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What happens when an F-1 visa holder is listed as a derivative on an I-526 application?

My daughter is studying in the United States under an F-1 student visa, which needs to be renewed every August. If she is listed as a derivative on a family member’s I-526 application, will her F-1 visa renewal be affected? If the I-526 is approved while she is outside of the United States, can she return using her F-1 visa, and then adjust her status? When would using an F-1 visa after I-526 approval cause an EB-5 visa denial? What law would she refer to when explaining to the border patrol officer?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Your daughter''s F-1 should not be affected while I-526 is pending. This is not her I-526, but her parent''s I-526 in which she is included as a derivative beneficiary, thus she has not expressed intent to immigrate to the United States which is opposite to demonstrating a non-immigrant intent for a student visa issuance abroad. The problem is likely to arise upon approval of I-526 when NVC issues immigrant visa fees and instructions for both the petitioner and each family member eligible to immigrate to the United States with the petitioner. She should consular process with parents and immigrate to the United States at that time if she is abroad or if she is in the United States at that time, then she should be able to adjust to a conditional permanent resident status upon the parent''s immigration to the United States. You should consult an experienced immigration attorney to discuss any details of your case.

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    Lei Jiang

    Immigration Attorney
    Answered on

    Your daughter might have problem renewing her student visa. F-1 does not allow immigration intent.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Derivative child, although included in the I-526 petition, is not the petitioner and thus has not expressed any intent to immigrate. If she is asked if she has filed any immigrant petition for her DS-160 for F-1 visa application, she may answer "no," which is the truth. Thus, she should not have any problem extending her F-1 status while you, her parents, are pursuing the EB-5 process. If your I-526 is approved while your daughter is outside, she could still enter as long as she is attending school and her F-1 visa, which is for the duration of her school enrollment, is valid, and then adjust her status after you receive your permanent residency. Again, the key point in all this is that your daughter is not the applicant/petitioner of the EB-5 case, just a derivative of you, who is the investor and petitioner. As long as she has not filed the I-526 immigrant petition herself, she has not violated any immigrant intent and thus should not be questioned on this at all. Whether she is allowed to enter under F-1 hinges on whether she has attended school full-time as she stated and did well in school to continue.

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    Ed Beshara

    Immigration Attorney
    Answered on

    The filing of the I-526 petition will not affect the F-1 status of the daughter. If the daughter is in the United States and is maintaining her F-1 status in the United States and the I-526 petition is approved, then the F-1 student can apply for adjustment in the United States. If the F-1 student is outside the United States when the I-526 petition is approved, then the student cannot enter the United States under F-1 student status and claim a non-immigrant intent when her real intent is to apply for a permanent residency status in the United States.

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    Philip H Teplen

    Immigration Attorney
    Answered on

    The problem is that the F-1 visa is a non-immigrant visa that does not permit dual intent. Therefore the renewal should not be done while the I-526 is pending. I would time the two so that they do not conflict with each other. You need to seek the counsel of an experienced attorney.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Probably okay, but there is a built-in conflict between trying for immigrant status and being on most non-immigrant statuses which require "non-immigrant intent." So safest is not to travel while the I-526 is pending and just wait until she gets a travel permit at the adjustment stage.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    There may be some effects. When the I-526 (with her listed as a derivative beneficiary) is approved, the NVC will be notified and will send invoices for payment of the visa application fees and requests for information and documentation. If she is outside the country, it would likely be best to remain outside the United States and go through consular processing, but if she is already in the United States, please note the following language from the I-485 instructions: "If the spouse or child is in the United States, the individual derivatives may file their Form I-485 with form I-485 for the principal applicant, or file Form I-485 at any time after the principal''s Form I-485 application is approved, if a visa number is available." Either way, retaining experienced U.S. Immigration counsel with specific experience with the EB-5 process is very important!

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    Stephen Berman

    Immigration Attorney
    Answered on

    She would have to indicate that she is the beneficiary of an immigrant visa, and this may affect her ability to get a new F-1 visa.

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