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Can my son file for an F-1 visa while our EB-5 petition is being processed or will that impact our EB-5 application?

The National Visa Center has approved my EB-5 filing two weeks ago. I am now waiting for my interview to be scheduled at the Mumbai Consulate. However, my son must start college on soon in the United States, so I do not think we can afford to wait. How can he apply for an F-1 visa while our EB-5 is being processed? Will doing that impact our EB-5 petition negatively?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    If all your family members, including your son, filed their respective DS-260 applications and submitted civil documents with NVC and are awaiting your Immigrant Visa interview to be scheduled by NVC, it is very much unlikely your son''s application for F-1 visa will be successful because F-1 visa requires showing of nonimmigrant intent and ties to home country. If you have already submitted a college application and your son was accepted to a U.S. college, you may defer study for 1 quarter generally but should contact the college to inquire about the deferment rules. In the meantime, you will likely have your Immigrant Visa interview and be able to travel to the U.S. to get admitted as conditional permanent residents.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Applying for F-1 will not negatively impact your EB-5 application. Although, the fact an EB-5 petition is in progress will certainly come up during the interview for F-1 visa processing; it is a clear indication that your son has immigrant intent. Advisably, make sure you disclose the pending EB-5 petition both when filing application for F-1 and during the interview for the visa.

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    Rebecca Singh

    Immigration Attorney
    Answered on

    Applying for the F1 visa does not negatively impact the I-526 petition. However, as you already have an approved I-526 petition, it may impact the F1 visa application as it does not allow for dual intent (i.e. your son's clear intent to immigrate to the United States via EB-5). There have been successful cases—they are, however, difficult to win and your son will have to disclose all necessary information.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    If you and your family have already filed the DS-260 based on the approved I-526, and NVC has received and acknowledged all requisite documents and stated that they will notify you of the interview date, then your son has already filed his immigrant visa application and is on the record. Thus, the chance of his F-1, nonimmigrant visa application being approved is almost non-existent. I would strongly suggest that you all wait for the immigrant visa interview so your entire family could enter the United States as permanent residents.

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    Diana Levy

    Immigration Attorney
    Answered on

    While not impossible, it would probably be quite difficult to convince a consulate that your son is not an intending immigrant and is eligible for F-1 status. The F-1 visa does not allow for dual intent (nonimmigrant and immigrant intent), so he may have to put off his studies until the spring when his green card is issued. If you respond quickly and provide all necessary documentation to the NVC in a timely manner, you should be able to have an interview in the next few months. I hope this answers your question.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    It will not affect your EB-5 but the EB-5 will affect his ability to get the F-1. I would try and expedite the Mumbai interview for an immigrant visa, explaining your son wishes to start school this fall.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    He must disclose the EB-5 application. However, student visas are based on his present intent. If he can show that his present intent is to study and they he might later decide to return home, he may get a visa now.

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    Charles Foster

    Immigration Attorney
    Answered on

    Yes, your son can apply for an F-1 Student visa even though you are waiting for an EB-5 immigrant visa to be processed. Since your son is not the petitioner or he has not petitioned himself and can still apply for the F-1 Student Visa. Your son should be truthful on his application and there is no downside in applying, remembering that the American Consul under Section 214(b) of the Immigration and Nationality Act has 100% discretion as to whether to issue the non-immigrant F-1 Student visa. If he believes or learns that your son intends to immigrate to the U.S. as your dependent, it is highly likely that he will deny the F-1 Student visa. If your son decides to apply, he must answer all questions 100% truthfully.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Your EB-5 processing will not be impacted by your son filing for an F-1 visa; however, if he is included in the immigrant visa process and the application has been submitted with the NVC, getting approval on his F-1 nonimmigrant visa application may be difficult.

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    Irina Rostova

    Immigration Attorney
    Answered on

    Filing for the F-1 visa should not impact your EB-5 petition, but most consulates at this point would not issue an F-1 visa because your son already has clear immigrant intent. If the consulate can be convinced that your son will return to Mumbai for the EB-5 visa interview and will not try to remain in the U.S. to adjust status, then the consulate may issue an F-1. If your son currently has an F-1 visa for the prior year that is still valid, then I would recommend obtaining a new I-20 and to try to enter on the existing F-1 visa.

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