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How can I submit my EB-5-based I-485 application during the grace period after the expiration of my current H-1B visa?

I submitted my EB-5 application several years ago and just got my approval last week. Meanwhile, I have been working in the U.S. with an H-1B visa until three weeks ago, when it expired. My current I-94 has expired as well. I have submitted my application for an H-1B extension. Since I have a grace period of 60 days, I am still in the U.S. now. Given my situation, can I submit an EB-5-based I-485 now and wait in the U.S. without accumulating any days of illegal stay? If so, what happens to my H-1B extension application, which was already received by USCIS?

Answers

  • Avatar

    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    There is no grace period for adjustment based on EB-5. However, you are operating under the 240-day rule when you file an H-1B extension, so provided that the extension is approved, your adjustment should be approved.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    As long as you have submitted your H-1B extension application before it expired, you should be fine. USCIS, through a memo dated July 14, 2008, Ref: HQDOMO 70/23.1-P AD06-07, declared that applicants who have brief periods of inadvertent violations due to misunderstandings of the law and other mistakes made along the way in the years that usually precede the I-485 filing stage can go ahead and apply for adjustment of status by filing Form I-485.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    This is possible and, if necessary, Section 245(k) overlooks up to 180 days of working without authorization or out of status time. If your extension in on file before it expired, you have a 240-day period that you may continue to work and you aren't accumulating any out-of-status time.

  • Avatar

    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Actually, the H-1B application for extension will keep you in legal status. Do not withdraw it and it won't negatively impact your EB-5 proceeding. Thus, feel free to proceed on by filing for EB-5 I-485 for adjustment of status and if approved you can switch from the non-immigrant H-1B status to permanent resident status.

  • Avatar

    Hassan Elkhalil

    Immigration Attorney
    Answered on

    Apply for the adjustment, I-485, based on the approved EB-5 and wait for the extension on the H-1B.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    If you submitted your H-1B extension petition timely (i.e., before it expired), then you are fine. You are maintaining authorized/lawful stay during a timely filed petition's pending period.

  • Avatar

    Belma Chinchoy

    Immigration Attorney
    Answered on

    A timely filed H extension prevents you from acquiring unlawful presence but does not necessarily mean you are eligible for AOS. You should have an attorney review your case.

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