EB-5 Q&A: Whether an F-1 visa holder can apply for an H1-B and EB-5

Question: How can an F-1 visa holder apply for an H-1B and EB-5 visa?
Question Detail: I am currently still a student working on an F-1 visa, and I will apply for an H-1B sponsored by my employer. I am also considering submitting an application for a green card through EB-5. Will the H-1B application be impacted if I submit the EB-5 application first? In what order should I apply for the visas?


An F1 student may apply for both H-1B and EB5 visas. We have F1 student clients who do both separately and simultaneously.There are directions on how to apply on the USCIS website. However, both H-1B and EB5 applications require more technical knowledge than many other immigration applications. For that reason, I would suggest that you contact an immigration attorney who works with those application for a further discussion on how to apply. Applying for an H-1B will not impact your EB5 application or vice versa. Before answering your question about which application to file first, please consider - - Do you wish to become a U.S. conditional permanent resident while remaining in the United States. If so, you need to maintain legal status until your EB5 application is approved and an EB5 visa is available to you. Currently it is taking 13.8 months for the USCIS to process an EB5 application. Assuming your application were approved, you may need to line up for an available visa.  Each year the U.S. Congress issues a given number of immigrant visas in several classifications. The U.S. Department of State then makes approximately 1/12th of those visas available each month to foreign nationals who have approved petitions/applications. If the USCIS has approved more petitions/applications than visas available, a waiting line is formed according to the date on which the foreign national’s petition/application was initially received by the USCIS. Currently there are EB5 visas available, but the public has been warned that a line may likely to be forming by the time your EB5 application would be processed. The discussion of processing time and availability of visas is important to your question about which application to file first. If you have a choice of filing the EB5 application before the first of March 2015, I would suggest that you do so in order to obtain the earliest date in line for an available EB5 visa, assuming your application would be approved. Otherwise, I suggest that you use your time before April 1st to assist your employer in filing the H-1B application on April 1, 2015, the first date applications may be filed for the year commencing October 1, 2015. Many who work in the H-1B visa environment anticipate that the whole yearly quota will be filled within the first days. There is no line for H-1B visas. If a visa is not obtained for the 2015-2016 year, filing does not commence again until April 1, 2016 for the subsequent 20160-2017 year. Since you are currently an F1 student, if you wish to adjust status within the U.S. and wish to cover the above mentioned timing variables in order to maintain status, I suggest that you obtain OPT on graduating. OPT continues the F1 status after graduation so that the foreign student can obtain practical training in his or her field of study before returning to the national’s home country. OPT will give you an additional year, and more if you are a STEM studies graduate. It is possible that, this year, the USCIS might have to go to a lottery in issuing H-1B visas if applications on April 1, 2015 exceed the number of visas available for the year 2015-2016.An extra year in F1 status may be needed if your employer were to miss out in a lottery. Good luck.Enjoy your studies and anticipate a good future.