Because the H-1B is a dual intent visa, an application for the H-1B visa will not be affected by a pending immigrant visa petition. However, an immigrant investor with a pending I-829 petition has conditional permanent resident status and is not eligible for the H-1B visa until the I-829 petition is either abandoned or denied.
Unlike the EB-5 visa, the H-1B is a nonimmigrant visa. While eligibility for nonimmigrant visas is affected by the applicant or visa holder’s intention to remain the United States, the H-1B is classed as a dual intent visa. This simply means that despite entering the United States on a nonimmigrant visa, the visa holder will probably apply for an immigrant visa at some point, and they are permitted to do so. In contrast, a tourist visa is also a nonimmigrant visa, but one of the conditions of this visa is that the applicant or visa holder has not intention to remain in the United States. Applying for an immigrant visa while holding a tourist visa could lead to deportation.
Additionally, those who with to make the United States their permanent home can submit multiple application to United States Citizenship and Immigration Services (USCIS), provided their current immigration status allows this. However, it is best to discuss this strategy with an experienced immigration attorney to make informed decisions about the costs and implications of each visa type.
EB-5 investment visa applicants with pending I-829 petitions who want to pursue the H-1B visa instead should discuss their options with immigration counsel. An experienced EB-5 attorney will be able to provide the best advice regarding their unique circumstances and aspects such as the likelihood of success of the pending I-829 petition, the financial outcomes of withdrawing the petition, and the likelihood of success of the H-1B visa application.
