What is a foreign national’s status while appealing H-1B termination, and how could such circumstances affect an EB-5 petition?

The termination (or expiration) of H-1B status results in unlawful status. The act of appealing H-1B termination does not restore status or permit the foreign national to remain in the United States.

After H-1B termination, if the foreign national continues to remain in the U.S., they are accruing unlawful presence. In terms of participating in the EB-5 program, being out of status — in addition to unlawful presence — can have significant influence on any filed EB-5 petitions.

Unlawful Presence and Inadmissibility

If the foreign national accrues more than 180 days but less than one year of unlawful presence, they will be subject to a three year period of inadmissibility. A time-limited bar on re-entry to the United States can significantly delay a prospective EB-5 investor’s commencement of the EB-5 program. Generally, the prospective EB5 investor must fulfill the duration of their ban to release themselves from further inadmissibility.

Adjusting Status

A foreign national who does not have legal nonimmigrant status will not be eligible to adjust status to conditional permanent resident upon approval of Form I-526. If the foreign national is in the midst of appealing H-1B termination, they should return to their home country. Once Form I-526 is approved, they will need to undergo consular processing through the U.S. embassy or consulate office located in their home country.

Source of Funds Requirement

The investment capital used to make an EB-5 investment must be lawfully sourced, in accordance with the regulations set out by United States Citizenship and Immigration Services (USCIS). Therefore, any income a foreign national earns in the U.S. without status cannot be used for their EB-5 investment because it was earned through unauthorized employment.

To ensure they begin the EB-5 process under ideal circumstances, foreign nationals should take care to comply with all immigrant visa regulations. Individuals who are appealing H-1B termination and wish to begin the EB-5 process should consult an immigration attorney as soon as possible.