There are many things to take into consideration when deciding whether to file an EB-5 petition and a green card application (also known as the Adjustment of Status application) at the same time. Some include whether the timing is right, whether the source of funds is readily available, and in some instances, whether having violated one’s immigration status, by overstaying a status or working without authorization.
There is a provision within the immigration laws, found under Immigration and Nationality Act (INA) Section 245k, that essentially forgives immigration violations in some circumstances. This is important as immigration violations can be a bar to getting an approved green card application.
Under Section 245k, if the person who violated their immigrations status files an EB-5 petition and a green card application (while in the U.S.) based on the EB-5 petition, then there are some situations where the immigration violation is essentially “forgiven.” The provision essentially erases the immigration violation so long as the person has lawfully entered the United States, and then has not violated their status again since that last admission. The term “lawfully admitted” is very important because the person must have entered with any other document than their advance parole document. This is because the advance parole document means the person has been “paroled” into the United States.
Let’s take some examples.
- An H-1B worker who has been laid off in January 2024 is considering filing an EB-5 petition and green card application. It is not until April 2024 that they are able to file the EB-5 petition. At this point, the H-1B worker has been out of status for about 30 days, after having a 60-day grace period. Section 245k applies here because the H-1B worker has not overstayed their status for more than 180 days.
- An F-1 student attends school for the 2023-2024 school year. In May of 2024, the student receives their OPT to work for an employer, but the employer rescinds the offer. The student is not able to begin work and exceeds the 90 days of unemployment allowed, but stays in the U.S. and travels the country. The student then departs the country in May 2024. In August 2024, the student returns to the US on B-2 visitor visa and files an EB-5 petition and green card application 90 days after entry in November 2024. In this case, the student’s F-1 status violation was greater than 180 days. However, when the student was able to return as a visitor, that last lawful entry, combined with filing an EB-5 petition and green card application, triggered the 245k exemption and allows the student to receive approval on their green card application.
- An H-1B worker is laid off in October 2023 and has a grace period until the end of December 2023. The H-1B worker is not able to find a job and stays in the U.S. and starts working on their EB-5 petition, but is not able to file until August 2024, accruing more than 180 days of immigration status violation. The H-1B worker obtains their advance parole in October 2024, leaves the U.S., and returns two weeks later with their advance parole. In this case, even though the H-1B worker has not committed any violations since their last entry into the U.S., Section 245k does not apply because the H-1B worker was not lawfully admitted, and was instead paroled into the U.S.
Of course, these examples and fact patterns are not guaranteed, as there are other mitigating factors USCIS may take into consideration when adjudicating your green card application. If you have immigration violations, it may not be a permanent bar to obtaining a green card through EB-5.
The above article is intended for informational purposes only and is not based upon any specific set of facts. Anyone with specific questions or issues concerning EB-5 or H1-B should consult an immigration attorney.
