I applied for the EB-5 visa about 14 months ago and the approval of my I-526 will be any moment now. My first son has been studying in a U.S. university for almost two years and his F-1 visa is due for renewal by May of this year. My second son also applied to a U.S. university and he is waiting for admission. That means he would also apply for the F-1 in May. What will happen to both of their F-1 visas if my I-526 is approved before this date?
Because your are the principal investor filing the I-526, it does not affect your dependents until they file their own DS-260 forms to consular process or file for adjustment of status in the United States if eligible. They should secure their F-1 visas before your I-526 is approved.
Although both of your sons need to disclose that they have applied for the immigrant visa when they are renewing or applying for an F-1 visa, please keep in mind that the consulate may either deny the renewal or withhold the issuance of the student visa. However, from our experience, if a student explains that (s)he seeks to enter the United States temporarily and solely for the purpose of pursuing a course of study under F-1 and that (s)he will not overstay the visa, the consulate may approve the F-1 visa. The immediate intent instead of the long term goals should be the focus of the student visa application.
Your first son needs to maintain his F-1 status in order to adjust status to a lawful permanent resident while in the United States. Your second son, if he obtains his F-1 status before approval and if he is in the United States, will be able to apply for adjustment of status as well. Otherwise he will need to do consular processing.
An I-526 approval likely will not affect their current F-1 status and probably will not affect their ability to obtain F-1 student visa renewals. If you read the I-526 petition, there is no place where their names are listed on the form. The petition belongs to the investor, and whether or not his or her dependents have immigrant intent is not determined by the filing or approval of a parent's I-526 petition. Therefore, nonimmigrant visa applications by dependents would be reviewed and adjudicated at the U.S. embassy or consulate abroad on a case by case basis to determine eligibility, including whether or not the visa applicant has the requisite nonimmigrant intent.
The I-526 application you filed is for yourself, not technically your family's. Thus, until the DS-260 immigrant visa application is filed on behalf of your children, they have not filed any immigrant petition or visa application. I would recommend that your children obtain or renew the F-1 visas before you take that next step of the DS-260 process for the whole family.
It would depend on when you start the process of obtaining conditional permanent residency as well. You would need to review all of the timelines at play here.
They could be processed under the EB-5 process, depending on where they are located at the time. The child in the United States in F-1 could apply here. If the other child is in your home country, then the process would take place at the U.S. consulate. I would not be too sure that your I-526 will be approved that soon. I would just proceed with the F-1 application.
If they already have visas, it should not be an issue. If not, they must disclose and it can be challenging as they have to have an intent to return home.
