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What constitutes abandonment of the EB-5 application?

We have just received word that my I-526 petition was approved, but have not submitted the I-485 yet. I am currently on the O-1 visa and I must travel outside the United States in late March twice to Mexico. Can I travel and return to the United States under the O-1 visa, and upon returning, submit the I-485 with Advanced Parole? As O-1 is seen as “dual intent,” and I have not submitted the I-485 adjustment of status, this should mean I'm not abandoning my application, correct?

Answers

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Based on the information you provided, you may delay filing your I-485 (Application to Adjust) until you return to the country. The delay in filing your I-485 does not mean you have abandoned your EB-5 petition. The issue of abandonment is real and involves a failure to file I-131, Application for Travel Document once an I-485 has actually been filed. The general rule governing abandonment is that, if your I-485 application is pending and you plan to travel out of the country, you must also file your I-131 (Application for Travel Documents) before you proceed to travel. Upon filing I-131, you can either wait for the approval in the United States or choose to pick up your approval from the U.S. Consulate abroadthe one in Mexico, in this instance. If you fail to file I-131, either at the same time you file your I-485 or before you leave the country, your I-485 will be considered abandoned. It may also mean that your EB-5 petition has been effectively abandoned. Consult an attorney for further clarification of your travel plans and differences on when an abandonment can actually occur.

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    Charles Foster

    Immigration Attorney
    Answered on

    Given the fact that you have a valid O-1 non-immigrant visa, you are eligible to be admitted to the United States in O-1 status and once admitted, you would be eligible to apply for adjustment of status, assuming visa numbers are available, based upon the approval of your husband's EB-5 petition on Form I-526.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    Abandonment of an application would consist of filing the I-485 first, then leaving the United States without advance parole (or an H or L visa). That would effectively abandon your I-485 application. What you are suggesting will not result in the abandonment of your I-526 petition approval or any other application. As long as the purpose of your entry is to resume your O-1 activities, then you should be admissible to the United States based upon your O-1 visa. After you are admitted in valid O-1 nonimmigrant status, you could legally elect to file your I-485 application for adjustment of status based upon your approved I-526 immigrant petition.

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    Raymond Lahoud

    Immigration Attorney
    Answered on

    You appear to be correct. Alternatively, you can file the adjustment of status package with an application for a travel document. I need more information, however, to provide you a better case assessment.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    You have it more or less correct. The O-1 is not a dual intent visa, it is an "in between intent visa." So after you file the adjustment, you cannot travel without an approved advance parole, and that can take at least three months to process. You will not be deemed to have abandoned anything unless you file the adjustment of status and leave without obtaining the advance parole. You will not likely be refused admission because you have an approved immigrant visa petition.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Traveling on your O-1 visa after the I-526 is approved is not an abandonment of your petition.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    That should be fine especially if you do not need an O-1 visa.

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