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How can an EB-5 investor study abroad with a pending I-526?

My boyfriend currently holds an F-1 visa which is expired. He filed his I-526 this April and is thinking of leaving the United States to study abroad in Hong Kong for the 2016 spring semester, and will come back to the U.S. to continue his study in August 2016. Since his I-526 has not been approved yet, and it might be approved while he is not in the U.S., is he able to renew his F-1 visa and enter the States? What are the options for him right now with a pending I-526?

Answers

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    As an intending immigrant, it is unlikely that your boyfriend would be able to renew a student visa, although it is possible. He should be prepared in the event his F-1 visa application is denied under INA Section 214(b) (which is the section of law prohibiting nonimmigrant visa issuance to an intending immigrant) or he should consider not leaving the United States until after his I-526 is approved and he has filed his adjustment of status application AND received advance parole (travel permission).

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    Julia Roussinova

    Immigration Attorney
    Answered on

    The best option would be to continue maintaining F-1 status and studying in the United States until the I-526 is approved and then file for adjustment of status in the United States, assuming there have been no violations of F-1 status in the United States. If this is not possible, your boyfriend should be able to consular process for an immigrant visa abroad assuming his I-526 is approved while he is studying outside the United States.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    With a pending I-526, you should be able to travel outside of the United States and renew the F-1, but be prepared for possible questioning when reentering, or RFEs for the F-1 renewals as the I-526 is part of an immigrant (permanent residency) process. Technically, the I-526 itself does not do anything until you apply for permanent residency, but be prepared nonetheless. Once the NVC invoice is prepared you are much further into the permanent residency process and should avoid travel outside of the United States or trying to renew the F-1.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Technically being a student and trying for a green card through the EB-5 program are in conflict as a student must show the intent to return overseas. The EB-5 case can be set up for consular processing but there is no guarantee of getting a student visa again while the I-526 is pending. You would need to convince the consulate of your intent to consular process for your immigrant visa at a minimum.

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    John J Downey

    Immigration Attorney
    Answered on

    If the I-526 is approved while he is abroad he may go for his interview for a visa at the U.S. consulate where he is. If he wishes to return under an F-1 he simply applies to the school where he wants to attend and they provide the I-20 form.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    The F-1 visa is a non-immigrant visa category for which the visa will be denied if the consulate officer determines that you have an immigrant intent. By filing the I-526, your boyfriend has expressed his intent to immigrate. My best advice is for him to enroll and maintain his I-20 here without going out of the country until his I-526 is approved and the I-485 could be filed. The F-1 holder could stay in the United States for the duration of status while continuing to attend schools and maintaining the education status, even though his visa page has technically expired. However, once he leaves the country, he must go through the new visa application process and the certainty of getting back with another F-1 visa approved is much less now that he has indicated that he has an immigrant intent. If, however, he must go out and his I-526 is approved while he is out of the country, I would suggest that he files the I-824 and have his EB-5 case go through the consulate processing and promise to go out to be interviewed for the immigrant visa when he is applying for the new F-1. However, as all of the visa applications are within the consulate officer's discretion, there is no guarantee that this will work.

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    Gregory Romanovsky

    Immigration Attorney
    Answered on

    Any non-immigrant visa (including F-1) requires non-immigrant intent, which will be very hard for your boyfriend to demonstrate given the pending I-526 petition. This question requires a detailed discussion with an experienced immigration attorney (e.g., the one who is handling your boyfriend's I-526 petition).

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