, allowing them to file an extension to stay longer and then an adjustment of status.

 

BACKGROUND OF THIS TOURIST VISA TO EB-5 GREEN CARD CASE

 

What began as a regular tourist visit for a mother coming to see her daughter and visit her newborn grandchild changed completely after arriving in the US. Years before our client had filed their EB-5 immigrant investor application. This application was pending a priority date, which continued to change and be adjusted, so our client had no idea when her priority date would arise. 

 

She came to visit her US citizen daughter who had just given birth to a new grandchild. Now in some cases, people apply for a tourist visa, saying they are going to care for their new grandchild; however, on a tourist visa, this doesn’t work. It doesn’t work because it is technically taking away a job from a US worker, a nanny. In this case, you’d need to arrive with a different visa. So she wasn’t here to care for her daughter, she was in the US for a normal family visit.

 

After arriving, it was determined that her daughter had post-partum depression and our client wanted to stay in this case to provide care that no nanny or nurse could provide. It was a mother’s care that her daughter needed. So her visa was extended. At the same time, our client’s EB-5 priority date was updated, now much closer to her visit. In this circumstance, we were able to help file an extension and then an adjustment of status to enable her to secure her EB-5 green card.

CHALLENGES IN THIS CASE

 

One of the main challenges is that this type of case, going from a tourist visa to an EB-5 green card or other green card, can often be considered fraudulent. If someone enters the US under a tourist visa with the intention of staying, that isn’t legal. The case is likely to be denied and there could be criminal charges on top of it. 

 

For this client the risk was high. If the case wasn’t filed correctly, it could mean they would lose the opportunity to get a green card. It could mean waiting years to return to visit their daughter and grandchild. This kind of repercussion shouldn’t be taken lightly.

 

KEYS TO SUCCESS FOR THIS TOURIST VISA TO EB-5 GREEN CARD CASE

 

Understanding the Family Background

 

One to the biggest keys to success was understanding the family background. We needed to know the reason for the original visit and how that started to overlap with other family matters. If we didn’t have an understanding of our client’s family background this tourist visa to EB-5 green card case could be denied and worse, the family wouldn’t be able to visit with each other for a long time.

 

Attention to Detail

 

In a situation that is oftentimes used in a fraudulent manner, it’s bound to be more critically analyzed by the reviewing case manager. This makes it even more important to lay out the true story with attention to detail making sure all potential questions are answered. It needs to make sense to the reviewer exactly what happened, when the intentions changed from just a tourist visit to a longer stay and the why. 

 

Being able to lay all this out with careful attention to timing and providing additional documentation and detail to make the case clearly was essential in the success of this tourist visa to EB-5 green card case.

 

CASE RESULT

In the end, our client was able to secure their EB-5 green card and stay in the US. Everyone was thrilled. There was no longer a risk of losing the opportunity to be with family here in the US and the entire family was happy.

 

LAWYER COMMENTS ON THIS TOURIST VISA TO EB-5 GREEN CARD CASE

 

It isn’t impossible to come into the US with a tourist visa and to file an adjustment of status to change or extend your stay. However, it isn’t legal to come into the US with this intention. This is why a case like this needs to be thoroughly reviewed, explained clearly and completely, and paired with evidence that supports your story. If this isn’t done, the case has a greater change of not only denial, but potential for criminal charges. 

If you need assistance with a similar situation or a regular tourist visa, an adjustment of status, EB-5 green card or another immigration situation, reach out to us. We would love to help and answer any questions you have.

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