How might a pending EB-5 petition affect an H-1B extension application?

An investor with a pending EB-5 petition should be able to apply for an H-1B extension without any issues. Because the H-1B visa carries dual intent, there should be no disadvantageous influence on either EB-5 or H-1B applications. When filing the H-1B extension form, the EB-5 investor will be obliged to include mention of their pending EB5 petition.

Dual Intent

The H-1B visa is one of the few nonimmigrant visas that permit dual intent. This means the H-1B visa holder is permitted to temporarily reside in the United States while expressing immigration intent. As such, a pending EB-5 petition, which is indicative of permanent immigrant intent and the desire to acquire a U.S. green card, would not negatively influence the H-1B visa holder’s status or any attempt to extend their H-1B visa.

H-1B Visa Extension

The standard H-1B visa is generally valid for up to three years, after which point the visa holder may file for an extension. To do so, the visa holder’s sponsoring employer must file Form I-129 on their behalf for an additional maximum of three years. They must append filing fees and supporting documents to the application. Such documents will likely include the applicant’s unexpired passport, a valid Form I-94, a letter explaining their job within the company, university diploma(s) and transcript(s), W-2s and paychecks, and the I-797 petition originally issued by United States Citizenship and Immigration Services (USCIS) approving H-1B status.

The sponsoring employer must file for an extension before the expiration of their employee’s current H-1B visa. If the H-1B visa holder has a spouse and/or children who need extensions, they will need to file Form I-539 for them. All direct family members can be included on the same I-539 petition.

At the same time, the H-1B visa holder is permitted to pursue a U.S. green card by filing Form I-526 and have this petition pending while they apply for their H-1B visa extension.