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What happens when an F-2 applicant applies for the EB-5 Program?

When I am in the middle of a 4-year school education on an F-1 Visa, can my wife (who has an F-2 visa) apply for the EB-5 program? Does that have any effect on her F-2 status or on my F-1 status? Further, if she would receive a green card, could I still keep my F-1 status and apply for a family green card later?

Answers

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    Ed Beshara

    Immigration Attorney
    Answered on

    Any foreign national who is in legal status in the U.S., such as F status, may file an EB-5 petition. During the I-526 adjudication process, the foreign national can maintain their F status in the U.S. The principal investor, spouse and minor children can obtain their conditional permanent residency through the filing of one EB-5 investor petition.

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    Shahzad Ahmed

    Immigration Attorney
    Answered on

    The filing of an EB-5 petition reflects the intent to live in the U.S. permanently. This contradicts the non-immigrant intent requirement for an F-1. So if for example, you or your wife seek an extension of your F-1, F-1 visa renewal or F-1 entry, then you may be refused based upon having immigrant intent. My suggestion is to have an experienced attorney plan your steps forward given your particular needs. I wish you the best in your process going forward.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    F visas are for a duration of status. Thus, her F-2 status remains intact while you are on F-1 and attending school. Even if her I-526 is denied, her F-2 status will not be in jeopardy as long as your F-1 is valid. If her I-526 is approved, then it would not make sense for you to keep your F-1 as adjustment of status will give you both the green card status to live and work anywhere in the U.S. and attend school with a lower in-state tuition if you are attending a public university. The status of your enrollment with courses you take and the degree you are pursuing does not have to change just because you become a green card holder vs. international student. Having her file a family-based green card later only adds legal fees and time you do not have to expend.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    There is nothing wrong with the idea for an F-2 visa holder to petition for an EB-5 visa. The filing of an EB-5 petition will not negatively impact the status of either the F-1 visa holder or F-2 visa holder immigration holder. In the event of filing a petition by the F-2 holder, the petitioner should include the F-1 holder and all family members.

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    Michael A Harris, Esq

    Immigration Attorney
    Answered on

    You or your wife can apply for the EB-5 as a student or dependent of a student. One of the most important questions will be whether you and your wife can maintain your F-1 or F-2 status while you are in the United States and whether either of you will need to travel outside of the U.S. and/or apply for a new visa stamp in your passport. With a student visa in your passports with validity date, you both should be able to travel during the pending EB-5 petition. If you do not need to travel, then you (as the principal student) will need to maintain your status by continuing to be enrolled in school and having a valid I-20. Regarding whether you can follow-to-join your wife after she obtains residency, that is a possibility. But I would wonder why you would wish to do that, especially since you could have a different period of conditional residence and may have to file apart from your wife to remove the conditions of residence. Also, as a permanent resident, you would be allowed to continue your studies.

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    Charles Foster

    Immigration Attorney
    Answered on

    Yes, the wife of an F-2 visa holder may file an EB-5 Investor Petition on Form I-526. That may or may not have any effect on her F-2 status and on her husband''s F-1 status. As long as you are in the U.S., that will probably not be an issue. However, should you need to travel abroad and apply to renew your F-1 and F-2 non-immigrant visas, the fact your wife has filed an EB-5 Investor Petition on Form I-526 would have to be disclosed and, since every applicant for a non-immigrant F-1/F-2 Student visa must establish that they intend to return to their home country, it is somewhat likely that the Consular Post would deny the Student and Dependent visas. But, if you''re not traveling abroad, that issue may not come up. It could also come up should you transfer or extend your student programs, for example, to study further, which would necessitate a new application to extend your F-1/F-2 status. Should your wife receive her Green Card, you would certainly be eligible to receive it at the same time and you would want to do that; there would be no reason why you would want to do so at a later date.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Yes, your spouse who is on an F-2 status can apply for EB-5 Immigrant Investor processing without affecting her F-2 status while she is in the U.S. maintaining the F-2 status; however, if she needs to apply for an F-2 visa extension at the U.S. Consulate, she will have to disclose that an immigrant petition has been filed and be prepared to explain that current intent is temporary. You can be filed to follow-to-join your wife in lawful permanent resident status at a later time if you wish. I would not recommend delaying too long after she gets her permanent residence or else you will have to process through her petitioning for you as a spouse of a lawful permanent resident (which can take years to process).

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    Lynne Feldman

    Immigration Attorney
    Answered on

    There is a conflict in intent with the two visas, so you should consult an attorney.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    An F-1 is a student visa application requires a relinquished domicile or home abroad. An EB-5 green card petition filing reflects an intent to remain permanently in the U.S., so there is a potential conflict. Moreover, the general presumption is that husbands and wives live in the same country and, although each case turns on its own unique facts, the actions of one spouse can often be implied to impact both. In this case, nothing automatically happens when an F-2 applies under the EB-5 program. But when the F-1 or F-2 bearer travels or applies for new benefits such a visa or entry to the US, this green card application must be disclosed and then there might be adverse consequences if the intent is contrary to that stated in the application. For example, if the F-2 dependent travels and applies for a new student visa, they may be required to disclose this EB-5 filing and may be denied. It could also directly impact your F-1 status if applying for entry to the US as you will be a derivative beneficiary. As for timing, it is correct that you may decide not to apply for a green card now and change your mind later, however, some consulates may require you to elect whether you plan to apply for the green card and not allow you to leave the question open. The key, of course, is to tell the truth at all times, but know there can be a conflict.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    Applying for permanent residence under EB-5 will indicate that you have the intention to immigrate to the United States. An F-1 (and F-2) visa status requires nonimmigrant intent. Therefore, while nothing happens automatically when a person in F-1 or F-2 status applies for EB-5, you may find it difficult to renew or extend your nonimmigrant status because you are required to disclose any immigrant petition filings to the U.S. government (most application/petition forms ask if you have ever filed an immigrant petition). If the USCIS officer or consular official determines that you have immigrant intent based on your EB-5 filing, then you may be found ineligible for most nonimmigrant visas/statuses (i.e., F-1, F-2). If your wife receives her green card through EB-5, you would be entitled to a green card as her spouse, so you would not need to maintain your F-1 status to continue studying. You also could keep your F-1 status and apply for family immigration later, but that is not recommended unless there is a good reason.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    Yes, your wife could apply for EB-5 and it would not impact her F-2 status. Once approved, I would recommend you obtain your Green Card, as that will provide you with greater freedom. I do recommend you sit down with an experienced EB-5 Investment Attorney to discuss your personal goals as this will impact the decisions you and your wife make.

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