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Can you leave the country with a pending I-526 petition?

My wife and I are in the U.S.A. studying on student visas. If I recently submitted my I-526, which only has my name on it as of now, can my wife go back to China and renew her visa (non-immigrant student visa), or does she already have duality intent? I know I can''t renew my visa because of this, and we both have our I-94 valid for two more years. My lawyer says it would be fine, but he’s not sure what happens if there is an Administrative Processing when she is at her visa interview. Nothing is for sure in the immigration world, but I would like to hear opinions and reasons. Also she already has three visas approved before, two tourist visas and one student without any Administrative Processing, but she recently went to a new school for Electrical Engineering, and she heard a lot of foreign students got checked because of their major.

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You are the principal petitioner, who has filed an immigrant investor petition (Form I-526) and expressed intent to immigrate to the US. Your wife is not; however, she should have been included in your I-526 petition by your attorney as your immediate family member, who would be able to immigrate with you to the US (or adjust status in the US to a conditional permanent resident) upon approval of your I-526 petition. For student visa purposes, your wife must be able to demonstrate she has nonimmigrant intent and will return to her home country upon completion of her course of study. Therefore, if she travels and applies for a student visa abroad there is always a risk she may have an issue at the consulate level. Unless there is an emergency to travel, I would advise your wife not to travel until your I-526 petition is approved and your adjustment of status applications are filed with USCIS, which would allow you and your wife to receive advance parole documents for travel.

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    Taher Kameli

    Immigration Attorney
    Answered on

    I think it is better if you don''t leave the country. However, you need to make sure to stay legally in the US.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Since I-526 is in your name only, your wife has not ''expressed any immigrant intent.'' When the I-526 gets approved and you file the I-485 application and lists your spouse as adjusting with you, then you and your wife could travel only upon receiving the travel permit. Given the history of not violating non-immigrant intent that you gave and the fact that your wife is really attending school, she should not have any problems. I had many clients who did the same.

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    Lei Jiang

    Immigration Attorney
    Answered on

    There is a risk at consulate. You need to consult with an experienced immigration lawyer.

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    Marisa Casablanca

    Immigration Attorney
    Answered on

    The applicant for an I-526 petition does not have to be in the United States. However, once the petition is approved, the applicant needs to choose whether to change status to permanent residence or to consular process.

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    Gregory Romanovsky

    Immigration Attorney
    Answered on

    Thank you for your question. There is nothing in the non-immigrant visa application that will force your wife to disclose the filing of the I-526 petition by your husband. But this may come up during the interview and I wouldn''t be so sure she''ll get the student visa. Call us if you want to discuss this further.

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    Anthony Ravani

    Immigration Attorney
    Answered on

    Your wife will face the possibility of not giving her a student visa again. Because when she applies there is always a question: ''Is there an immigrant visa pending for you?'' and she would have to respond honestly and positively. Then, the US Consulate may not issue her a non-immigrant visa.

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    Samuel Arthur Sue

    Immigration Attorney
    Answered on

    The I-526 form you submitted does not request information about your family. Your wife, however, would need to provide all information required on a DS-156, if requested, and it clearly asks the location and immigrant status of you (as her spouse). You are technically not an "immigrant" until the I-526 approval is issued. However, it is a very close call - its not clear that an immigration officer would be so subtle and generous in his judgment of the situation. From a technical perspective, your attorney is correct. From a practical perspective, the legal perspective may not matter so much. Its all what''s in the immigration officer''s head/heart at the time he processes her application. You must know this because you mentioned that nothing is guaranteed in the immigration world. If she does not have to go for a very urgent reason, - a reason of convenience is not important enough, I believe, to warrant the trip. If you have further questions, feel free to contact us.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    You are the petitioner, not your wife. However, your wife must overcome the presumption of immigrant intent and demonstrate that she is a nonimmigrant by showing sufficient ties to her home country. While she can truthfully answer on the nonimmigrant visa application form that she has not filed any immigrant petition, if she is asked about it at the interview, she must tell the truth. There is also the issue of delay for ''administrative processing.'' If you were my client, I would advise against travel and visa application at this time. Wait until the I-526 is approved and you can apply for advance parole (travel permission) based upon your pending adjustment of status application.

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    Daniel P Hanlon

    Immigration Attorney
    Answered on

    I recommend that your wife not travel, as an F-1 student must be a bona fide nonimmigrant when seeking readmission. Although not the principal investor on the I-526, CBP could view your spouse as an "intending immigrant" if it becomes aware of the pending I-526 and refuse her admission as a student.

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    Philip H Teplen

    Immigration Attorney
    Answered on

    There is no question that this is a dual intent problem. I would not recommend travel at this time.

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    Jeffrey E Campion

    Immigration Attorney
    Answered on

    Generally speaking, your attorney should have also included the fact that your wife was part of the i-526. Most of the time, we include a page that indicates such. At the same time, I would tell you that she should not go to China to renew her student visa. When she goes to the interview she will have to answer in the affirmative that she has an immigrant petition pending and they may deny her student visa. Moreover, if she is planning on adjustment of status in the U.S., then when she reenters on the student visa, USCIS could allege that upon entering she committed fraud as her real intent was to become a resident.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Yes, both you and your spouse may travel during the pending period of the I-526. As far as your wife applying for a renewal of her nonimmigrant visa, since she is note the named beneficiary of the I-526, she has not declared an immigrant intent to the USCIS; therefore, she should be able to apply to renew her nonimmigrant visa without issue.

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    Steven Anapoell

    Securities Attorney
    Answered on

    Yes, however, you need to be in the US at least 6 months per year.

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