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How can we resume our H-1B visa after I-829 denial?

My wife and I have applied for an EB-5 visa. Both of us are on an H-1B visa currently working in the United States. Once the I-526 is approved, both of us will change our status and get the temporary green card. In the event the I-829 is denied, how can we go back onto our H-1B visa? Can we resume it without going through the lottery system?

Answers

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    Answered on

    Whether you can resume or not depends on a host of facts. First, the H-1B visa can last for a maximum of six years and secondly, it is usually issued for two to three years per term. As current H-1B visa holders, if either of you have not exhausted his/her six years, you can return to the remaining unspent period of your H-1B visa in the event your I-829 is not approved. In addition, you do not need to go through the lottery system again. For proper planning, seek further information from an EB-5 attorney who is also conversant with the H-1B visa, particularly on whether you are returning to the H-1B visa with (or without) the same employer.

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    Answered on

    Conditional permanent residency is still permanent residency. It may be very hard to overcome immigrant intent issues if you try to apply for an H-1B after two years as a conditional permanent resident.

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    Answered on

    It is unlikely that you will be able to go back to your H-1B status seamlessly in the event your I-829 is denied. Since you will be an immigrant for at least two years, if you decide to go back to your H-1B sponsor, you likely will be subject to the lottery again. Another better option would to be sponsored for a PERM labor certification green card based upon an offer of employment; you could start this process now and have it in place in two to three years when the time for your I-829 adjudication is due. This could be a viable alternative/safety net unless you and your spouse were both born in China or India.

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    Answered on

    It is not possible to "resume" your H-1B status. You need to start the process from the beginning, i.e., file for LCA, etc. The time you were in H-1B status will count towards the six years, unless you were living outside the United States for at least one year.

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    Answered on

    Yes, you can go back to H-1B if you have not used up the full six years.

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    Answered on

    You would most likely have to begin the H-1B process all over again and therefore go through the lottery system. Please contact an immigration lawyer to discuss the specifics of your case.

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    John J Downey

    Answered on

    It depends on where you are in the H-1B process. Are you on the first three years with an opportunity to extend for another three years? If not, you would want to ask your employer to offer you permanent employment.

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    Answered on

    If you have an H-1B now that was granted subject to the Cap, you are exempt from the Cap for future H-1B applications that are still within your six year term. For example, if you had an H-1B for two years and then obtained a different visa and then later wanted to apply for an H-1B visa, you could get an H-1B visa again without being subject to the cap or lottery and this could be granted for three years and then an additional one year.

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