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What are the risks of entering on an F-2 visa with the intent to adjust to EB-5?

While maintaining my F-1 status in the United States, I received approval on my I-526. This opens the option to adjust my status. However, my family is still outside the country. They have valid F-2 visas. They have the option of entering the country with F-2 visas, and then we can all apply for simultaneous AOS. We had made these travel plans many months ago before any adjudication. When we applied for the F-2 visas, we already mentioned in the application form that our immigration petition is pending. So, my question is, what are the risks (and how severe are those risks) in following this strategy, in terms of USCIS later assuming that my family entered on F-2 visas with intent to adjust?

Answers

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Stating your intent to adjust will prohibit you from making an entry as a nonimmigrant (F visa, E, L, B, etc.). Consult with an immigration attorney who can review the details of your case and develop strategies.

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    Ed Beshara

    Immigration Attorney
    Answered on

    Entering the U.S. under F-2 status is an expression of your intent to remain in the U.S. only for a temporary period of time and then return to your home country. If there is an intent to adjust to permanent residency in the U.S. and this intent becomes known to the USCIS, the F-2 relatives may be accused of a fraudulent entry. Then they will not be able to adjust their status in the U.S. and will have to try to apply for the residency visas through a U.S. consulate.

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    Stephen Berman

    Immigration Attorney
    Answered on

    They will likely not be admitted as F2s if their applications are approved and there are available immigrant visa numbers.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    F-2 family members should be able to accompany you in the United States if you are maintaining your underlying F-1 status. Discuss further issues with your immigration attorney, including the 30-60 days rule application to AOS cases.

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    Charles Foster

    Immigration Attorney
    Answered on

    The greatest risk for your family in applying for entry in F-1 non-immigrant status is that they could be denied entry. However, as long as your family does not make any false statements, that risk is minimal. If asked by the U.S. Immigration Inspector (U.S. Customs and Border Protection - ICE) whether your family or you have filed an immigrant visa petition on Form I-526, they would have to answer truthfully. However, if admitted in F-2 non-immigrant status, there should be no difficulty in your family applying for Adjustment of Status on Form I-485 after a decent interval of at least several months from the date they enter. This answer should not be construed in any way to imply that your family should in any way make any false statements at the time they seek entry into the United States.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    The primary purpose of entry has to be valid; if the F-2 holders are primarily entering with an intent to be reunified with the principal applicant, then there is a good argument. Also, the 30-60 days rule is worth investigating. It is always safer to consular process abroad, but entering on an F-2 is arguably better than entering on a B-2 and then adjusting.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    It should be fine but I would need to review specifics of your case to be sure. Consult with a trusted immigration attorney before moving forward.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    They will be fine entering on the F-2. Since they have valid/unexpired F-2 visas and you are maintaining F-1 status, they can present that for entry and, if the immigration officer questions their intent, they can truthfully state they are entering to accompany you. No need to discuss anything further.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    As long as you and your family are in the United States legally, there should not be any problem with adjusting your status. Based on your pattern of facts, you had informed authority that you have a pending I-526 petition.

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