Questions and Answers > EB-5 Requirements

How can I stay in the U.S. if my visitor visa has expired but my I-526 has been approved?

Hi, I am currently living in the United States, but my U.S. Visitor Visa has expired. However, I have one nonimmigrant E2 visa application pending and I just received a letter of approval for my I-526 petition. So, how can I stay in the U.S. while I file the I-485 application?

Answers

• Julia Roussinova

  Immigration Attorney

  Answered on October 4, 2017

  While you are waiting for adjudication of your E-2 change of status petition, you are in an authorized period of stay but not in any nonimmigrant status. You may apply for a green card based on your approved I-526 petition if/when your E-2 change of status petition is approved because you need a valid underlying immigration status to adjust to a green card holder inside the U.S. You may want to premium process your pending E-2 petition. If your E-2 petition is not approved due to an approved I-526 petition (immigrant intent issue), you would need to consular process for an immigrant visa abroad based on your approved I-526 petition. I recommend that you consult with your immigration attorney.

• A Olusanjo Omoniyi

  Immigration Attorney

  Answered on September 27, 2017

  Generally, in this type of circumstance, it is not advisable to stay in the U.S. because you have no valid status. Your fact pattern is not favorable: the visiting visa has expired, the E-2 application is pending and I-526 has been approved; none of these three circumstances provides you any valid status. Even assuming you file your I-485 now or soon, you will still not be able to stay in the U.S. because of the lack of valid status.

• Barbara Suri

  Immigration Attorney

  Answered on September 27, 2017

  If the non-immigrant E-2 application was filed before the B visa expired, then it appears the pending E-2 application is keeping you in status until USCIS makes a decision on your case. Of course, you need to remain in status to file the I-485. If the E-2 is denied and you are not current to receive an EB-5 visa, you will need to leave the U.S. to wait for your EB-5 visa number to become available.

• BoBi Ahn

  Immigration Attorney

  Answered on September 27, 2017

  Not clear on what you mean by you "have a nonimmigrant E-2 visa application pending” but, if that means you filed to change status to E-2 before your visitor status expired in the U.S., you are fine. Since your I-526 was approved (and if you are not a Chinese national dependent on the priority dates), you can file to adjust status to lawful permanent residency (I-485) in the U.S. without having to leave the country.

• Charles Foster

  Immigration Attorney

  Answered on September 27, 2017

  You would be able to stay in the U.S., but only if your application to change status to E-2 non-immigrant status pending with the USCIS is approved. If you have your approval for your EB-5 Investor Petition on Form I-526 and visa numbers are available, you should immediately apply for Adjustment of Status and you can reside in the U.S. until your Application for Adjustment of Status on Form I-485 is approved.

• Natalia Polukhtin

  Immigration Attorney

  Answered on September 26, 2017

  Expiration of your visa is not an issue if you are in a valid status. Since you have your E-2 (change of status) pending, I must assume your status has also expired and a new one has not been granted. Even though you are technically not out of status, you cannot adjust without your E-2 being granted. It may be more time efficient to go through the consular processing. Regardless of your decision, you need to have your attorney evaluate all dates and transitions between the non-immigrant category.

• Dale Schwartz

  Immigration Attorney

  Answered on September 26, 2017

  If you filed the E-2 change of status application before your B-2 stay expired, then you may stay here until they rule on your change of status.

• Ian E Scott

  Immigration Attorney

  Answered on September 26, 2017

  Filing an I-526 does not confer any immigration status so you must have a valid visa or immigration status to stay in the U.S. (e.g. F-1 or another status). If your E-2 is approved, you can enter with that but the I-526 petition may come up during that adjudication.

• David B Gardner

  Immigration Attorney

  Answered on September 26, 2017

  Premium process the E-2. It will allow you to stay provided it was filed before the visitor visa expired. There may be an issue if you decide to travel.

• Jinhee Wilde

  Immigration Attorney

  Answered on September 26, 2017

  This is a rather simple question for your immigration attorney to advise. If you are in a valid status, including application pending status, you may adjust, providing that your visa number is current. Thus, if your E-2 application has been filed before your visitor visa expires, then you could list that application receipt number to show you are in the E-2 pending status and file the I-485 immediately as long as the visa number is current for you.

• Fredrick W Voigtmann

  Immigration Attorney

  Answered on September 26, 2017

  First, you cannot live in the United States on a visitor visa. Also, it is your status that determines how long you may remain in the United States and what you can do here during your authorized stay. If you have a pending change of status application, you are in a period of authorized stay while waiting in the United States, but you are not in any nonimmigrant status unless and until the change of status petition is approved. To file your I-485, you must be in a valid nonimmigrant status and otherwise admissible to the United States. Therefore, you might have to wait until your E-2 change of status is approved before you file your I-485 based upon your approved I-526 petition. You must be careful about your intentions (nonimmigrant or immigrant) when making any representations to the USCIS. You should consult with an experienced immigration attorney to make sure you have not violated (or will not violate in the future) any immigration laws or regulations.

• Vaughan de Kirby

  Immigration Attorney

  Answered on September 26, 2017

  You must not overstay your visa. I recommend you immediately meet with your investment immigration attorney to discuss your adjustment of status.

• Bernard P Wolfsdorf

  Immigration Attorney

  Answered on September 26, 2017

  If you can show you had no intention to adjust status at the time you entered as a visitor, you might be eligible to apply to adjust status in the U.S. However, to do so, you would need to get the E-2 change of status approved first. Unfortunately, for EB-5, you cannot be out of status by even one day. Therefore, you need to have valid nonimmigrant status to file an adjustment. Hopefully, your change to E-2 has been approved and, if so, you might then be eligible to adjust status.