Let’s say you are in the United States and have just completed a new EB-5 investment. You have filed your I-526 or I-526E petition and an application for adjustment of status (AOS) concurrently with USCIS. While waiting for these applications to be adjudicated, life continues, and inevitably you need to travel internationally—to visit family, for work, or for leisure. This article addresses the requirements and potential issues for EB-5 investors traveling with a pending AOS application.
Single-Intent Visa Statuses
International Students on F-1 Student Visas
E-2 Treaty Investors
TN NAFTA Professionals
O-1 Individuals with Extraordinary Ability or Achievement
Dual-Intent Statuses Such as H-1B or L-1
Conclusion
The ability of EB-5 investors to file an AOS application concurrently with their EB-5 petition is one of the most significant procedural changes brought forth by the 2022 Reform and Integrity Act to the EB-5 program. Concurrent filing gives EB-5 investors the opportunity to apply for and receive ancillary travel and work benefits—an advance parole (AP) to travel internationally and an employment authorization document (EAD) to work—while the EB-5 and AOS applications remain pending.
The ability to work and travel internationally during the pendency of an AOS application greatly benefits EB-5 investors already living, studying, and working in the United States on a non-immigrant visa status, such as H-1B, F-1, E-2, or TN. Previously, EB-5 investors were forced to delay their immigration plans as they waited for years-long adjudication of their I-526 before filing an AOS application, but now they can file an AOS application and continue to work and travel internationally.
In more welcome news, USCIS recently increased the maximum validity period of AOS-based APs and EADs from two to five years, applicable to all initial and renewal applications pending or filed after September 27, 2023. The increased validity period for these documents not only has the potential to address backlogs and improve USCIS’s internal processing times, but also significantly reduces the administrative burden for EB-5 investors needing to file extensions.
Depending on the non-immigrant status they hold, an investor with a pending AOS may have temporary travel restrictions or may employ different strategies when traveling internationally. Below, we discuss the impact of traveling with a pending AOS for EB-5 investors holding common non-immigrant visa statuses.
Single-Intent Visa Statuses
Most non-immigrant visa statuses are “single intent”—generally requiring the visa holder to affirm with every entry to the United States that their visit is temporary, that their activities are consistent with the visa category they hold, and that they have significant ties to their home country that they will not abandon.
Once an EB-5 investor who holds a single-intent visa status applies for AOS, they have declared their intent to immigrate to the United States. Such investors and their dependents must apply for and receive an AP to travel internationally within the validity period of their AP document. If an investor on a single-intent visa status (i.e., not H or L status as discussed further below) departs the United States while their AP application is pending, the USCIS will generally deny the AOS application due to considering it as being abandoned.
International Students on F-1 Student Visas
To travel internationally during the pendency of their AOS, investors on F-1 status can no longer use their F-1 visa and must apply for and receive an AP. Thus, F-1 students should time the filing of their AP application strategically around any planned travel, given that USCIS processing can take several months and is subject to change.
When reentering the United States on their AP, F-1 students will notice that their I-94 admission record will reflect “DA” as their class of admission, rather than “F-1.” This indicates that that they are an AOS applicant, authorized to stay in the United States while their AOS remains pending. Although their I-94 no longer reflects their F-1 status, their F-1 status is not necessarily terminated (a decision that can only be made by USCIS or an immigration judge). Even with a pending AOS application, international students can continue to attend school and, should they qualify, remain eligible for CPT, OPT, and STEM OPT work authorization, so long as they continue to comply with all requirements for maintaining F-1 status. This includes holding a valid passport, current Form I-20, and full-time course load for each semester.
E-2 Treaty Investors
The E-2 is considered a “single-intent” visa category, as E-2 non-immigrants and their dependents generally must maintain an intention to depart the United States when their status expires or is terminated. Thus, E-2 treaty investors with a pending EB-5-based AOS must also obtain an AP to travel internationally.
Given the restriction on travel for several months, E-2 non-immigrants who frequently travel may decide against concurrent AOS filing. They may instead choose to file an EB-5 petition first, renewing and traveling on their E-2 visa as needed, and upon approval of their EB-5 petition, embark on the consular process to obtain conditional permanent residency. Historically, E-2 visa holders with a pending or approved immigrant petition could renew their visas at a United States Consulate as long as they presented proof of their intent to depart the United States upon the termination of their status. However, consular practices can change anytime, and the United States Consulate might deny the E-2 visa to applicants who are beneficiaries of an approved or pending EB-5 petition. Given this risk, careful planning with an immigration lawyer regarding the timing of E-2 extensions and starting the EB-5 immigration process is advisable.
TN NAFTA Professionals
Investors on TN status and their dependents also face travel restrictions after the filing of an AOS application. Similar to EB-5 investors on E-2 status, TN status holders may wish to either time the filing of their AOS and ancillary AP and EAD applications around any planned travel or decide to file an EB-5 petition first before consular processing.
O-1 Individuals with Extraordinary Ability or Achievement
O-1 status holders are not required to show they will maintain a residence in their home country. The filing of an EB-5 immigrant petition does not prevent the O-1 worker from working and traveling on their O-1 status. However, once an O-1 status holder files an AOS application, they will also face travel restrictions until they are issued an AP.
Dual-Intent Statuses Such as H-1B or L-1
Unlike other AOS applicants, EB-5 petitioners in the United States on a non-immigrant “dual-intent” visa status, such as the H-1B or L-1 (as well as their H-4 and L-2 dependent spouses and children under 21), can choose either to travel under their valid non-immigrant status or with AP during the pendency of their AOS application without risking abandonment.
If choosing to travel using their visas, H and L non-immigrants may present their valid, unexpired passport, H or L visa, and Form I-797 approval notice (or endorsed Form I-129S for Blanket L visa holders) to reenter the United States in H or L status so long as they are maintaining and remain eligible for that status.
While an AP is not required for these H or L non-immigrant investors and their dependents for travel, they may find a five-year AP useful, especially if visa renewal appointments are scarce. Using an AP to be paroled into the United States avoids the potential situation where a U.S. Customs and Border Protection (CBP) officer could shorten an H or L non-immigrant’s I-94 to their passport expiration date. Note that even if an H or L non-immigrant enters using AP, their status can still be considered maintained and can be renewed as long as they depart and return in the same status to resume employment with the same employer.
Conclusion
It is important to note that the possession of an advance parole document does not guarantee your ability to reenter the United States. A CBP officer at the airport or land border will have the final say on whether you may reenter. During the entry process, the CBP officer may ask questions about your EB-5 investment and your plans in the United States. It is important to be prepared and to answer any questions truthfully, clearly, and confidently.
Every case can have varying travel requirements and strategies, and we always carefully tailor advice to the specific needs and circumstances of the EB-5 investor and their family. You should always consult with a qualified EB-5 immigration attorney before making any international travel plans.
Authorship
This is a joint article written by Sam Silverman, managing partner of EB5AN, Mitch Wexler, a Partner of Fragomen, and Nam-Giao Do, an associate of Fragomen.
Sam is a managing partner of EB5AN, an industry leading EB-5 regional center operator and investment fund manager that has worked with 2,300+ EB-5 investors over the past 10+ years. To get in touch with Sam please schedule a call using this link.
Mitch Wexler is the Managing Partner of Fragomen’s Irvine, Los Angeles, and San Diego offices. Fragomen, with 60+ offices and 6,000 employees worldwide, is the leading business immigration law firm in the world. Mitch and his team at Fragomen have worked with hundreds of EB-5 investors over the past decades. Mitch can be contacted at mwexler@fragomen.com. Nam-Giao Do is an Associate of Fragomen’s Irvine office. Nam-Giao can be contacted at ndo@fragomen.com
Disclaimer: Please note that the blog is not legal advice and only intends to provide helpful tips in connection with the new rules and the guidelines from USCIS. You should not rely on this guidance in making any decisions regarding the topics herein, and you should consult with your own attorneys and professional advisers for such advice.
1See “USCIS Increases Employment Authorization Document Validity Period for Certain Categories,” USCIS website at https://www.uscis.gov/newsroom/alerts/uscis-increases-employment-authorization-document-validity-period-for-certain-categories (last updated Sep. 27, 2023).
2 See “While Your Green Card Application is Pending with USCIS,” USCIS website athttps://www.uscis.gov/green-card/while-your-green-card-application-is-pending-with-uscis (last updated Jan. 31, 2020). The one exception where travel is permitted is if an adjustment applicant has a pending application to renew an advance parole and the applicant’s foreign travel is fully covered by the validity period of the current advance parole. See “Emergency Travel,” USCIS website at https://www.uscis.gov/greencard/greencardprocesses/traveldocuments/emergencytravel (last updated Nov. 30, 2020).
3 See “The CIS Ombudsman’s Webinar Series: Interagency Engagement on International Student Issues,” DHS website at https://www.dhs.gov/sites/default/files/2023-01/Q%26A%20-%20international%20student%20engagement%208.25.22.pdf (Aug. 25, 2022).
