I applied for a transfer of my H-1B from Company A to my own company. USCIS did not respond. My H-1B expired in January and USCIS finally responded in May terminating my H-1B. I am now appealing it, but I want to also apply for an EB-5 visa. Am I considered out of status even if I am appealing? Will my EB-5 application be affected in any way?
Once your H-1B is terminated, you do not have any status. An appeal does not necessarily restore a terminated status. It is also puzzling that you have not filed for an EB-5 visa. While the appeal may give you a presumptive position that you are seeking restoration of your H-1B, lack of filing of the EB-5 will not help. Seek counseling of an immigration attorney for both situations.
Unfortunately, appealing the H-1B denial does not grant lawful status in the United States. There are two considerations regarding the denial's effect on your EB-5 petition: 1. You must be able to demonstrate the lawful source of funds. If any of your investment is salary received from your company after your H-1B was denied/terminated, USCIS could reject the investment as funds gained through unauthorized employment. 2. When you get to the green card process, you must be able to demonstrate that you maintained lawful status while in the United States. If you are currently out of status and this is not remedied, then you may have an eligibility issue for the green card.
Since your status was terminated, you have no status, and by remaining in the United States you would be accruing unlawful presence. Accruing too much unlawful presence can result in you not being able to enter the United States for set periods of time (3 years, 10 years, permanently). It may be time to head home for awhile!
Since your H-1B expired in Jan. and confirmed in May, it appears that you are no longer in H-1B status. Also, it is my opinion that we would need more details on the application, denial and appeal before we can reasonably respond to your query. If it is eventually determined that you remained in the United States out of status, this would definitely affect your immediate eligibility for permanent resident status under the EB-5 program.
The filing of an appeal does NOT keep you in status. Your I-526 petition would not be affected, but your ability to adjust status would be. You must be in a valid nonimmigrant status in order to adjust under the EB-5 category. INA Section 245(k), which allows some employment-based applicants to adjust status if they have not been out of status or worked illegally for more than 180 days, does NOT apply to EB-5. Also, there is another 180-day rule you should be aware of: if you accrue more than 180 days of unlawful presence in the United States and then depart the United States, you will become subject to a three-year bar to reentering. So, if you plan on leaving the United States, you should do it before you become subject to any reentry bar. You should consult with an experienced immigration attorney.
By appealing, you are not in status. It is important to leave the United States promptly and then if you find another H sponsor, come back into status. You can apply for an EB-5 visa independently, but this would not give you any right to remain in the United States.
Once you received the decision from USCIS regarding your H-1B, you should leave the United States ASAP. Then you can apply for EB-5 through your immigration attorney.
I believe that during the appeal you speak of you would be out of status pending a decision. It would be best if you returned to your native country and filed the EB-5.
To answer accurately, one would have to read the denial letter to see if there is a status determination. Generally however, filing an appeal is a catch-22 because they can take more than six months. If you have been determined to be out of status, then the filing of an appeal does not toll the accrual of unlawful presence and if you leave after 180 days, then you are subject to a three-year bar, unless the appeal is successful.
