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What are the chances I can return to H-1B status if my EB-5 I-829 is denied?

Hi! I am planning to get into EB-5 and invest via a regional center. I have a question about the worst-case scenario that can happen while I am on H-1B. Let’s say the I-526 is approved and I get a conditional green card. If the I-829 is denied, what are my chances of getting returning to H-1B status assuming the employer is ready to sponsor me? Is there any possibility that I cannot go back to H-1B and would have to leave the country?

Answers

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    Ed Beshara

    Immigration Attorney
    Answered on

    The H1-B status can be approved for six years, and you may be in legal H1-B status when you submit your I-485 application for conditional permanent residency. If the I-829 is denied then you can apply for another visa. It may be more beneficial if you during the conditional permanent residency period have a U.S. employer file a Perm application for you as potential immigrant employee.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You will need to file new H-1B petition if eligible and consular process for an H-1B visa abroad. If your investment is sustained and your Regional Center projects creates the requisite number of jobs per investor, your I-829 should be approved.

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    Barbara Suri

    Immigration Attorney
    Answered on

    You will usually get the H1-B approval if you meet the criteria.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    If your I-829 gets denied and you decide to seek an H-1B working visa/status, you likely would have to leave the country, since there is no easy mechanism to adjust status from immigrant to nonimmigrant (adjustment of status usually works the other way: nonimmigrant to immigrant). Keep in mind that if you sustain your EB-5 investment during the conditional period and the regional center creates the required number of indirect/direct jobs, it is very likely that your I-829 will be approved, assuming you are otherwise eligible, i.e., no criminal record and no abandonment of your status.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    There are no restrictions on applying for H-1B status after your I-829 is denied, unless there is some fraud involved in your activities where you provided fraudulent documentation or misrepresented information to the USCIS. H-1B is a dual intent nonimmigrant visa - which means you can have immigrant intent/processing, etc., and still qualify for H-1B nonimmigrant status.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    The scenario you are describing would be a break in your H-1B if you eventually switch to a conditional green card as a result of the approval of your I-526 until your I-829 is denied. However, you can certainly return to H-1B.

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    Steffanie J Lewis

    Immigration Attorney
    Answered on

    Your chances are very good. As the holder of H-1B status, you have dual intent. That means you can both intend to return to your native country and concurrently intend to remain permanently in the United States. Thus, you can retain your H-1B status until you are approved as a U.S. Immigrant with Conditional Permanent Resident Status. Upon accepting Conditional Permanent Resident Status, you declared your intent to remain in the United States. You no longer retain H-1B status with an intent to return to your country because you have declared your intent to remain in the United States. If you intend to retain dual intent until you adjust status, work and travel on your H-1B. You declare your intent to remain in the U.S., and lose dual intent before adjusting status, if you travel on the travel document (after filing Form I-131) or work on the EAD card (after filing Form I-765), which are provided to you about 90 days after you apply to adjust your status (file Form I-485). However, if the I-829 is denied, you will need to make a new application to obtain H-1B status. You had previously declared your intent to remain in the United States upon becoming a Conditional Permanent Resident. There are various opportunities and limitations available to you when an I-8929 is denied. The best action is to seek counsel before you initially make the investment. Nevertheless, if the I-829 is denied, seek counsel immediately. To retain dual intent, you need to be careful to extend H-1B status until you adjust. Minimally you need to retain H1B status until you file to adjust status.

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    Robert Loughran

    Immigration Attorney
    Answered on

    Your immigrant and non-immigrant statuses are independent of each other. Further H-1b status allows for dual intent, meaning your EB-5 application should not be viewed as disqualifying. However, with visitor, student and most other statuses you should have a problem since you have filed for permanent residency and those statuses require an un-abandoned residence abroad to which you will return. We have been successful in applying for H-1bs for former permanent residents-if they still qualify independent of the Eb-5 issues.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    H is a dual intent visa so your previous CPR status would not make you ineligible for an H visa. Assuming you have time left on the H, remain admissible, and a suitable employer sponsor you (and assuming H program continues to exist 5+ years from now), you should be able to get a new H visa.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You will need to file a new petition and then consular process.

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    Raymond Lahoud

    Immigration Attorney
    Answered on

    If it is denied, you will be placed in removal proceedings.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    A very small percentage of I-829s are denied if you make your Regional Center choice with care and experienced guidance. If you were forced to apply for a new H-1 you would be required to follow the normal application process. Get the right legal and security professional on your team and this should not be necessary.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If the I-829 is denied you can surrender your conditional green card and re-apply for an H-1B.

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