Your Child Overstayed Temp Visa - Can She Still Get EB-5 Green Card

A primary motivation for many EB-5 investors is acquiring permanent residency status so their children have access to universities and employment opportunities in the United States.

But what if your child entered the U.S. on a temporary nonimmigrant visa, (perhaps a student visa or a parent’s H-1B) and overstayed the time allotted according to the visa restrictions? Would your child still be eligible for conditional residency and a green card as a beneficiary of your EB-5 visa?

It is not unusual for foreign nationals that have entered the U.S. to overstay their visas. However, depending on the circumstances, such actions can have serious consequences, including deportation. Once an individual has overstayed the period authorized by the Secretary of Homeland Security, he or she will be in unlawful status. Typically an individual’s unlawful presence in the U.S. of more than one-year will subject that person to a ten-year ban from returning to the United States. Those who stay for less than a year but more than 180 days are subject to a three-year ban.

The only waiver available for these prohibitions on re-entry to the U.S. is if the person applying for the waiver has a Lawful Permanent Resident or US Citizen spouse or parent who will face extreme hardship if the barred individual is not allowed back into the country. 

However, immigration laws and the U.S. State Department offer some leniency to minors. If a child is under the age of 18 and is unlawfully in the United States, they will not be considered unlawfully present until turning 18. For example, if your child enters the United States illegally at age ten, but leaves at age 15, no time will have accrued towards unlawful presence.

Therefore, if your child has overstayed their visa, he or she will likely still be an eligible beneficiary of your EB-5 visa. However, once an individual is out-of-status, they must first return to their country of origin and apply for conditional residency through the United States Embassy there. Thus, it would be necessary for your child to return home to await the adjudication of your I-526 petition and then proceed through consular processing.

At Jatoi & de Kirby, A.P.C., we know how important it is for you and your family to fully understand the benefits of the EB-5 immigrant investor program. Our California immigration attorneys can advise you on unlawful presence and whether your children and spouse are eligible beneficiaries of your EB-5 petition. Contact us today for more information.