An H-1B visa holder with an approved I-526 petition is permitted to travel provided their H-1B visa is kept active. Because the H-1B visa comes with a travel card, an EB-5 investor with an approved I-526 petition may travel even before adjusting status and receiving a conditional green card.
H-1B Visa
Having an approved I-526 petition and H-1B visa simultaneously is acceptable because the H-1B visa has dual intent, which permits the visa holder to express immigrant intent through their participation in the EB-5 process and continue to reside in the United States temporarily. Therefore, having an H-1B visa will not compromise the EB5 investor’s application process in any way.
In order to travel on an H-1B visa, the visa itself must still be valid and the EB-5 investor must meet the visa’s underlying conditions. Specifically, the EB-5 investor must continue to work for the sponsoring employer specified in their visa. They must also maintain a valid passport and I-94 form (Arrival/Departure Record) at all times. In terms of traveling abroad, the H-1B visa holder may make personal trips, such as to visit friends or relatives, or professional trips, which could include attending an overseas conference or conducting business with work colleagues.
Approved I-526 petition
If the EB-5 investor had previously entered the United States on an H-1B visa prior to beginning the EB-5 process and their priority date is current at the time of filing Form I-526, they would be eligible for concurrent filing of the I-526 and I-485 petitions. This means they can adjust status to conditional permanent resident while awaiting adjudication of Form I-526.
Signed into law with the EB-5 Reform and Integrity Act of March 2022, concurrent filing would benefit H-1B visa holders, who can continue to travel without restrictions once they have adjusted status to conditional permanent resident status.
