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How will a brief period of unlawful presence affect an EB-5 application?

I was in the United States and submitted a change of status petition from F-1 to H-1. The H-1 petition was denied and I became out of status as soon as the decision was made. Without a grace period I unavoidably accrued unlawful presence, although I did leave the country within 30 days. I'm thinking of applying for the EB-5 program now. How will the previous unlawful presence affect my EB-5 application?

Answers

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    Ed Beshara

    Immigration Attorney
    Answered on

    As long as the unlawful presence is not more than six months, you will be able to file an approvable application for conditional permanent residency.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You should be fine to consular process upon approval of the EB-5 petition. Please consult an immigration attorney.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    If you were out of status for just 30 days, you should not have any problem filing and gaining an EB-5 visa. However, consult an immigration attorney for further analysis of your situation.

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    Charles Foster

    Immigration Attorney
    Answered on

    The fact that you were out of status for approximately 30 days should not affect your ability to obtain lawful permanent residency through the EB-5 program. You would file your EB-5 petition on Form I-526 and once approved, you would be scheduled for your final interview at the appropriate American Consulate abroad. The fact that you were out of status for 30 days will not in any way bar you. If you had been out of status for more than six months, you would have been subject to a three-year bar. If questioned about this, you should always be truthful, but the truth will not hurt you in this case.

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    John J Downey

    Immigration Attorney
    Answered on

    This should not be a problem; your overstay was minimal and not intentional. Make sure to mention it in your application.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You should be OK, especially if consular processing. Were you within the 60 day grace period?

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    It is something we would recommend disclosing when applying with the NVC or for adjustment of status, but it will not have an effect on the I-526 petition.

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    Matthew Kolodziej

    Immigration Attorney
    Answered on

    Normally a period of unlawful presence of under 30 days should not affect your ability to reenter the country, but you should be prepared to document that you left as soon as you could. Be aware however that the finding of admissibility is a discretionary decision and dependent on the totality of the facts.

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    Stephen Berman

    Immigration Attorney
    Answered on

    Unlawful presence for under 180 days does not bar admission to the United States.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    Not an issue - you will likely be barred from adjusting status in the United States as there is no 245(k) protection for EB-5 cases, but you can still immigrant visa process through your home country consulate.

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    Ian E Scott

    Immigration Attorney
    Answered on

    This will not impact your EB-5 application as long as your overstay is less than six months.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    An overstay of 30 days does not in and of itself operate as a bar to your EB-5 green card. However, you should discuss this in detail with your investment immigration attorney.

  • Avatar

    BoBi Ahn

    Immigration Attorney
    Answered on

    This is not a short answer question, but, briefly stated: Based on the info you provided 1) You may not have incurred any "unlawful presence" since you were maintaining F-1 status (which does not have an end date only d/s); 2) Such days of being out of status should not affect your EB-5 processing.

  • Avatar

    Xiaosheng Huang

    Immigration Attorney
    Answered on

    The unlawful presence will affect you. You may need to apply for the waiver when you apply for the EB-5 visa in the consulate. But if you have been out of status for a short time, it should not be so severe.

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