In order to be eligible to file an adjustment of status application pursuant to an approved I-526 petition, there must be immigrant visas available (i.e. the applicant’s priority date must be earlier than the date in Chart A of the Visa Bulletin) and the foreign national must be in the United States in valid non-immigrant status. Unfortunately, the current visa backlog in the China EB-5 category means that Chinese investors with priority dates prior to the Chart A date must wait to file an adjustment of status (“AOS”) application until an immigrant visa is available to them.

While waiting for an immigrant visa to be available, it is important for a foreign national to maintain lawful non-immigrant status. Status violations or overstaying a visa by a period of only one day makes a foreign national ineligible to file an AOS application once his/her priority date is current under Chart A.

Common non-immigrant visas include F-1, H-1B, L-1, and B. For F-1 visa holders, your school’s international student office can assist you with maintaining your F student status, including answering questions on work authorization and course load requirements. The H-1B and L-1 visas are both non-immigrant visas for foreign workers in the United States. It is important to consult an attorney prior to changing employers or worksites within the same company to ensure visa compliance. Visitors to the United States on a B visa are generally ineligible to work or enroll in school. If you have any questions regarding maintenance of lawful non-immigrant status in the United States, please ask for a consultation with your attorney.