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How can I apply for EB-5 with a pending adjustment of status application?

I am on an H-1B visa and my H-1B I-94 is valid until Sept. 30, 2018. In March, I received an offer from a graduate program and applied for an adjustment of status (AOS) from H-1B to F-1. The AOS application is still pending. Can I file an I-526 petition to start my EB-5 application now? If yes, what happens if the H-1B to F-1 AOS gets denied? If I cannot apply for EB-5 on a pending AOS application, can I go back to my home country and file the I-526 petition?

Answers

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    You can file an I-526 petition to start your EB-5 now. If your plan to change your status from H-1B to F-1 is denied, you will have to go back to your home country because you do not have any valid visa to stay in the US. In spite of this fact, your pending I-526 petition will not be negatively affected. However, it simply means that your I-526 petition will be processed while you are out of the U.S.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    You can file for EB-5 now. You have not applied for AOS, but rather a change of non-immigrant status (COS). Filing an EB-5 case does not give you the right to remain in the U.S. You need to get the COS approved to do that. You can go back home and still have the EB-5 case pending. Since the EB-5 laws are likely to change soon (probably raising the minimum investment from $500,000 to $1.3 million), it is best to file quickly.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You should file for I-526 now, especially because the regional center program is set to expire on Sept. 30. You should choose the consular processing option on I-526 application. In the event your change of status application (not AOS) is denied, you need to depart the U.S. and wait outside the U.S. for I-526 to be adjudicated and then consular process to immigrate to the U.S. as a conditional green card holder when/if your I-526 is approved. You should engage an experienced EB-5 immigration attorney to help you with the process.

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    Stephen Berman

    Immigration Attorney
    Answered on

    Yes, you can file it now. If your application to change status to F-1 is denied, you will need to depart the U.S.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    You can file an I-526 petition now. It has nothing to do with you "current status". By the way, you did not file an adjustment of status but a "change" of status application.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    The application that you have pending from H-1B to F-1 is called change of status, not AOS, which is I-485 adjustment for obtaining the green card. Since there is a sunset deadline for EB-5 regional center program on Sept. 30, 2018, I would file the I-526 now, specifically choosing the consulate processing route after I-526 is approved. This way, you will not be violating the non-immigrant intent of the F-1 category. If your COS to F-1 is denied, you will need to go back home to wait for the I-526 to be approved, then interview at the consulate for the immigrant visa before coming back in.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You may apply now for I-526 and if change of status to F-1 is not approved, go home and wait or apply for another non-immigrant status from home.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    A change from H-1B to F-1 is called a change of status, and most of those are being denied on the basis that you have to continue to be in valid H-1B status up until 30 days before the school start date on the student visa. The best option is probably to get a new I-20 and apply for a student visa abroad. Filing an I-526 could make it more difficult to get a temporary student visa, so you need to concentrate on the student visa application first before pursuing the green card.

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    Charles Foster

    Immigration Attorney
    Answered on

    Yes, you can certainly file your EB-5 investor petition on Form I-526 at any time. If your application to change from H-1B to non-immigrant F1 student status is denied, then you would be out of status. The fact that you had filed an I-526 petition in and of itself does not give you a right to file to become a conditional lawful permanent resident until such time as your I-526 petition is filed. If you are in valid status at that time, you could then file for adjustment of status; otherwise you would have to go home and apply for your immigrant visa once your I-526 petition is approved and visa numbers are available. Normally, you would want to file the I-526 petition as soon as possible, since it would normally take more than a year for it to be adjudicated.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    You need to talk with an immigration attorney NOW. I hope you just have your terms confused, but an AOS (Form I-485) is to apply for a green card based on an approved or pending immigrant petition (I-140, I-526, I-130). A change of status (form I-539 or I-129) is for a change from one non-immigrant status to another (like H-1B to F-1).

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