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How can I apply for EB-5 if I overstayed my F-1 visa?

I overstayed my student F-1 visa in the U.S. for about six months in 1998. My student OPT had ended in 1998 and I left voluntarily in May 1999 and have been in India since then. I''ve never attempted to re-entry America since then and have paperwork to prove my residency in India from 1999 to date. I only have an I-94 paper with the authorized OPT on it and no other paperwork to document my overstay. I''m planning on applying for an EB-5 based green card in the future. How does my overstay impact my chances of getting approved for EB-5? Does the 3 to 10-year ban kick in from 1999 when I left or when I apply for the EB-5 residency permit in the future?

Answers

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    It may be possible but, consult an attorney for further analysis of your overstay. However, may make sure all facts are disclosed to prevent further any allegation of misrepresentation, particularly if it is not disclosed.

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    Ed Beshara

    Immigration Attorney
    Answered on

    An EB-5 Immigration attorney can advise you. If you have been in India since 1999, then you should not be subject to the three or ten year Bar. You can file the I-526 petition and after approval obtain conditional permanent residency at the U.S. consulate.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Unless USCIS or an immigration judge makes a finding you have accrued unlawful presence for the 3 or 10 year bar to apply, it should not apply in your case if you were in F-1 duration of status. If you were outside the US for longer than 10 years, you should not have any issues and should apply for EB-5 upon a consultation with an immigration attorney.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    In this situation, your overstay would not be subject to the three-year bar. Foreign nationals in F-1 status are not subject to the three-year bar unless the U.S. immigration authorities become aware of the overstay.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    You are eligible for EB-5 because either the reentry bar did not apply to you since you were admitted in D/S (duration of status) and therefore, did not accrued unlawful presence OR because the time bar has lapsed because you have been outside of the United States for more than ten years.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    The 3/10 year bar would kick in from 1999, so based on the detail you provided, if you were unlawfully present in the U.S. for less than 1 year, you would be barred for 3 years (after you depart the U.S.) from receiving any immigration benefit. Since you overstayed your OPT period (and not F-1 d/s), you may have incurred unlawful presence, but it sound like you have met the 3 year bar, and now can apply for the EB-5 processing without restrictions.

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    Charles Foster

    Immigration Attorney
    Answered on

    If you overstayed your F-1 Student visa for 6 months in 1998 and you left voluntarily in May 1999, you are still eligible to obtain Permanent Residency in the United States through the EB-5 program. You would not be subject to any bar provided that you provide accurate information on your application. You would still have to file the EB-5 petition on Form I-526 and have same approved before you would be scheduled for your final interview, so the 3-year/10-year bar would not apply to you since in any event you have spent more than 10 years back in India.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    In order to overstay an F Visa, such funding must be made by an adjudicator, judge etc. If this did not happen, there may not be an overstay. Either way, a 3-year ban has passed by now. Consult an attorney who can make sure there are no orders of removal against you.

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    Yazen Abdin

    Immigration Attorney
    Answered on

    If it is determined that you did indeed overstay, we would first need to calculate the number of days you overstayed; that will determine the bar that applies. Because all of this happened so long ago, whatever bar may have applied is over. However, you may still need a waiver.

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    Irina Rostova

    Immigration Attorney
    Answered on

    The bar is counted from the day you leave the US. It should not affect your ability to obtain a Green Card through EB-5.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    Since it appears you were in F-1 D/S status, the three year bar would not apply. However, even if they changed the rules, it has been more than three years so there is no bar issue.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    You should be able to apply for EB-5 without difficulty. Since you were F-1, the 3-10 year bar might not even apply to you. The 3-10 year bars begin to run from the date you left the USA. So, even if the bars do apply to you, you have been outside the USA for more than 10 years and thus have satisfied any bars.

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    Stephen Berman

    Immigration Attorney
    Answered on

    Until the Department of Homeland Security makes finding that you accrued unlawful presence, you do not accrue any unlawful presence. A student is admitted for the duration of his or her status and as such does not accrue any unlawful presence even if they''re not in school.

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    Robert Loughran

    Immigration Attorney
    Answered on

    You are correct to be concerned about any previous marks on your immigration history. However, it appears that your previous immigration violation is waivable and further that you have spent over a decade outside of the U.S. which is the prescribed punishment. The concern about your previous overstay is that it demonstrates immigrant intent which would disqualify most applicants from temporary/non-immigrant visas. However, the EB-5 visa is a permanent immigrant visa which requires immigrant intent. Therefore, if you qualify for the EB-5 as an investor, the overstay almost two decades ago should not bar you from having an immigrant visa issued, it is just something for which we would need to address and document prior to the visa interview.

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    Mitch Wexler

    Immigration Attorney
    Answered on

    The bar kicks in upon your departure from the US back in 1999. It is unclear whether your period of unlawful presence was more or less than 180 days. If it was less, the bar would be for 3 years. If it was more, the bar would be for 10 years. Regardless, you have been out of the U.S. for over 10 years so this is a non-issue. This will not be a basis to deny your I-526 petition or your immigrant visa application after the I-526 is approved. The bigger issue is one of urgency. To file your I-526 petition before upcoming changes to the EB-5 program are made effective. The most significant change for applicants is a likely significant increase in the investment amount from $500k to $920k and the likely timing is within the next few months.

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    Robert Perkins

    Immigration Attorney
    Answered on

    Hello, you are not subject to the 3 and 10-year bars because an F-1 is granted for the duration of status (D/S is used on the I-94). This is an exception/loophole to these bars. Additionally, even if this were considered to be an overstay you have been outside the United States for more than 10 years so your overstay should not be an issue in terms of your EB-5.

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    Michael A Harris, Esq

    Immigration Attorney
    Answered on

    The 3/10 Year Bars may not apply to you. But it will be best to discuss in a detailed consultation setting. It may depend on whether you were admitted for the duration of your status under your F-1 program (marked with a D/S in your passport). If you were subject to the 3 or 10 year bar, then the period would start to be counted upon your departure from the U.S. Other factors may apply, so please reach out to a specialist in immigration law.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    10-year bar is to prevent people from reentry for 10 years after leaving the U.S. Since you left in 1999, you will be fine to come back in with the immigrant visa on EB-5 as long as you do not have any other inadmissibility issues.

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