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Does filing an EB-2 NIW petition invalidate my F-1 visa?

A professional asking a question

Let’s say you are a student on an F-1 visa and you want to find out if you would qualify for an EB2 NIW green card. If you file an EB2 NIW petition as a standalone I-140, indicating consular processing (and you do not file an I-485) this alone would not invalidate your F-1 status. This is assuming that you are otherwise maintaining your F-1 status by continuing to be enrolled in a full course of study, among other things.

In a similar vein, if you filed your NIW as a standalone I-140 and indicated consular processing, you would likely still be able to apply for the Optional Practical Training (OPT) after your F-1 program is complete, as long as you continued to maintain F-1 status.

However, if you need to apply for a new F-1 visa or change to a different non-immigrant status that does not allow dual intent, such as a TN, having filed an I-140 may pose a risk that such applications may be denied for immigrant intent.

What about traveling abroad on the F-1? If you indicated you would choose consular processing in your I-140, you will still have the option to travel abroad and return to the U.S. on your F-1 visa. However, having an I-140 filed does pose some risks at the border. If the examining officer asks you about immigrant intent, you should be prepared to explain that you intend to apply for the green card through consular processing, not adjust status in the United States. But there is always a risk that the officer will not be satisfied that you have the required “non-immigrant intent” to qualify for admission as an F-1 student, and may deny you entry.

As this post touches on briefly, filing any immigrant petition – including the EB2 National Interest Waiver (NIW) petition, which is growing in popularity as a preferred green card pathway for many advanced degree professionals – is a complex endeavor.

Changing small details in filing – such as checking the box for “consular processing” as opposed to “adjustment of status” in the I-140 petition – can result in major consequences.

For this reason, it can bring significant value to an applicant to consult the legal advice of an experienced immigration lawyer who can help you figure out the right strategy from the beginning, starting from the I-140 stage.

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