QUESTION

Can and should i apply for aos with an approved i 526 awaiting a consular interview while being in usa on a b1/b2 visa ?

Asked on May 04th, 2021 on Immigration - Pennsylvania
More details to this question:
I had applied for EB-5 which got approved in Feb 2020. Since I was in India, I went through consular processing and my case stands as documentarily complete at NVC awaiting an interview. Before two months I came to USA on non immigrant Business Visa (B1/B2). There is again a surge in Covid cases in India and lockdowns and curfews are being laid down and so the Embassy is shut again. Q1)I wanted to know how it would be if I were to apply for Adjustment of Status? Q2)Are there greater chances of my getting a refusal since I came on a non immigrant visa and am applying for becoming an immigrant ? Would the 90 day rule adversely affect my application ? Q3)Say if I do apply and get refused, would I still be able to go back to India for Consular processing ?
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1 ANSWER

Immigration and Nationality Law Attorney serving New York, NY
3 Awards
A concern with USCIS may well be why you are applying for adjustment of status here while you are awaiting a consular interview on the approved I-526 petition, and the related concern of whether you had a preconceived intent to adjust status when you came to the US. It may come down to an immigration examiner’s perception of what is going on. There is probability that you will be interviewed instead of an interview being waived, and in such case, the examiner may question and evaluate your explanation. I do note that the deterioration of conditions in India vis-à-vis Covid would appear to be a reasonable explanation for deciding to adjust status instead of returning for consular processing. If you are refused, you may face problems with your consular processing in India dependent upon the speed of resetting consular processing and the attitude of the interviewing officer toward your attempt to adjust status in the States.  Due to the limitations of the Lawyers.com Forums, Alan Lee & Arthur Lee, Esqs.’ (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. The information provided herein by the Firm is general, and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence.
Answered on May 29th, 2021 at 2:46 PM

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