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How would my EB-5 case be impacted if I overstay my F-1 visa?

I am an EB-5 investor whose I-526 has been approved. Due to the backlog, I am still waiting for my priority date to become current. Meanwhile, my case was in the H-1B visa lottery this April and it is still pending as of today. My cap gap period will end on Sept. 30. According to the international student office of my university, the grace period policy does not apply to my case anymore because my original OPT already expired. Recently, USCIS published a memorandum regarding unlawful presence for F-1 students. If my cap gap end on Sept. 30 and no result is given to my H-1B petition, do I start accruing unlawful presence from Oct. 1? Can I stay in the U.S. until an adjudication result is given to my H-1B case? Could this potential unlawful presence (overstay) impact my EB-5 case?

Answers

  • Avatar

    Daniel A Zeft

    Immigration Attorney
    Answered on

    Unlawful presence of more than six months has negative consequences. Let's hope that USCIS will adjudicate the H-1B petition soon.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If your H-1B is not approved by Sept. 30, your F-1 employment authorization will end. You will then have the standard 60-day grace period from the cap gap end date of Sept. 30 to: depart the U.S.; apply for an I-20 transfer; or work with your employer and immigration legal counsel regarding your current H-1B change of status and options to continue in the U.S. You do not start accruing unlawful presence on Oct. 1.

  • Avatar

    Belma Chinchoy

    Immigration Attorney
    Answered on

    Can you get a cap-gap extension? If so, then you may be able to stay until adjudication of your H case. Overstays and unlawful presence are complex areas of immigration law; you need to seek specific advice from a lawyer so you can protect your immigration record and ensure eligibility for a green card.

  • Avatar

    Lynne Feldman

    Immigration Attorney
    Answered on

    You may stay while the H-1B is pending without accruing unlawful presence.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    If your H-1B is pending, you are not in unlawful status until that adjudication is concluded. If, by chance, your H=1B is denied, you will have to depart so that you do not trigger bar under the unlawful presence.

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    Kyle Barella

    Immigration Attorney
    Answered on

    The moment your lawful status ends, you begin to accrue unlawful presence. Any violations of U.S. immigration law have the potential of derailing future legal status in the U.S. I advise you consult with a qualified EB-5 lawyer to discuss in further detail.

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    Charles Foster

    Immigration Attorney
    Answered on

    If you overstay your F-1 visa status, you will accrue unlawful presence. More importantly, even when your EB-5 investor petition on Form I-526 is approved, if you have not maintained your status, most likely you would not be eligible to file an application for adjustment of status within the United States. If your H-1B petition is adjudicated and you are able to maintain your status, you would be eligible for adjustment of status. If you are ineligible to adjust and if you accrue more than six months of unlawful presence, you would be subject to a three-year bar and prohibited from being issued a visa during that time. If you overstay 10 years, you accrue more than one year of unlawful presence, then you would be subject to a ten-year bar.

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