I am on an F1 visa with my family. My wife and kids are on an F2 visa. If I apply for an EB-5 visa, could my children and wife travel outside the United States and return whilst the EB-5 visa is being processed? Will there be any issues in the EB-5 application considering that we are on different visas?
There should not be any issue just because you are on an F1 visa and your immediate family members are on F2; in fact, all of you are on appropriate visas. Now, turning to the issue of traveling outside of the United States once your EB-5 is in progress, particularly after the Form I-485, Application to Permanent Residence or Adjust Status is filed, you would have an issue with traveling outside the United States. The general rule is that anyone with a pending I-485 must request permission to travel outside the United States in form of filing an application for travel documents prior to leaving the United States. Failure to file such application will lead to your I-485 application being declared abandoned. In order to ensure that you comply with the immigration law, make sure you consult with an EB-5 attorney who can explain the details of the legal niceties to you. Lastly, avoid relying on tidbits of information on this issue because it is a very important part of your EB-5 processing.
Your family members are not principal investors under your I-526 petition and generally should be able to travel to and from the United States on F-2 while your I-526 is pending. They should be able to adjust with you or consular process upon approval of your I-526. Your immigration attorney who filed your I-526 should be able to guide you on this issue.
This question seems to have confused lots of EB-5 investors. As a principal investor, while the I-526 is pending, the principal investor should refrain from seeking a non-immigrant visa at the consulate or travel on such type of visa to the United States. It is due to the perceived immigrant intent. The dependents, a spouse and/or children are not subject to the same rule. In other words, while your I-526 is pending, your wife and child can still travel outside the United States using the F-2 status.
Upon approval of the I-526 petition, all of the family has the ability to apply for conditional permanent residency at the same time.
It depends on what part of the process you are in. Once the I-526 is approved by USCIS, you can go through the U.S. Consulate in your home country or adjust to permanent resident if still in the United States under a valid legal status. Each family member can do whichever process is applicable to them.
If your family members have valid nonimmigrant visas, they should be allowed to reenter the United States after travel abroad if the purpose of their entry is consistent with the nonimmigrant visas they hold. In other words, intending immigrants are not eligible for nonimmigrant visas, but dependents of F-1 students are eligible for F-2 visas and entry into the United States to accompany the F-1 visa holder. Also, your I-526 petition does not directly affect them until it is approved and they seek immigrant visas as your dependents.
In order to travel in and out of the United States, you will need to have some legal status. If you maintain the F-1 and F-2, then you are allowed to travel back and forth. If not, then you would have to obtain the B-1/B-2 visa. A pending EB-5 application does not provide you with any legal status.
This should be discussed in detail with counsel. It depends on where in the process the travel will occur.
The different visas should not make a difference, but depending on personal circumstances and timing, they may have to return to China to get their immigrant visas after your EB-5 petition is approved. Your family members should also be able to travel, but you should consult with an attorney in detail regarding both issues.
Let''s breakdown the EB-5 process and inform you of what happens when to whom - your lawyer who will help you with the I-526 filing should walk you through each step in the process, but I will quickly give you the highlights. Applying for the EB-5 visa is not like applying for the F-1 visa at the consulate. First you will be filing the I-526, immigrant petition for investor after you choose a project/business to invest in. When you file the I-526 as the investor, that petition is yours, not your wife''s or your children''s, even though they are listed as a family members of you, the investor. Thus, they have not expressed their immigrant intent. Therefore, if they have F-2 visas that are valid for several years, they may use that to travel back and forth as long as your F-1 status is valid by you being enrolled and attending school per I-20. You, on the other hand, have expressed your intent to immigrate by filing I-526, which means if you leave the United States, you may not be able to come back as a non-immigrant visa holder, F-1, unless you have noted on the I-526 that you will not adjust and will consulate process. Only after the I-526 is approved, will you be either adjusting (I-485) or filing for the immigrant visa (DS-260). Please consult with your immigration lawyer when you proceed so that you do not inadvertently trigger some negative issues.
Most of your family, including spouse and children under 21 years (as calculated by the Child Status Protection Act) can immigrate simultaneously with you. Obtaining a new F-visa after filing can be challenging, so you need to develop a clear nonimmigrant strategy before filing for EB-5.
No, there will not be issues so long as everyone is in lawful status.
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