Questions and Answers > EB-5 Requirements

How can I stay in the United States for EB-5 if my J-1 visa will expire?

I am in the United States on a J-1 visa which will expire in 10 weeks. I filed my I-526 four months ago for a direct EB-5 investment. What should I do after my J-1 expires - can I remain in the United States? If not, should I change my status to an F-1 visa before my J-1 expires so I can stay here? Or should I return to my home country and apply for an F-1 visa to come back to the United States? Would this option have any negative effect on my EB-5 approval?

Answers

• Julia Roussinova

  Immigration Attorney

  Answered on February 3, 2015

  You may experience difficulty extending or changing to a different nonimmigrant status due to the pending immigrant petition (I-526). You should not remain in the United States after your current status expires, and will be able to consular process and obtain the immigrant visa to immigrate to the United States upon approval of your I-526 petition. Your underlying status should have been discussed with your attorney prior to filing an I-526, as average processing times are 15 months. Additionally, ensure you are not subject to the two-year home residency requirement by talking to your attorney.

• John J Downey

  Immigration Attorney

  Answered on January 29, 2015

  F-1 status should have no negative repercussions. If you can adjust from J-1 to F-1 while in the United States, it would be best.

• Ed Beshara

  Immigration Attorney

  Answered on January 28, 2015

  Your intent to obtain an F-1 visa has to be valid to attend school full time. If you maintain valid and legal F-1 status and the I-526 petition is approved during your F-1 status then you can file your application for conditional permanent residency while residing in the United States. Please make sure you are not subject to the two year residency requirement under the J-1 visa.

• Oliver Huiyue Qiu

  Immigration Attorney

  Answered on January 27, 2015

  It is so unfortunate that you are asking the question now, when it should have been discussed with the immigration attorney who handled the I-526 filing some four months ago. Many people confuse the filing of the I-526 as the equivalency of providing a lawful status while the I-526 is pending. In reality, that is not the case. The applicant will not gain immigration benefits until I-526 approval and the subsequent I-485 filing. In your case, you probably need to extend your J-1 status, if that is still a possibility. To change from J-1 to F-1 either inside the United States or outside the United States is almost impossible, given that you now have immigration intent. You could also leave the United States as a last resort.

• Gregory Romanovsky

  Immigration Attorney

  Answered on January 27, 2015

  Thank you for your inquiry. The pending I-526 does not give you permission to remain in the United States, so you must keep your non-immigrant status (by changing it to B-2, F-1 or something else) or leaving before your J-1 status (and the grace period) expires. I assume you had an attorney helping you with the I-526 filing - he or she should coordinate the time for you

• Fredrick W Voigtmann

  Immigration Attorney

  Answered on January 27, 2015

  You may not legally remain in the United States after your J-1, plus grace period, expires. The pending I-526 does not grant any immigration benefits. If you apply for a change of status or apply for a new nonimmigrant visa in your home country, you might be considered to be an intending immigrant due to the pending I-526 petition (which is an immigrant petition indicating your intent to permanently reside in the United States). Applying for a nonimmigrant visa/status will not affect your EB-5, but your pending EB-5 may adversely affect your ability to obtain a nonimmigrant visa.

• Yevgeny Samokhleb

  Immigration Attorney

  Answered on January 27, 2015

  A pending I-526 petition does not grant you authorization to remain in the United States unless you have another form of legal status to rely on. You may need to return to your home country to await approval of the petition. You may possibly change your status, but that may have implications on your future green card application. You should consult with your immigration attorney.

• James Zhou

  Immigration Attorney

  Answered on January 27, 2015

  You can change your status from J-1 to F-1 without leaving the country, or you can go back to your home country. However, if you go back and try to obtain an F-1 visa through the consular process, your application may be denied due to your immigration intent.

• Salvatore Picataggio

  Immigration Attorney

  Answered on January 27, 2015

  It is never advisable to be out of status. If you can legally change or extend your status, you can adjust to conditional permanent residency once your I-526 petition is approved. Alternatively, you can leave the United States and, upon I-526 approval, apply for conditional permanent residency at the U.S. consulate. Based on your timeline, you would have to be out of the United States for 10 months or so. If you can legally extend or change your status, that may be a good option.