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Can an EB-5 dependent be enrolled in a public school with B-1/B-2 visa?

I filed an I-526 petition three years ago with my son as my dependent. I was working in the U.S. with an H-1B visa then and my son was attending an elementary school in my home country. Recently my I-526 petition was approved, and I filed my I-485 petition. According to my immigration consultant, my son will not be able to get an EB-5 visa until my I-485 petition gets approved, which can take two years. However, I want him to be able to attend school in the U.S. as soon as possible. He is holding a valid B-1/B-2 visa now. Can I enroll him in a public school now? If not, is there any way that he can enter the country with an EB-5 visa while my I-485 is pending?

Answers

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    I would need to know if an I-485 was filed for your son too. Generally, the primary investor and their family all file for AOS together.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Even though schools will not check immigration status, attending public school on B-2 visa is not a permissible B-2 visa activity and he will violate this status. Best way is to have your son on H-4 if you are maintaining your underlying H-1B status. Or alternatively, he can apply for F-1 for a private school.

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    Charles Foster

    Immigration Attorney
    Answered on

    For someone who has been admitted as a visitor in B-2 status, he is not eligible to enroll in public schools; in fact, to do so could be considered visa fraud. While he may apply for admission and be admitted as a visitor, he should not attend public school unless he is able to change his status once he is in the U.S. from B-2 to F-1 non-immigrant status. Or, even better, he can obtain an F-1 student visa while abroad. However, given the fact that you've had an H-1B, he was eligible for H-4 status and as such, he could attend public school. If you're still maintaining your H-1B status, under certain conditions, your son may still be eligible to apply for and obtain an H-4 status.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    The best way is to stay on the H-1B and have your son enter on an H-4. It is not wise to enter on a B-2 and attend school, as he would be barred for attending school on a B-2.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    Unfortunately, before your I-485 is approved, your son''s options are limited. B-1/B-2 are tourist visas and as such they are intended for those people who are "visiting" the US not intending to immigrate of go to school here. If sending him to a private school is an option you could afford you might want to look into the F-1 visa.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    No. He will have to get a student visa in his passport. Merely having the EB-5 approved and your I-485 pending does not give him any right to be here or to attend school.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    He cannot attend public school on a B-1/B-2, but you can change his status to H-4 and then he can attend school.

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    Stephen Berman

    Immigration Attorney
    Answered on

    Nobody on B-1/B-2 can be enrolled in public school.

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    Stephanie Lee

    Immigration Attorney
    Answered on

    If you filed I-485, you have been in a lawful status like H-1B. However, if your son comes in a B-1/2, which means he should visit without an intent to live here. I would recommend you to talk to your attorney and find what options are available and plan for your son.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    No, he cannot attend public school on a B-1 visa. I-485 should not take two years, but at this point, it is probably too late to switch to consular processing. The approval of I-824 alone can take up to six months. Perhaps your son can get an F-1 and attend private school until he is able to adjust status to CPR.

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