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How can I apply for EB-5 while on OPT and with an H-1B petition pending?

I am going to graduate with a degree included in the STEM list. I have filed an H-1B petition and will be on OPT starting in May. I want to apply for an EB-5 green card for myself this year. Will I encounter any issue in getting an OPT extension after I file the I-526? If I am not selected for H-1B processing, am I still eligible to file the H-1B petition next year after I file the I-526?

Answers

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    The filing of the I-526 should not, under current rules, impact your STEM extension. But you may have an issue traveling abroad if you need a new EB-5 visa. Yes, you can still get a new H-1B after filing an I-526, as this is a dual-intent, non-immigrant visa.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You should not have problems.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    While your I-526 petition is pending, you should not have any problems obtaining an OPT extension. While your I-526 petition is pending, an H-1B petition can be filed on your behalf.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    You should be able to extend under STEM OPT after the I-526 filing, as well as filing for H-1B while I-526 is pending.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    There is no conflict, except just filing I-526 does not allow you to remain here. You need to be in student, H-1B or some other non-immigrant status until you can immigrate.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    Speak with your investment immigration attorney. Generally speaking, there should be no problem, but there could be factors for your attorney to address.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    When you submit I-765 before your initial OPT expires, there is no question asked about whether you have submitted or have pending any immigration petition. Thus, having filed the I-526 should not prevent you from getting the STEM extension. If you were accepted into the H-1B lottery and your H-1B application gets approved, then your status will be H-1B, which is a dual-intent visa category and it is acceptable for you to have an I-526 pending.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    H-1B is a dual-intent visa, so it is OK to have an EB-5 petition pending while applying for H-1B. OPT/F1 is not dual intent and there may be issues with opt renewal.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    You can certainly file and obtain an OPT extension while your I-526 petition is pending. Just as well, if you are not selected in the current H-1B processing, you are eligible to try next year even though your I-526 is pending. Generally, neither the OPT filing nor the H1-B petition will affect your chance in securing an EB-5 green card.

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    Charles Foster

    Immigration Attorney
    Answered on

    Generally speaking, given the growing backlogs under the quota for EB-5, the sooner you file your EB-5 petition on Form I-526, the better. Since you already have OPT, you should not have any significant difficulties in getting it extended. Should you travel abroad and need to apply to renew your F-1 student visa, you could be subject to Section 214(b), which provides that every applicant must prove that he or she is not intending to immigrate to the United States. Yes, your employer would still be eligible to file an H-1B petition on your behalf even after you have filed your EB-5 investor petition on Form I-526.

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