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How do I apply for H-1B and EB-5 simultaneously?

I have a quickly growing company and have met all the EB-5 requirements (with documents ready). My student visa will expire in July, and EB-5 can take 12-15 months to be approved, so I need to somehow get legal working status until my EB-5 is approved. I want to use my own company to sponsor my H-1B, but someone told me that this will hurt my EB-5 application. Because I will apply for EB-5 as the CEO of my company, and will apply for H-1B as an engineer in my company, a different position shows up on each application. What problems can I expect if I apply for both at the same time? What can I do to increase my chances of success?

Answers

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    Reza Rahbaran

    Immigration Attorney
    Answered on

    An H-1B is a job and company specific visa given to a foreign worker of a specialty occupation sponsored by a U.S. employer. The H-1B visa application may present a problem because you are a self-employed applicant. It may be possible to structure the company in a way that could qualify for both visas. However, further analysis is required. F-1 OPT may be another option that grants one year employment authorization which by its expiration the EB-5 petition might be adjudicated.

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    Shahzad Q Qadri

    RC Creator
    Answered on

    Why will you not utilize the OPT status that you are availed? While there are no restrictions on applying for an H1B and EB-5 status simultaneously, it may complicate matters. You may consider getting your H1B prior to applying for the EB-5.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    An H-1B petition will not necessarily hurt an EB-5 petition. Of course, everything you submit to USCIS should be consistent. Any contradiction or inconsistency is your burden to resolve, so it is better not to create one to begin with. If you still are in student status, you may be able to obtain OPT (optional practical training), which can extend your stay here in the United States by a year or longer (if you qualify for a STEM extension). Or it might be that an H-1B petition is your best choice. In your situation, you should consult with an experienced immigration attorney, such as myself, to advise you on the overall situation, not just EB-5, so you can determine all of your available options and choose the right one for you.

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    Lei Jiang

    Immigration Attorney
    Answered on

    Applying for both could cause potential problems. It''s complicated, but you have some options. Have you used your Optional Practical Training(OPT)? Are you from a country where the E visa is available? It''s best to consult with an immigration attorney face-to-face.

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    Rohit Kapuria

    Immigration Attorney
    Answered on

    Have you considered filing for Optional Practical Training (OPT)? The 12-15 month EB-5 time frame you are referencing leans towards regional center-based projects. If you are filing a direct EB-5, the processing time is presently much shorter. Regarding your H-1B proposal, this is not straightforward. It would be wise to retain an immigration attorney for further guidance.

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    Philip H Teplen

    Immigration Attorney
    Answered on

    Alternatively, depending upon your country of nationality, an E visa could be a good alternative, as it is more consistent with investment. You should fully review with experienced counsel.

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    Ed Beshara

    Immigration Attorney
    Answered on

    Based upon the questions you ask, you will definitely need the advice of an experienced EB-5 attorney. First, there is no guarantee that a U.S. employer''s petition for H1-B status will be accepted by USCIS for processing, as the demand exceeds the supply of the H1-B quota numbers. Second, you will need to discuss other alternative non-immigrant statuses besides the H1-B status.

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    Michael A Harris

    Immigration Attorney
    Answered on

    The biggest issue I see you having is that self-employment has become limited for H-1B petitions. But there is a way to navigate around this issue, and as it could affect your EB-5 process, by structuring your company in such a way as to potentially qualify you for both visas. You must also keep in mind that the H-1B is not available for filing until April 1 of each year; employment as an approved H-1B worker can only be commenced on or after October 1 after filing. But if you are graduating with a college degree, are you eligible for optional practical training after you graduate? If you are, it would grant you one year of employment authorization, or longer if you have a qualified STEM degree. To discuss how to strategize your immigration plans, please feel free to contact me.

  • Avatar

    Marc Yelnick

    Immigration Attorney
    Answered on

    This is probably not an insurmountable problem/situation.

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    Jan H Brown

    Immigration Attorney
    Answered on

    There is no problem, sir. You can do both.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    This is doable, but you should have guidance to make sure you are not making any misrepresentations. The EB-5 is an offer of future employment, whereas the H-1B is a position for now.

  • Avatar

    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Generally, being in the H-1B and then applying for EB-5 should be acceptable, but doing it all through the same company may, as you suggested, be problematic. If you are trying to keep everything in one company, you could possible start with an E-2 (the nonimmigrant investor visa), and convert the business to an EB-5 business (making up the difference in investment amounts and counting the 10 full time jobs created). Retaining EB-5 counsel to assist you with your goals and plans is essential in complex cases like this.

  • Avatar

    Kripa Upadhyay

    Immigration Attorney
    Answered on

    You need to consult with and retain an experienced immigration attorney to advise you on these applications. Your question is not one that is easily answerable on a forum such as this. Your H-1B application, as the owner of your own business, is not going to be easily approved, as the basic criteria for an H-1B is that the petitioner has an "employer-employee" relationship with the beneficiary. If you own the company, you cannot be the petitioner and the beneficiary in the same application. You should retain the services of an experienced immigration attorney to help you chart out the path to an H-1B, as well as your EB-5 application. Be advised that as you seem to be investing in your own company, you will most likely need to make a "direct investment" at the $1 million level.

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    Gregory Romanovsky

    Immigration Attorney
    Answered on

    Thank you for your inquiry. Your getting an H-1B visa (assuming you''re successful) should not affect the EB-5 process in any way, regardless of any difference in the positions listed on each application. These are two separate processes, and the positions don''t have to match.

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