Can our client’s dependent child file the I-526 petition and then apply for the F-1 visa?

Great question. We are getting this question a lot especially from investors who have kids born in countries that are subject to retrogression. Their kids are not ready to apply for the F-1 visa yet because they are still in high school in their home country. Therefore, they are asking us if to gain time from the backlog they could go ahead, file for the EB-5, and then when their kids are ready to go to college apply for the F-1. The short answer is that on a practical level this is fine although F-1 is a nonimmigrant intent visa and EB-5 is an immigrant intent petition. One could have a long-term goal of immigrant intent with a short-term goal of non-immigrant intent. There is a very small risk of denial of the F-1 visa due to the conflict between these two intents. The parent filing with the kid, as the dependent is, of course, a much better case pattern because the one who has declared their intent is then the parent and not the derivative applicant that is the child. In this latter case, this becomes solely a disclosure item when filing for the F-1 visa.