Can I Apply for EB-5 If I Am in the United States With No Legal Immigration Status?

Published on 08/19/2016

Hello, I’m Vaughan de Kirby. I’m an investment immigration lawyer here in San Francisco. Today we’re going to address a problem that has come up recently, and I thought we should do a quick video on it. The question we received was I am currently out of status in the United States, can I still apply for EB-5?

Before I answer that question, I think we need to define some terms here. Number one, when someone says that they’re out of status, that means they have overstayed their authorized stay in the United States, therefore have no immigration status at that time. The other definition that you need understand is the difference between a visa and your I-94. Your visa allows you to come to the United States, but when you arrive in the United States, you’ll receive an authorized stay in the form of an I-94. In the past it was a little card, now it’s a stamp in your passport. That is how long you’re authorized to stay in the United States. And if you stay beyond that period, then you’d be considered out of status. So back to our question, can you apply for EB-5 if you’re out of status?

The simple answer generally is no, but don’t let this discourage you immediately. Do consult with your attorney; because there is a little-used law called 245(i) where as certain types of application were filed before a particular date, there is a possibility that you could in fact adjust in the United States. So don’t make that decision on your own.

Another message that’s part of this is if you’re in fact back in your home country, and you’re about to apply for EB-5, and you know that at some point in the past, you overstayed your authorized stay in the United States, make certain that you discuss that with your investment immigration lawyer, because he or she is going to need to know that to properly process your application. I hope this was helpful.

Please let us know if you have more questions. You can also call 415-221-2345.

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