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If my H-1B has been denied, what is the next best immigration option for me?

My H-1B has been denied. My employer has an appeal against the decision. I am waiting for the appeal status and staying here in the United States. After discussing my circumstances with an immigration lawyer, I do qualify to apply for asylum or to invest for an EB-5 visa. What is the best option for me? Am I able to apply for both and remain in the U.S.?

Answers

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    Ed Beshara

    Immigration Attorney
    Answered on

    There a number of options available which can be explained to you by your Immigration attorney. Please note that you may be accumulating unauthorized presence in the U.S. during the pendency of your Appeal process. You can apply for EB-5 conditional permanent residency but you cannot have more than 6 months of accumulated unauthorized presence.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    A pending appeal generally does not afford you any lawful status in the US. Filing I-526 petition for an EB-5 visa will also not provide any lawful status and currently takes about 2 years to process. You should consider E-2 visa if eligible or F-1 visa that will allow you to maintain nonimmigrant status in the US while your I-526 petition is pending. You should carefully review your unlawful presence in the US and future options to immigrate to the US as you have started accruing unlawful presence after your H-1B denial.

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    Steffanie J Lewis

    Immigration Attorney
    Answered on

    If you are eligible to both apply for asylum and invest in an EB5 visa, your employer should also consider offering you a permanent position, subject to visa availability to applicants from your country. Otherwise, I see problems with both options you allege. If you apply for asylum, you need to prove that within the past year, change of conditions has made asylum available to you. You obviously have been in the U.S. for more than one year and, without proving changed conditions, asylum applications must be filed within the first year the applicant is in the U.S. If you make an EB-5 investment, it will take approximately 14 months for your I-526 to be approved and you cannot file to adjust your status until you receive that approval. Therefore, you must be able to stay in status for at least another 14 months. Within the same time, and because the line for visa availability is quite short for many nationalities, you may be able to adjust status on a petition from your employer. However, you have not given enough information to directly answer your question.

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    Charles Foster

    Immigration Attorney
    Answered on

    Generally speaking, in terms of the option of applying for asylum in the United States or qualifying for Lawful Permanent Residency through the EB-5 program, the EB-5 Regional Center program is vastly faster and more predictable. The asylum process in the United States is highly discretionary with the vast majority of the applications being denied. Given the large number of accompanied minors and other Central Americans, primarily from El Salvador, Guatemala and Honduras that have applied for asylum, the process is backlogged for several years. By investing in a reputable EB-5 project, your chances of obtaining your Lawful Permanent Residency would be very high as well as the opportunity of recuperating your investment. Yes, you are able to apply for both. You may be able to remain in the U.S., but you should consult with an experienced immigration lawyer, preferably one who is Board Certified in Immigration and Nationality Law provided by his or her state bar organization, with significant experience in representing individual EB-5 investors. But if you lose the appeal of your H-1B denial, you would most likely be deemed to be out of status and not eligible for adjustment of status within the United States.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    You need to have valid status to stay and EB-5 takes at least two years, so if you want to stay here while the EB-5 is pending, you need to consult with immigration counsel. Maybe an E-2 investor if you from a treaty country, maybe even a student visa if you meet all the requirements. There are many options to investigate.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Filing for EB-5 does not give you the option to remain in the U.S. during the processing. Depending on the reason for denial of the H-1B, you may want to look into either treaty investor/trader visa (if your home country has a treaty with the U.S.) or maybe intra-company transfer visa.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    You can apply for both but, bear in mind that unless your H-1B appeal is successful, you may be out of status. Further analysis boils down to these two sets of scenario. First, if the asylum is pursued, it may give you a coverage to remain in the US because you are essentially claiming you can''t or don''t want to go back to your country for fear of some form(s) of persecution. Second, if you file EB-5 petition, it is an indication of immigrant intent pursuit. The overview of these two options is that your stay in the US projects a diametrically opposing posture: asylum allows you to stay in the US because you can''t or don''t want to go back to your home country while EB-5 holds the view that you can go back to your home country but want to be an immigrant in the US. Prior to filing for either relief, consult an attorney and discuss the strategies, implications and feasibility of each option.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    To stay in the U.S. it is best to maintain a nonimmigrant visa such as a student or investor visa while pursuing other options such as asylum or EB-5 which will take years to be achieved.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    The decision whether to apply for asylum should be based on your fear of returning to your home country and should be made in consultation with an immigration attorney who is experienced in asylum cases. It should not be taken lightly due to the long processing time in certain parts of the country and due to the certainty of being referred to immigration court for removal proceedings should your asylum claim be denied initially by USCIS. On the other hand, if you are no longer in valid nonimmigrant status, an EB-5 case will not keep you legal in the United States and would likely take longer than one year to process, thereby potentially subjecting you to a reentry bar (probably the ten-year bar) if you just apply for EB-5 and wait here in the United States. You certainly can remain in the United States while your asylum case is pending. You should get a second opinion about your unlawful presence in the United States, which has begun to accrue as of the date of the H-1B denial.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Asylum is becoming harder under the Trump administration. If you have so many assets that could be proven as legally sourced for you to be eligible for EB-5, I wonder if they would approve the asylum application. However, EB-5 will not allow you to stay in the U.S. as I-526 is now taking 24 months to adjudicate after filing.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    I would recommend you consult with an experienced EB-5 Investment Attorney. You will either need to return to your home country or stay in status in the United States to take advantage of EB-5. Take care with Asylum as it can raise serious limitations to travel and your future. That is not a decision to take lightly nor is it a sure thing. Even with a required return to your home country EB-5 may be your best path.

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