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Under the current administration, should I choose EB-5 consulate interview or adjustment of status?

I am currently studying in the U.S. under an F-1 visa and am planning to apply for EB-5. I am not sure where I will be when my I-526 application is approved, so I assume it is safer to choose the consulate interview to obtain an EB-5 visa. Is the process faster to get permanent residency through the consulate processing procedure than through adjustment of status? I have also heard about the uncertainty of consulate adjudication and the more frequent use of administrative processing, which could significantly increase the waiting. Is it true based on your experience? Which one should I choose?

Answers

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    BoBi Ahn

    Immigration Attorney
    Answered on

    You can opt for consular processing and, if you change your mind or your circumstances change at some point, you can also adjust status in the U.S.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    As long as you have a valid F-1 visa while your I-526 application is being processed, you have nothing to worry about. When it is approved, if you want to choose consulate interview you can certainly do so. While there is a belief that consular processing time is faster, I am not sure that there is hard evidence that supports that claim.

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    Marisa Casablanca

    Immigration Attorney
    Answered on

    If you are unsure of where you will be, it is best to choose consular processing. If you choose consular processing you can then change it later to adjustment of status. Administrative processing has become common with non-immigrant visas, but generally not with immigrant visas unless there are security concerns.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    I would choose consular processing. When the I-526 is approved and your priority date is current, you can always adjust at that time if in valid non-immigrant status, depending on what is best at that time.

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    Abhinav Lohia

    Immigration Attorney
    Answered on

    As an applicant you have the option of changing and updating your address by simply filing a form with USCIS. It is not a cumbersome process. Consulate experiences are not consistent. In India, for instance, a majority of investors I have been in touch with did not face any trouble at the stage of consulate interview. However, there were a few who faced unexpected delays. Consulates are usually hit or miss. That said, they are usually faster than adjustment of status (AOS). If you are planning to be in the States for the foreseeable future, you might be better off applying for adjustment of status. AOS allows you to live and work in the United States during the pendency of your AOS application. Therefore, the time taken for you to receive a green card may not be of consequence to your professional goals. You need to weigh the pros and cons based on your individual circumstances.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    Always choose consular. If you do, you can still file adjustment if you change your mind. If you file with adjustment marked, you have to file an I-824 to consular process and that takes many months.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Everything has become a little less predictable. On one hand, if you are here, there may be benefits on staying and avoiding risks of re-entry. On the other hand, it takes a really long time to adjust. Either way, neither USCIS (adjustment) nor the consulate should re-adjudicate the underlying investor petition.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Choose consular processing option on I-526. This way, assuming I-526 is approved and you are eligible to adjust status in the U.S., you can simply file I-485 with USCIS, in which case the National Visa Center will return an approved I-526 petition to USCIS for you to adjust status to a conditional green card holder. If you choose the adjustment option on I-526, then should you later decide that, under the then existing circumstances, consular processing is a better option for you, you have to file I-824 with USCIS to take action on the approved I-526 petition to send it to NVC for consular processing, which will add extra wait time to your overall immigration timeline. Ensure you hire an experienced EB-5 immigration attorney to help you with I-526 petition and consular processing or adjustment after I-526 petition is approved. Both consular processing and adjustment options may present uncertainties, such as request for evidence or administrative processing, and you should discuss this through a comprehensive consultation with an immigration attorney.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    You should always indicate that you will do the consulate processing on the I-526 petition for the ease of travel and not be seen as violating non-immigrant visa intent. If you are in a valid F-1 status when the I-526 is approved, you may file the I-485 without taking any other steps. Also, as the Trump administration requires all the employment-based AOS cases to be interviewed, the wait time for AOS processing has increased to more than two years depending on the various USCIS field office workloads. Thus, these days it may be faster to go through the consulate processing, which could be done six to eight months. If you are here studying, you don't have to leave until you get the interview notice from the consulate. If you time it right, you could minimize the amount of time you will have to be out to about two to three weeks at most. All of this is something your experienced lawyer could guide you through.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    The form I-526 should always indicate consular process. Consular is generally easier and faster, but it depends on the country. Discuss your particular country and circumstances with your attorney.

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    Phuong Le

    Immigration Attorney
    Answered on

    It's a personal preference, but most would choose adjustment of status due to the fact that Table B is currently accepted with USCIS and you are eligible to file for adjustment earlier (and remain in the U.S.). Also, like you mentioned, consulate decisions are generally unreviewable and may introduce unknown waiting/delays if it occurs.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    In order to fully answer all your questions, it is advisable that you should contact an EB-5 attorney. This is because several factors such as country of origin, source of fund(s), the duration of your study, just to name a few, will affect your choice of process. A good and informed decision can only be made if all necessary requirements are examined prior to applying for EB-5.

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    Charles Foster

    Immigration Attorney
    Answered on

    If you are in the United States in valid F-1 Student status and you have filed an EB-5 investor petition on Form I-526, once it is approved and visa numbers are available, you would have the option of applying at the appropriate American consulate in your home country or through adjustment of status. Time-wise, there may not be any significant difference, but legal-wise there are significant advantages in obtaining your permanent residency through adjustment of status. That would include the obvious: that you do not have to travel abroad. Also, if there is a delay, you are not awaiting abroad for it to be resolved, but you go back to school the same day. Furthermore, if there are significant legal issues while in the U.S. you are covered by the Constitution, have due process and are entitled to both administrative and judicial review. If you are abroad applying at an American consulate and you are denied, you have very limited legal rights. Thus, all things being considered, one should always choose adjustment of status.

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