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Should my daughter apply for an F-1 visa if she has a pending DS-260?

Currently, I am waiting to have my approved I-526 transferred to the national visa center. I have not yet filed the DS-260 forms for me or my family members. My daughter has been admitted to a U.S. college that she plans to attend this August. She has received her I-20 but has not applied for an F-1 visa. Should she apply for the visa before submitting a DS-260 form? We do not want her to get in trouble while entering the U.S.

Answers

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    You should contact an experienced immigration attorney for this question. F-1 student status requires non-immigrant intent. If your daughter did not file any immigrant petition and she intends to go to school in the United States temporarily, then an F-1 student visa might be appropriate. If she obtains her conditional lawful permanent resident status, however, she does not need an F-1 student visa.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    Your daughter may be able to apply for an immigrant visa and use the immigrant visa to be admitted to the U.S. to attend college in August. The time period to have an immigrant visa interview will depend on the schedule of the specific U.S. consular past in your home country.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Yes, she should apply for the F-1 visa before the DS-260 is filed or processed, so that there is no conflict of intent (having an immigrant visa processing while applying for a non-immigrant F-1 visa). It will make the processing for the F-1 easier.

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    Barbara Suri

    Immigration Attorney
    Answered on

    Your daughter does not yet have a pending DS-260. It is my opinion that your daughter should proceed with her student visa applications.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    As long as every step she takes is disclosed she should not get into trouble at all. Since you are the principal investor, the position of the Department of State is that she still has not technically applied for an immigrant visa, and therefore she has all the right to apply for the non-immigrant F-1 visa. Strategically speaking, she should first apply for the F-1 based on her I-20. On her application for the F-1, she should certainly mention that she is a derivative applicant on an approved I-526 petition. The Department of State has indicated that in this kind of a situation the derivative applicant should answer the question on whether an immigrant petition is on file or not as "no". Despite this, most immigration attorneys are in favor of disclosure. At the outside chance that the F-1 is not approved, no harm should be done for her immigrant derivative application.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    If your daughter is not a principal EB-5 investor, she should be able to apply for an F-1 visa. However, it should be disclosed on the DS-160 that an immigrant petition was filed and she is a derivative beneficiary of the approved I-526 petition. If an F-1 visa is refused under 214(b), it will not affect her immigrant visa consular process.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    She can try, but it's not likely she will get it, as she is too close to getting an immigrant visa. But she should try.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    The answer depends on your country of nationality. In many places, you can complete the IV process in four months. Discuss with your attorney the best solution for your family.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    The DS-260 is not the critical issue. If she applies for a student visa the question is asked whether she has filed an immigrant visa petition. Interestingly, the Department of state has indicated that a derivative applicant can answer no to this question. Of course, she must tell the truth on all forms and especially in-person when questioned.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    It is fine to file for an F-1 visa as a result of her admission as an academic student as an option if DS-260 is not approved in time. However, if the DS-260 is processed and the immigrant visa is issued prior to the start date of the school, she can still enter on an immigrant visa. Lastly, as part of application for F-1, ensure you disclose the DS-260 is pending to avoid any appearance of misrepresentation.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    The further you go in the immigrant visa process, it will become increasingly impossible to get a "non-immigrant" visa like an F-1. I would want to discuss your immigration timelines and other background before making an immigration plan for you.

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    Charles Foster

    Immigration Attorney
    Answered on

    Your daughter certainly has the absolute right to apply for an F-1 non-immigrant visa, based upon her certificate of eligibility on Form I-20, if in fact she needs to obtain the F-1 visa, in order to attend college on a timely basis. However, she should make sure that in no way she misrepresents any facts. It is possible that the American consular officer may deny the F-1 non-immigrant visa, on the grounds that she is an intending immigrant, but she has an absolute right to apply for the F-1 non-immigrant student visa. Yes, it would be better to apply for the F-1 prior to submitting her DS-260 application. She will not get in trouble, as long as she does not make any false or misleading statements.

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