Questions and Answers > EB-5 Requirements

How can we resume our H-1B visa after I-829 denial?

My wife and I have applied for an EB-5 visa. Both of us are on an H-1B visa currently working in the United States. Once the I-526 is approved, both of us will change our status and get the temporary green card. In the event the I-829 is denied, how can we go back onto our H-1B visa? Can we resume it without going through the lottery system?

Answers

• A Olusanjo Omoniyi

  Immigration Attorney

  Answered on March 2, 2016

  Whether you can resume or not depends on a host of facts. First, the H-1B visa can last for a maximum of six years and secondly, it is usually issued for two to three years per term. As current H-1B visa holders, if either of you have not exhausted his/her six years, you can return to the remaining unspent period of your H-1B visa in the event your I-829 is not approved. In addition, you do not need to go through the lottery system again. For proper planning, seek further information from an EB-5 attorney who is also conversant with the H-1B visa, particularly on whether you are returning to the H-1B visa with (or without) the same employer.

• Salvatore Picataggio

  Immigration Attorney

  Answered on February 23, 2016

  Conditional permanent residency is still permanent residency. It may be very hard to overcome immigrant intent issues if you try to apply for an H-1B after two years as a conditional permanent resident.

• Fredrick W Voigtmann

  Immigration Attorney

  Answered on February 23, 2016

  It is unlikely that you will be able to go back to your H-1B status seamlessly in the event your I-829 is denied. Since you will be an immigrant for at least two years, if you decide to go back to your H-1B sponsor, you likely will be subject to the lottery again. Another better option would to be sponsored for a PERM labor certification green card based upon an offer of employment; you could start this process now and have it in place in two to three years when the time for your I-829 adjudication is due. This could be a viable alternative/safety net unless you and your spouse were both born in China or India.

• Jimena G Cabrera

  Immigration Attorney

  Answered on February 19, 2016

  It is not possible to "resume" your H-1B status. You need to start the process from the beginning, i.e., file for LCA, etc. The time you were in H-1B status will count towards the six years, unless you were living outside the United States for at least one year.

• Bernard P Wolfsdorf

  Immigration Attorney

  Answered on February 19, 2016

  Yes, you can go back to H-1B if you have not used up the full six years.

• Olivia Orza

  Immigration Attorney

  Answered on February 19, 2016

  You would most likely have to begin the H-1B process all over again and therefore go through the lottery system. Please contact an immigration lawyer to discuss the specifics of your case.

• John J Downey

  Immigration Attorney

  Answered on February 19, 2016

  It depends on where you are in the H-1B process. Are you on the first three years with an opportunity to extend for another three years? If not, you would want to ask your employer to offer you permanent employment.

• Ian E Scott

  Immigration Attorney

  Answered on February 19, 2016

  If you have an H-1B now that was granted subject to the Cap, you are exempt from the Cap for future H-1B applications that are still within your six year term. For example, if you had an H-1B for two years and then obtained a different visa and then later wanted to apply for an H-1B visa, you could get an H-1B visa again without being subject to the cap or lottery and this could be granted for three years and then an additional one year.