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Are pardons available to help EB-5 applicants who overstayed an earlier visa?

My mother has money for me to apply for an EB-5 visa. My brother also filed for me about four years ago, but I overstayed my 180-day tourist visa, as my home country was really bad. Is it possible to get a pardon and a green card if I invest more than $1 million and create more than 10 jobs for U.S. workers? My I-130 is approved but my F-4 is about 15 years from now. Do I have a case?

Answers

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    The overstay will negatively any EB-5 filing now and further into the near future if not properly addressed. Also, there is no pardon available for EB-5 petitioner as a result of an overstay. Currently, the rules are any overstay for more than 180 days will result in three years disbarment from entering the U.S., while any overstaying for more than one year will result in 10 years disbarment. Thus, it will be more better to depart before you accumulate more than a one-year overstay. Advisably, consult an immigration attorney for further information and perhaps other alternatives besides EB-5.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    There are no pardons for EB-5 investment and job creation. One option is to have a bona fide marriage to a U.S. citizen if you were originally admitted and inspected by a CBP officer, and a U.S. citizen spouse can file for you.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    If you are subject to one of the re-entry bars (three- or 10-year) based on your accrual of unlawful presence, there is a waiver available, but it would require a showing of extreme hardship on a qualifying relative who is a U.S. citizen or lawful permanent resident. The mere investment of funds and job creation will not waive or excuse the unlawful presence bar. You should speak to an experienced immigration attorney before you make any decisions and before you consider leaving the United States under any circumstances.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    In order to apply for an EB-5 adjustment of status you cannot have been out of status for even one day. There is an option to apply for an unlawful presence waiver and consular process abroad, but there is no assurance your waiver will be approved and, most importantly, you must have extreme hardship to a qualifying relative, such as a U.S. citizen spouse, to qualify. If you were married to a U.S. citizen however, you would separately be eligible to adjust status within the U.S. without triggering the 10-year bar by leaving. In short, there is no option under the law unless you were legitimately married to a U.S. citizen, or possibly under some of the remote exceptions, such as being an abused spouse.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You would need a waiver showing hardship to a qualifying relative U.S. citizen or permanent resident spouse or parent.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    There are no "pardons" available. An attorney should evaluate your admissibility.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    It would depend on how long you have overstayed and accrued unlawful presence. If you have more than 180 of unlawful presence, then you are barred for three years and if you have accrued more than one year of unlawful presence, then you are barred for 10 years. While there is a waiver for inadmissibility, it is usually for an extreme hardship on the U.S. citizen spouse or parent, and it is difficult to obtain, especially under this Trump administration.

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    Abhinav Lohia

    Immigration Attorney
    Answered on

    Whether or not you can get a waiver depends on the length of time you overstayed. The waiver is not dependent on investment amount. Therefore, investing a million dollars or more will not help if you have a three-year or 10-year ban against you.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Would need more information regarding how long you overstayed your tourist visa. If you overstayed less than 180 days beyond the admitted period, there is no need to file for a "waiver" of the statutory bar. If you did overstay more than 180 days, then the waiver option only applies to extreme hardship to U.S. citizen family members if you are not admitted, etc., and not for job creation or for investing.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Depending on the circumstances, waivers of inadmissibility are available. An attorney is required to prepare and file such waivers.

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    Charles Foster

    Immigration Attorney
    Answered on

    The fact that you overstayed your B-2 visitor status in the United States is a factor. If you overstayed less than six months and departed the U.S., you should not be subject to a bar or prohibition from applying for an immigrant visa based upon an approved EB-5 investor petition on Form I-526. However, if you overstayed more than 180 days and then departed the U.S., you would have become subject to a three-year bar or prohibition from obtaining a visa and re-entering the U.S. If you overstayed more than one year, you would have become subject to a 10-year bar or prohibition from obtaining a visa and being readmitted to the U.S.

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