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What are the chances of getting an F-1 visa while I am on OPT extension and my I-526 is pending? See details below.

I am a Chinese citizen who filed an I-526 when I graduated college in June 2016. Prior to that, I was granted a 5-year visa in January of 2015. Unfortunately, my passport was stolen from me in March 2016. I am currently on OPT extension. We are all aware of the long wait ahead for Chinese investors. If I return to China and reapply for a student visa, what are the chances of getting that visa considering all I mentioned above?

Answers

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    Answered on

    Based upon current U.S. immigration policy, it will be difficult to obtain an F-1 student visa at a U.S. Consulate. It is more advisable to file an Application for a change and extension of status to a new F-1 status which, if approved, would allow you to continue to live and study in the U.S. without leaving.

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    Answered on

    It is possible that you may obtain a new F-1 visa if you demonstrate strong ties to China and indicate in your I-526 petition that you would consular process abroad for an immigrant visa rather than adjust status in the U.S.

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    Answered on

    Given the fact that you have an EB-5 Investor Petition on Form I-526 pending, you may have a difficult time obtaining a new non-immigrant F-1 Student visa while applying abroad. Obviously, you need to obtain a new passport and you may be able to do that through the appropriate Consulate-General of the People''s Republic of China in the United States. But, if you return to China and apply for a student visa, there is a significant possibility that the American Consul will deny your F-1 Student Visa. A student with an F-1, by definition, is one who intends to return to their home country upon the completion of their studies. The fact that you have an EB-5 petition pending would be evidence that you intend to remain in the United States. Yes, given the fact there is a backlog, you could argue that you want to temporarily complete your OPT and then return to China and wait for your I-526 petition to be approved and a visa number to be available. This is called "dual intent." Thus, it is possible that the American Consular Officer will issue your F-1 Student visa, but there is a significant risk that it could also be denied.

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    Answered on

    The current OPT extension is a continuation of your F-1 visa. The fact you have filed an I-526 should not affect the possibility of continuing on the F-1 visa. Unless you want to continue your academic studies, your current F-1 visa will end upon the expiration of your OPT. In the event that you apply for a new F-1, the fact that you had filed an I-526 could be interpreted as immigrant intent and you must satisfactorily address the issueotherwise, your visa application may be denied. The loss of your passport should not hinder your F-1 visa (including the current OPT extension). However, I do not think the length of your OPT will be adequate enough to guarantee a continuous stay in the U.S. while your I-526 is pending. For the replacement of your passport, contact the Chinese Embassy or nearest Consulate.

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    Answered on

    It would depend on the kind of school that has accepted you and what you wish to do with the additional degree. Also, it may help if you state that you will come back to be interviewed at the Consulate rather than adjusting in the United States. If they let you leave, there is a good chance that you will not come back as you have immigrant intent. However, if they see that you are a serious student and that you will not violate the non-immigration visa provisions, but will legally come back and obtain an immigrant visa, they will approve your F-1. Our office usually marks the I-526 as doing the consulate processing rather than adjustment. Circumstances may change later, but doing it this way avoids having to file I-824 later and waiting for it to be processed.

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    Answered on

    Your application is now unlikely to be successful as you have indicated immigrant intent.

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    Answered on

    There are some people who can secure F-1 visas after I-526 has been filed. The key is to be able to demonstrate to the United States consulate that you have an intent to return to China before you apply for the Green Card. Some of my clients have been able to show intent to return to their home country by demonstrating that, after they study in the U.S., they plan to return to China for a graduate study program or by showing that they have matters they will have to resolve in China, such as selling their real estate before they move to the U.S. on a permanent basis.

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    Answered on

    With a pending Immigrant Petition (I-526), the challenge to prove "nonimmigrant" intent is greater. However, not impossible if you show that your current intent is to complete your OPT in the United States and that your long-term plan is for immigration. You need to show ties to your home country and all the evidence to support that you can support your stay, have a job that you have committed to under the OPT and that you will depart the U.S. after OPT period is completed.

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    Answered on

    Since you are already an F1 and you are not applying for any new visa, I do not see why there would be any issue.

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