Yes, an H-1B visa holder in the United States may apply for an EB-5 visa; they can even file and have multiple pending U.S. green card petitions. After filing Form I-526E and Form I-485 concurrently, the H-1B visa holder can continue to be lawfully employed on their current visa while their I-526E petition is being processed and adjudicated by United States Citizenship and Immigration Services (USCIS). Through concurrent filling, the H-1B visa holder can also apply for an employment authorization document (E A D) and travel permit called advance parole (A P). One approved within a few weeks, applicats can live, work, and travel freely even before they receive their EB-5 Green Card.
Despite being categorized as a nonimmigrant visa, the H-1B visa holds dual intent. As such, the holder of an H-1B visa is permitted to seek immigration to the United States at some point during their residence and, by extension, convert to an EB-5 visa without any problems. By contrast, tourist visas, which are also categorized as nonimmigrant visas, do not carry dual intent and therefore the holder of a tourist visa is admitted to the United States with the expectation that they will only stay temporarily, without the intent of immigrating permanently in the future.
It is important to distinguish between nonimmigrant visas with dual intent and those without because the latter could prove very problematic for foreign nationals who wish to pursue an EB-5 visa. The holder of a nonimmigrant visa without dual intent who is suspected of violating the limitations of their visa could be denied entry into the U.S. or face deportation.
However, an H-1B visa holder should have no problem applying for an EB-5 visa. As the first step of the process, prospective investor are advised to hire an experienced immigration attorney.
