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Should I apply for F-1 visa interview after I-526 approval?

Very complicated situation here and for a few moments, I do not know what to say. I am the principal applicant for an EB-5 visa application and my I-526 petition was approved about one week ago. My file will be transferred to NVC and eventually to a US Consulate in China for further processing, the last step of which will be an interview. This process, all things considered, may take at least 6 months. On the other hand, I was accepted into a top program at a prestigious university and school starts in late August. In order to get to school on time, I will have to make an appointment for an F-1 student visa interview before August. For failing to do so would result in an involuntary withdrawal from the program. Now I really fear that I would not be able to get the visa due to dual intentions. But I feel like I really have no choice but must take a chance and see how it goes. I would really like to hear your opinions and suggestions regarding my situation. Thank you for your time. (FYI: former F-1 student, worked under OPT, never over stayed.)

Answers

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    Lei Jiang

    Immigration Attorney
    Answered on

    The best way is to speed up the consulate process. Based on your facts, your F-1 visa may not be granted. Please consult with an immigration attorney.

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    Reza Rahbaran

    Immigration Attorney
    Answered on

    It would be difficult to prove your intent to return to China. There is no harm in applying with an explanation of the facts as they are to the consular officer. You will need to press the point that you will not seek adjustment of status in the US.

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    Karen Weinstock

    Immigration Attorney
    Answered on

    Your F-1 visa may not be granted as you already have a demonstrated intent to immigrate to the U.S. For the F-1 visa you would have to prove you have no immigrant intent. However, you may be able to expedite the consular processing part of your application which would be a better option.

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    Roberto Ortiz

    Immigration Attorney
    Answered on

    Dear Sir or madam: Good afternoon! I hope all is well. My advice is to obtain all of the documentation required by the NVC, so when the NVC send you an email requesting the forms and documentation you already have it and can send it immediately. The sooner you send the information and documentation to the NVC the faster you will receive your residency. You might have an issue with the F-1 visa because you have an approved petitioned for Residency and the Consulate will probably not granted. However, you can also take the initiative and send the US Consulate explaining your situation and see what they tell you maybe they will be able to give you a solution.

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    Ed Beshara

    Immigration Attorney
    Answered on

    Your set of facts will definitely require the advise of an experienced EB-5 immigration attorney. Based upon my experience representing Chinese nationals the U.S. Consulate process may take less than 6 months.

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    Gregory Romanovsky

    Immigration Attorney
    Answered on

    Thank you for your inquiry. The process should not take 6 months. The NVC works pretty quickly nowadays and if you promptly prepare and submit all of the documents they require (you may want to consider hiring an attorney since time is so much of the essence), it is reasonable to expect an interview by the end of the summer. That being said, if it does take longer, you can certainly try to get a student visa in the interim, but I really don''t see that happening - precisely because of the intent issue. I think it''s more realistic to have your consular processing expedited than getting a student visa in this situation. Let me know if you want to talk further.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You may choose to apply for an F-1 visa at your risk and be entirely consistent and honest in informing the consulate that you plan to apply for IV once you are called for an interview based on your approved I-526. It is very likely though that, due to your immigrant intent established in connection with the approved I-526 petition, your F-1 visa will be refused. To that end, you will lose the funds and efforts spent on F-1 visa application. One option may be to contact your school and find out if they may be willing to grant you a deferral of acceptance. You should explain to them the potential problem with F-1 visa application, advise them you will be applying for IV as soon as you get an interview notice, and ask for a deferral.

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    Jeffrey E Campion

    Immigration Attorney
    Answered on

    Hello. There is no prohibition to obtaining the F-1 and then consular processing for the residency. But, you will need to be able to prove your intention to the consular officer.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Congratulations on your acceptance into the school. While it is not normally advised to apply for a F-1, which is a non-immigrant intent visa, after your immigration petition has been approved, which clearly shows your intent to immigrate, in your situation, I would apply and then explain to the consulate officer that you intend to come back and be interviewed for Immigrant Visa application when the interview notice is received. Please consult with an experienced immigration lawyer who could help you present this situation to the Consulate officer properly.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    You certainly can take a chance and see how it goes, but it is likely that any nonimmigrant visa application would be denied due to your immigrant intent. Just make sure that your answers are complete and truthful on your visa applications forms and at the interview. I suggest that you concentrate on getting the immigrant visa processing through the NVC and immigrant visa interview scheduled in Guangzhou in the shortest possible time. Do not waste time and resources on the F-1 visa application.

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    Stephen Berman

    Immigration Attorney
    Answered on

    You can certainly try, but to prove that you do not intend to immigrate may well be impossible if you have an approved EB5 and are planning on investing.

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    Kirk A Carter

    Immigration Attorney
    Answered on

    There is no way, in my estimation that the US Consulate would issue you an F-1 visa under the circumstances you describe. You clearly have immigrant intent, which is completely inconsistent with the intent that you must demonstrate in order to secure a non-immigrant student visa.

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    Michael E Piston

    Immigration Attorney
    Answered on

    It doesn''t hurt to apply for an F-1 visa as long as you disclose the approval of the I-526 and are otherwise honest. Your explanation would be is that you are coming to the U.S. temporarily because you will return to China when you are called to your visa interview and you have no intention to apply for adjustment of status in the U.S. Good luck!

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    You MUST disclose the filing and approval. They may or may not issue an F-1 visa. This needs specialized legal counsel. Feel free to reach out to us if you want our help.

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