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How can I renew my F-1 visa after applying for EB-5?

I am currently a F-1 student and will graduate on February 1, 2015. I have applied for OPT, which is still pending and my F-1 visa is expired. I plan to go to my home country for the holiday and then come back to the United States to start my OPT (I have a job offer). I am also applying for EB-5 and just submitted the I-526 last week. Will my I-526 application already be in the system? Is it possible to renew my F-1 visa after I applied for EB-5? Can I leave and renew in my home country and then re-enter the United States?

Answers

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    Ed Beshara

    Immigration Attorney
    Answered on

    While the I-526 petition is pending it is possible to apply for a new F-1 visa.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    It is advisable that you not depart the United States and continue to stay here under OPT until your I-526 is adjudicated and then adjust status by filing I-485, as it may be very difficult for you to demonstrate a non-immigrant intent to receive a new F-1 visa at the consulate after having filed an immigrant petition such as the I-526.

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    Oliver Huiyue Qiu

    Immigration Attorney
    Answered on

    It is so unfortunate that you decide to ask questions only after filing the I-526. Form I-526 is used to file an immigrant visa petition under the EB-5 investor immigrant category. This conflicts with the non-immigrant nature of a F-1 visa. Therefore, if you leave the United States and try to apply for another F-1 visa at the U.S. Consulate overseas, it will be denied because the pending I-526 exhibits immigrant intent.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Your timing is off. It is not clear if you had discussed all your actions with your attorney who filed your petition, but our I-526 will be in the system and shows your immigrant intent. Since your F-1 visa is expired, I would strongly urge you not to leave the country until your I-526 is approved and you could file the I-485 adjustment. You may stay here legally under OPT once that is approved, but when you leave, you will have to get another visa page done by going through the visa application and interview. One of the questions on DS-160 is "have you filed any immigrant petition," which means you will have to say yes as you filed the I-526. That will pose a presumption of denial for the non-immigrant visa applications, such as F-1. If the I-526 indicated that you will consular process, then a good lawyer may be able to explain and overcome that negative presumption, but it will be difficult. So, my advice is not to leave.

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    Wilka Toppins

    Immigration Attorney
    Answered on

    Renewing your F-1 visa after filing for EB-5 may be difficult because the consul or the CBP may construe it as you being on an F-1 or trying to obtain a renewal of an F-1 (which is a temporary non-immigrant intent visa) and at the same demonstrating an intent to reside permanently or immigrate permanently because you filed an EB-5, which is an immigrant visa. The F-1 visa does not allow dual intent. Having said that, so long as you maintain lawful status and you comply with the F-1 requirements (conducting a full course of study , etc?) It may be okay. Is hard to tell what the consulate might do or CBP at the border or point of entry. Both agencies will certainly see the pending EB-5 when you apply for F-1 renewal or entry to the United States, so I would certainly disclose it. There is a risk that your F-1 is denied or re-entry as an F-1 due to the pending EB-5. You should speak to an attorney to come up with a strategy to maintain your lawful status in the U.S. until your EB-5 adjudicates. Travel out of the U.S. may not be the best idea, but I would suggest a legal consultation.

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