Questions and Answers > EB-5 Requirements

Can I apply for the EB-5 visa program if I overstayed my previous visa?

I stayed in the USA for 10 years on my expired visa but came back last year without any criminal offense. Can I apply under the EB5 category?

Answers

• Marisa Casablanca

  Immigration Attorney

  Answered on December 12, 2012

  Your case is a bit complicated. We would have discuss it. There are several factors and waivers available.

• Neville M Leslie

  Immigration Attorney

  Answered on December 11, 2012

  Probably. I would have to review your specific details and immigration statuses before I could give you a definitive answer.

• Ronald R Fieldstone

  Securities Attorney

  Answered on December 11, 2012

  That may make a difference. There are restrictions to applying if you have overstayed Question Detail: I stayed in the USA for 10 years on my expired visa but came back last year without any criminal offense. There is also a wait time for the EB-5 category.

• Jennifer Parser

  Immigration Attorney

  Answered on December 11, 2012

  An overstay of 10 years would most likely disqualify you because overstays are barred from re-entering depending upon the length of their overstay.

• Ed Beshara

  Immigration Attorney

  Answered on December 11, 2012

  First I believe one should have a consultation with a qualified US Immigration attorney. Second an explanation should be given regarding the difference between being out of status and unlawful presence.For instance if one has remained in the US and been in unlawful presence for more than 6 months ,the if one leaves the US then that person will be barred from the US for 3 years unless a waiver is filed and approved. If the person has been in the US in unlawful presence for more more than one ( 1 ) year, and the foreign national leaves then the person is denied re-entry for 10 years, unless a waiver is approved. Please remember an EB-5 visa requires either US Consulate processing ( ie no visa granted if foreign national remained in the US for a continuous period of 6 months of unlawful presence then left the US to attend a US consulate visa interview). While a foreign national can not apply for Adjustment to Permanent residency if the person is currently in the US and out of lawful status.

• Taher Kameli

  Immigration Attorney

  Answered on December 11, 2012

  You can apply, but you are inadmissible.

• Lynne Feldman

  Immigration Attorney

  Answered on December 11, 2012

  You should have an attorney analyze with exact facts such as the type of visa you had before, type of visa you were granted recently, copy of forms you filled out to apply for the new visa, dates in and out of the U.S., etc. If you were on a visa where unlawful presence was accrued and then you left technically you triggered a 10 year bar and perhaps a permanent bar by reentering; but some statuses do not accrue unlawful presence even for an overstay.

• Jinhee Wilde

  Immigration Attorney

  Answered on December 11, 2012

  Since you have been readmitted into the U.S. under a new visa category even though you overstayed in the past, that means U.S. government did not find you inadmissible. Thus, you should be able to apply for the EB-5 program and adjust.

• Anthony Ravani

  Immigration Attorney

  Answered on December 11, 2012

  It all depends how you came back to your own country, were you deported, were you involved in any proceedings, etc.

• Dawn M Lurie

  Immigration Attorney

  Answered on December 11, 2012

  Your question is fact specific. Unfortunately it also lacks some of the requisite facts required to determine whether or not you are eligible to apply for residency under the EB-5 category. I would suggest you meet with immigration counsel and be prepared to provide a detailed immigration history, including the type of visa you entered on initially, whether or not you changed your status, and how you entered the U.S. most recently.

• Larry J Behar, Esq

  Immigration Attorney

  Answered on December 11, 2012

  An unlawful presence in the US will automatically trigger a bar to the United States, whether through a non immigrant or immigrant visa. I am afraid that an EB 5 application will not remove a full review by the consul of a determination of unlawful presence prior to its approval.

• Gregory Romanovsky

  Immigration Attorney

  Answered on December 11, 2012

  Thank you for your email. Unfortunately, you''re likely subject to the 10-year bar on re-entry, unless your previous status was F or J. Feel free to contact me to discuss this further.

• Randall Sidlosca

  Immigration Attorney

  Answered on December 11, 2012

  If you overstayed your previous authorized stay by 180 days or more you are barred from reentry.

• Reza Rahbaran

  Immigration Attorney

  Answered on December 10, 2012

  This depends on the length and reason of your overstay. You should contact an immigration attorney to discuss the matter in detail. For further information please contact Rahbaran & Associates.