1. You cannot change status from an immigrant visa to nonimmigrant visa status in the US
A reader asks:
My case is a bit complicated. I-485 has been submitted for EB-5, and needing to provide additional documents. The approval is likely, but the project has declared bankruptcy, which may cause issues with the I-829 application later. Therefore, I am considering switching to NIW. If I receive the conditional green card now, can I voluntarily give it up before transitioning to the I-829 and continue with the NIW application? I have heard that transitioning from an immigrant to non-immigrant status is very difficult. If my conditional green card expires, do I need to leave the country immediately and apply for another non-immigrant status abroad, like the H-1B?
The company’s immigration officer said that they won’t retrieve my case and told me to wait for the green card. Can one really have no payroll before receiving the green card?
Alan Lee Esq. answers,
Having a conditional resident status allows you to remain legally in the US, but if you are not filing the I-829, the conditional status would expire and without any changes in your condition, you would seemingly have no basis to remain in the US. It is our understanding that you cannot change status from an immigrant visa to nonimmigrant visa status in the US, and that you would have to leave the country to obtain a nonimmigrant visa status. On your other question as to whether one can really have no payroll before receiving the green card, I assume that you are referring to the conditional green card – in such case, that is entirely possible, especially in the EB-5 context, and also given that you must have work authorization to be employed in the US.
2. You would face a 10-year bar for unlawful presence once you leave the country
A reader asks:
My I-140 is approved but my H-1B status has long expired. After I switched from F-1 to H-1B, I haven’t returned to my home country. If I go now for a visa interview, would there be a high risk?
Alan Lee Esq. answers,
If your I-140 petition is approved but your H-1B status has long expired, a major question is whether you have maintained legal status in the US. If you have not, you would face a 10 year bar for unlawful presence once you leave the country. Assuming that you are maintaining legal status under some other nonimmigrant category, you could face questions concerning your intent to take up the position with the I-140 sponsoring organization if that is also the organization that sponsored the H-1B. This is assuming that the organization is willing to move forward and keep sponsoring your immigration. In such circumstance, if you are able to convince the consular officer that there is still a bona fide need for your services with the organization, then the risk is mitigated.