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How can I apply for EB-5 if overstayed my student visa?

I have been in the United States on a student visa, which expired last month, and I have not left the country yet. However, my family has the funds available for me to apply for an EB-5 visa. Is it too late to apply for an EB-5 visa if I overstayed my student visa for one month? Should I have my parents transfer the funds, and I apply while I am still in the United States? Or will I have to return home to begin the EB-5 application process?

Answers

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    Steffanie J Lewis

    Immigration Attorney
    Answered on

    It is not too late to apply for an EB-5 visa. But, submitting your I-526 application does not give you any legal status. Currently, the processing time for the I-526 petition is proximately 14 months. If you are in the United States when your EB-5 application is approved and a visa is available, you must be in status. If you want to stay in the United States, you need to remain in status for at least 14 months. I suggest that you look into the availability of Optional Practical Training (OPT). OPT will extend your F1 status for at least one year and, if you majored in science, technology, engineering or math courses, the OPT will extend longer. Otherwise, I suggest that you seek to reinstate as a student to continue further education to remain in status. If you do not choose to remain in F-1 status under any of the above possibilities, you must return to your country before you have overstayed 180 days. If you leave the United States after being out of status for more than 180 days but less than one year, you may not return to the United States for three years. If you overstay for a year and leave, you may not return for 10 years. (However, under certain circumstances you might be eligible for a hardship waiver to allow you to return, but the waiver may not be applicable within your particular circumstances.) You probably do not want to be waiting 3 or 10 years to enter on your EB-5 visa. Assuming your EB-5 application is approved and you are outside the United States, you will apply for your conditional permanent resident visa at the U.S. Embassy in your home country and enter the United States as a conditional permanent resident through consular processing. Most EB-5 investors enter through consular processing. There are two remote possibilities. 1) How old were you when you first entered the US? If you were 15 years old or younger, and you entered on or before January 1, 2010, since you were out of status on November 20, 2014, you are prima facie eligible for deferred action as a childhood arrival (DACA). 2) Did you have a child on November 24, 2014? Is the child a U.S. citizen or a lawful permanent resident? You are prima facie eligible for deferred action for parental accountability (DAPA). If you are prima facie eligible for DACA or CAPA, I suggest that you seek legal counsel to be assured that you would be eligible to take your visa when your EB-5 application was approved and a visa was available. In short, you may wish to apply while you are in the United States for convenience of meeting with your attorney. Once you apply, leave and wait in your country unless you are able to either remain in status or can otherwise take the visa through DACA or DAPA. You do not need to be physically present in the United States to apply for an EB-5 visa and may choose to apply from you home country.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    You may have to leave the United States and apply for your visa at the U.S. consulate. You have to be careful of accruing too much unlawful presence. An attorney would review your immigration history to prepare an approvable plan moving forward. Remember: the EB-5 process is an immigration process at its core!

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    Ian E Scott

    Immigration Attorney
    Answered on

    You have a 60 day grace period after your F-1 visa expires, but if you mean you are one month over that, you should go back to your home country and apply from there. A bar does not kick in until 180 days, but you are out of status and the idea is not to stay up until the time that you will be barred. If you are out of status, you have to indicate that on future applications and you can be deported. If you apply for an EB-5 visa from your home country, you should not have an issue getting a green card through the EB-5 process.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    An F-1 student is admitted for "duration of status," which means that he or she is in lawful status as long as he or she maintains a full-time course load under a valid I-20. The expiration of an F-1 visa (the travel visa) does not affect your immigration status while in the United States. If you are no longer attending full-time classes under a valid I-20, then you are out of status in the United States. This does not mean that you are ineligible to make an EB-5 investment and file Form I-526. As an F-1 student admitted for "D/S," you do not accrue unlawful presence (for purposes of the 3/10 bars to reentry into the United States) unless the USCIS or an immigration judge makes a finding that you have violated your status. Even though you are not accruing unlawful status, you might have to return home for the immigrant visa processing portion of the case. You should consult with an experienced immigration attorney who can advise you on the details.

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    Michael A Harris

    Immigration Attorney
    Answered on

    You will not be able to seek adjustment of status inside the United States because you have overstayed the valid period of your F-1 student program. Depending on how you were admitted into the United States, you may not be accruing what is called Unlawful Presence (ULP). Students are typically admitted for the duration of status on their I-94, or with a D/S written on their stamp. If this is the case, while you may not be accruing ULP (which is a bad thing and if you depart after six months or one year could subject you to bars of inadmissibly), I would recommend that you not wait in the United States for much too long while the EB-5 process starts.

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    Ed Beshara

    Immigration Attorney
    Answered on

    The investor''s petition showing the investment has been made can be filed whether you are in the United States or not. However, you cannot file your application for conditional permanent residency in the United States if you are out of status. Therefore, if you are now out if status, you will have to leave the United States and upon the approval of the I-526 investor''s petition you can apply for the conditional permanent residency visa at the U.S. consulate in your home country.

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    Sufen Hilf

    Immigration Attorney
    Answered on

    It is not clear when you said "visa." Do you mean you are out of status now or do you mean your student visa issued by the state department is already expired? I will make a difference in answering your question. Assuming you are out of your student status now, you can still pursue the EB-5 I-526 petition. You should request for consular processing on the I-526 and you will have to go back to your home country to apply for the EB-5 investor''s visa. You are probably not subject to the 3 or 10 year bar if there was no decision from USCIS or from an immigration judge who has made determination that you are out of status now.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    F-1 status has two months grace period. Thus, you have not exceeded your stay yet. Since you will probably have to consulate process to obtain your immigrant visa, you could file after you leave the United States.

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    Oliver Huiyue Qiu

    Immigration Attorney
    Answered on

    If your F-1 student status has expired beyond the 60-day grace period, you start to accrue unlawful presence. Assuming your parents gift you the half million dollar that you can then invest in an EB-5 project, the I-526 could be approved regardless whether you are in the U.S. in legal or illegal status. The problem is the step after I-526. If you depart the United States before the unlawful presence reaches 180 days, you can still obtain the immigrant visa and be able to return to the United States with little issue. However, should you choose to remain in the United States without a valid student status, by the time your I-526 is approved, it is likely the visa overstay will be more than 180 days. At that time, you will be unable to obtain adjustment of status or gain the green card in the United States. The fact that you spent that much money to invest in the United States and even have an approved I-526 would not help. In your situation, it seems the decision whether to remain in the United States should be carefully weighed. It is not too late to talk to an immigration attorney to find out what options you have.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You have a 60 day grace period and need to leave the United States ASAP whether you file while you are here or after you get back home.

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    Gregory Romanovsky

    Immigration Attorney
    Answered on

    Thank you for your inquiry. Before you can apply for an actual immigrant visa, a certain petition (I-526) must be filed and approved (which can take anywhere from a few months to over a year). If you have no status by the time your I-526 is approved, you will not be able to adjust your status in the United States and will need to leave. Whether or not you will be able to get your immigrant visa at the consulate and come back depends on several considerations, which are too complex to be discussed on this forum.

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    Karen-Lee Pollak

    Immigration Attorney
    Answered on

    You must leave as soon as possible. The longer you stay the harder it will be to obtain a visa. Simply applying for an EB-5 visa does not allow you stay in the country and it will take several months to be approved. If you stay over six months you may incur the 3 or 10 year bar to applying for any visa. Leave ASAP and then apply for visa.

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    Sharon Shi

    Immigration Attorney
    Answered on

    You might want to check with your school when exactly your F-1 visa expired and depart the United States immediately. You can still file I-526, but you would not be able to adjust status within the United States if you are out of status. You could be barred to enter the United States for 3 or 10 years for different overstays, which means even if you have the approval on your I-526, you will not be able to apply a visa to enter the U.S. for a certain number of years.

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    Shahzad Q Qadri

    RC Creator
    Answered on

    If you have overstayed you may be out of luck - you should contact a local attorney to determine your options.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    You must immediately meet with your immigration attorney. You should immediately consider working to reinstate your F-1. Filing for EB-5 in and of itself will not offer you the solution you need.

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