We are a family of three. I started our EB-5 application with my wife, as I want her to be the primary applicant. My son is in grade 10 and by next May, he will be seeking admission to a U.S. STEM program. However, his I-526 will not be ready by then. Can I apply for an I-526 for all three of us now? Can my son apply for an F-1 visa while his I-526 is pending? What would be the best way to guarantee his status?
If you entered on a dual intent visa, you can file a subsequent application for adjustment of status under the new law Biden signed March 15, 2022 provided you have a current priority date. Only two countries, China and India, are presently backlogged.
Your son should obtain an F-1 visa and begin his studies in the United States before an I-526 petition is filed. Your son may have difficulty obtaining an F-1 visa if the I-526 petition is pending. In general, this is an involved situation and you should obtain legal advice from an immigration attorney during a consultation appointment.
Your son can attend school in the U.S. on an F-1 visa while the I-526 petition is pending. Given the fact that your son will not be the primary I-526 petitioner, he should not have an issue obtaining an F-1 visa to pursue a legitimate program of study.
F-1 is an option while waiting for the I-526 to be approved. If all of you are legally in the U.S., you may file for adjustment of status while the I-526 is pending and this includes interim work and travel permit.
Generally, you need one I-526 for one investor, and his or her spouse and minor children can file to adjust status based on that one application.
Your son can apply for a student visa (F-1), even while the I-526 petition is pending, assuming he is not otherwise inadmissible. When applying for the F-1, it will need to be noted that there is a petition of immigrant classification, in which your son is a derivative, however. This could cause a question as to whether your son has the requisite non-immigrant intent necessary for a student visa.
