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How do I deal with a situation involving EB-5, J1 and F1 visas?

I am a 20-year-old Indian national. My dad applied for EB-5 in late 2018 with me as a dependent. Recently, I got an internship position that will last from May to July 2019. To take the position, I have to apply for a J1 visa, and due to my major, the 212e 2-year rule applies. My bachelor’s program in India will end in May 2020 and I plan to pursue a master’s in the U.S. I am thinking to apply for a waiver immediately after returning from my internship in July 2019, but the waiver application procedure might take some time. Please kindly tell me what options I have and what problems I can face at any stage?

Answers

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    Lynne Feldman

    Immigration Attorney
    Answered on

    I would need more details to advise.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    This is a complex question for a forum. There are many variables to take into account, including age-out issues if immigrant visas for Indians become retrogressed or potential issues with obtaining a J-1 no objection waiver. Please consult your immigration attorney to review all possible options. It might be highly advisable that you consider F-1, rather than J-1, and then take advantage of your father's I-526 petition to immigrate to the U.S. as a dependent.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    Honestly, you have many competing agendas and it appears to me that you will need to make some hard decisions as to which path to take. Once you decide that path, some of your potential avenues will need to be closed, i.e., you should not pursue them. Being an Indian national, you will most likely face retrogression issues with your father's EB-5 application. If you were not from India, getting a conditional green card through being the dependent of your father would have been quite realistic. You would have then benefited from the Child Status Protection Act (CSPA). But since by the time your father's I-526 will be approved, India will most likely enter retrogression and therefore you will have to wait for "becoming current" you will most likely end up "aging out." So let's forget for now the green card route through your father's EB-5 application. That leaves you with two choices to make: the J-1 visa now so that you could work as an intern from May to July of this year and then be subject to two years foreign residency requirement, or forget about the internship altogether for now and thus the need for J-1 visa but opt to pursue your master's degree in the U.S., for which you would need the F-1 visa. With the F-1 visa, you can come to the U.S. and study.

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    Charles Foster

    Immigration Attorney
    Answered on

    If you wish to be a permanent resident as a dependent of your father, based upon his EB-5 petition on Form I-526, you should not apply for J-1 Exchange Visitor program and become subject to your foreign residency requirement unless you intend to return for two years. Obtaining a waiver is highly unpredictable.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    This is a very complicated case, especially if your father's I-526 is approved quickly. The CSPA allows you to deduct the time the petition was pending from your age at the time of approval of the petition. If India backlogs later in the year, this could make it very difficult to freeze your age within the 12-month period following the approval. Also, if you take a J-1 visa, it is not always so easy to get a waiver from India, assuming they agree to recommend one. I would consider passing on the internship and going straight for the F-1, assuming you can get one on account of having to prove an unrelinquished domicile abroad.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    You are asking for a lot of analysis and advice that requires some actual work, so please retain an immigration attorney to assist you along this process.

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