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Should I choose to change status or apply for an EB-5 visa on my I-526 form?

I am in process of applying for I-526. I am on an H-1B visa and I am from India. On my I-526 form, should I choose the “applying for adjustment status” as the next step, or “applying for visa abroad”?

Answers

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    With the fact that you are currently on H-1B, the choice of which of the two options you qualify for actually depends on your immigration status at the time your I-526 is approved. Therefore, consider the following two scenarios to determine the appropriate option. One, if you will be on your current H-1B or any other non-immigrant visa, which means you are legally qualify to live in the U.S., when your I-526 is approved, then you can choose "applying for adjustment." With that, you will be able to stay in the U.S., file I-485 and adjust your status. Two, however, if you are not going to be in the U.S. or even be legally qualified to be in the U.S., you should check "applying from abroad" (consular processing) and hopefully your choice would be your home country, India. Also, be on notice you can change your option if your situation change. Advisably, consult your EB-5 attorney or perhaps an immigration attorney on this matter both now and at the time your I-526 is approved for request to change option if necessary.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    Always put apply abroad. If you eligible to change status and want to do so when approved in two years or so, you can still do so and the file will be retrieved from the NVC.

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    Barbara Suri

    Immigration Attorney
    Answered on

    It is your choice as to whether you wish to adjust status in the U.S. or to collect your visa overseas.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Indicate consular processing. When your I-526 petition is approved you may still file AOS if eligible at that time even if you indicated consular process on I-526 petition. Hire an attorney to file I-526 petition to avoid costly mistakes.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Once your H-1B status runs out, and assuming you don't also have an EB-2 or EB-3 pending or approved, you'll have to leave anyway. I often check consulate processing regardless, but it depends on the circumstances.

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    Mark AM Catam, Esq

    Immigration Attorney
    Answered on

    Best to check apply visa abroad. Checking this option does not bar you from adjusting status anyways.

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    Mitch Wexler

    Immigration Attorney
    Answered on

    Check off "applying for visa abroad." If you do that you may also adjust status, not the other way around.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    You should get an attorney.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    If you plan to keep working here I would suggest adjustment, but if unsure if you select immigrant visa. Then you can always adjust if legally here in status when the time comes.

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    Hassan Elkhalil

    Immigration Attorney
    Answered on

    Applying for adjustment.

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    Charles Foster

    Immigration Attorney
    Answered on

    You could choose either option but I think the safest option, given the growing backlog for Indian applicants, would be to indicate you are "applying for a visa abroad." If later a visa number becomes available while you're still in status in the U.S., you could always file an application for adjustment of status.

  • Avatar

    BoBi Ahn

    Immigration Attorney
    Answered on

    If you are already in the U.S. on H-1B status, opting to adjust status in the U.S. seems to be the easier option. But, if your plans change down the line, you can always change your venue to consular processing for immigrant visa.

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