Questions & Answers

How will an EB-5 application affect an OPT-extension application?

My wife and I have just submitted an EB-5 application (I-526). Now I am on OPT and it will expire this May. My wife will graduate this May as well. How will the EB-5 application affect my OPT-extension application (I am a STEM student) and the OPT application of my wife?

Answers

• Fredrick W Voigtmann

  Immigration Attorney

  Answered on June 1, 2015

  Hopefully, the I-526 petition will not affect your OPT extension at all. It is always tricky when applying for a new nonimmigrant visa or status (or an extension) after you have indicated your immigrant intent by filing an immigrant petition. Of course, you must truthfully and completely fill out all forms and applications, but there are many instances in which nonimmigrant status can be maintained while waiting for an immigrant petition. Should you receive a request for evidence on this issue, you should consult with an experienced immigration attorney before responding.

• Steffanie J Lewis

  Immigration Attorney

  Answered on April 15, 2015

  An OPT extension is based upon your STEM student qualification and has nothing to do with your pending I-526 petition. However, if you want to adjust your status in the United States, you have to maintain a legal status while your I-526 petition is pending. If your wife is graduating in May she may want to seek an OPT so that she can remain in status during the period of time while waiting for approval of the I-526.

• J Bruce Weinman

  Immigration Attorney

  Answered on March 6, 2015

  It won't. Once the petition is approved, you can file to adjust status, but you must be in legal status in order to file for adjustment. You can go back to school, try to apply for an H-1B, or apply for an E-2 visa in the interim.

• Ed Beshara

  Immigration Attorney

  Answered on March 4, 2015

  The EB-5 investor petition will continue to be processed by the USCIS. Only when the investor petition is approved can you apply for conditional permanent residency.

• John J Downey

  Immigration Attorney

  Answered on March 2, 2015

  It has really no effect on an OPT. If your EB-5 approval is received while you are still in OPT status, you could possibly adjust status while still in the United States.

• Bernard P Wolfsdorf

  Immigration Attorney

  Answered on March 2, 2015

  It should not be a problem.

• Lynne Feldman

  Immigration Attorney

  Answered on March 2, 2015

  Technically there is conflicting intent, so you may want to change your status to H-1B.

• Oliver Huiyue Qiu

  Immigration Attorney

  Answered on March 2, 2015

  A pending I-526 will not have any impact on the OPT STEM extension application.

• Jinhee Wilde

  Immigration Attorney

  Answered on March 2, 2015

  When you are requesting OPT, it is based on your studies, not on any particular immigration process. As long as you are a qualified STEM student, you are entitled to get your extension. You should consult the immigration attorney who filed your I-526 petition about this and any other steps you may take while your petition is pending so that you do not inadvertently misstep.

• Salvatore Picataggio

  Immigration Attorney

  Answered on March 2, 2015

  The I-526 itself probably will not have an effect, but once you get that approved (14 month processing time!), and you apply for conditional permanent residency, any other non-immigrant petitions may be affected.

• Robert Lee

  Immigration Attorney

  Answered on March 2, 2015

  You should be fine. OPT is handled through the schools and they do not really ask about immigrant intent. As long as you qualify for the OPT extension, it should go through fine.

• Sara Wang

  Immigration Attorney

  Answered on March 2, 2015

  Generally this should not affect your OPT extension and application.