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How can my child enroll in a U.S. college with a pending EB-5 I-485?

My son is getting into college and we are on EAD, with a pending EB-5 I-485 application. He will age out in the next three years and our dates will not be current anytime soon. Can he enroll in college on a pending I-485 now, and then apply for F-1 in the last year of college to complete the degree? If not, what should we do?

Answers

• Bernard P Wolfsdorf

  Immigration Attorney

  Answered on September 26, 2022

  If you have a pending EB-5, you need to argue that his date froze upon filing of the I-485. But I understand you have likely filed under a Date for Filing and now with Chinese and Indian retrogression these children are not safe. It may be hard to get an F-1 visa with a pending I-485 but many consulates have been sympathetic and provided he has an advance parole, there may not be too much risk in applying. The other option may be to see if you can withdraw your investment and top it up with a new investment and file a new I-526 under a fast track set-aside category that is current.

• Lynne Feldman

  Immigration Attorney

  Answered on September 12, 2022

  What nonimmigrant status is your son on now? Yes, your son can enroll in college with the EAD from a pending I-485. The question for the college becomes whether he is eligible for in-state or out-of-state tuition.

• Dennis Tristani

  Immigration Attorney

  Answered on September 12, 2022

  Your child will be able to enroll in college by using his I-485 receipt notice to confirm that he is lawfully in the U.S. with a pending I-485 application. The act of filing form I-485 serves to satisfy the "sought to acquire" requirement, which will freeze his age and prevent him from aging out.