Can I apply for EB-5 in the U.S. with no legal immigration status?

Out-of-status nationals are no longer permitted to apply for their Permanent Residency Green Cards from within the United States. When we use the term “out-of-status,” it means the individual stayed in the United States beyond the time authorized by their non-immigrant visa.

It is important to understand the difference between your visa and your I-94. Your Visa allows you to come to the United States and if the visa is valid enter the United States. Your I-94, on the other hand, sets forth the period of your authorized stay. In other words, once you have entered the United States on your visa, we must look to your I-94 to learn how long your stay in the United States has been authorized.

There is an exception to the rule that out-of-status individuals cannot apply for Permanent Residency in the United States. This exception may allow them to apply if they have filed any petitions or applications that lead to Green Cards, such as immigration petitions (through employment or family) or labor certifications during the 245(i) benefit period by January 17, 1998 or April 30, 2001, they may file their applications to adjust status in the United States with the penalty of $1,000.

If you are out of status and do not have a 245(i) case, generally you must return to your home country while your EB-5 application is waiting for adjudication by USCIS. If you have stayed in the United States beyond the period authorized by your I-94, you should consult with your Investment Immigration attorney because an overstay—depending on its length—can result in a bar to your immigration for a period of three to ten years. Don’t make this determination on your own—always consult with your attorney and make certain you tell your attorney of any potential current or past overstay.

Don't hesitate to contact us or call 415-221-2345 if you have further questions.

Vaughan de Kirby
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San Francisco California EB-5 Investment Immigration Attorney

EB-5 Extended to September 30th 2020

Obtain a United States Green Card with a qualified investment of $900,000 in a USCIS Approved Regional Center. We have set our clock to September 30th 2020, however Congress is considering new legislation which will increase the qualified investment to $1,000,000. This change could happen at any time and the $1,000,000 could become the law with little or no notice. If a Green Card is important to you and your family please contact our office immediately.

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EB-5 Green Card for Indian Nationals

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If you are seeking permanent residence status in the U.S., request a free copy of Complete Guide To The EB-5 Green Card to learn about the EB-5 visa program.

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