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How can an F-1 visa holder travel after applying for EB-5?

I will start my two year course on an F-1 visa this coming September. I am considering filing my I-526 after my arrival on the F-1, before the EB-5 program lapses in September, to take advantage of the lower investment requirement. Is it possible to leave the United States while my I-526 is being processed? Would this prejudice my application due to the "intent" rule? If so, could a strong case be made out to counter any adverse assumption since the EB-5 program is expiring?

Answers

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    As long as you have a valid F-1 student visa and a valid I-20, you should be able to travel to the United States while your I-526 is pending, as long as your intent and the purpose of your entry is to be a nonimmigrant student for full-time studies. If you apply for a new F-1 student visa after submitting your I-526 petition, you might have difficulty in obtaining the F-1 visa at the U.S. embassy or consulate because you would be considered an intending immigrant.

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    Ed Beshara

    Immigration Attorney
    Answered on

    The filing of the I-526 petition is not your application for permanent residency. Therefore, you will be able to travel to the United States under the F-1 status while your I-526 petition is pending.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Generally, you should not have an issue traveling if you intend to consular process your immigrant visa upon approval of the I-526 and indicated that on your Form I-526. You should maintain your F-1 status in the United States. In the event you need to apply for the F-1 visa at the consulate abroad, then you may potentially have an intent issue with a pending I-526. Please consult your immigration attorney before travel.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    As long as you indicate on the I-526 form that you will consulate process instead of adjusting, and you maintain your studies and F-1 status, then you should not have any problem with traveling. I have had many clients who do this so that they could move about freely. The immigrant intent issue becomes a problem only if a person comes in on a nonimmigrant visa and then tries to stay and adjust, which means that you have lied to the officials. However, if you choose to do the immigrant visa application and will go out of the United States to be interviewed, then the last time you have applied for the nonimmigrant visa was appropriate because you are now interviewing for the immigrant visa after going back out.

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    John J Downey

    Immigration Attorney
    Answered on

    Your F-1 is the controlling status. Filing an I-526 is not a change of status. As long as the F-1 is in good standing, you are free to travel and return.

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    Ian E Scott

    Immigration Attorney
    Answered on

    If you attempt to enter the United States with an F-1, the intent rule that is supposed to apply is your intent at the time of entry. Given that I-526 petitions take 13 months to process, there is certainly an argument that you plan to leave by the time you get the approval (so your intent at the time you enter is temporary). You do, however, always run the risk of an officer not believing your intent, so you should be aware of the risk. That being said, we are aware of clients entering the United States on tourist visas while they had an I-526 application pending. Once the I-526 has been approved, the intent becomes much clearer though.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    If your F-1 is current and on every entry you answer honestly as to your EB-5 that is pending, you should have no problem. If you are applying for a new F-1 with an I-526 pending you may indeed have a problem as the officer reviewing your visa application may see "immigrant intent." You should discuss this with your investment immigration attorney before returning to your home country while your I-526 is pending.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    While this I-526 is still pending, your F-1 visa is still valid. You may get some extra questioning when reentering the United States, but a pending I-526 alone does not mean you have immigrant intent. Once the I-526 is approved and you submit your application for adjustment of status, you should remain in the United States until the adjustment is approved or you obtain advanced parole.

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