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How do I travel overseas during the DS-260 processing?

I am a current F-1 visa student in the U.S. and my I-526 was approved last week. I plan to file for DS-260 through the U.S. embassy in Korea this September once the documents are ready, and hopefully I will schedule an interview at the U.S. embassy next March. Between this September and next March while my DS-260 is being processed, how can I travel freely overseas and return to the U.S. on my current F-1 visa?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Ensure that you have a copy of your NVC letter/visa fee receipts, as the difficulty may arise at the U.S. border to convince a CBP officer that you intend to consular process abroad rather than adjust status in the U.S. In the event CBP denies you admission on F-1 due to DS-260 filed, ask for withdrawal of your application for admission and do not make any misrepresentations to avoid an expedited removal issue.

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    Barbara Suri

    Immigration Attorney
    Answered on

    You will travel the way you have always done, until your status is changed. It would be a little different if you had filed I-485 instead of DS-260.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    As long as the purpose of your entry into the United States is to resume your temporary studies, you should be fine. The issue might be that CBP will presume you are an intending immigrant since you have an approved I-526 and a pending immigrant case. If you are found to be an intending immigrant, CBP might require that you withdraw your application for admission and return to your home country to await your immigrant visa interview.

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    Marisa Casablanca

    Immigration Attorney
    Answered on

    The issue comes up when you enter the U.S. The CBP inspector has to determine if when you enter as a student you have immigrant intent. Since you are consular processing your residency, you are doing this correctly. If you are asked about the petition, you should be truthful and explain how you are consular processing your petition.

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    Charles Foster

    Immigration Attorney
    Answered on

    You certainly have the right to travel overseas and the question is if you have an approved I-526 petition and you are in the process of applying for your immigrant visa at the consular section of the U.S. embassy in Seoul, Korea, whether you would be readmitted on your non-immigrant F-1 student visa. Assuming you have a valid visa, you will be prima facia eligible for readmission, but remember that while the U.S. immigration inspector has the authority to admit you, it is possible that you could be denied admission on the grounds that you are an intending immigrant. If asked, you would have to fully disclose that you are the beneficiary of an approved I-526 petition and that you are making an application for a temporary admission as an F-1 student with the intent to return abroad; that is called "dual intent." Again, the immigration inspector has the authority to admit you, but it is possible that the fact that you are the beneficiary of an I-526 petition could complicate your ability to be readmitted.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Congrats on the approval! F-1 visas are not dual intent, meaning that you are required to show ties to your home country. Once you file that DS-260 and, arguably, even now that the I-526 is approved, it is possible you can be seen to have "immigrant intent," which could affect re-entry under the F visa.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If your F-1 visa has been approved and you are attending school and maintaining good grades, you should be able to travel and re-enter. However, CBP can see you have filed for a green card, so be honest and truthful and let them know you pursuing a green card. If they catch you lying then you are likely to be barred. The conservative approach is not to travel. The major concern of many Customs and Border Protection officers is you would apply to change status in the U.S., and the commitment not to adjust is critical, as you can show you plan to apply abroad and not adjust status in the U.S. after entering as a student (when in fact you might be an intending immigrant).

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    BoBi Ahn

    Immigration Attorney
    Answered on

    You should be able to travel using your student visa as long as you can show current non-immigrant intent and purpose (even if you have future plans for immigration).

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    Lynne Feldman

    Immigration Attorney
    Answered on

    In theory, yes. But at the border they may inquire as to your immigrant intent, so you should show proof you are consular processing.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Make sure that you have the visa application receipts as well as the valid visa in your passport. If asked about your immigrant intent at the airport, the visa application receipt should show that you will be going through the visa interview and not the adjustment of status in the U.S. after entering.

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    Ying Lu

    Immigration Attorney
    Answered on

    If you have a valid F-1 visa, you do not need to file DS-260. Instead, you can file I-485. When you file I-485, you should also file I-131 for a travel document. When the I-131 application is approved, you can travel freely, even if your I-485 is still pending with the USCIS.

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