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How can we remain in the United States for our interview?

I am from China and have received I-526 approval for my EB-5 application. However, I have to wait 2-3 years for my interview. I am in the United States with my family: my son will be attending high school on an F-1, and my wife and I are on tourist visas. I would like to file an I-485 to adjust my family's status, and receive travel documents (to be able to return to the United States if we travel abroad). What are our options for staying in the United States during the waiting period?

Answers

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Once it is likely a visa is available, and as long as you entered the United States lawfully and are in lawful U.S. status, you can file for adjustment of status, employment authorization, and permission to travel. You should be able to remain in the United States until the I-485 is approved. That means that you may not be able to file for the I-485 right away. You do have valid visas/status now, it seems, so as long as you comply with those periods of lawful admission, you should be good (yes, this means that you may need to leave the United States at some point).

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You will need to find a nonimmigrant visa for which you qualify.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    It is possible that you might be able to file for adjustment of status in the United States if USCIS announces Chart B applies when a new fiscal year starts in October and USCIS determines there are immigrant visas available for your country of chargeability. If this is not the case, other options may include to apply for academic student status (F-1) and enroll in an ESL program or another academic program for one of you and the other spouse may change status to a dependent of an F-1 student (F-2). Other options may include employment-based visas, but you will have to review those options and whether or not you qualify with an immigration attorney. Extensions of a B-1/B-2 status in the United States may be problematic especially given an approved immigrant petition (I-526). You must maintain a lawful immigration status in order to be able to file for adjustment of status in the United States. Otherwise, you have to wait outside the United States and consular process for an immigrant visa abroad when your priority date becomes current.

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    Charles Foster

    Immigration Attorney
    Answered on

    There are several ways you could remain in the United States legally in order to ultimately apply for adjustment of status once a visa number is available per your I-526 EB-5 investor petition filing date. Theoretically, as family members you could continue to file for an extension of your B-2 status every six months per applicable regulations, although there is no guarantee that the U.S. Citizenship and Immigration Service will extend your B-2 status every six months over a period of several years or more. That would be at least one possibility. The other possibility would be for one of the parents to also acquire F-1 status either in an English language school or some other appropriate school, and that way, if you or your spouse acquired F-1 status, your dependent members could acquire F-2 status as well. Alternatively, you could seek a work authorized status, but those options are very limited.

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    John J Downey

    Immigration Attorney
    Answered on

    You could possibly attend schools and apply for an F-1 while you wait for the interview. Other than that, I do not see much else you could do.

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    Peter Zhang

    Immigration Attorney
    Answered on

    The B visa will not be a long-term solution in your case. You may consider an L application if you are an executive of a foreign enterprise and are willing to set up a qualifying entity in the United States.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Unless your priority date is current, you and your family will not be able to file the I-485 just yet. Having your son remain in the United States while waiting for the advancement of the priority date does not seem to be an issue since he is in F-1 status. However, in order for you and your wife to remain, you must obtain a visa status that will give you more time in the United States than a tourist visa if you are 2-3 years away from filing for the adjustment or priority date being current.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If USCIS opens chart B, Date for Filing to file adjustments, you might be eligible to file in October 2015 (this was possible last year). If not, you need to obtain another visa, such as a student or work visa, to stay.

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