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How can a couple apply for both EB-5 and student visas?

My boyfriend and I plan to get married before applying for the EB-5 visa this September. He was born in China and I was born in Vietnam, and he will be the principal investor. We both plan to come to the United States under the F-1 visa (Spring 2017 for me and Fall 2017 for him) while waiting for the conditional green cards. Will the fact that I will not be the principal investor allow me to get an F-1 visa for the spring semester? And then, can my boyfriend apply for an F-2 visa and come here in the fall? Or is there any possibility that we can get the green card within a year from our priority day so he can come here in fall 2017?

Answers

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    If you are an intending immigrant utilizing the EB-5 immigrant visa category, even if you are just a dependent, it might be difficult to demonstrate that you are a bona fide nonimmigrant student. The timing will be tricky; the purpose of the F-1 and F-2 visa categories is not to immigrate to the United States earlier than allowed under the EB-5 category. On the other hand, if your present intention is to be a full-time student now and you apply for an F-1 student with the potential future intent of immigrating under the EB-5 category, there is nothing wrong with applying for a student visa. Just make sure you answer all questions completely and truthfully. It is good that you were born in Vietnam because even though your boyfriend, soon to be husband, is the principal investor, you both can receive immigrant visas charged to Vietnam; you and he will not be subject to the China immigrant visa number cutoff.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    You may get some questions at the consulate or the U.S. border with a pending I-526 for your husband, considering that is part of an immigrant process and the F is a NON-immigrant visa. His F-2 may get some resistance. Because of the waiting period imposed on Chinese investors (something like two years now), you are looking at 16 months for the I-526 to be approved, then two years for the priority date to become current, then four to six months of processing through the NVC and consulate, for a total of way too long (40+ months). Maybe consider you becoming the primary investor so you will not be subjected to the waiting period?

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Generally, the two visas have different purposes. You plans appear reasonable and can be implemented. However, seek the assistance of an attorney to ensure you are in compliance with the filing procedures of each option as their requirements are so different.

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    Charles Foster

    Immigration Attorney
    Answered on

    Every applicant for an F-1 student visa has the burden of proof to show that they do not intend to immigrate to the United States. If your boyfriend files an EB-5 investor petition and you are not yet married, in and of itself that should not adversely affect your F-1 visa application. However, if he applies for his F-1 student visa after he files the EB-5 petition, the fact that the EB-5 petition indicates an intent to immigrate to the United States would be a negative factor in determining whether or not the F-1 nonimmigrant student visa is issued to your boyfriend. There is a significant and growing backlog under the quota for EB-5 applicants from China. However, if you are married, your boyfriend should be able to cross charge to you under the Vietnam quota, thus not being subject to the lengthy backlog under the China quota.

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    John J Downey

    Immigration Attorney
    Answered on

    Right now due to the China retrogression in obtaining a visa through EB-5 I see no possibility of obtaining the conditional green card within a year. If you were the primary investor it might be possible. When applying for an F-1 visa at the U.S. consulate they will ask the question if you have applied for any other status in the United States. They may or may not approve your F-1 visa. I would seek some answers from the particular consulate where you will apply.

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    Richard A Gump, Jr

    Immigration Attorney
    Answered on

    The F-1 visa requires the foreign national to be able to demonstrate he/she intends to remain in the United States temporarily. The visa application requires that the foreign national maintain a permanent residence abroad which he/she has no intention of abandoning. Pursuing a green card - even through the EB-5 program - conflicts with the terms of the F-1. You should consult with an attorney regarding the timing of the F-1 visa application and the submission of the immigrant petition.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    It is very important to secure valid nonimmigrant status before applying for a green card, otherwise the nonimmigrant visa will be rejected. Students have to prove an intent to return home. Also, the good news is your husband will not be subject to the lengthy wait line as he can cross charge to your place of birth. Lucky guy!

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