The Effects of Filing an EB-5 Petition on F-1 Student Status
By Lauren A. Tetenbaum Posted in China, EB-5, I-526, Immigration, VisaThe F-1 student visa is a nonimmigrant visa issued to foreign nationals with intent to reside in the United States only temporarily pursuant to their studies. Generally, the student must have a residence abroad that they have no intention of abandoning. The filing of an I-526 Petition, however, reflects a foreign national’s intent to immigrate to the United States and obtain Lawful Permanent Resident status. Consequently, the intent of the F-1 visa and the EB-5 visa are at odds. It therefore can be risky to have demonstrated immigrant intent by filing an EB-5 Petition when seeking to enter or re-enter the United States in F-1 status while the EB-5 petition is pending.Foreign nationals with valid F-1 visas may be questioned about their intent when seeking admission to the United States. A U.S. Customs and Border Protection officer at the port of entry can check to determine whether an I-526 Petition is pending with USCIS (the officer could also ask directly whether an immigrant petition has been filed, and the traveler must answer honestly). Generally, if the foreign national abides by the requirements associated with the F-1 visa, intends to enter the United States to continue in his or her approved course of study, and is in possession of a current F-1 visa stamp and properly endorsed Form I-20, he or she should be able to enter the United States in F-1 status notwithstanding the filing of the EB-5 petition. Travelers should carry on-hand evidence proving ties abroad in order to demonstrate that the entry sought is indeed temporary per the F-1 requirements.There are additional considerations when the foreign national’s F visa stamp has expired, and he or she must travel internationally after the EB-5 petition has been filed and then apply for a new F-1 visa stamp abroad. It can be challenging to obtain a new F-1 visa at a U.S. consular post after expressing the intent to immigrate by filing the I-526 petition. That said, it is imperative that the foreign national answer all questions on the DS-160 nonimmigrant visa application honestly, including the questions related to U.S. immigration history and applications.Because of the complexities involved, F-1 students should consult with an immigration attorney if they must travel internationally after filing an EB-5 petition. It is also important to bear in mind that the filing of an EB-5 petition does not incur status on the petitioner. Therefore, if the I-526 petition takes many months to be adjudicated and/or the petitioner must wait many months or years after approval to file for Adjustment of Status (due to backlogs in the Visa Bulletin, particularly applicable to mainland-China-born petitioners), he or she must be sure to maintain valid nonimmigrant status if choosing to remain in the United States.