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When does an EB-5 petition affect the immigration status of a spouse?

I have an F-1 visa in the OPT extension stage, expiring Aug 2016. My wife has a pending I-526 application submitted Jan. 2015. We got married in the United States in June 2014. The I-526 does not have my name on it (just hers). If I go back to my country and get the F-1 visa renewed, is there any potential problem? Will the visa officer link her I-526 to me? At what point will my wife13724s I-526 application affect my own visa?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Your wife's I-526 should not affect your F-1 until you file an adjustment of status application when your wife's I-526 petition is approved and she files her adjustment of status application. You can continue in F-1 status by enrolling in school and continuing to meet the F-1 status requirements even if your F-1 visa in your passport is expired.

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    Ed Beshara

    Immigration Attorney
    Answered on

    You will need to consult with an experienced EB-5 immigration attorney. Please note the filing of an I-526 petition should not affect the issuance of a nonimmigrant visa.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Since the I-526 by itself, and especially one that does not contain your name, does not grant any immigration status, you would only be affected once your wife applies for the immigrant visa (green card).

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    Lynne Feldman

    Immigration Attorney
    Answered on

    As long as you are maintaining nonimmigrant status you may remain here. Your wife can obtain an F-2. Keep in mind though that the F-1 and F-2 require nonimmigrant intent and the I-526 shows immigrant intent so traveling is not advised as you would have to overcome this at the consulate.

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    John J Downey

    Immigration Attorney
    Answered on

    If your name is not included on the I-526 then it should have no effect on your F-1. I do not know what your wife's current status is. If she obtains her conditional permanent residence and then it becomes permanent she could file an I-130 petition for you. Depending on what country you are from it could be a long time before a visa could be issued.

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    Steffanie J Lewis

    Immigration Attorney
    Answered on

    Your wife is the investor. Assuming approval of her I-526, her visa carries with it the right for her spouse and unmarried children under the age of 21 years to also enter as U.S. lawful conditional permanent residents. This process to include you takes place at the NVC stage following the I-526 approval. The acceptance of your marriage for immigration purposes will be determined at the subsequent U.S. embassy interview. I assume that you choose to extend your F-1 status in your home country. When you are asked at the U.S. Embassy and at the border, it must be your intent to return to your country at the completion of your studies. Later you may change your mind. So long as more than six months have passed since you re-entered the United States, there should be no presumption that you entered with the intent to remain permanently.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Your wife's I-526 is not your petition, so until she files the I-485 adjustment after her petition is approved and you file the adjustment with her, you have not expressed your immigrant intent and you should be able to renew your F-1 visa if you wish. Please note that although your F-1 may be expiring August 2016, all you have to do to maintain your status as F-1 is to enroll in a school and obtain a new I-20.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    There is no question on the DS-160 nonimmigrant visa application form regarding immigrant petitions filed on behalf of a spouse. You must completely and truthfully answer all questions on the DS-160 form and any questions asked by the consular officer. You are not required to volunteer information and you do not have to give information not asked on the form. In order to qualify for most nonimmigrant visas, you must overcome the presumption that you are intending to immigrant by providing evidence of sufficient ties to your home country.

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