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How can I apply for EB-5 if I am out of status?

I entered the country with F-1 visa in 1992, and have fallen out of status for a couple of years now. Would I be able to adjust my status if I invest in a business and apply for EB-5?

Answers

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    Reza Rahbaran

    Immigration Attorney
    Answered on

    You have over-stayed for a few years on your F-1 visa; therefore, you may be barred from entering the United States for 10 years. A more thorough review of your case will be required to determine how to move forward.

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    Shahzad Q Qadri

    RC Creator
    Answered on

    No, you are not eligible for an adjustment.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Although you can apply for EB-5, you will not able to adjust your status in the U.S. because you were out of status. In fact, based on the facts provided, if you file an EB-5 application, the best option is that you will have to go back to your country for a consular processing assuming you were found not to be permanently barred from re-entering the U.S. In addition, there may be a need for you to file a waiver to prevent you from being declared inadmissible. Lastly, with regards to your funding of the EB-5 application, the USCIS (and even the Administrative Appeals Office responsible for any appeals of EB-5 cases agreed) held that funds acquired or created while an alien was in unlawful status or unauthorized work could not be treated as lawful funds in EB-5 consideration. In essence, your EB-5 investment funds cannot come from time when you were out-of-status in the U.S. So, weigh all options with your immigration attorney and make sure your EB-5 investment funds were not acquired while you were out of status.

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    Michael A Harris

    Immigration Attorney
    Answered on

    I do not see how adjustment of status is possible for you because you must typically be in lawful nonimmigrant status in order to apply. That being said, it is best if you consult with an experienced immigration counsel to review your F-1 documentation to determine if you would be subject to any of the bars regarding unlawful presence. Hence, the best case scenario may be that you will have to apply for an immigrant visa overseas in a country where you have residence.

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    Stephen Berman

    Immigration Attorney
    Answered on

    No, you cannot adjust if you are not in status. You could leave the United States and try to get a visa overseas, if you are not barred from readmission.

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    Alexander Lebedinski

    Immigration Attorney
    Answered on

    No, you cannot adjust status in the United States based on your investment if you are out of status now. You would have to process the immigrant visa petition at a Consulate abroad. Keep in mind, that you may have a 10 year bar on re-entry, so if you leave the United States, you may have a difficult time getting back in. Is a marriage to U.S. citizen a possibility? That would likely solve the adjustment of status issue so that you do not have to leave the United States.

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    Robert Baizer

    Immigration Attorney
    Answered on

    A person who is "out-of-status" generally cannot adjust to permanent residence in the United States unless he or she is the immediate relative of a U.S. citizen. So, a person who has fallen out of student status could only take advantage of an EB5 investment by finishing the case at a U.S. consulate abroad, getting an immigrant visa there and returning with it. There is a 10 year bar for persons who overstay their temporary status by a year when they seek the visa abroad. That often will not apply to a person who had a student visa, if the person had "D/S" on their form I-94, but you would need to review that with an attorney to be sure. In addition, an investor must prove that he or she acquired the money for the investment lawfully. So, if the money was earned by working without authorization in the United States, that could prevent the approval of the investment petition.

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    Matthew T Galati

    Immigration Attorney
    Answered on

    One's status should not be material to the approval of an EB-5 petition, provided that the source of his/her investment is legitimate and not illegally earned. The real issue is whether the green card/immigrant visa would ultimately be approved. An approved petition could, in some circumstances, give one a chance at a green card even if he/she is out of status. However, an experienced immigration attorney would need to review those attendant circumstances to determine the ultimate question of admissibility. You should strongly consider having an in-depth consultation with an attorney before taking any further actions that could jeopardize an investment or make initiation of deportation proceedings more likely.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    You may apply for EB-5, but you will not be eligible to adjust your status in the United States unless you are grandfathered under INA Section 245(i). As a student, if you were admitted to the United States as D/S for duration of status, you do not begin to accrue unlawful presence for purposes of the three-year or ten-year bars unless USCIS or an immigration judge has made a determination that you are out of status. In the event that you have not accrued unlawful presence in the United States, you could process your immigrant visa at the U.S. embassy or consulate in your home country (and still be approved of course). Since this is a fairly complex immigration question, you should consult with an experienced immigration attorney, such as myself, to advise you on such matters.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    You cannot adjust or change your status if you do not have a valid status. I would suggest that you apply for the I-526 and then go out to do consular processing back in your home country when your I-526 gets approved.

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    Jeffrey E Campion

    Immigration Attorney
    Answered on

    You cannot adjust. But assuming you are correct and you had a D/S I-94, you do no have unlawful presence. This is critical because it means that you aren't inadmissible. You you would have to consulate process.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    You can always submit an I-526 Petition. However, if that is approved, you will have to obtain conditional permanent residency by going through consulate processing at the U.S. Consulate in your home country. If you were in valid U.S. status, you could adjust from within the United States.

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    Marc Yelnick

    Immigration Attorney
    Answered on

    You may submit the petition, but you are ineligible to adjust status. You would have to process for an immigrant visa at a consular office abroad.

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    Ed Beshara

    Immigration Attorney
    Answered on

    The immediate answer is you cannot apply for conditional permanent residency in the United States on the basis of an approved I-526 petition if you are in the United States and are out of status. However, if you are in a position to marry a U.S. citizen for good faith reasons, you may be in a position to apply for permanent residency in the United States even if you are out of status.

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    Philip H Teplen

    Immigration Attorney
    Answered on

    Unfortunately, being out of status will not permit you to adjust based upon your I-526. The only possible adjustment from your situation is a marriage to a U.S. citizen. I will be happy to personally discuss and can be reached.

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