A previous overstay may result in the EB-5 visa being rejected. Whether the application is rejected will depend on several factors, including the length of the overstay, how long ago the overstay took place, and the reason for the overstay. Section 212(a)(9)(B)(i) of the Immigration and Nationality Act (INA) sets out the specific effects of a previous overstay on a current visa application.
Under the relevant law, a visa application will be denied if the applicant remained in the United States after their visa expired or if they entered and remained in the country illegally. The applicant will remain ineligible for a visa for three years if they stayed for 180 days or more but less than a year, and for 10 years if they stayed for more than a year.
Under INA, a visa applicant can apply for a waiver of ineligibility to waive a specific ineligibility criterion that led to the denial of a visa. The Department of Homeland Security (DHS) adjudicates all waivers of ineligibility, and this process is discretionary, which means DHS is not guaranteed to grant a waiver. However, being granted a waiver would reopen the path to a visa.
Not everyone can apply for a waiver. Factors that affect the ability to apply include whether a waiver is available under the law that has led to ineligibility, being otherwise fully qualified for the visa applied for, or whether denial of the visa would lead to extreme hardship for an immediate family member who is a U.S. citizen or lawful permanent resident.
Because of the complexity of this aspect of immigration law, EB-5 applicants should consult with immigration counsel to confirm their eligibility for an EB-5 visa before filing Form I-526. An immigration lawyer can also advise them on the steps they need to take if they can apply for an ineligibility waiver. Applying for a waiver involves submitting Form I-601 to USCIS.