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How can China-born EB-5 applicants work legally in the U.S. after their H-1B expires?

I am a China-born H-1B visa holder and am currently working in the U.S. I also filed an EB-5 application in 2016. My plan was to have my conditional green card by the time my work permit expires in 2020, but according to the current waiting time for EB-5, there might be a one- to two-year gap between the expiration of my six-year H-1B visa. Is there any way I can extend my H-1B without having to leave the country or stop working during this gap?

Answers

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    You have to file a PERM under second or third preference that must be pending by the fifth year of H-1B time.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    You cannot keep working after your H-1B expires. Also, you will need to leave the country unless you are able to secure another valid visa that allows you to remain in legal status after your current the H-1B expires. Otherwise, being out of status may jeopardize your opportunity to obtain permanent residency through EB-5.

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    Charles Foster

    Immigration Attorney
    Answered on

    Being in H-1B status that will expire presumably before the availability of EB-5 visa numbers for Chinese nationals, prior to the expiration of your fifth year in H-1B status, you should have your employer file a labor certification on your behalf with the U.S. Department of Labor. That will allow your employer to continue extending your H-1B status one year at a time beyond the six-year period. It is hard to say when EB-5 visa numbers will be available to Chinese nationals. Based upon the fact that you filed your EB-5 investor petition on Form I-526 in 2016, it will be a number of years. The other possibility is if Congress will provide for additional visa numbers that would speed up the process. However, the possibility of that happening is uncertain at this time.

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    Mark AM Catam, Esq

    Immigration Attorney
    Answered on

    You would need a pending PERM or approved I-140 to extend your H-1B beyond the sixth year. Unfortunately, having a pending or approved I-526 does not allow extension of the H-1B.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    If you have time left on your six years of H time, you can extend by filing before your current H expires.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    Without congressional intervention to address the EB-5 visa backlog for Chinese nationals, you will have a significantly longer gap than one to two years. Discuss with your employer the option of I-140/perm sponsorship; it will extend your H-1B status for several years, as EB-2 and EB-3 categories also have significant backlogs. You should discuss possible family-based immigration options with your attorney as well.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    The only way to extend H-1B beyond six years is if you have an approved I-140 and visa numbers are not current.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    AC21 provides for H-1B extensions beyond six years in two circumstances. First, under AC21 section 104(c), a beneficiary of an employment-based first, second or third preference petition who is eligible for permanent residency but for the application of the per-country limits may obtain extension of the H-1B status until the adjustment of status is decided. Second, under AC21 section 106(a), an H-1B status can be renewed in one-year increments for beneficiaries of any employment-based petition until adjustment processing is completed as long as 365 days or more have elapsed since the labor certification application or immigrant petition was filed. So, EB-5 would not qualify; however, you may be able to change status from H-1B to E-2 using the funds invested for EB-5 if it was direct investment.

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    Stephen Berman

    Immigration Attorney
    Answered on

    Have your employer file a PERM for you.

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