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How does an investor apply for an MBA during I-526 processing?

I will be filing my I-526 soon. Hopefully I will get the receipt back within a couple of weeks. I have Chinese residency and am currently holding an H-1B visa here in United States. Based on current updates, I have to wait for around two years to get the I-526 approved. I am thinking about applying for an MBA while the I-526 is still in process. What do I need to do to stay in the United States for an MBA while waiting for I-526 approval?

Answers

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    Ed Beshara

    Immigration Attorney
    Answered on

    You can legally stay in the United States either under a H1-B or F-1 student status while the I-526 petition is pending.

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    John J Downey

    Immigration Attorney
    Answered on

    You will apply to the school for acceptance and proceed with the process. Perhaps it is best to do this prior to filing the I-526 to avoid any confusion with USCIS.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    If you have an H-1B, then you should stay in that status if possible. If you wish to pursue a full-time course of study to get your MBA, then you need to file a change of status. This could be an issue if you have a pending I-526, which is an immigrant petition. Also, an MBA program might not last long enough for your priority date to become current. That is why H-1B (maximum of six years) is the better option while waiting for the I-526 approval and an available immigrant visa number.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Normally you would go on a student visa to obtain an MBA, but students must demonstrate intent to return to the home country and I-526 indicates an intent to immigrate. If you can work out with the school and your employer to do the MBA on the H-1B that would be best as the H-1B allows dual intent.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    I am not sure if you could maintain your H-1B visa for 2-3 years because that is the best visa for freedom, as it is a dual intent visa that will not be affected by having an immigrant petition filed, such as an I-526. You could still attend school during off-work hours for your MBA with the H-1B. If you wish to go to school full-time, then having had the I-526 filed may make it difficult to change your status to the non-immigrant visa category of F-1.

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    Steffanie J Lewis

    Immigration Attorney
    Answered on

    First, when does your H-1B expire? What total number of years have you held your H-1B status? If you have been here for less than six years in H-1B status, is your employer willing to extend? So long as you are in H-1B status, your filing the I-526 will have no negative effect. In H-1B status you have dual intent, i.e. an intent to return to your native country and also an intent to reside in the United States. However if you change to F status in order to pursue your MBA, you lose dual intent. Therefore, you need to obtain F status before formalizing your intent to obtain permanent residence in the United States in filing the I-526. The initial question is whether an immigrant visa is currently available to you through the EB-5 program and whether you can concurrently file your I-485 application before your H-1B status expires.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    The I-526 itself does not confer any immigrant status, but it still may raise a red flag at the consulate when applying for the F-1 and claiming you intend to leave the United States at the end of your studies. Be careful and get the assistance of an immigration attorney.

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    Stephen Berman

    Immigration Attorney
    Answered on

    You cannot change status to F1 to become a full-time student when you have an application to become a permanent resident on file.

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    Rachel Lew

    Immigration Attorney
    Answered on

    A common requirement for nonimmigrant eligibility, such as F-1, is that an alien seeking such classification has nonimmigrant intent rather than immigrant intent. In other words, an alien may not intend to remain permanently in the United States (i.e. immigrant intent) without jeopardizing his or her nonimmigrant status. Absent the investor's imminent filing of the I-526 Immigrant Petition by Alien Entrepreneur, an alien generally is able to change his/her status from H-1B to F-1 status within the United States, if approved by USCIS. Because H-1B classification falls under the categories of dual intent exemptions (along with L-1, O-1, P, etc.; dual intent means an intention to immigrate at some future time while properly maintaining a nonimmigrant status in the present), it is permissible to change from H-1B to F-1 status within the United States. F-1 visa or status carries non-immigration intent and is not exempted by the dual intent doctrine. By doing so, the alien has to maintain an unabandoned foreign address and manifest intention to return to his or her own country. However, should the alien file an I-526 petition to immigrate to the United States, he or she has irrevocably expressed immigration intent. Any change of status application to F-1 in the United States (including a supporting statement declaring intent to leave the United States and return to his/her own country after the studies are completed) can be construed as false statements and can jeopardize the EB-5 immigrant visa application by consular processing or adjustment of status application within the United States. The investor should consult with his or her EB-5 immigration attorney before doing so.

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