Questions and Answers > EB-5 Investments

What should I do if my student visa is expiring soon and our EB-5 visa is still pending?

I came to United States on a student visa F-1 and my kids followed me with an F-2 visa. My husband arrived here with an F-2 visa and applied for EB-5 in 2019. My I-20 is expiring on Feb. 15 and we are on status “pending” according to our I-526. Can we still remain in this country until we get an answer for our I-526? Can my kids go to public school while we are pending? Is there paperwork needed to address my I-20 expiration date? If so, what forms do I need so I can adjust my status.

Answers

• A Olusanjo Omoniyi

  Immigration Attorney

  Answered on February 16, 2021

  Generally, once your F-1 visa expires, you cannot remain in the country until you hear about your pending I-526. Just as well, until your I-526 is approved, you cannot adjust your status as long as your I-526 remains pending. A more feasible option is to seek an extension of your F-1. It can be either for continuation of your studies, or seeking and obtaining an optional practical training (OPT) with the help of your college. If none of these options work, the family should consider leaving the U.S. to avoid being out of status. Finally, the kids cannot attend school once your F-1 status lapses because their F-2 status will no longer be valid as well.

• Fredrick W Voigtmann

  Immigration Attorney

  Answered on February 8, 2021

  A pending I-526 petition does not provide any independent immigration benefits. If you wish to remain in the United States, you have three options: (1) You can enroll in another educational objective/program and obtain a new I-20 for full-time studies to allow you to remain in a "duration of status"; (2) You can file a change of status from F-1 to B-2 visitor (this entails risk because of your pending immigrant petition and because the maximum period of stay would for this change of status would be six months); or (3) You could file a change of status to another non-immigrant visa category for which either you or your husband might qualify (you need to speak with an experienced immigration attorney, who can advise you on this matter). Your children need to be in a valid status, either F-1 or F-2 (or other non-immigrant status except B-2 visitor) in order to attend school. Once your I-526 petition is approved, you can all apply for adjustment of status, assuming an immigrant visa number is available and you are otherwise eligible to adjust status.

• Belma Demirovic Chinchoy

  Immigration Attorney

  Answered on February 8, 2021

  A pending I-526 does not provide you any immigration status. If you want to remain in the US, the simplest thing is to continue your F1 studies and enroll in a new two-year program or similar.

• Stephen Berman

  Immigration Attorney

  Answered on February 8, 2021

  If you are no longer going to be in school, you will not be in status. You could leave the U.S. or change to another non-immigrant status, or continue in school.

• Daniel B Lundy

  Immigration Attorney

  Answered on February 8, 2021

  A pending I-526 petition does not give you lawful status or the right to stay in the U.S. past the end of your current status. You need to make another plan, and quickly. You can only apply to change non-immigrant status if you are in status. So, it sounds like you would need to file something by the 15th. We have had clients change to a visitor visa status if they are unable to leave because of Covid travel restrictions. You need to discuss your options with an immigration attorney. Alternatively, you would need to depart.

• Kristal Ozmun

  Immigration Attorney

  Answered on February 8, 2021

  No, you cannot remain in the U.S. without a valid underlying status. The pending I-526 petition affords no immigration benefits.

• Salvatore Picataggio

  Immigration Attorney

  Answered on February 8, 2021

  The I-526 is one of the few forms that does not allow for concurrent green card applications, so a pending I-526 petition does not allow you to remain in the U.S. past the expiration of your current status.

• Ying Lu

  Immigration Attorney

  Answered on February 8, 2021

  Though you will not incur unlawful stay while your I-526 is pending, you will not be able to adjust your status within the U.S. when your I-526 is approved because by that time, you would not have a valid non-immigrant status to be adjusted into an immigrant status. You will have to leave the U.S. to get through the consular processing in order to get your immigrant visa. I would suggest you maintain your F-1 status by pursuing another degree so that you will be able to adjust your status in the U.S.

• Bernard P Wolfsdorf

  Immigration Attorney

  Answered on February 8, 2021

  A pending I-526 does not allow you to stay in the U.S. nor does it give you the right to stay here. If you have a student status and if you seek to continue your studies, you need to apply to extend your stay. The starting point is the international office or another school if you plan to transfer your status.

• Lynne Feldman

  Immigration Attorney

  Answered on February 8, 2021

  You will need to either go home to wait for the I-526 approval and then consular process, or you will need to extend your student status or change to another non-immigrant status for which you or your spouse are eligible.