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How can an F-1 holder with a pending I-526 reenter the United States?

I filed my I-526 petition about five months ago. My visa has not expired and I do not intend to renew my F1 visa. I want to go back to my home country and come back to the United States before my visa expires. Will U.S. Customs and Border Protection deny my entrance at the border of entry because I am holding an F-1 student visa while petitioning for I-526? How can I be sure of reentering without problems?

Answers

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    Ed Beshara

    Immigration Attorney
    Answered on

    The filing of the I-526 petition is not the same as you applying for permanent residency. Therefore as long as you are maintaining your student status, you may enter the United States with your current valid student F-1 visa.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    That may be possible, but the I-526 itself will only give you the opportunity (once approved) to apply for conditional permanent residency. While you should not have a problem with travel with the current F-1 and pending I-526, CBP may still have questions.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    If you have an intent to reenter on an F-1 visa to continue your study and you indicated on the I-526 form that you intend to consular process upon approval of I-526, then you should not generally have a problem and this is the information you would disclose to CBP upon inspection. It is never a good idea to misrepresent yourself. Please consult your immigration attorney who helped you with I-526 filing for further advice.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    It is unlikely that CBP would deny your entry into the United States. CBP is not so much concerned about your future intent as it is about the purpose of your present trip and duration of your stay in the United States. While you must answer all questions truthfully and completely, there is no requirement that you volunteer any information. If, in fact, the purpose of your entry into the United States is to return to your full-time course of study under a valid I-20, then you are admissible to the United States and you should be admitted as an F-1 student for duration of status (D/S). In other words, the fact that you have a pending I-526 petition does not mean that you cannot enter the United States as an F-1 student.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You cannot be sure and be sure to answer all questions truthfully. If your I-526 was set-up for consular processing, this would be a good argument to show you will return abroad.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    If you intend to adjust your status by filing the I-485 after getting your I-526 approved, then you should not leave. Also, you must maintain your F-1 visa status (obtain your I-20 current and enroll in the school) until the I-526 is approved and the I-485 is filed. If you intend to go home and do the consular processing, then that is what you should tell the CBP officer - make sure that you have a copy of the I-526 petition where it is indicated that you will consular process with you in case if they ask to see it. You should keep the immigration lawyer who helped you with the I-526 informed of what you want to do before you take a trip and get his/her advice.

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    Steffanie J Lewis

    Immigration Attorney
    Answered on

    Filing your I-526 suggests your long term intent to immigrate, but does not prevent you from having a temporary intent as a student to return to the United States solely to complete your studies. You should not have difficulty returning to the United States on your F visa in order to complete your studies. You cannot misrepresent yourself at the border if you do not intend to return to classes.

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    John J Downey

    Immigration Attorney
    Answered on

    You may have a problem if your F-1 visa has expired or the school no longer lists you as a student. Depending on what country you are from, you may return on a visitor visa. The reason could be to clear up your affairs regarding your student days.

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    Denyse Sabagh

    Immigration Attorney
    Answered on

    If the F-1 visa holder is in valid F-1 status and will be a returning full-time student after a departure abroad, you can return on the F-1 visa to resume full-time education.You should have an I-20 from your school and a letter from your school stating that you are a student in good standing and that you are continuing your education, you will be a junior or senior, etc. The Customs & Border Protection may or may not stop you coming back. But, if you have the student documents, you will be able to prove that your entry is for the purpose of resuming your education. The issue is that you are not coming back to live permanently in the United States.

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    Sufen Hilf

    Immigration Attorney
    Answered on

    It depends on which country you are from. Assuming you are from China, the priority date for EB-5 China is May 01, 2013. A CBP officer should not automatically deny your entry even though you are not supposed to have immigrant intent as F-1. If the priority date is so far back, you can be admitted to the United States as F-1 as long as you are truthfully answering all the questions being asked at the time of inspection. If you are not born in China, you should not go back to your home country to visit.

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    Stephen Berman

    Immigration Attorney
    Answered on

    It very well may be a problem to be admitted to the United States as an F-1 student when you have a pending immigrant visa petition. Not recommended.

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