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How should EB-5 dependents answer immigration petition-related questions on DS-160 forms?

If I am listed as a dependent on the I-526 petition submitted by my parents in December 2018, how should I answer the question “has anyone filed immigration petition on your behalf” in the DS-160 form for a J-1 visa?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Answer is no, but it is advisable to disclose the I-526 petition is filed by a parent and you are a dependent.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    You should answer in the affirmative and then provide the details relating to the EB-5 petition. If you fail to disclose and the USCIS finds out, your failure to disclose can be interpreted as an act of misrepresentation.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    You should answer "no" since the immigrant petition is filed by your parent who is the principal beneficiary and not you. Due to the ambiguity in the matter, the Department of State recently in their Jan. 23, 2019, bulletin came out with the following clarifying language: "An applicant who is the spouse or child of the principal beneficiary of a petition, even when named in the petition, would not make a misrepresentation by answering ''no'' to this question." It is really a technical matter. If instead of you, your parent who is the principal beneficiary of the I-526 petition was applying for the J-1 visa, then he would have had to answer this question for himself as "yes." In fact, the clarification bulletin says exactly that. They say that the Form DS-160 asks, "Has anyone ever filed an immigrant petition on your behalf with the United States Citizenship and Immigration Services?" An applicant who is the principal beneficiary (i.e., the individual for whom the petition was filed), such as the family member in a Form I-130 petition or the intended employee in a Form I-140 petition, who answers "no" to this question should generally be considered to have made a misrepresentation. Bottom line, since you are not the principal beneficiary, you can answer no.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You should answer yes and explain.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Answer: You should choose "no" as the answer. Since you are only listed as a dependent, only your parent has filed for an immigrant petition (I-526), not you.

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    Charles Foster

    Immigration Attorney
    Answered on

    Since you are a dependent of an I-526 petition submitted by your mother or father, the answer to the question "has anyone filed an immigration petition on your behalf" should be no. In order to avoid any misunderstanding, you should put in as an explanation that you are a dependent of your mother or father who has filed an I-526 petition.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    The Department of State recently advised that you can answer no to this question. However, if asked, a question by the officer, you must tell the truth.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    By itself, an I-526 petition does not give you permanent residency, but it is technically an immigrant petition. It may be advisable to disclose and prepare to explain to the consulate at your interview.

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    Anastasia White

    Immigration Attorney
    Answered on

    Generally, consular officers have expressed a clear preference for full disclosure of information in this situation, therefore, answer "yes" is a preferred answer. Form DS-160 provides additional space to explain that an applicant is a derivative beneficiary on an immigrant petition and to confirm the present intention to comply with the terms of the nonimmigrant visa applied for. However, 9 FAM 302.9-4(B)(8) states that "an applicant who is the spouse or child of the principal beneficiary of a petition, even when named in the petition, would not make a misrepresentation by answering no to this question." Therefore, a derivative beneficiary named on an immigrant petition may respond "yes" or "no" to this question, with neither response resulting in a finding of material misrepresentation.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    I would answer NO.

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    Stephen Berman

    Immigration Attorney
    Answered on

    The safest answer is yes. If you say no, and the consular officer disagrees, they can determine that you committed fraud.

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