My I-526 has just been approved. I am in the United States on F-1 status and my visa will expire in March 2017. Do I need to be in the United States legally for the duration of AOS processing, or is that just at the time of filing? I am wondering whether it will be faster and safer to apply for adjustment of status, or whether it will be better to go through consular processing in my home country of Canada?
You can apply for AOS as long as you are in lawful U.S. status and remain in the U.S. lawfully until it is approved. You can also, at the same time you are filing for AOS, apply for work and travel authorization.
To be able to adjust while in the United States, you must be legally present. Therefore, unless you can either extend your F-1 status or switch to another non-immigrant visa to keep you in legal status, consider returning to Canada.
AOS pending is a valid status and you could remain in the United States legally until you get a decision on the AOS. Normally, when you have an approved immigration petition, such as the I-526, the approval of the AOS is expected unless you have some inadmissibility issues, such as crimes or unlawful presence accrual that bars you from entering the United States. If you are inadmissible, you will also have a problem with the consular processing. Since your I-526 has been approved and your visa is still valid until March, I would suggest that you have your attorney file the AOS immediately. As your current visa will expire after March, I would advise you not to travel overseas until the AOS is approved, even though you will get the EAD and travel combo card to be safe.
If you can remain here until you get your travel permit (about 90 days after you file), then I would file for adjustment, as you will get a work permit here as well.
In my experience, it is better to apply for AOS while in the United States. When we file for AOS, we always include Form I-131 for advance parole and Form I-765 for employment authorization. You will need to remain in the United States while your advance parole is processed, which will take about 2-3 months. After it is approved, you can travel in and out of the United States while your AOS is being processed, provided that the recent executive order travel ban will not apply to you.
If you are eligible to file for adjustment of status on Form I-485 after the approval of your EB-5 petition on Form I-526, you would need to stay in the United States until such time as you apply for and receive advance parole, which would allow you to travel outside the United States while your adjustment of status application is pending. Generally speaking, it is always better to apply for adjustment of status rather than going through consular processing. You have more options and more legal rights by doing so.
When you are filing for AOS, you are also able to file for advance parole (travel document) and EAD. Upon approval of the advance parole document, you are able to leave the United States while the AOS is still pending.
I generally prefer that my clients use AOS rather than consular processing, since one''s legal rights are much greater in an AOS context. When the I-485 is filed, one should also apply for a dual purpose employment authorization and advance parole card. It takes perhaps three months for the card to be issued. Once you have it, you can travel for the duration of the AOS processing.
As soon as you file AOS, you are in "lawful" status, and no longer subject to the expiration of your current/nonimmigrant status. You can also file for an employment authorization document and advance parole, which would allow you to work and travel during the AOS processing.
