How can I apply for an EB-5 visa after my husband”s H-1 visa has expired?

You may file the I-526 petition, but it will not provide you with lawful immigration status. If and when your I-526 petition is approved, you may use the consular process in your home country to obtain immigrant visas to the U.S. to enter as conditional permanent residents. Please keep in mind you are accruing unlawful presence in the U.S. after your husband had his H-1B status expire. You should not remain in the U.S. more than 180 days to avoid a three-year bar to returning to the U.S.

Presently you and your husband are out of status. It is important that you speak with a qualified immigration attorney who can first address your accrual of overstay time. If you overstay in the U.S. you may be subject to a 3 or 10 year bar from the country.

You can file an I-526 petition whether you and your husband are in the U.S. or not. Once the I-526 petition is approved you can then apply for conditional permanent residency at the US consulate in your home country. Also, you and your husband cannot remain or live in the U.S. if you are out of status. Please note, if you leave the U.S. after you have been unauthorized for more than six months in the U.S. you will not be able to re-enter the US for three years.

While you could apply for an EB-5 case and file the I-526 now, you cannot adjust without having a valid status. Since your status ended in January 17th, you are now accruing unlawful presence by not leaving. There is three-year and 10-year bar for reentry if you accrue more than six months of unlawful presence.

That depends on several factors. Have you filed the I-526 yet? Has it been approved? If no EB-5 steps have been taken, it appears that you are all out of status and should leave the U.S. before too much unlawful presence compiles, resulting in a ban of entry into the U.S.

You need to address your overstay immediately with your attorney. There may be strategies available, but they will need to come from a meeting with your attorney to determine your best strategy.

While you can seek the EB-5 visa, it is very important to note that you and your husband appear to be accruing unlawful presence in the United States. This means that if you voluntarily depart the country after being in the U.S. for 180 consecutive days, then you are barred from readmission for three years. Likewise, departing after one year or more of unlawful presence will result in a 10 year bar. Since the EB-5 process is going to take many months (six months to more than a year) and you need lawful nonimmigrant status in order to apply for the green card after the initial EB-5 petition is approved, you may be best to wait overseas while the EB-5 is pending.

If you can get an I-526 petition approved, you will have to go to your home country to apply for an immigrant visa. Also, you have to leave the country within 180 days of January 17th, 2014 to avoid a three-year bar for unlawful presence in the U.S.

You can certainly submit your I-526 petition, but you would not be able to adjust your status in the U.S. if and when it is approved. To be eligible for adjustment of status in most instances, you need to demonstrate that you have maintained your non-immigrant status, which it sounds like you have not. So you would have to leave the country and go through consular processing. Keep in mind that if, by the time you leave the U.S., you have accumulated more than 180 days of unlawful presence, you will be barred from returning to the U.S. for three years. And if you have overstayed for over a year, you will be barred for 10 years. I suggest that you be very careful with this and consult an attorney as soon as possible.

First thing you want to make sure is that you do not incur unlawful presence in the U.S. You should either depart the U.S. or have made plans to protect status in the U.S. by applying for another visa status in the U.S. before the H-1 status expiration. As far as applying for EB-5 is concerned you may do so, but this will not be approved in time for you or your husband to transition to after the H-1/H-4 status has expired. You should consult an immigration attorney regarding this since there are some dire consequences for having more than 180 days of unlawful presence in the U.S.

If you are out of status you cannot adjust and will have to leave the U.S. and can then apply.