+1-800-997-1228
Questions & Answers

How long can I stay in the United States after my H-1B expires?

I have an H-1B visa and plan on investing in a regional center in order to apply for an EB-5 visa. I have exhausted all renewals on my H-1B visa. If the H-1B expires before a decision on my EB-5 application is made, can I still stay in the country? Is there a grace period? If I remain after the expiration, will it affect the next step in my EB-5 application process?

Answers

  • Avatar

    Julia Roussinova

    Immigration Attorney
    Answered on

    There is no grace period. There are certain exceptions when you may extend your stay beyond the six year maximum, which you should discuss with your immigration attorney. In order to be able to adjust status to a conditional permanent resident in the United States after your I-526 petition is approved, you must maintain an underlying nonimmigrant status. If you are in the United States for more than 180 days out of status, you will accrue unlawful presence and may trigger a three-year bar to return to the United States if you depart the United States.

  • Avatar

    Marisa Casablanca

    Immigration Attorney
    Answered on

    Unfortunately, there is no grace period for H-1Bs. I would suggest pursuing a post-graduate degree and applying for a change of status to student before you file for an EB-5 petition, in order to stay in status. However, you have to be careful with the intent issue. A student visa/change of status may be denied if there is a suspicion of any immigrant intent.

  • Avatar

    Charles Foster

    Immigration Attorney
    Answered on

    If your H-1B status is expired, under no circumstances can you remain more than 180 days. If so, you will become subject to a three year bar or prohibition from reentering the United States, unless you can find some legal means to extend your status, which is critical. The fact that you have filed an EB-5 investor petition on Form I-526 in no way gives you authorized status in the United States. Remember in any event you will have to depart the United States to apply for your immigrant visa abroad at the appropriate American consulate once your I-526 petition has been approved. Technically, once your H-1B status expires, you are out of status and subject to removal, although legally there are no consequences should you leave within six months. The length of time you stay in the United States does not affect the length of time it takes to obtain a decision on your EB-5 petition on Form I-526.

  • Avatar

    BoBi Ahn

    Immigration Attorney
    Answered on

    Two concepts to keep in mind - being out of status and being unlawfully present. After your H-1B status expires (i.e. your I-94 period ends), you start accruing unlawful presence. If you remain >six months in unlawful presence, you are statutorily barred from obtaining immigration benefit for three years. If you are out of status (i.e. no longer maintaining status because your job ended, but your petition approval has not expired) you have a "grace" period that is not statutorily defined, but a "reasonable" time to get your personal business in order to depart, and/or to find alternate status in the United States (i.e. change status, etc).

  • Avatar

    Lynne Feldman

    Immigration Attorney
    Answered on

    You have a 10 day grace period with the end of the H-1B. Just having an I-526 on file does not allow you to remain here. Once the I-526 is approved, if you are in valid nonimmigrant status, you may file to adjust status to permanent residence while in the United States. If you are determined to stay, then you need to change to another nonimmigrant status before your H-1B expires or go home to await approval. Unlawful presence in the United States will prohibit you from adjusting status.

  • Avatar

    Irina Rostova

    Immigration Attorney
    Answered on

    Once the H-1B expires, you will need to depart the country or seek to change your status to another one before the expiration of the H-1B stay. If you remain in the United States out of status for more than 180 days, then you may trigger a three year bar, which will prevent you from coming back to the United States for at least three years. You should speak to an attorney about options for another status. Some investors chose to go back to school while they wait for an EB-5 approval. This allows them to seek an F-1 student status while they wait.

  • Avatar

    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    There is no grace period after the expiration of your H-1B. Only by filing a green card 365 days before the expiration can you extend the H-1B beyond six years, plus of course you can recapture time spent out of the United States.

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.