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How can an out-of-status person go through with EB-5?

I entered U.S. legally as a student and I''m on my OPT right now. I''m thinking of starting a business here and I was wondering if I stay longer than my OPT "deadline" (in 2014), will I be able to go through EB-5 when I accumulate enough wealth? If not, should I have any concerns operating as a CEO for my company here during my prolonged stay?

Answers

  • Avatar

    Reza Rahbaran

    Immigration Attorney
    Answered on

    It is best not to fall out of legal status. Falling out of legal status may bar you from re-entering the United States for a determined amount of time. Please consult an experienced EB-5 immigration attorney to avoid future immigration issues.

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    Shahzad Q Qadri

    RC Creator
    Answered on

    Your proposition is extremely risky. Once out of status, you may be barred from re-entering the US for several years and will not be allowed to adjust your status within the U.S.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Any period of stay without authorization in the U.S. may detrimentally affect your future abilities to obtain immigration benefit. This is something you need to discuss and plan with an immigration attorney in advance to to avoid such periods of being out of status.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    I would not go out of status as then you will not be able to adjust status to permanent resident. Are you eligible for an E-2 investor?

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    You would probably want to make the investment while you are still in status, or return to your home country from where you can invest in the new commercial enterprise in the U.S. From there you can proceed through consular processing. Based on your situation, we recommend retaining qualified and experienced U.S. Immigration counsel, like the attorneys at our law firm, to assist and represent you.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    If you are out-of-status because you have overstayed or will overstay your non-immigrant visa status, then you are not eligible for adjustment of status in the United States. An adjustment of status requires an applicant to be in a lawful non-immigrant status at the time of filing. Therefore, if your I-526 were approved, you would need to complete immigrant visa processing at the U.S. embassy or consulate in your home country. As long as you do not accrue more than 180 days of unlawful presence in the U.S. (unlawful presence only starts for you if the USCIS or an immigration judge makes a determination that you are out-of-status, this is because you have D/S, duration of status, and not a date certain by which you had to leave the U.S.), then you would not be subject to any reentry bar. You could complete your immigrant visa processing in your home country and then enter the U.S. as an immigrant with your EB-5 immigrant visa. Your conditional green card would be mailed to your U.S. residence address. Finally, you should not be employed in the United States without authorization, but if you do work, this alone with not trigger unlawful presence. Also, please note that you must demonstrate that all capital you invested was obtained lawfully. You should consult with an experienced immigration attorney, such as myself, before you make any decisions or take any actions in this matter.

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    Ying Lu

    Immigration Attorney
    Answered on

    I would suggest you not over stay in the U.S. Otherwise, you cannot adjust your status in the U.S. in a later time. Maintaining a valid non-immigrant status will be very beneficial to your future EB-5 application.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    The problem is that after your OPT expires, you no longer have any basis to stay in the U.S. unless you could change to another status before your OPT expires. If you are out of status, you cannot change or adjust your status and doing EB-5 after you have accumulated wealth, which is uncertain as to how long, it not practical.

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    Ed Beshara

    Immigration Attorney
    Answered on

    Until you obtain your conditional permanent residency through an EB-5 process there are other legal ways or alternatives to stay in the U.S, and to live and work here. Depending on the country you are from you may decide to obtain E-2 or E-3 status or H-1B status.

  • Avatar

    A Mina Tran

    Immigration Attorney
    Answered on

    You will have problems adjusting your status through EB-5 if you have been out of status for any length of time.

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    Kripa Upadhyay

    Immigration Attorney
    Answered on

    If you have an OPT, you are not illegal for as long as the OPT is valid. If you remain here after your OPT and any other form of legal status you presently have has expired, then you will be subject to arrest and possible deportation. If you accumulate enough wealth to invest via the EB-5 program post-accrual of unlawful presence, you are no longer eligible to adjust status in the U.S. You will need to leave the U.S. and will need to file for a waiver explaining and proving your need to return to the U.S. If you have the OPT status through 2014, and have the funds to invest, it is best to do so before the OPT and any attendant lawful status you have expires. It is much more difficult getting a visa approved once you have some period of unlawful stay even if you have the funds at that time.

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