Currently, Queen City Immigration Law is spreading the word about the usefulness of business and investment visas to emerging market communities. Visas in the E and L category are far less expensive than the EB-5 investment visas. One common question is, whether persons that have overstayed their visa status in the United States can take advantage of these visas. The answer is: it is possible, but very risky.
The only way to have a nonimmigrant visa based on employment or investment is to leave the United States and acquire the visa from a consular office. A three (3) year overstay on a visa will trigger a ten (10) year bar from reentering the United States once the foreign national departs.
There are nonimmigrant visa waivers available for these circumstances such as the I-601 waiver. Additionally, the foreign national would need to go through the normal process for applying for an L or E visa to have an opportunity to submit a waiver requests. Once the foreign national reaches the consular processing step (done in their home country after the visa application is filed online, generally after an approved petition), the foreign national will be deemed inadmissible based on the overstay in the United States and his case will be denied.
At that point, the consular officer will provide the foreign national with the available options for filing a waiver under section 212 of the INA. These waivers require the submission of a legal brief to prove the case. The consular officers are looking for the gravity of the offense, the risk of harm in admitting the applicant back into the United States, and the importance of the applicant's reason for entering. Decisions are determined on a case by case basis, and the reviewing officer has discretion. Generally speaking, these waivers are not easy. That being said, waivers for nonimmigrant visas are usually easier to obtain than immigrant visas. Keep in mind, they will be temporary (for admission of up to five (5) years). They will not allow for adjustments of status to obtain a green card unless a separate waiver is submitted for that case upon filing it.
Once the waiver is submitted and reviewed, the applicant will be called for an interview at the consulate and a decision will be made. Unfortunately, the applicant will have to leave the US in order to complete this process. Although the foreign national may be eligible for a provisional unlawful presence waiver (which can be filed in the United States while foreign national is there) the foreign national will still need to leave the United States to attend the interview at the consular office. The risk of leaving to proceed with this process is that, if denied, he will be barred from returning for ten (10) years.
If you are out of status but considering applying for a business or investment based visa, call Queen City Immigration Law at 704-500-2075 and schedule a consultation.