Can a derivative beneficiary on a nonimmigrant visa travel abroad with a pending I-526 petition?

Until a pending Form I-526—Immigrant Petition by an Alien Investor—is approved, the EB5 investor and their derivative beneficiaries are free to leave and reenter the United States. They only need to ensure that they have a valid nonimmigrant visa and that the purpose for their reentry is consistent with that visa. For example, a derivative with a valid F-1 student visa may enter the United States to pursue their academic program. However, this can present some difficulties.

A derivative visa applicant is either the spouse or child of the principal visa applicant. In the case of the EB-5 visa, the principal applicant is the investor. A child qualifies as a derivative visa applicant if they are unmarried and under the age of 21.

The Difference Between Immigrant and Non-immigrant Visas

Nonimmigrant visas are meant for only a specified period of time. Immigrant visas, on the other hand, demonstrate an applicant’s intention to make the United States their permanent residence. There are some nonimmigrant visas that allow dual intent, meaning that an applicant can enter the United States for one purpose and file Form I-485—Application to Register Permanent Residence or Adjust Status—to remain in the country and apply for U.S. permanent residency. However, not all nonimmigrant visas allow this.

Therefore, entering or reentering the United States on a nonimmigrant visa that doesn’t allow dual intent may be challenging with a pending I-526 petition, because a pending I-526 indicates an intent to immigrate. Furthermore, a visa does not guarantee entry into the United States; it only allows for travel out of a petitioner’s home country to the United States. Therefore, a customs and immigration agent can deny entry if they choose to. If, however, an investor indicated on their I-526 petition that they intend to consular process upon I-526 approval, reentering the United States is less likely to be problematic.