Questions and Answers > EB-5 Requirements

How can I remain in status during EB-5 petition processing?

My I-526 should get approved by May 2016. I currently live in the United States on an H-1B visa, but my employment will be terminated by the end of March 2016. I plan to file the I-539 to change to an F-1 visa in order to stay. Since my H-1B visa will be invalid by the end of March, what will be my status during the I-539 waiting period? Will I be considered as "out of status"? If yes, will it impact I-526 approval?

Answers

• Jimena G Cabrera

  Immigration Attorney

  Answered on March 21, 2016

  Since you have applied for an immigrant visa (I-526), you have an immigrant intent. The F-1 visa requires a nonimmigrant intent; therefore it is not likely or it will be very risky for the change of status to F-1 to be approved. You should look into other alternatives such as extending your H-1B or change your status to an L visa (dual intent visa). Most importantly, I recommend you start working on this as soon as possible and do not delay any longer. Contact an attorney today.

• A Olusanjo Omoniyi

  Immigration Attorney

  Answered on March 10, 2016

  If your I-539 is filed in time (i.e. pending before the end of March), you will be in status. Also, it should not affect the approval of your I-526. Since the end of March is fast approaching, a consultation with an attorney is highly advisable as soon as possible to iron out all necessary steps.

• John J Downey

  Immigration Attorney

  Answered on March 8, 2016

  I believe that there is a grace period when your H-1B ends. I would hasten to get the F-1 (I-20 forms filed as soon as possible). It might be easier to enroll in some educational program NOW and then not have to worry about being out of status, as this could affect your I-526.

• Bernard P Wolfsdorf

  Immigration Attorney

  Answered on March 8, 2016

  If this is a good faith change of status, then you should be in status be sure to disclose your pending I-526.

• Fredrick W Voigtmann

  Immigration Attorney

  Answered on March 8, 2016

  Your status during the waiting period is that you are within an authorized period of stay because you have a timely filed extension of status pending. You do not, however, have any nonimmigrant status unless and until your extension of status is approved. This will not affect your I-526 approval, but in order to qualify for adjustment of status, you must be in a valid nonimmigrant status and not just within a period of authorized stay. As long as your extension of status is approved, you should be able to adjust your status after your I-526 is approved as long as there is an available immigrant visa number, i.e., the priority date is current.

• Ian E Scott

  Immigration Attorney

  Answered on March 8, 2016

  With your I-526 pending, you have expressed intent to stay in the United States permanently. If you file an I-539 and it is approved, your status is considered "in status" if the I-539 is approved. The key question though is whether you will be able to get a nonimmigrant visa approved.

• Salvatore Picataggio

  Immigration Attorney

  Answered on March 8, 2016

  You are in a kind of limbo while the I-539 is pending. If it is denied, you will immediately be out of status. If approved, the new status begins as of the filing/priority date, not the approval date. Trying to chain together various nonimmigrant statuses can be tough, so please work with an immigration attorney.

• Raymond Lahoud

  Immigration Attorney

  Answered on March 8, 2016

  As long as you applied for the change in status prior to your current expiration, you are in legal status as long as the application is pending or 240 days, whichever comes first.