Concurrent Filing Offers Significant Immigration Benefits to EB-5 Investors

  Author: Michael B. Schoenfeld

With the EB-5 Reform and Integrity Act of 2022 (RIA) enacted on March 15, 2022, the EB-5 Regional Center Program was reauthorized for another five years. The new law also ushered in a wave of substantial reforms making the program more effective, secure, and attractive to potential investors.

Among several other measures introduced by the new legislation, the provision of EB-5 concurrent filing is quite significant for foreign nationals living in the United States on non-immigrant visas. These visa holders may wish to adjust their visa status from temporary to permanent.

Adjustment of Status (AOS) is the process by which foreign nationals already living in the United States on a temporary visa can apply for lawful permanent resident status (or Green Card) without having to leave the country while their visa is processed.

Subject to certain eligibility criteria set forth by United States Citizenship and Immigration Services (USCIS), petitioners are required to file Form I-485, or Application to Register Permanent Residence or Adjustment Status, to apply for the adjustment of their visa status to permanent residency.

Before the new legislation, investors seeking permanent residency through the EB-5 Immigrant Investor Program would have to wait for the approval of their EB-5 application (the I-526 petition) before they could file Form I-485 for adjustment of status. Until such time, they would be required to maintain their legal status on another visa.

Under the new provision of EB-5 Concurrent Filing, foreign nationals in the United States on temporary, non-immigrant visas can now file Form I-526 (Immigrant Petition by Standalone Investor) or Form I-526E (Immigrant Petition by Regional Center Investor) concurrently with Form I-485. This provision allows them to enjoy the benefits of lawful permanent resident status while they await the approval of their I-526 petition.

EB-5 Concurrent Filing Eligibility Criteria

To qualify for concurrent filing, the petitioner (and dependent family members) must be living in the United States on a legal non-immigrant visa status that is eligible for AOS. Most non-immigrant visa holders are eligible to apply for AOS except for a few, such as visitors under a visa waiver.

Notably, applicants from countries subject to visa retrogression are not eligible to apply for EB-5 concurrent filing.

While applicants on “dual intent” visas, i.e., on visas with both immigrant and non-immigrant intent (e.g., H1B or L-1) can file Form I-485 simultaneously with their I-526 petition, applicants on “non-immigrant intent” visas (B, F, TN, E-2, or O) are advised to wait for 90 days before filing Form I-485.

Travel and Work Authorization

Once the I-485 petition for AOS is filed, the petitioner can stay legally in the United States.

However, to work and travel abroad, applicants must file the I-765 petition (Application for Employment Authorization) for a work permit and the I-131 petition (Application for Travel Document) for advance parole.

A work permit, or Employment Authorization Document (EAD), will allow the immigrant to work legally during the remaining period of their AOS application, and the travel permit will enable the immigrant to travel abroad without abandoning their I-485 petition.

An EB5AN investor recently got an EAD and advance parole in only 60 days.

AOS applicants in the United States on an employment-authorized visa, such as the H-1B or L-1 visa, can travel internationally and continue to work in accordance with the terms of their non-immigrant employment authorization as long as their existing non-immigrant visas remain valid.

However, they can still apply for the EAD and advance parole as a backup in the event of job termination.

Applicants on other non-immigrant visas can continue to remain in the United States after applying for AOS; however, they will need to wait for the issuance of the EAD to work and advance parole to travel in and out of the United States.

Applicants under this category must not travel out of the United States before receiving their advance parole document, as it will be considered the abandonment of their AOS application.

How Concurrent Filing Benefits EB-5 Investors

To start with, concurrent filing speeds up the process of obtaining permanent resident status as the applicants can file the I-485 petition without having to wait for their I-526 petition approval.

Within 30 days of receiving the I-485 petition, USCIS will send a receipt of the application, shortly followed by a biometrics screening appointment notice, which will enable USCIS to conduct background and security checks on the petitioner.

The key advantage here is that from the time of the receipt notice of Form I-485, the immigration status of the petitioner and dependent family members shifts to “pending,” allowing them to stay in the United States even while their I-526 petition is awaiting approval.

Further, the EAD and advance parole are generally received within 3–6 months of application, after which the petitioner can work and travel without restrictions. However, applicants must ensure that work and travel permits are timely renewed while their petition for permanent residency is pending.

This is an invaluable—and rare—opportunity, especially for H-1B workers and holders of similar visas that may be close to expiring. AOS allows applicants to enjoy the benefits of a U.S. Green Card even before getting one.

Could AOS be an option for you? We invite you to schedule a free consultation with EB5AN to find out.