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What is the process to change from F-1 to F-2 if an I-526 has been submitted?

My wife currently holds an F-1 OPT. This status will expire in late October. My current status is F-1 and it will be valid until December 2016. My wife plans to change her status to F-2, but we submitted an I-526 petition this month. How will the status changing process from F-1 to F-2 be affected by the I-526 submission? How does the status change process work?

Answers

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    You can change from one nonimmigrant status to another while the I-526 petition is pending, but that does not mean it will be easy to do so, because of dual intent. Please obtain assistance from an immigration attorney to help you through the process.

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    Ed Beshara

    Immigration Attorney
    Answered on

    An experienced EB-5 immigration attorney will be able to advise you. A formal request to change from F-1 to F-2 status is filed on Form I-536.

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    John J Downey

    Immigration Attorney
    Answered on

    An I-526 does not confer any status. Your wife's F-2 status is not affected.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    It may not be approved because the I-526 indicates immigrant intent. Since that is in your name though, she will probably be OK.

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    Rachel Lew

    Immigration Attorney
    Answered on

    If the husband was the principal investor on the I-526 petition, his wife should be an intended immigrant. Because the I-526 petition is an application for immigration benefits, any subsequent nonimmigrant visa or change of status applications by the principal investor or family members may be denied. Nevertheless, since the wife's F-2 change of status application is based on her husband's F-1 status that was previously granted before her husband's filing of the I-526 immigrant petition, it may be granted pending the adjudication of I-526 petition. The wife can still change status from F-1 to F-2 by filing the I-539 application. However, she must answer truthfully on questions 3 - 4 in Part 4, Additional Information of the form. Further, if the husband and wife are born in China, there may be an issue of visa retrogression, even if the I-526 petition is granted by October of 2016 when the husband's F-1 and wife's F-2 status expire. In this situation, the couple have to return to China to await for their immigrant visa priority date to become available before they can obtain conditional permanent residency. It may take an additional two years or more unless the law is changed by Congress. If the couple is born in a country other than China and the I-526 petition is approved before October 2016, they can timely adjust their status within the United States.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    It depends on who the main investor is and in whose name the I-526 was submitted. If you are the investor that submitted the I-526, then your wife has not expressed her intent to immigrate. In fact, the I-526 form does not have any place the family's names are listed. Thus, there is no reason why she cannot change her status from F-1 to F-2. If, on the other hand, it was her I-526, then she should not change her status, but keep her status as F-1 to keep the duration of status.

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    Stephen Berman

    Immigration Attorney
    Answered on

    The application will be denied, as an intending immigrant cannot get an F-2.

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