Should a derivative beneficiary in the United States on an F-1 visa file Form I-485 or consular process with the principal applicant?

A derivative beneficiary in the United States on an F-1 student visa can either adjust status or go through consular processing. Which route the foreign national will take depends on their individual circumstances. Foreign nationals are advised to consult an EB5 immigration attorney to determine the best course of action.

If the beneficiary is in the United States at the time of I-526 petition approval but the EB5 investor is not, the best option is most likely to have the derivative return home and consular process with the principal applicant. Alternatively, the derivative in the United States can wait for the principal applicant to receive permanent resident status, at which point the derivative can file Form I-485 to adjust status.

Consular Processing

A derivative may choose to return to their home country and consular process alongside the principal applicant. This process begins with filing Form DS-260, Immigrant Visa Electronic Application. Once the application has been processed, the EB5 investor and derivatives will need to attend a visa interview at the U.S. consulate or embassy in their home nation. A consular officer will determine whether the applicant is eligible for an EB5 visa. The derivative can then return to the United States alongside the principal applicant on a conditional residency green card.

Adjustment of Status with an F-1 Visa

Derivatives also have the option of remaining in the United States and adjusting status instead of consular processing. If the derivative intends to adjust status while the principal applicant goes through consular processing, then the principal applicant must obtain lawful permanent resident status and enter the United States before the derivative files their I-485 application. A foreign national can only file to adjust status if they have lawful status in the United States. Therefore, it is crucial for the derivative to maintain their F-1 status until their I-485 application is approved. Additionally, foreign nationals are advised not to travel outside of the United States after filing Form I-485 until it is approved.

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