How will traveling affect the Consular Processing stage of my EB-5 application?
My I-526 has been approved recently. I am currently outside the United States and plan to start my Ph.D. in the U.S. in January. I plan to travel back to the U.S. on an F-1 (which I already have) this December. In the meantime, I plan to apply for Consular Processing. Is it advisable to travel on an F-1 visa while my green card is being processed? Should I wait until I am in the U.S. before applying for Consular Processing? If I am denied entry, will the denial negatively affect my green card application? I just want to make sure that I am not jeopardizing my green card by traveling on an F-1 visa. Any advice is appreciated. Thanks!
After approval of the I-526 petition, you can Travel to the U.S. under an F-1 Visa to continue with your studies. You may have to convince the inspectors at the airport that your intent is only to apply at the U.S. consulate for the conditional permanent residency visa and not adjust in the U.S.
As an F-1 visa holder, you must demonstrate a nonimmigrant intent at the time of entry to the US. An approved I-526 petition shows your intent to immigrate to the US. It is possible to enter on an F-1 visa with an approved I-526 petition if you indicated consular processing for an immigrant visa in your home country in your I-526 petition. However, if a CBP officer is not convinced you are coming to the US temporarily on an F-1 and you do not have strong evidence of home times, then you may have a problem entering the US. If you are given the opportunity to withdraw your application for admission on F-1, it will not have a negative effect on your future admission to the US, including on your immigrant visa consular process. If your removal process is expedited, however, then you will have a 5-year bar for future admission to the US. CBP generally uses expedited removal in the most egregious circumstances.
While studying in the U.S. as an F-1 student is a possibility, the issue of immigrant intent may come up since your I-526 has been approved. Also, if you are legally in the U.S. on a nonimmigrant visa such as F-1, you should seriously consider adjustment of status rather than consular processing. Neither choice should prevent you from securing your green card application. It is advisable you should consult an immigration attorney to ensure the right steps are followed.
Since you already have a valid F-1 visa, you are eligible to apply for admission to the United States. Be aware that, when you do, the U.S. immigration inspector at the airport will be able to see on the computer that you also have filed an EB-5 Investor Petition on Form I-526 that has been approved. As a result, since every F-1 non-immigrant student has the burden of proof to show that they plan to return to their home country, it is somewhat likely that the Immigration Inspector will deny your entry into the U.S. However, as long as you are truthful and you explain to him that you need to complete your studies and that you will return home to apply for your immigrant visa once you have been scheduled for your final interview, the Immigration Inspector has the authority to admit you under the concept of "dual intent." It should not prejudice your application for your immigrant visa, even if you are denied admission, as long as you are truthful. Thus, if you do this, be sure to answer all questions truthfully and, of course, acknowledge that you have filed the I-526 petition. In that case, the worst that could happen is that you would be denied entry and you would lose the time and cost of your travel to the U.S.
You are entitled to come to the United States with your F-1 as long as your intention is to study and return to your country at the termination of your studies. However, you must not have the intent to immigrate when you come to the U.S. on your F-1. If asked about your approved I-526, you should explain that you have applied for an immigrant visa and are coming to the U.S. currently solely for the purpose of studying. When scheduled for your visa appointment, you will return to your country to process it. Only then will you return with the green card.
The fact that your I-526 has been approved does not mean you cannot enter the United States. It merely raises the issue of whether you have appropriate nonimmigrant intent. The officer upon inspection can see the I-526 has been approved. You must not lie. Tell the truth at all times. If the officer catches you lying, you can be barred for life. So, as long as the inspecting officer believes you do not plan to stay, you will return home and you are a serious student, you should be okay to enter on the F-1.
As an F-1 nonimmigrant, each time you enter the United States, you must demonstrate that you are admissible and that the purpose and duration of your entry are temporary, i.e., to attend classes fulltime as a student. If the inspector at the port of entry determines that you are intending immigrant, you could be denied entry into the United States. If you are expeditiously removed, you would be barred for five years but, more likely, you would be allowed to withdraw your application for admission, which does not have any reentry bar associated with it. Many immigrant investors with pending EB-5 petitions continue to travel to the U.S. as students and even visitors without incident. If you are denied entry (allowed to withdraw your application for admission and return to home to wait for your immigrant petition), it should not have any effect on your case.
Generally speaking, you can travel on your F-1 visa, even after you have your I-526 approval. However, there are some risks involved. For example, if the immigration officer were to deny you entry as an F-1, you could face expedited removal and that comes with a 5-year bar. It is not impossible to enter the U.S. with a nonimmigrant visa while your immigrant visa is pending or approved; however, there is always a risk.