How DHS and State Can Protect F-1 Investors Without Congressional Intervention -

How DHS and State Can Protect F-1 Investors Without Congressional Intervention

Matthew T Galati

Many EB-5 investors hold F-1 status as international students, often resulting from gifts from parents used to fund the investment. Perhaps the most common question arising from this scenario is whether the filing of an I-526 will result in any impact on the student’s ability to travel or renew their visas, especially as processing times and Chinese retrogression increase. On this very website, the travel issue has come up time, and time, and time again. The concern is legitimate and to be expected: investors understandably are anxious that travel may result in an interruption of their ability to continue their studies upon reentry and of course require consular processing.

In reading the various attorney answers to those questions linked above, there tends to be a degree of disagreement. My colleagues and I at Greenberg Traurig tend to err on the conservative side of the issue, warning investors that a CBP officer could discretionarily interpret the I-526 filing to be inconsistent with the nonimmigrant intent required by the statute. F-1s must have “a residence in a foreign country which he has no intention of abandoning” and perhaps the I-526 filing or approval negates that intent. INA § 101(a)(15)(F)(i). Perhaps even more likely is that a Department of State Officer will use the filing to discretionarily deny a visa renewal: the topic of immigrant petitions is affirmatively asked on the DS-160. The stakes are very high and international travel invites risk that, despite the inconvenience, can usually be avoided.

The incongruence of immigration policy – yes, we want foreign students to study at U.S. universities but only on the condition that they prove to us that they won’t want to stay here permanently – spurred Congress to propose making the F-1 a dual intent visa in S. 744. That bill was Congress’ last major attempt at comprehensive immigration reform. It passed the Senate in 2013, but never received a vote in the House. Don’t hold your breath for comprehensive immigration reform until at least after the 2016 elections, and also don’t expect Congress to take up this specific issue anytime soon.

But is it necessary to amend the statute to ameliorate this issue? Consider how USCIS treats O-1 and E visas under the regulations, neither of which are explicitly authorized as being dual intent (as H-1B and L visas are by statute). For E visas, the holder:

[S]hall maintain an intention to depart the United States upon the expiration or termination of E-1 or E-2 status. However, an application for initial admission, change of status, or extension of stay in E classification may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition. 8 C.F.R. § 214.2(e)(5).

Likewise, for the O-1 visa:

The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the alien’s application for admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States. 8 C.F.R. § 214.2(o)(13).

In this day and age, where congressional deadlock over comprehensive immigration reform yet a widespread acknowledgement of the system creating a significant “brain drain” problem simultaneously exist, the Executive Branch should strongly consider enacting whatever reforms can be possible through regulation to streamline the process of potential immigration for F-1 students and their families.

Perhaps through notice and comment rulemaking to craft a regulation similar to those two already in place for the above visas, F-visa investors and others subject to long processing delays or quota backlogs can receive greater clarity on the effects of filing an immigrant petition, knowing that there is no risk of interrupting their U.S. studies or precluding an eventual opportunity to adjust status.

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