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Should I apply for an H-1B visa or an F-1 visa while waiting for my EB-5 case to be approved?

I am a junior in college and I just submitted my I-526 application. When I graduate from college next year, it is possible that my case is still pending. To keep staying in the U.S., I can apply for a graduate program and get another F-1 visa, or I can start working under OPT then apply for an H-1B visa. I am not sure which option works better. The last thing I want is to impact my EB-5 case. Please advise.

Answers

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    Both the F-1 and H-1B options have issues. You need a consultation appointment with an experienced immigration attorney because you need detailed legal advice about the specific issues involved.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    The H-1B visa allows for dual intent when an immigrant I-526 petition is filed. However, this is a lottery-based visa these days and you may or may not get into the lottery numbers even if you find a sponsoring employer as part of OPT. I-526 petition processing times are quite long these days and you will likely need to plan for it to pend for about two years. Some cases do get adjudicated quicker but some take longer. Graduate school may be a good choice if you do not plan to travel internationally on F-1 with a pending immigrant petition. Plan with your immigration lawyer.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Either should work if you aren't traveling internationally, but if you can get on an H-1B then that specifically permits dual intent which the F-1 does not.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    As long as you are in the United States, continue being enrolled in a college or get yourself a job, and use your OPT you should be fine. Just make sure not to become out of status until your I-526 is approved and you get work authorization and a travel permit. You could certainly continue with graduate studies. If you decide to use your OPT and get a job instead, you could certainly apply for the H-1B as well if your employer is willing to go through the process. Don't forget that H-1B is subject to a lottery these days, though. If you find that your F-1 visa has expired and you are no longer working, as long as you do not leave the United States and are enrolled in a graduate program you should be fine. Before your I-526 is approved and before you get a travel permit, if you leave the country, it might be difficult for you to get back to the United States. At the time you applied for the EB-5, you disclosed your immigrant intent. When you go to the consulate to renew your expired F-1 visa you might therefore face difficulty since F-1 is a non-immigrant intent visa. In that case, if you get rejected, you might end up having to wait for the I-526 approval overseas before you could proceed with consular processing and adjust status to conditional permanent residency.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    I see no reason why you shouldn't apply for another type of visa while your EB-5 petition is pending.

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    Hassan Elkhalil

    Immigration Attorney
    Answered on

    When the time is ripe for you to make a decision, I would do all I could to stay in status. Pursuing a master's degree, F-1 visa or OPT are good options.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If you just submitted your case it will likely take at least two years to adjudicate, and maybe three or even four years, based on the new recently released guidelines so you should safely plan to be able to stay as long as possible to have this adjudicated. While the H-1B is valid for up to six years, it is a lottery so you may want to consider graduate school, especially if you can participate in a STEM extension which might give you up to three years of OPT time.

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    Charles Foster

    Immigration Attorney
    Answered on

    In order to maintain your status, as a practical matter, it probably will be better to maintain your F-1 student status and apply for OPT. At the same time, have your employer or prospective employer file a petition for H-1B status. The problem with H-1B is, given the limited number of H-1B numbers, you have no certainty of having your H-1B petition approved. Thus, it may be necessary to continue your studies while waiting for the EB-5 approval. If in F-1 status, any trip abroad could make it difficult for you to be re-admitted as an F-1 status. Again, the fact that while filing the EB-5 petition shows an immigrant intent, rather than an intent to return to your home country, upon completion of your studies.

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    Barbara Suri

    Immigration Attorney
    Answered on

    Your choice of either options will not impact your EB-5 case.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    EB-5 is not the part I am worried about. EB-5 is an immigrant process, and H-1B and F-1 are non-immigrant, which may make it hard to achieve with the EB-5 already started. H-1B is dual intent, which usually allows you to pursue a green card at the same time.

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    Anastasia White

    Immigration Attorney
    Answered on

    It is unlikely that pursuing any of these options jeopardizes your EB-5 application. You may continue your studies as a graduate student on F-1, or apply for OPT, or apply for an H-1B visa. Please keep in mind that the filing window for an H-1B visa is only from April 1 to April 7 and subject to the H-1B lottery (because of the quota of 65,000). Therefore, you may want to consult an immigration attorney to better strategize the timeline and keep you in status.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Either, if feasible to your situation, OPT/H-1B or F-1 would work to remain in the U.S. while your I-526 petition is pending; however, keep in mind since H-1B would most likely again be overused again, you may be subject to a lottery (so no guarantees of being granted an H-1B).

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