For every family, EB-5 visa application is based on the same approved I-526E petition, filed by the primary EB-5 investor. However, admissibility is determined individually. Therefore, a derivative beneficiary who has overstayed their visa would most likely run into significant challenges when applying for an EB-5 visa and green card.
If the EB-5 derivative who overstayed their visa accrued less than 180 days of unlawful presence, they may be able to leave the United States and undergo consular processing from their home country with minimal consequences. However, if the derivative accrued more than 180 days, leaving the United States will trigger a 3-year or 10-year bar from reentry. The derivative must wait until this ban is over before applying for an EB-5 visa. Depending on the circumstances that made the derivative overstay their visa, they may be eligible to file a waiver.
Section 245(i)
If the derivative is currently in the United States, they will not be eligible to adjust status with an expired visa unless they are grandfathered under section 245(i).
This provision is part of the Immigration and Nationality Act (INA) and allows for certain individuals to adjust status or obtain lawful permanent resident status regardless of customary disqualifications, including unlawful entry, working in the United States without lawful work authorization and failure to maintain lawful status since entry. To qualify, the individual must be the beneficiary of an immigrant visa petition (Forms I-130 or I-140) or a labor certification application (Form ETA 750) filed on or before April 30, 2001.
Form I-601
The Application for Waiver of Grounds of Inadmissibility may be filed by individuals who are pursuing an immigrant visa or adjustment of status and are seeking to waive certain grounds of inadmissibility. Under the eligibility categories, individuals who have been subject to the 3-year or 10-year bar due to previous unlawful presence in the United States are eligible to file Form I-601 to obtain relief from those inadmissible grounds.
Overall, it is possible, albeit difficult, for a derivative who has overstayed their visa to acquire an EB-5 visa and green card, though the best steps to take will depend on the derivative’s unique situation. It is highly advisable for any applicants in this situation to consult an immigration attorney for guidance on how to best proceed.
