+1-800-997-1228
Questions & Answers

When can I file an EB-5 application if I overstayed my visa?

I was denied entry after overstaying my visa and have been barred for five years, which will expire in 2018. How will this affect my EB-5 application if I am to apply today?

Answers

  • Avatar

    Salvatore Picataggio

    Immigration Attorney
    Answered on

    You may be able to file the I-526 today, but will not be able to apply for a visa until your bar is complete. Since the I-526 currently takes 16 months for adjudication, you may line it all up just right.

  • Avatar

    Lynne Feldman

    Immigration Attorney
    Answered on

    You would need to be able to qualify for the required waiver.

  • Avatar

    Charles H Kuck

    Immigration Attorney
    Answered on

    You would be wasting your time, unless you have a parent or spouse who is a lawful permanent resident or U.S. citizen who can sponsor a waiver for your 10 year bar.

  • Avatar

    Julia Roussinova

    Immigration Attorney
    Answered on

    It is not clear why you have a five year bar. Generally, if the unlawful presence exceeded six months, you have a one year bar and if the unlawful presence exceeded one year, you have a 10 year bar. You should consult an immigration attorney to review your record and advise you prior to investing and filing the I-526 petition. Currently, I-526 petition processing times are about 16.6 months and the consular process for an immigrant visa takes, on average, about one year, so it is not a fast process.

  • Avatar

    John J Downey

    Immigration Attorney
    Answered on

    You would probably be denied. I would wait until the time is up.

  • Avatar

    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    The general rule is that anyone who is barred for a certain period of time cannot apply for immigration benefit(s) until he or she has served the period of disbarment. Thus, since you are barred until 2018, if you file an EB-5 petition today it will not be approved.

  • Avatar

    Jinhee Wilde

    Immigration Attorney
    Answered on

    Usually, overstaying the visa and accruing unlawful presence poses a three or 10 year bar. It is not clear why they told you five years. However, since the first step of the EB-5 process, which is the I-526, takes more than 17 months and the next step for the consulate processing takes more than six months, I would start the process about two years prior to this five years that they told you.

  • Avatar

    Peter Zhang

    Immigration Attorney
    Answered on

    You can still apply for the EB-5 application as long as the bar is lifted when you are able to obtain consular processing.

  • Avatar

    Matthew T Galati

    Immigration Attorney
    Answered on

    It is unclear how you were barred for five years as opposed to three or 10. One could apply for EB-5 even though there is a bar (provided the source of funds is lawful). Nonetheless, it sounds as though there may be admissibility issues and you would be best served by having a thorough consultation with an immigration attorney.

  • Avatar

    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If you only have a five year bar, then you can file the petition now, as it can take about two years or longer to get a final appointment. You need to make sure you only have a five year bar and would need to check the record. If you overstayed for a year for example, you could have a 10 year bar.

  • Avatar

    Charles Foster

    Immigration Attorney
    Answered on

    You can still file your EB-5 I-526 investor petition at any time. Once you have made your decision, typically this would be through an existing regional center project and you can do so once you have made your investment decision. Remember, it could take a year or so before the I-526 is approved and if you happen to be from China, your waiting period under the quota could be several years or more. Thus, it is never too early to start. The only delay will be the length of time it will take before the visa can be issued. Another reason why you might want to invest sooner rather than later is that at some point, maybe by the end of the year, the minimum investment amount may be increased.

  • Avatar

    Anthony Korda

    Immigration Attorney
    Answered on

    The bar will apply at the visa stage and, given the time it takes to process an I-526 petition and deal with the visa application, it will probably have expired by the time you attend the visa interview. However, the fact that you overstayed and were barred may still cause you difficulties and you should consult an experienced immigration attorney prior to making any firm commitment to invest.

  • Avatar

    BoBi Ahn

    Immigration Attorney
    Answered on

    If you overstayed and were "unlawfully present" in the United States for six months, you are subject to a three year bar from immigration benefits, and if you were unlawfully present for more than one year, you would be barred for 10 years from immigration benefits. The clock starts ticking for the three or 10 year bar from the day you exit the United States, and in that time you would not be eligible for any visas, etc., unless you are approved for a waiver. I am not sure what the five year bar you are referring to is; however, if whatever is barring you from immigration benefits is expiring in 2018, you can file for the EB-5 immigrant investor now (even with the barring), and after the immigrant investor visa is approved, wait until 2018 for the immigrant visa.

  • Avatar

    Stephen Berman

    Immigration Attorney
    Answered on

    Depending on how long it takes to get the approval, you may need to wait to get the visa.

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.