How can my son get his EB-5 conditional green card before me?
I have received USCIS approval and am now due for a consular interview. However, due to pressing family issues, I intend to delay my landing by 18-24 months. Is it still possible for my son, who is on an F-1 visa and is my derivative applicant, to get the conditional green card notwithstanding my delay in landing? Is his EB-5 application timeline contingent upon my own?
Once the EB-5 investor has obtained approval and has been issued a conditional permanent residency visa, then the son who is maintaining a F-1 nonimmigrant status can file an application for conditional permanent residency status while in the United States.
The principal investor must receive his or her conditional lawful permanent resident status prior to or at the same time as his or her dependents. Assuming your priority date is current and your son is in valid F-1 status (is a full-time student with an I-20), he could file for his adjustment of status (Form I-485). It would be advisable for you to consult with an experienced immigration attorney about the timing of these events and how they should be processed.
It is impossible for your son to get the conditional green card before you. So, you can either apply for immigrant visas with your son together at the consulate, and apply for a reentry permit after you enter into the United States; or you can enter into the United States first, and apply for the I-485 application for adjustment of status with your son together. After you submit your I-485, you can apply for emergency advance parole by filing the I-131 and personally appear at the InfoPass appointment. Once you get your advance parole, you will be allowed to leave the country, and the conditional green card will be mailed to your U.S. address. Meanwhile, your son's conditional green card will be mailed to his U.S. address too.
Your son is a derivative adjustment and cannot adjust until you enter as a resident. Here is some advice. Take a weekend. Fly to the United States, apply for a reentry permit, then leave, come back and be fingerprinted, then leave, and you can be gone for up to two years. As soon as you enter on the immigrant visa, your son can file his adjustment. There is no way around this.
Your son's status depends on yours. Your son must either accompany you or follow to join you (if outside the United States and going through the immigrant consular process), or he can file an adjustment of status application upon your admission as a conditional permanent resident to the United States on the immigrant visa (if in the United States on an F-1 visa).
John J Downey
The visa will be issued by the U.S. consulate in your home country. I would check with the consulate.
At the very least, since your son is by definition your dependent, he cannot have any rights greater than you and thus, he is not eligible for his immigrant visa until you have been issued your immigrant visa. Once your immigrant visa has been issued and his immigrant visa is issued, it is possible for him to enter the United States prior to you and thus, you could delay your admission to the United States, but not by 18-24 months. What you could do is accompany your son, be admitted to the United States, get a stamp in your passport and once physically in the United States, apply for a U.S. Reentry Permit. Once that application is filed, you could return to your home country to complete your business, but it would not be advisable for you to stay out of the United States on any separate trip back to your home country for more than six months. You should return to the United States at least before you have remained physically out of the United States within each six month period until you are able to complete your activities in your home country.
He must be "accompanying" or "following to join" you. So he cannot get it earlier than you IMO. Once the U.S. consul gives you your immigrant visa package, you have a limited time to use it by coming to the United States. You can ask the consul to give you extensions of time, but you should stay in close touch with the consul, as you do not want the visa to be cancelled!