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Can you file for DS-260 if an I-526 was approved while on F-1 status?

I am currently on the F-1 visa and recently received an approval notice for the I-526. I was hoping to take next semester off (which should have been my final semester) due to health reasons, but that would mean losing F-1 status during this time. For that reason, I was wondering if I could file a DS-260 instead of the I-485, even though I was in the U.S. with a legal immigrant status during the time of I-526 approval. Furthermore, I was wondering approximately how long it would take for the green card to be issued, as I was hoping to return next fall for my final semester at college. What are the risks involved with this?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You need to check with your lawyer what was noted on your I-526 petition: consular processing or adjustment of status. If the former, you can file DS-260 and civil documents once NVC sends you a letter about your consular processing case and issues an immigrant visa bill. If the latter, you need to file I-824 with USCIS requesting it to send I-526 to NVC to start the consular process, but it takes about five to eight months on average to process. Your best option is probably to file I-485 based on an approved I-526 and apply for work authorization and an advance parole travel document based on pending I-485 at the same time you file I-485. You can travel outside the U.S. once you receive advance parole. You can stop going to school once your I-485 is filed and you will be considered in an authorized period of stay while your I-485 is pending with USCIS until it renders a decision. Best practice is to keep your underlying F-1 status if you can until your I-485 is adjudicated, but you do not have to do it if you cannot. When you return to the U.S. from travel abroad on advance parole, you will be admitted as a parolee, not in F-1 status.

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    Stephen Berman

    Immigration Attorney
    Answered on

    One files a DS-260 for consular processing. If that is what you want, then you can do that.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    You may need to file a request (and fee) to send the case to the NVC for the first part of consulate processing, but that could work for you, all other things considered.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    If your lawyer noted that you would do the consulate processing on the I-526 petition, this would be simple, as USCIS will automatically send your case to NVC for that process and you could do DS-260. However, if your lawyer noted that you would do I-485 on the petition, in order to do the DS-260, you will have to file the I-824 to USCIS asking them to send your file to NVC, which would take four to eight months before the NVC gets the file and issue the visa fee bill. Please check with your lawyer on this. On the other hand, if you already have the I-526 approval in hand, you could file the I-485 before you stop going to school and stay in the country under the I-485 pending status. You could travel and work after 90 days or so when the EAD/travel combo card is issued. While I normally advise my clients to stay in their current status until I-485 is approved, since you will not be in your current status because you are not attending school, this would not be applicable. Please note that when you return with EAD/travel card and enroll again, your status will be I-485 pending, not F-1 student with I-20.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    It depends how you indicated you would process on the I-526. If you indicated you would adjust status, then you need to file an I-824 to change to a consular processed case.

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    Sarah Xiao Qian Mu

    Immigration Attorney
    Answered on

    No, you are still on F-1 status in the U.S. if you have remained it successfully. You are not on the legal immigrant status simply because of the approval of I-526. If you are from a country that the EB-5 visa does not have regression, you can file I-485 right away, you must have a valid F-1 status when you filed I-485. Once the I-485 is filed, your status may lapse, but you need to speak to a lawyer about the various nuanced issues surrounding this. You do not need to leave the country to get your green card, but you can. Overall, you should work with a lawyer to avoid making unnecessary mistakes.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    Based on the info you provided, it seems you would be better off filing for adjustment. Once you file for adjustment - while in lawful status - you can then abandon your F visa. Make sure you obtain legal counsel, as there may be other considerations for you which you did not mention here.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If the health reasons are serious, you could get a leave of absence from attending school. Another option is filing the I-485 if you are not in a waiting line, such as from China or Vietnam. This next step is very important because you need to work with your lawyer to make sure you can re-enter to complete your studies. If you leave and want to process the final stage abroad, was the file sent to the NVC? If not, it could take months to transfer. Best to file an adjustment and not leave until you get RFE advance parole in three to four months.

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    Charles Foster

    Immigration Attorney
    Answered on

    Yes, one can always start the process by filing an application on Form DS-260 rather than an application for adjustment of status on Form I-485. You can only file an application for adjustment of status if you've maintained your status in the U.S. after you've obtained approval of your EB-5 investor petition on Form I-26. The timing for approval of your immigrant visa abroad, after notifying the National Visa Center, could be six months or longer. The primary risk is that you would have to wait longer abroad than you had originally anticipated.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    You can opt to consular process even if you are currently in the U.S. on a visa status. No added risk for opting to process abroad for your immigrant visa processing.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    You should be able to apply for an immigrant visa in this situation. You need detailed advice about this involved situation from an immigration attorney who knows all of the facts of your situation. You should get this advice from your immigration attorney or have a consultation appointment with a new attorney.

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