The question of whether a pending I-526 will compromise an F-1 status is a question most attorneys often get.
The issue here is due to the contradictory intent of both visas. The F-1 visa is a non-immigrant visa, intended solely for the purpose of completing one*s education and returning back to one*s home country.
The EB-5 Visa, in contrast, is a pursuit for an immigrant visa, with an intent to immigrate into the United States permanently.
Consulates who entertain a non-immigrant visa and find contradictory intent will refuse the applicant*s non-immigrant visa.
Example of Contradictory Intent
For an example, an individual who applies for a non-immigrant visitor visa to the United States will have his or her application denied, if he or she is married to a United States citizen. The reasoning here is simple: an individual who has a spouse in the United States has more ties in the U.S. than he or she does in her home country. His or her intent of returning home, therefore, will be considered unlikely.
Consulates, however, provide a non-immigrant F-1 visa applicant with generous guidelines, in contrast to a non-immigrant visitor visa.
But first, let*s look at the general treatment of non-immigrant visas by U.S. Consulates:
The Immigration and Nationality Act
The Immigration and Nationality Act always starts with a presumption of *immigrant intent* for all applicants, whether it*s a visitor visa, student visa or other non-immigrant visa.
It is therefore, the student*s burden to overcome that presumption when he or she applies for a student visa.
To put it in another way, a student or a visitor is ineligible for admission until he or she *establishes to the satisfaction of the consular officer, at the time of application for a visa, and to the immigration officer, at the time of application for admission, that he or she is entitled to a nonimmigrant status* or that he or she intends to return. https://fam.state.gov/
Hence, in a scenario where there is a a I-526 petition pending [or any other immigrant petition], this raises the issue between present intent and future intent which is discussed in length below.
But first, within the context of an I-526 petition, let*s examine why some attorneys caution a thin line, as one of my clients mentioned, when pursuing a student visa amidst an I-526 petition pending.
1. Chinese [and now Vietnamese] based I-526 approvals
As of the date of this article. EB-5 visa backlog for Chinese investors is at three years. Perhaps four in the next year. For these students, they can face issues qualifying for an F-1 student visa during an interview at a U.S. consular post for all 3-4 years.
Although Chinese student visa reciprocity schedule allows for issuance of a 5-year student visa, students must nevertheless show eligibility to the U.S. Customs and Border Protection when applying for admission to the U.S. or upon re-entry.
Contrast the above to Indian based I-526 petitions or other non backlogged countries
Consequently, the issue of renewals should not apply to Indian applicants as there is no backlog with petitions coming out of India. Hence, the only likely time a student applicant will run across this scenario will be during the period between an approval and adjustment of status
2. The Unclear Question of whether an Immigrant Intent should be implied with only a I-526 petition
The Department of State provides little or no guideline addressing this issue directly. At least not to the extent that they do with other immigrant based intents. But luckily, the Department has provided generous guidelines to students who must apply for visa abroad for the start of their study.
Specifically, the Department instructs that [Consular Officers] must be satisfied at the time of application for a visa that the visa applicant possesses the present intent to depart the United States at the conclusion of his or her approved activities. That this intention is subject to change is not a sufficient reason to refuse a visa. Although students may apply to change or adjust status in the United States in the future, this is not a basis to refuse a visa application if the student*s present intent is to depart at the conclusion of his or her studies. https://fam.state.gov/
The policy above is obvious. If a consular officer is asked to imagine a future intent, then one imagines a consistent denial for F-1 status, given the notion that a student might consider looking for a job in the United States and ultimately pursue an immigrant status through the form of a non-immigrant H1B, O1 or E based visa.
Pending an I-526 petition or not, students still must provide strong evidence that at the time of their application, they must present an intent to depart the United States at the conclusion of their approved activities. Hence, providing ties to one*s home country is key. This is the student*s burden to prove; irrespective of a pending I-526 petition.
Moreover, and in addition, it should be noted that a little common sense goes a long way. If you are the applicant of an approved I-526 petition, and you are ready to file an Adjustment of Status, and you have a child who is applying for an F-1 status, the question of when to file certain petitions should be done strategically.
A final note about renewals
The Department of State instruct Consulate officers to, *generally issue visas to returning students who are qualified, unless circumstances have changed significantly from the time of previous issuance.* Students are encouraged to travel home during their studies in order to maintain ties to their country of origin.
The regulations explain that, *If students feel that they will encounter difficulties in seeking a new student visa or that they will not be issued a visa to continue their studies, they may be less inclined to leave the United States during their studies and hence may distance themselves from their family and homeland.*
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