There should be no adverse consequences if an H-1B visa holder chooses to file an I-526 petition. Because the H-1B visa permits dual intent, filing an I-526 petition should not affect the visa holder’s H-1B status.
While their I-526 petition is pending, the H-1B visa holder should ensure they maintain status until approval is granted.
H-1B Visa: Maintaining Status
To successfully maintain H-1B status, the visa holder must retain a valid passport and I-94 form at all times. They must report any changes in address by filing Form AR-11 within 10 days of moving to a new residence. Furthermore, they must adhere to the terms and conditions of their visa by only performing the work specified in their approved H-1B petition. Deviating from the specified work in their visa could result in violation of status.
Filing Form I-526 as an H-1B Visa Holder
The H-1B visa holder may file Form I-526 while employed as a temporary worker in the United States. Like any other foreign national, they must comply with the requirements outlined by United States Citizenship and Immigration Services (USCIS) by investing the minimum amount of investment capital into an eligible new commercial enterprise (NCE) and compiling all necessary supporting documentation for their I-526 petition. They must provide evidence that they have irrevocably committed their investment funds, that the investment will remain “at risk” and that their capital was lawfully sourced. Furthermore, they must prove that the chosen project or business will create at least 10 full time jobs, to be filled by authorized U.S. workers. It is generally advisable for all EB-5 investors to retain the counsel of an immigration attorney during this period.
Due to the changes put forth by the EB-5 Reform and Integrity Act of 2022, the H-1B visa holder will be eligible to concurrently file Form I-485 along with their I-526 petition. Upon approval of Form I-526, the H-1B visa holder will be able to automatically adjust status to conditional permanent resident.
