I am currently a student under F-1 status. If I apply for EB-5 now, my I-526 might be approved before I graduate. Will either the application or approval affect CPT, OPT and a subsequent H-1B application? How do I keep valid legal status during the wait time for the I-485, which takes more than three years? Will I be able to leave the country and re-enter during the wait time?
During the adjudication of an I-526 petition, you can maintain legal status in the United States under F-1 and OPT stays. Under the temporary visas and status, you can leave and reenter the United States. Once the I-526 petition is approved, then you can file your application (I-485) for conditional permanent residency and during this adjudication process you can obtain employment authorization and permission to leave and renter the United States under an advanced parole process.
The EB-5 application will not necessarily cause issues with respect to H-1B status. As a F-1 student, you cannot have a dual intent, however. As a H-1B, you can have a dual intent too, as it is a dual-intent visa that allows you to have the intention to leave or stay in the United States. Filing the I-526 and the respective adjustment related documents show that you have an intent to immigrate to the United States. Speak to a qualified immigration attorney before you take any action.
If your I-526 is approved before you graduate, you will earn a temporary/conditional immigrant visa (i.e. green card) and become a permanent resident. As a result of your permanent residency, you do not need any of the nonimmigrant visa products such as CPT and OPT (which are offshoots of the F-1 visa) and work visa such as H-1B. To sort out all these facts and proper analysis of your potential options and benefits, consult an EB-5 immigration attorney.
The I-526 filing will not affect your OPT, nor your potential H-1B status.
I think that the OPT or CPT would not be affected, as they are more or less a continuation of your F-1 status. However, filing for an H-1B would require a letter of explanation to USCIS to ensure that your intentions are clear.
The F-1 visa is a temporary intent visa. When applying for a visa and/or admission into the United States, the F-1 visa holder must be able to demonstrate that he/she intends to remain in the United States temporarily. The filing of the I-526 - which is an immigrant petition - is evidence of a foreign national's desire to pursue permanent residency in the United States. This is in conflict with the terms of the F-1, and could cause issues with visa issuance and admission in to the United States. When the I-485 is submitted, a foreign national can apply for interim work and travel documents. Typically, it takes 90 days for the work/travel document to be issued. This document can be used for international travel while the I-485 is pending. There is no travel document benefit with the filing of the I-526.
Assuming no other inadmissibilities, filing an EB-5 petition will not adversely affect OPT, CPT or H1-B for the following reasons. The CPT and OPT are extensions of your F-1 status, which is generally issued for a duration of status. Filing an EB-5 petition will not affect your current F-1 status in the United States. An H-1B holder has dual intent. A person in H-1B status can both intend to stay permanently in the United States and concurrently intend to return to his or her own country. Thus, a person in H-1B status does not declare intent until adjusting status to that of a lawful permanent resident. Due to dual intent, filing an EB-5 petition will not affect H-1B. If you become out of status, you must leave the United States and enter with your EB-5 visa through the appropriate U.S. embassy. Provided your H-1B employer desires your services, the H-1B status may be continued for five years. Since you are a student, the OPT, CPT and H-1B status should enable you to stay in status in the United States while awaiting a current priority date for your EB-5 visa.
If and when your I-526 petition is approved, you can file for an adjustment of status (provided your priority date is current) along with a work permit and advance parole, which will allow you to remain the United States, work and travel abroad during the final processing. Filing for the I-526 will not affect your ability to obtain/maintain CPT, OPT or H-1B, if the I-526 has not been approved and you need to maintain lawful status in the United States until the petition approval and you are able to file the adjustment of status.
Filing an EB-5 petition on Form I-526 will not affect your eligibility for H-1B or to obtain OPT or CBP per se. However, to the extent that you must depart the United States and either have to renew your F-1 student visa abroad and/or re-enter the United States and be subject to inspection by an immigration examiner at a port of entry, you should be aware that the fact that you filed an I-526 petition will be a matter of record under your name in the database available to the consular officer and the U.S. immigration inspector at the port of entry, and you should never deny that you filed the petition as that would be the worst thing to do. When you are before a consular officer or at the port of entry, the filing of such petition could be deemed to be a negative factor in terms of whether or not you intend to return to your home country upon the completion of your F-1 studies and any related practical training. Thus, if at all possible, you should avoid this problem by not traveling outside the United States during this period of time, which unfortunately could take at the very least a year or longer and if you are from China most likely even longer.
Filing the I-526 might only impact obtaining F-1 visas abroad. If Chinese, make sure to have a five year F-1. Thereafter, OPT/CPT/H-1B eligibility should not be impacted.
Filing an immigrant visa petition, by itself, does not constitute a violation of status, and does not prevent CPT, OPT, nor H-1B.
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