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What is the possibility of getting an F-1 visa approved while I have applied for an EB-5 visa?

If I am the principal petitioner of an EB-5 visa and file a petition for an I-526, what happens if, after one year, I want to go to the U.S. to study? If my petition has not been approved by that time, can I apply for an F-1 visa?

Answers

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Yes, you should be able to but make sure you obtain necessary documents related to the F-1 visa. With your pending I-526 petition, your F-1 application is likely to be riddled with immigrant intent. However, be prepared to address this issue during your consular visa interview so as to prevent a denial of your F-1 visa application.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    After you have filed an I-526 petition, it will be difficult for you to obtain a F-1 visa.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    An F-1 student visa application with a pending I-526 immigrant petition pending could be denied under Immigration and Nationality Act Section 214(b). This section of law requires that a non-immigrant must overcome the presumption of immigrant intent in order to qualify for a non-immigrant visa. The decision whether or not to issue such a visa usually is up to the discretion of the consular office at the U.S. embassy or consulate abroad. It is very subjective.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    There are high chances F-1 will not be issued. If you can convince a U.S. consular official and then a CBP officer at the border that you are coming temporarily for a legitimate course of study and will return home to consular process for an immigrant visa upon approval of I-526 (rather than adjust status in the U.S.), it is possible you may get an F-1 issued.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    It is possible. You just need to provide supporting evidence that your present intent (F-1/studying) is temporary only and that you will return to your home country upon completion of studies, irrespective of your future intent.

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    Marisa Casablanca

    Immigration Attorney
    Answered on

    It would be difficult to get an F-1 visa approved if you are pursuing permanent residency. In order to have a non-immigrant visa such as a student visa, you must show you have no intent to immigrate. By filing a petition for EB-5 you have declared such intent and the visa will most likely be denied. You increase any chance of approval for the student visa if you state that you will consular process your EB-5 immigrant visa.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    Up until now, many Fs have been issued. The student must show his or her intent to return home upon completion of studies or OPT. Here is the guidance to officers: Assess the applicant's current plans following completion of his or her study or OPT. The hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application if you are satisfied that the applicant's present intent is to depart at the conclusion of his or her study or OPT.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Conflicting intent, but explain you will be returning to await consular interview for your EB-5 case, which could be several years away.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    There is a good chance your F-1 visa will be denied based on having an immigrant intent. However, if the F-1 visa is based on credible study and you can convince them that you will go back out to be interviewed for the immigrant application visa through DS-260 consulate processing, perhaps your F-1 visa could be approved.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    It may be possible. Some officers may see the I-526 as proof of immigrant intent. Some may not see immigrant intent until you file for consular processing or adjustment of status. Either way, they will know the I-526 is pending, so you should consult with an immigration attorney to prepare.

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    Charles Foster

    Immigration Attorney
    Answered on

    You are free at any time to apply for a non-immigrant F-1 student visa at the appropriate American consulate abroad once you have been accepted and the university or college has issued you a certificate of eligibility on Form I-20. On your non-immigrant visa application, you will have to disclose that you are also an EB-5 petitioner and have filed an I-526 petition. Failure to make such disclosure would subject you to a charge of fraud by having made a material omission. In any event, the consular officer would be aware that your petition had been filed since it would be in the database accessible to the consular officer. All applicants for F-1 student visas have the burden of proof under Section 214(b) to prove that they do not intend to immigrate to the U.S. and that they have sufficient ties to their home country. As a result, it would be difficult to obtain an F-1 student visa unless you have a very sympathetic consular officer who believes in dual intent, which might only occur if there was a very long backlog as there is for Chinese nationals. So one could argue that they have an immediate intent to study and would then return home before they apply for their immigrant visa.

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