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Should I apply for H1-B with an I-526 approval?

I am a Chinese EB-5 investor. My I-526 petition has been approved with a priority date of Jan 26, 2015. However, due to the waiting list for Chinese investors, it is uncertain when I will actually get the green card. I am currently completing a master’s degree in the U.S. and is expecting to graduate this May. I am not sure how I should describe my situation to employers about this when I apply for jobs. Can I tell them I need H-1B sponsorship? Can I apply for H1-B with an I-526 approval?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Apply for OPT and also consider H-1B if possible. H-1Bs are getting harder to obtain these days with the introduction of new rules coming soon. An H-1B will not be affected by an approved I-526. You may also consider other visa options, such as L-1B or L1-A, if qualified.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Yes, the H-1B is a good idea given the expected delay to immigrate. You may also be eligible for F-1 OPT upon graduation.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    You should absolutely apply for OPT and an H-1B, if possible. Having an I-526 approval does not hurt your H-1B chances.

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    Ying Lu

    Immigration Attorney
    Answered on

    I-526 approval itself does not grant you the right to work or even stay in the U.S. while your current F-1 expires. You need sponsorship from your employer and apply for H-1B.

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    Charles Foster

    Immigration Attorney
    Answered on

    Given the fact that you have an approved EB-5 petition on Form I-526 with a Jan. 26, 2015, priority date, as a Chinese national it will be a number of years before a visa becomes available. In the interim, you will be ineligible to either file for adjustment of status within the U.S. or for your immigrant visa at the American consulate in Guangzhou, China. As a result, unfortunately in order to remain in the U.S., you will have to have an interim status and you should encourage your employer to file on April 1st an H-1B petition on your behalf. Yes, you can qualify for H-1B status, even with an I-526 approval, although there's no certainty given the limitations of H-1B numbers that your petition will be selected for adjudication.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    Yes, you can try to get an H-1. Usually they will approve it, even if you have an EB-5 pending, as the EB-5 waiting list from China is so long.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    The more typical case is when somebody already has the H-1B non-immigrant visa but is losing hope that he will be able to get the green card and decides to apply for the EB-5 with immigrant intent through the I-526 filing. Your case, understandably, is the reverse. Because H-1B is a dual-intent visa, you might be OK. Have you investigated the EB-2 or EB-3, both immigrant non-conflicting permanent resident routes through PERM labor certification? You might want to inquire this to be on the safe side.

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    Phuong Le

    Immigration Attorney
    Answered on

    If you have an employer that's willing and able to sponsor you, it doesn't hurt to apply for it as a backup plan, given the backlog.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    Yes, there is no prohibition to your filing for an H-1, as an H-1 is a dual-intent visa.

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    Stephen Berman

    Immigration Attorney
    Answered on

    You can. You need to find a sponsor.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    It may be hard because H-1B is a non-immigrant visa. It does allow dual-intent (that is, having immigrant and non-immigrant intent is OK), but that's usually in a case where the foreign person has the H-1B before filing an I-526 or I-140. Perhaps a new employer can do a PERM for you instead of H-1B?

  • Avatar

    BoBi Ahn

    Immigration Attorney
    Answered on

    Yes, you have the option to apply for H-1B status with an approved I-526 petition. H-1Bs are dual-intent visas, which allow for immigrant processing/intent while maintaining a non-immigrant status.

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