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How is USCIS’ changing policy on accrued unlawful presence impacting EB-5 investors?

How can USCIS' changing policy on accrued unlawful presence by a nonimmigrant student and exchange visitor impact an EB-5 investor who has a pending I-485? I am currently on an F1 visa, but have a pending I-485 filed in March 2018. Can I abandon my F1 status now and stay in the U.S. legally? My I-20 status will expire in November 2018. If I do not hear anything from USCIS regarding my pending I-485 by then, will I be able to stay in the country?

Answers

  • Avatar

    Julia Roussinova

    Immigration Attorney
    Answered on

    You will not accrue unlawful presence if you have filed a bona fide I-485 application while complying with your F-1 status in the U.S. You can stop going to school, but the best practice is to maintain your underlying non-immigrant status until your I-485 is approved.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    You do not accrue unlawful presence if you filed a non-frivolous adjustment of status application.

  • Avatar

    Daniel A Zeft

    Immigration Attorney
    Answered on

    The pending I-485 application give you a quasi status. Unlawful presence only becomes a problem if you accumulate more than six months of unlawful presence and then depart the U.S. The I-485 application should be adjudicated before or soon after your F-1 status expires. You should have a consultation appointment with an immigration attorney who can look at your documents and give you definitive advice about your situation.

  • Avatar

    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Do not abandon your F1 status right now until your I-485 is approved. Your F-1 status is the only valid visa that allows you to be in legal status in the U.S. In the event that your F-1 expires before your I-485 is adjudicated, you may either make necessary arrangements to leave the U.S. or switch to another non-immigrant visa, such as a work visa like H-1B if an employer can file for you. Advisably, consult an immigration attorney for further advice on your options.

  • Avatar

    Charles Foster

    Immigration Attorney
    Answered on

    The recent change in USCIS policy regarding accrual of unlawful presence in the U.S. for F-1 student visa holders and M-1 trainees should not impact anyone who already has a pending application for adjustment of status on Form I-485. The real significance of such change is that one begins to accrue unlawful presence for purposes of the three-year and 10-year bars once they fall out of status, even though they were admitted for duration of status and they facially appear to be in status. But that should not impact you once you have filed your application for adjustment of status.

  • Avatar

    Mark AM Catam, Esq

    Immigration Attorney
    Answered on

    You will need an experienced EB-5 lawyer to advise you further.

  • Avatar

    Lynne Feldman

    Immigration Attorney
    Answered on

    No.

  • Avatar

    Ying Lu

    Immigration Attorney
    Answered on

    After your F-1 status is expired, you can legally stay in the U.S. and you will become a parolee. Be sure to get a travel document before you leave the U.S. Then when you return, you can use the travel document to enter the U.S. as a parolee.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    You can abandon F-1 assuming your I-485 was properly filed.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    The new policy is not really new, but a more stringent enforcement of the policy. I-485 pending status is a valid status that allows you to live and work in U.S. under the EAD. The duration of status afforded to a F-1 holder is while the person has a valid I-20 and properly attending classes as enrolled. While they are used to allow some leniency on people who had enrolled but not completely attended the classes or allowed I-20 to lapse before enrolling again to continue, they are saying they will strictly adhere to the policy now and attribute unlawful presence. Thus, if you are not currently attending classes according to the I-20 enrollment, you may no longer be in valid F-1 status. Your attorney should carefully guide you so that you have not inadvertently accrued unlawful presence. Before that may make you barred for previously accrued unlawful presence or make you inadmissible/not adjustable for any reason.

  • Avatar

    BoBi Ahn

    Immigration Attorney
    Answered on

    Upon filing your I-485, you are in "lawful/authorized" stay in the U.S., are no longer dependent on your nonimmigrant status and definitely not accruing unlawful presence during this time. You could have also filed for an employment authorization document and advance parole when filing for the I-485 so that you can work and travel during the I-485 processing.

  • Avatar

    Stephen Berman

    Immigration Attorney
    Answered on

    Under the new policy, a person with a pending application for adjustment of status is still not accruing any unlawful presence.

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