Questions & Answers

How can I apply for EB-5 after overstaying my B-2 visa?

I have overstayed my B-2 visa for three years. Meanwhile I accumulated wealth and have approximately $500,000 in my bank account ready to invest. Will these funds earned while overstaying be acceptable for EB-5 investment? Will I run into any problems applying for the EB-5 visa considering that I have overstayed my B-2 visa?

Answers

• Julia Roussinova

  Immigration Attorney

  Answered on April 24, 2015

  Unless you are eligible for adjustment of status in the United States under section 245(i), it is not possible for you to adjust status to a conditional permanent resident even if your I-526 petition were approved. Funds accumulated through unlawful earnings will be unlikely to qualify as lawful source of funds if you earned them without employment authorization in the United States. If you were to depart the United States to consular process for an immigrant visa upon approval of your I-526 with an unlawful presence in the United States in excess of 1 year, you would be subject to a 10-year bar to reenter the United States. You should consult an experienced immigration attorney to discuss other possible immigration options.

• Fredrick W Voigtmann

  Immigration Attorney

  Answered on April 21, 2015

  If you have accrued more than one year of unlawful presence in the United States and subsequently leave the United States, you likely will be subject to a ten-year bar to reentry. Also, since you are no longer in valid nonimmigrant status, you are not eligible to adjust status unless you are grandfathered under a section of the immigration law called 245(i), which requires physical presence in the United States on December 21, 2000 and an immigrant petition or labor certification properly filed before April 30, 2001. Therefore, since you do not appear to be eligible for adjustment of status and you are subject to a ten-year bar to reentry if you leave, you should consult with an experienced immigration attorney before you take any steps toward starting an immigration case, EB-5 or otherwise.

• Michael A Harris, Esq

  Immigration Attorney

  Answered on April 20, 2015

  You may be able to apply for the visa. You will not be able to apply for your green card from within the United States. You will have to visit a U.S. consulate abroad in order to apply for your immigrant visa, and subsequently on your admission into the United States, you will be a permanent resident and mailed a green card. What will be important to determine, and you should speak with immigration counsel about, is how long you have remained in the United States after overstaying. There might be other issues that will need to be addressed to see whether or not you were eligible to apply for an immigrant visa, even if you are approved for the preliminary petition.

• Salvatore Picataggio

  Immigration Attorney

  Answered on April 20, 2015

  You will have to leave the United States, potentially for several years, before applying for the actual visa. That does not mean you cannot research projects, make the investment, and file the I-526 now (especially with the 14 month processing time). Once the I-526 is approved, and your bar from entering the United States is done, you can apply for the actual EB-5 visa through the consulate.

• Jinhee Wilde

  Immigration Attorney

  Answered on April 20, 2015

  I hope that while you were living here as an overstay and working without work authorization for the past three years, you had at least paid taxes on your earnings. Without that, I am not sure if you will be able to prove that you have obtained the funds legally. There is a chance that USCIS may argue that your funds were obtained illegally because you were making money while living and working here illegally. Also, with just $500,000 saved, you may not qualify as an accredited EB-5 investor who has $1 million in net assets or who is earning at least $200,000 per year for the past three years. While this is just a guideline for the EB-5 investor eligibility, it is wise to follow it with the additional scrutiny with which USCIS reviews petitions these days. Finally, even if you overcome the source of funds issues, you will not be able to adjust your status since you are out of status and going back home could trigger a 3 or 10 bar, depending on your circumstances.

• Louis M Piscopo

  Immigration Attorney

  Answered on April 20, 2015

  There are two steps to obtaining a green card through the EB-5 process. First, the I-526 petition must be approved. Then, once approved, you have to file for your green card by either applying for an Immigrant Visa (IV) or Adjustment of Status (AOS). AOS is the method to obtain your green card while in the United States. If you are out of status and not protected under 245(i) you cannot obtain your green card by AOS. You must then apply for an IV at the U.S. consulate in your home country. However, if you have been out of status for three years, once you leave the United States for your interview, you will be barred from returning to the United States for 10 years. Therefore, since you are out of status, and (I assume) not protected under 245(i), you will not be able to get a green card through the EB-5 process.

• Lynne Feldman

  Immigration Attorney

  Answered on April 20, 2015

  This is not an option unless you have eligibility for 245(i) or can qualify for a waiver overseas with a qualifying relative. Best to consult with an attorney on the specifics.