I am a business owner with 27 full-time employees. I arrived to the United States in 2003 with a tourist visa. I overstayed my visa, and now it is expired. I was in the process of deportation in 2009, but I was granted prosecutorial discretion. I applied for a U visa in 2010, and so far I have no answer. How will overstaying my tourist visa affect my changes of obtaining EB-5 approval? What will happen to my EB-5 application if I am approved for my U visa?
It is difficult evaluate your case based on the limited information you have provided. Simply put, if you are out-of-status and in the country illegally, you will not be allowed to adjust in the United States, which may subject you to a 10-20 year bar.
Overstay does not directly affect your I-526 petition, but it will make you ineligible for adjustment of status in the United States. Furthermore, depending upon your particular situation, you may be subject to a bar to reentering the United States should you leave. This reentry bar is a result of unlawful presence in the United States. You should consult with an experienced immigration attorney for specific advice on your detailed situation.
Situations like this would have more of an effect when applying for your conditional permanent residency than for the initial I-526 petition. Retaining qualified U.S. immigration counsel will help you prepare for that portion of the process and how to best proceed to allow for approval.
Your overstay will significantly affect any EB-5 application. In the past, the USCIS''s denial of applications had been sustained on appeal by the Administrative Appeals Office (AAO). In fact, there were instances in which the denials were based on the fact that the funds 2343 generated while the applicant was in unlawful status, and thus without work authorization could not be classified as lawful funds. Thus, even your funds acquired in the United States while you are in unlawful status may not be recognized as lawful funds. Please note that prosecutorial discretion is for the removal proceeding, and whatever argument(s) offered for the prosecutorial discretion may not likely be applicable to the EB-5 visa application. While a U Visa can take a long time as a result of extensive background investigations, your application since 2010 without approval suggests the USCIS needs additional time to work the kinks out. Although you never mentioned it, hopefully you are using the service of an immigration attorney to sort out these two visas: EB-5 and U visas. The requirements for each visa are vastly different from each other. If your U visa is approved, then you don''t need to pursue an EB-5 visa. Advisably, talk to an immigration attorney on all these facts before you proceed further.
Your overstay and prosecutorial discretion makes anything short of a marriage impossible to obtain resident status.
The petition for I-526 can be approved regardless your status in the United States. If you are in the United States and out of status, you cannot apply for adjustment to conditional permanent residency. However, if you have been in an unauthorized stay in the United States for either more than six months or one year, then you may not be able to obtain conditional permanent residency to the United States through the U.S. consulate.
Your EB-5 visa will not be affected. But, because you overstayed your allowed presence in the United States, you cannot adjust your status to that of a legal permanent resident in the United States. You would have to leave the United States to receive your immigration visa. However, as soon as you step outside the United States, you will trigger a 10-year bar of re-entry. So, an EB-5 application will not help you adjust/change your status and stay in the United States permanently right now. Hopefully, your U visa will be approved, and you will be able to adjust your status through it. However, to answer your question about a U visa and how it can affect a pending EB-5 application, these are two different applications, and they do not affect each other at all.
The critical question is with what type of visa you entered. If you were given a specific date to stay here, this is a major problem. In contrast, if you were given D/S or did not use a visa (Canadian), you are probably in better shape.
Your case presents complex immigration issues which warrant full evaluation. For one, the status of your U-visa needs to be determined; for another, your overstay needs to be further evaluated. Please consult with a qualified EB-5 lawyer before proceeding.
Prosecutorial discretion does not confer any status; it merely puts your deportation proceeding on hold. I don''t know why you were put into removal/deportation proceeding, but from the time of the immigration judge''s decision to close the proceeding, you have started accruing unlawful presence, which has implication of 10 year bar to admission that will affect any immigrant visa application process, whether EB-5 or other category. As you are no longer in any valid status, you cannot adjust status, which means any immigrant petition for which you receive approval needs to be followed by consular processing instead of I-485 (adjustment application), with few exceptions and/or waiver for that bar. One of the exceptions is the U visa, which allows an illegal immigrant who has had the U visa granted to be able to adjust after three years. However, the U visa pending since 2010 with no decision also does not seem appropriate. You should have had a decision by now. I would have your attorney make an inquiry. In summary, I do not think you are a good candidate for the EB-5 process.
Assuming your I-526 petition is approved, you may not be able to take advantage of it. In order to get your green card without leaving the United States, you will have to demonstrate that you have maintained legal status since your entry. Otherwise, you will need to go through the consular process, but if you leave the United States, the 10-year bar on re-entry (because of your unlawful presence for more than a year) will kick in. This is a very tough situation that requires a detailed discussion with an experienced immigration attorney.
DISCLAIMER: the information found on this website is intended to be general information; it is not legal or financial advice. Specific legal or financial advice can only be given by a licensed professional with full knowledge of all the facts and circumstances of your particular situation. You should seek consultation with legal, immigration, and financial experts prior to participating in the EB-5 program. Posting a question on this website does not create an attorney-client relationship. All questions you post will be available to the public: do not include confidential information in your question.