+1-800-997-1228
Questions & Answers

How can I successfully apply for EB-5 when I am currently living in the United States, but out of status?

I am a young woman who has been living in the US for 1 year and 6 months. I entered the US on a student visa and was enrolled in school for 3 months, after which my school closed down thus resulting in me being out of status. I did not attend any other schools as they were expensive, and the cheap ones did not offer student visa sponsorship. However, I enrolled in school online and used credits from my previous academic record in my home country (I transferred to a US university to complete my studies) and I am just a couple months away from finishing studies. Furthermore, I have received a large fortune from a family member who passed away and the funds were obtained legally as this person had secret investments nobody knew about (such as stocks, bonds, angel investments, etc.). We only learned about these investments after his passing from his lawyer, who informed us that we were named beneficiaries and that my family member strictly practiced “stealth wealth.” These funds were earned outside the US and his executor is currently processing my share of the estate. Can I use these funds to get an EB-5 visa as I entered the US legally (though I am currently out of status), and the funds were earned legally and outside the US? What are my best options in this situation?

Answers

  • Avatar

    BoBi Ahn

    Immigration Attorney
    Answered on

    Being "unlawfully present" has serious consequences in terms of receiving any future immigration benefits; however, in your case, since you entered on an F-1/student status, you most likely were admitted with D/S as your status expiration, which means you did not incur "unlawful presence.” So, you will not be subject to the 10-year bar from being allowed to file for immigration processing or visas. You will still need to exit the country before being allowed to process for the Immigrant Visa, but EB-5 processing is still available to you based on the info provided.

  • Avatar

    Charles Foster

    Immigration Attorney
    Answered on

    If you are out of status in the United States, it may be difficult for you to qualify through the EB-5 program depending on the circumstances. There is nothing to prevent you from filing an EB-5 Investor Immigrant Petition on Form I-526 and, assuming the petition itself meets all the requirements (for example by investing in an EB-5 project with prior approvals), it is likely that the I-526 petition will be approved. If under the facts of your case you have accrued more than 6 months of unauthorized stay in the United States and you are deemed to be out of status, upon approval of your EB-5 petition, you would in due course be scheduled for your final interview at the appropriate American Consulate in your home country. However, when you depart the U.S., you run the risk that you will immediately become subject to either a 3-year bar or prohibition from being issued a visa and re-entering the U.S. if you have accrued more than 6 months of unauthorized presence or, if you have accrued more than 1 year of unauthorized presence, you would be subject to a 10-year bar meaning that you would have to remain physically outside of the U.S. in your home country for either 3 or 10 years. You have to determine if you failed to maintain your original Student status resulted in the cancellation of your F-1 Student visa. If so, you would have begun to accrue unauthorized presence on that date. I would suggest that you consult with an experienced lawyer, preferably one that is Board Certified in immigration and nationality law with significant experience in representing EB-5 investors and immigration law, in general, to determine whether or not you would be subject to a 3- or even 10-year bar.

  • Avatar

    Ed Beshara

    Immigration Attorney
    Answered on

    First, hire an experienced EB-5 Immigration attorney. Second, to obtain residency, you will have to leave the U.S. and process your visa application at the U.S. consulate. You cannot adjust to residency in the U.S. because you are out of status. However, to obtain a waiver of the ten-year bar from re-entering the U.S. when you leave the U.S., you will have to first obtain a waiver of the bar. You will have to have a parent or spouse showing extreme hardship if you were not authorized to re-enter the U.S. If you marry a U.S. citizen for the right reasons then you will be able to apply for conditional residency in the U.S. without leaving, even though you are out of status.

  • Avatar

    Yazen Abdin

    Immigration Attorney
    Answered on

    You may be eligible for a waiver. It is impossible to know for certain without more information.

  • Avatar

    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    The critical issue is whether you can adjust status once the EB-5 I-526 petition is approved. The answer is most likely not because you are out of status. Can you consular process abroad or have your final green card interview at the U.S. consulate abroad? The answer is most likely yes. If you entered as a student and have not been found to violate status by USCIS or an Immigration Judge, then most likely you are still in F-1 D/S, or duration of status. Therefore, when you leave to attend your appointment, you may not trigger the bar. There may also be other options depending on your nationality.

  • Avatar

    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    Any lawfully obtained funds, including those received from an inheritance, can be used for EB-5 investments if the documents/evidence show that it is more likely than not that the funds did not derive from any unlawful sources. As to your immigration status, you likely are ineligible for adjustment of status, but you may be eligible for immigrant visa processing abroad if you were admitted in a duration of status (D/S), which is common for F-1 students. If you have not been found by USCIS or an immigration judge to be out of status and accruing unlawful presence for purposes of the three-year or ten-year reentry bars, this should work. You should consult with an experienced immigration attorney to determine your options before deciding if EB-5 is right for you.

  • Avatar

    Michael A Harris, Esq

    Immigration Attorney
    Answered on

    You may be able to invest in the EB-5 Program and apply for an immigrant visa outside of the United States. If, when you were admitted as an F-1 visa student, you were admitted for the Duration of Status (or D/S), then you may not have acquired what is called Unlawful Presence. Not having lawful status is not the same as unlawful presence. And, accruing unlawful presence of 6 months or 1 year or more, and then voluntarily departing the United States, may lead to a finding of inadmissibility under the 3-year or 10-year bars. If a foreign student here on a visa stay is out of status but was admitted with a D/S stamp, then the student may be eligible for an immigrant visa overseas upon the approval of an immigrant petition (such as the EB-5 petition). To determine whether you qualify, I suggest you speak with an EB-5 lawyer who specializes in immigration law.

  • Avatar

    Mitch Wexler

    Immigration Attorney
    Answered on

    Although you are out of status, if your I-94 card is valid for a duration of "D/S," as most F-2 students are, you are not "unlawfully present" in the US. This is a critical distinction. If this is the case, when found eligible, you can safely depart the US and apply for an immigrant visa whether based on EB-5 or any other program and NOT be subject to the 10-year bar which is imposed on foreign nationals who are "unlawfully present" for longer than 1 year. With regard to funding your EB5 investment, it is fine to use a gift from a family member as long as that family member can trace the lawful source of their funds. There is a possibility that EB-5 Reform, which is expected shortly, might limit the familial relationships that such a gift is permissible from. As long as your deceased family member can prove her estate came from a lawful source, it should work. In other words, if the value came from appreciated stock and other investments, USCIS would want to see how she came about the funds to buy the initial stock or investment in the first instance. So, with proper advice and a detailed plan of attack, you have a viable path to a US green card through the EB-5 program from the facts presented.

  • Avatar

    Belma Chinchoy

    Immigration Attorney
    Answered on

    Your situation is complicated and certain aspects of it may have long-term, negative consequences on your eligibility for immigration. Has there been a finding of your F-status termination? If so, when exactly did that happen? You may be subject to a 3- or 10-year bar. If you are serious about immigrating to the US, you need to consult a lawyer immediately.

  • Avatar

    Lynne Feldman

    Immigration Attorney
    Answered on

    There are two issues here: status and lawfully sourced funds. Unless USCIS has found you out of status, you have not accrued unlawful presence but should still leave the U.S. before such a finding can be made. If you can show the funds were lawfully earned and gifted to you or inherited, then they can be used for investment purposes.

  • Avatar

    Stephen Berman

    Immigration Attorney
    Answered on

    You cannot adjust status if you are out of status. You would need to leave the U.S. and may then be subject to a 10-year bar.

  • Avatar

    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    You being out of status is likely to prevent any granting of EB-5 status.

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.