+1-800-997-1228
Questions & Answers

How can an F-1 visa holder apply for an H-1B and EB-5 visa?

I am currently still a student working on an F-1 visa, and I will apply for an H-1B sponsored by my employer. I am also considering submitting an application for a green card through EB-5. Will the H-1B application be impacted if I submit the EB-5 application first? In what order should I apply for the visas?

Answers

  • Avatar

    Julia Roussinova

    Immigration Attorney
    Answered on

    Unlike the F-1 visa, H-1B is a dual intent visa and allows for immigrant intent. It may be more beneficial to consider EB-5 if you are eligible and have resources because it allows you to apply for permanent residence upon approval of I-526, and it does not require you to go through multiple employment-based processes to obtain a green card, such as Labor Certification, I-140. You should consult an experienced immigration attorney.

  • Avatar

    David Sheen

    Immigration Attorney
    Answered on

    Generally speaking, it will not have any direct effect on your H-1B application if you have submitted an EB-5 (I-526) petition first. Unlike the F-1 visa, H-1B is dual intent visa/status which is ok to have "immigrant intent" when applied. The current average processing time for EB-5 is taking over a year. If you wish to stay in United States while your EB-5 is pending you will need to stay in a valid non-immigrant status. Therefore, H-1B might be a viable option for you to stay and work in United States while your EB-5 is being processed by USCIS. It will be best to consult with an experienced immigration attorney to fully discuss your case before proceeding.

  • Avatar

    Jinhee Wilde

    Immigration Attorney
    Answered on

    H-1B is a dual-intent visa, which means you could have an immigrant petition like I-526 pending and still be able to obtain the H-1B visa. If your intention is to obtain the green card and you have the resources to do so, I would advise you to file for the EB-5 case first. With EB-5, you do not need to find an employer to sponsor you and go through the PERM LC process, which is getting more difficult every year.

  • Avatar

    Steffanie J Lewis

    Immigration Attorney
    Answered on

    An F-1 student may apply for both H-1B and EB-5 visas. We have F-1 student clients who do both separately and simultaneously. There are directions on how to apply on the USCIS website. However, both H-1B and EB-5 applications require more technical knowledge than many other immigration applications. For that reason, I would suggest that you contact an immigration attorney who works with those applications for a further discussion on how to apply. Applying for an H-1B will not impact your EB-5 application or vice versa. Before answering your question about which application to file first, please consider - do you wish to become a U.S. conditional permanent resident while remaining in the United States? If so, you need to maintain legal status until your EB-5 application is approved and an EB-5 visa is available to you. Currently it is taking 13.8 months for the USCIS to process an EB-5 application. Assuming your application were approved, you may need to line up for an available visa. Each year the U.S. Congress issues a given number of immigrant visas in several classifications. The U.S. Department of State then makes approximately 1/12th of those visas available each month to foreign nationals who have approved petitions/applications. If the USCIS has approved more petitions/applications than visas available, a waiting line is formed according to the date on which the foreign national''s petition/application was initially received by the USCIS. Currently there are EB-5 visas available, but the public has been warned that a line may likely be forming by the time your EB-5 application would be processed. The discussion of processing time and availability of visas is important to your question about which application to file first. If you have a choice of filing the EB-5 application before the first of March 2015, I would suggest that you do so in order to obtain the earliest date in line for an available EB-5 visa, assuming your application would be approved. Otherwise, I suggest that you use your time before April 1 to assist your employer in filing the H-1B application on April 1, 2015, the first date applications may be filed for the year commencing October 1, 2015. Many who work in the H-1B visa environment anticipate that the whole yearly quota will be filled within the first days. There is no line for H-1B visas. If a visa is not obtained for the 2015-2016 year, filing does not commence again until April 1, 2016 for the subsequent 2016-2017 year. Since you are currently an F-1 student, if you wish to adjust status within the United States and wish to cover the above mentioned timing variables in order to maintain status, I suggest that you obtain OPT on graduating. OPT continues the F-1 status after graduation so that the foreign student can obtain practical training in his or her field of study before returning to the national''s home country. OPT will give you an additional year, and more if you are a STEM studies graduate. It is possible that, this year, the USCIS might have to go to a lottery in issuing H-1B visas if applications on April 1, 2015 exceed the number of visas available for the year 2015-2016. An extra year in F-1 status may be needed if your employer were to miss out in a lottery. Good luck. Enjoy your studies and anticipate a good future.

  • Avatar

    Salvatore Picataggio

    Immigration Attorney
    Answered on

    You could apply for H-1B and EB-5 at the same time, as H-1B does not have the dual-intent issues that many other nonimmigrant visas have. Either way these are complex processes and are best dealt with under the representation of immigration counsel.

  • Avatar

    Michael A Harris

    Immigration Attorney
    Answered on

    You really need to have a discussion about this with a competent immigration counsel. In general, the H-1B category (if you are granted it) allows for you to pursue both the intent to remain here temporarily AND to seek residence.

  • Avatar

    John J Downey

    Immigration Attorney
    Answered on

    You should seek out an attorney familiar with immigration. Your timelines are important. It takes almost one year to obtain an approval on the EB-5. You have to wait until April of 2015 to file for H-1B. You may wish to apply for EB-5 now, then try for H1-B while waiting.

  • Avatar

    Ying Lu

    Immigration Attorney
    Answered on

    No, filing an EB-5 petition will not affect your H-1B petition, because H-1B allows dual intent. Therefore, you can possess an immigrant intent when you submit your H-1B petition. You can apply for H-1B either before or after you file the EB-5 petition.

  • Avatar

    Ian E Scott

    Immigration Attorney
    Answered on

    It would be better to get the H-1B visa first so that you will be able to leave and enter the United States while the EB-5 petitions are pending. One petition will not impact the other, but the dual intent nature of the H-1B makes it a good visa to have. If you are in a hurry for the green card, this analysis might change. You should note the lottery issues that have occurred with H-1B in the last two years when you are considering your application, as last year there were almost 125,000 applications for 85,000 spots.

  • Avatar

    Lynne Feldman

    Immigration Attorney
    Answered on

    The H-1B permits dual intent; the F-1 does not.

  • Avatar

    Karen-Lee Pollak

    Immigration Attorney
    Answered on

    You can have dual intent with an H-1b and an EB-5 but not with an F-1 and EB-5. Therefore it does matter if you apply for EB-5 before H-1B. However, if you apply for EB-5, then an F-1 renewal will probably be denied, so it is important to plan carefully.

  • Avatar

    Stephen Berman

    Immigration Attorney
    Answered on

    You can file them in any order; it is not a problem.

Add your comment

Use a Facebook account to add a comment, subject to Facebook's Terms of Service and Privacy Policy. Your Facebook name, photo & other personal information you make public on Facebook will appear with your comment.