It is becoming increasingly common for EB-5 investors to have one or more children studying in the United States before they even elect to file an EB-5 petition. In fact, many foreign investors decide to proceed with the EB-5 program because their children desire to remain in the United States post-graduation. Investors who find themselves in this situation have an added layer of complication when applying for an EB-5 visa, as there are plenty of questions that arise when a child is in non-immigrant student status and then decides to seek lawful permanent residence in the United States. Below are some of the most common questions we hear from EB-5 applicants:
1. Can my child get a student visa while the I-526 is pending?
If your child is part of your I-526 petition, meaning he or she will immigrate to the United States with you, then it will be difficult for him or her to obtain an F-1 visa. In order to obtain an F-1, the student must be a non-immigrant; that is, the student must intend to return to his or her home country upon completion of his or her course of study. The intent to immigrate to the United States through the EB-5 program conflicts with the explicit stipulation of the F-1 visa that one must return to his or her home country after studying in the United States, and this may impact his or her ability to be issued a student visa.
Students already in the United States who elect to file an I-526, or are part of their parents EB-5 application, should consult with an immigration attorney prior to undertaking international travel, as their ability to return to the United States to resume their studies may be prohibited if a consular officer or a Customs and Border Protection officer sees evidence of a pending or approved immigrant petition in the computer system.
2. Are there any travel restrictions for students while the I-526 is pending?
Leaving the United States while an I-526 petition is pending will not affect the decision rendered on the immigrant petition. However, the ability to reenter in non-immigrant student status can be adversely impacted.
3. Does having a green card confer resident tuition rates for my child?
Yes, once someone obtains a green card, even a conditional green card, he or she qualifies for “in-state” or “resident” tuition rates. These rates can be considerably less than what one would pay if he or she did not have a green card. However, it should be noted that only public, or state-run, universities in the United States offer in-state tuition; private universities do not.
4. Does having a green card improve my child's chances of getting into a better school?
5. Can my child process in the United States for the green card if my family processes at the consulate abroad?
Yes. There are some advantages to adjusting status in the United States. For one thing, processing times are typically shorter. There is also no requirement for a police clearance report to be obtained from every jurisdiction where the applicant has resided since 16 years of age for a period of more than six months. Likely, in-person interviews are only conducted for overseas applicants as a part of standard adjudication procedures. However, it should be noted that if the child chooses to adjust status in the United States rather than do the consular process abroad, then he or she may only do so after the primary investor’s I-526 petition is approved and his or her immigrant visa is issued.