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How can I remain on H-1B status until I receive my green card from my EB-5 investment?

I am already in the U.S. on an H-1B visa. My H-1B can be extended, as I already have I-140 approvals done and am working in the U.S. on a full-time job. However, I am considering investing in the EB-5 program. How can I remain on my H-1B until I get my permanent green card? I would like to keep using the H-1B for international travel and not having to deal with re-entry permits. Is that possible?

Answers

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    Since you have an approved I-140, you can renew your H-1B until that employment-based petition priority date becomes current. Travel on an H-1B is not possible after you get conditional permanent residency. At that point if you need to be outside the U.S. for an extended period, you will likely have to get a re-entry permit.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    Yes, you may continue in H-1B status as long as you have a valid petition approval and as long as you continue to work for the H-1B petitioner under the terms and conditions of the petition and certified LCA. Your EB-5 case will be processed independently of your H-1B and/or I-140 petition.

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    Barbara Suri

    Immigration Attorney
    Answered on

    As long as you have an approved I-140, CIS will actually extend your H-1B status while you wait for your priority date. You have the option of filing EB-5, only if you desire. But it is not necessary if your goal is only to get a green card.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Keep working with your H-1B visa and do not allow it to lapse. Also, proceed on to file for EB-5 as soon as possible. Considering the fact that you can be on H-1B for several years, assuming you seek the extension as well, your EB-5 can be approved before your H-1B term and the subsequent extension expire. Advisably, consult an immigration attorney to consider your options.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    If you continue with your current employer, then you could remain in H-1B status as long as the necessary H-1B petitions are filed. You can continue using your H-1B visa to travel until you would become a conditional permanent resident as an EB-5 investor. You do not need a re-entry permit in this situation. You need a consultation appointment with an immigration attorney to advise you about your situation and your EB-5 case.

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    Charles Foster

    Immigration Attorney
    Answered on

    To stay in the United States in H-1B status, you would need to file your H-1B petition prior to the expiration of your status. You are entitled to a maximum of six years in the United States in H-1B status. Given the fact that you have an approved employer petition or Form I-140, you can continue to extend your H-1B status beyond the six-year period. Once you file your EB-5 petition on Form I-526, it could take a year and a half or longer for the approval. Upon the approval, if visa numbers are available, you could then adjust your status within the United States.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    This can be done. Consult with your investment immigration attorney on this question.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    Yes, filing an I-526 petition has no direct impact on your H-1B. Maintain your employment for the H-1B sponsor and you shall retain the H-1B status. Once you receive the conditional LPR status, you will no longer have/qualify for H-1B status.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    You can only have one status at a time. If you want to do EB-5, you should adjust your status once I-526 is approved. If your spouse does the EB-5, you could remain on H-1B by not being part of her case as a derivative. However, continuing to extend H-1B, even with the I-140 approval under this administration, is not a sure thing, as USCIS is challenging all previously determined H-1B at the time of the extension, including whether the applicant is qualified or the job is a specialty occupation. As long as you choose a regional center with stellar, proven track records, removing condition should not be an issue and you need not remain on H-1B through the five-year or longer EB-5 process until the condition is removed. Also, if you do not stay out of the country for more than 12 months at a time, you need not obtain a re-entry permit every time you travel.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    You can remain in H-1B status as long as your I-140 is approved, until you get a green card, notwithstanding that you will have an EB-5 case pending.

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    Ying Lu

    Immigration Attorney
    Answered on

    Because H-1B is a dual-intent visa, you will remain in your H-1B status until your green card applications based on EB-5 are approved. And we recommend our clients to keep their valid non-immigrant status while they are in the EB-5 process.

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    Blake Harrison

    Immigration Attorney
    Answered on

    You actually would not stay on the H-1B until you receive the permanent green card through the EB-5 program. The EB-5 process involves three applications: Form I-526, Form I-485 and Form I-829. After the I-526 is approved, you will adjust status from the H-1B to a temporary green card holder by filing Form I-485. You will then file the Form I-829 21 months after the adjustment of status is approved. In the event that the I-829 is denied, you could apply for a green card based on your EB-2/EB-3 (Form I-140) approval once a visa becomes available under that category. If the EB-2/EB-3 category is backlogged at the time of the I-829 denial, you could potentially go back on the H-1B visa while you wait for the EB-2/EB-3 visa to become available, assuming you have not maxed out your six-year limit.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    If you already have an approved I-140 (and have not filed for adjustment), then it sounds like you are waiting for your priority date to be current (or else why start the EB-5?). Yes, you can continue to remain in the U.S. and work under the H-1B while you process for the EB-5 or when your priority date become current (whichever comes first). And, yes, as long as you are maintaining proper H-1B status, you can continue to travel during the process.

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