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How do EB-5 dependents answer questions about immigration petition filing on the DS-160 form?

I have filed I-526 for my family with my son being one of my dependents. If he applies for an F-1 student visa, how should he answer the question in the DS-160 form "Have anyone ever filed an immigrant petition on your behalf?"? Please advise me if he should answer YES or NO for this question while he is my dependent and his name is included in the I-526 or what our options are?

Answers

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    He should be honest and answer, yes. However, he should provide the explanation that he is a dependent of his family's EB-5 immigrant petition. Under no circumstances should he provide any statement that can be considered as fraudulent or misrepresentation.

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    Marisa Casablanca

    Immigration Attorney
    Answered on

    The question on the form refers to an immigrant visa (green card petition). A student visa is a non-immigrant application. Therefore, you should answer "no."

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    The safest is always to answer yes. There is an argument that there is no petition on file on their behalf, but that is a technical answer and it is best to be honest and upfront. There is no right or wrong answer here, just a better and worse answer.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    I-526 is the immigrant petition for the principal EB-5 investor, not the derivative beneficiaries. Unless the dependents filed I-485 or DS-260, there is no immigrant intent because they did not file an immigrant petition or application to immigrate to the U.S. yet, nor did a relative or an employer file for them, such as I-130 or I-140. The answer should be "no."

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    Barbara Suri

    Immigration Attorney
    Answered on

    The I-526 is your petition, not your son's. If your I-526 is approved, your son qualifies as a derivate for permanent resident status.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Just a I-526? Some may argue that until you file for adjustment of status or a DS-260, you may be able to continue with a non-immigrant status like an F-1. However, I would want to know more about the history of the case and the primary and derivative applicants.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    I-526 filing is for you, as an investor and petitioner, not your son as the derivative. This question is for those who have I-130 or I-140 filed for them by another petitioner. He could honestly answer that no one has filed an immigrant petition on his behalf.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Most conservative thing is to say yes and explain immigrant visa is for Dad, he is a dependent but will be returning overseas for consular processing or at end of F-1, whichever is sooner. Alternatively, you can arguably say no, as they are not direct beneficiaries of the I-526, just derivative beneficiaries.

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    Kyle Barella

    Immigration Attorney
    Answered on

    EB-5 dependents are not included until the consular processing stage of the EB-5 process (i.e., after the I-526 petition is approved). Only once consular processing commences and the NVC has been notified regarding the dependents would they be considered to be included. As such, until that time, no immigrant petition has been filed on their behalf. For example, if you submitted an I-526 petition and intend to include your family, technically you have not filed an immigration petition on their behalf during the time USCIS takes to adjudicate the petition.

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