If you are an H-1B or L visa holder who has been recently laid off, navigating the next steps can be challenging. A layoff typically initiates a 60-day grace period to secure a new employer sponsor, switch to a different nonimmigrant status, or apply for adjustment of status to permanent residency. After this period, nonimmigrant visa holders face the risk of accruing unlawful presence, which can impact their eligibility for U.S. permanent residency. However, if you are pursuing an EB-5 visa, the 245(k) exemption can offer vital relief.
This exemption, under Section 245(k) of the Immigration and Nationality Act (INA), allows applicants and their families to file for adjustment of status even if they have accrued up to 180 days of unlawful presence since their last lawful admission to the U.S. This provision extends a critical lifeline to those navigating layoff-related uncertainties while preserving their EB-5 green card opportunity.
How the 245(k) Exemption Helps EB-5 Investors After Layoff
The 245(k) exemption allows EB-5 applicants and their families to file for adjustment of status even if they have accrued up to 180 days of unlawful presence since their last lawful admission to the U.S.
Here’s how it helps:
- Extends the time beyond the initial 60-day grace period.
- Provides up to 180 days to file I-526E and I-485 adjustment of status applications even if out of status.
- Enables thorough review of EB-5 projects, preparation of necessary documentation, and securing funds without the pressure of immediate departure.
In the current economic landscape, where layoffs are common, the 245(k) exemption has become an essential safeguard for many EB-5 applicants. The RISE Fund, offered by Behring Co., presents a unique opportunity for those seeking a U.S. green card through the EB-5 program.
Practical Tips for EB-5 Investors Utilizing the 245(k) Exemption
- Track Your Out-of-Status Days Carefully
Monitor your visa status and be aware of the expiration of your grace period. Detailed records can be beneficial if you need to explain any time out of status to USCIS. - File for Adjustment of Status (AOS) as Soon as Possible
While the 245(k) exemption provides flexibility, filing promptly is always recommended. With concurrent filing available for set-aside categories as of January 2025 Visa Bulletin, those facing employment uncertainties should take immediate action to file for adjustment of status. - Seek Professional Guidance
Engage an experienced immigration attorney familiar with the EB-5 program and the 245(k) exemption to provide support from source of funds verification to strategic filing. This is a critical step to ensure immigration compliance.
Take Advantage of Concurrent Filing
The 245(k) exemption enables you to file your Adjustment of Status Application to an employment-based visa preference, if you have not been able to obtain a new employer sponsor within the 60-day period or you are out of status less than 180 days. Under the EB-5 Reform and Integrity Act of 2022, you are now able to file your I-485 adjustment of status at the same time as your I-526E petition when applying for the EB-5 investor visa. Learn more about Concurrent Filing.
Critically, by filing your I-485 adjustment of status application at the same time of filing your EB-5 petition, under the 245(k) exemption, you can obtain the Employment Authorization Document or EAD card in just about 3-4 months as well as the Advance Parole or travel document. The EAD card and Advance Parole will give you the benefits of the green card while you wait for USCIS to approve your EB-5 petition and I-485 Adjustment of Status Application. In just a few months after filing for EB-5, you will be eligible again to work wherever you want, in whatever position you wish, or even open your own business – without the typical work restrictions of the H-1B or L visa.
And you may be able to get started without needing the full $800,000 invested at the time of filing. Learn more here about partial payment plans, a strategy repeatedly approved by USCIS.
Why Choose Behring’s RISE Fund for Your EB-5 Investment?
Behring’s RISE Fund offers a diversified portfolio of 14 multifamily and student housing assets across the East San Francisco Bay Area, providing EB-5 investors with a robust and secure pathway to U.S. permanent residency. USCIS has already approved the RISE Fund’s I-956F petition. This means after you file your I-526E petition, USCIS can defer to the project approval from the I-956F and focus on your source of funds report.
Key Advantages of the RISE Fund:
- Diversified Investment Portfolio: By investing in multiple assets, the RISE Fund mitigates risks associated with single-project investments, enhancing the stability.
- Unrivaled Security: Investment backed by an equity pledge 9.16x greater than the average senior loan for each asset, ensuring higher financial safety.
- Proven Progress: 6 assets are already cash flowing, 3 are under construction, and 5 are in pre-construction, including 3 UC Berkeley student housing assets.
- Experienced Development Partner: Collaborating with Riaz Capital, a seasoned developer with over 20 years of Bay Area real estate experience and a 30% internal rate of return across 12 project exits since 2010, ensures professional management and execution.
- Accelerated Project Timelines: The RISE Fund focuses on smaller scale developments with expedited construction and leasing phases, leading to quicker job creation and cash flow
- Comprehensive Investor Support: Behring Co. provides extensive resources, including consultations with EB-5 experts, access to a digital investor portal for monitoring investments, and assistance with the EB-5 application process, ensuring a seamless experience for investors.
By choosing the RISE Fund, investors align with a proven strategy that combines real estate development expertise with a commitment to fulfilling the EB-5 program’s criteria, facilitating a reliable path to U.S. permanent residency.
Related Behring EB-5 Resources
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