How Concurrent Filing Impacts EB-5 Investors

The EB-5 Reform and Integrity Act of 2022 (RIA) introduced the most significant reforms to the EB-5 Immigrant Investor Program since its inception in 1990. One of the most notable changes introduced by the RIA is the concurrent filing provision that allows EB-5 investors to submit Form I-526/I-526E and Form I-485 simultaneously.

The concurrent filing provision has streamlined the EB-5 process. Thanks to this provision, EB-5 investors in the U.S. no longer have to wait for their I-526E approval to file for adjustment of status.

In this article, we’ll explore the benefits of concurrent filing for EB-5 investors and how prospective investors can qualify for this process.

What Is Concurrent Filing?

EB-5 concurrent filing is the ability to simultaneously submit Form I-526E and Form I-485 to the United States Citizenship and Immigration Services (USCIS). Under the concurrent filing provision, EB-5 investors already in the U.S. on non-immigrant visas can now apply to adjust their status to “permanent resident” along with their EB-5 application.

Before the RIA, EB-5 investors could only file for adjustment of status after receiving I-526E petition approval. In the meantime, they had to keep renewing their nonimmigrant visa to remain in the U.S. while awaiting their EB-5 petition processing. When renewal was impossible, they had to switch to another visa route or leave the U.S. and apply for permanent resident status by filing Form DS-260 at the U.S. embassy or consulate in their home country.

With concurrent filing, EB-5 investors can now apply to adjust status along with their EB-5 petition. Those unable to submit both petitions concurrently for whatever reason can also file Form I-485 while their I-526E petition is pending. Many EB-5 investors have benefited from accelerated Green Card processing since the RIA’s concurrent filing option came into effect.

Crucially, however, not all EB-5 investors can benefit from concurrent filing.

Who Is Eligible for Concurrent Filing?

EB-5 concurrent filing is available to foreign nationals living in the U.S. on qualifying nonimmigrant visa routes. Foreign nationals on H-1B, F-1, E-2, and L-1 visas are among the top beneficiaries of EB-5 concurrent filing.

Importantly, you’re not eligible for EB-5 concurrent filing if your country of birth is subject to visa retrogression, which occurs when demand for EB-5 visas from a country continuously exceeds the annual available quota, creating backlogs. China and India currently have the heaviest backlogs.

These backlogs cause priority dates to move backward, and applicants from backlogged countries can only apply for adjustment of status when a visa is available. The U.S. Department of State publishes visa availability in its online Visa Bulletin, reflecting which countries are facing backlogs and which are not.

Thanks to the RIA’s “set-aside” visa quota, EB-5 investors from visa-retrogressed countries can avoid the backlogs and benefit from concurrent filing by investing in projects within targeted employment area (TEA). The RIA has also introduced a priority processing provision exclusive to rural EB-5 investments, which can help applicants further streamline their immigration process.

How Concurrent Filing Works

As noted above, EB-5 concurrent filing involves submitting Form I-526E and Form I-485 to USCIS at the same time. However, each petition has specific requirements and supporting documentation you must submit along with the application.

Filing Form I-526E

Form I-526/I-526E is the main application for the EB-5 Immigrant Investor Program. It is the first step in the EB-5 Green Card application process. EB-5 investors making direct investments in a new commercial enterprise (NCE) must file Form I-526, while those investing through a regional center must file Form I-526E.

Your Form I-526E must demonstrate your eligibility for the EB-5 program and include the details of your chosen investment project. Among other info, it must contain:

• Your name, date of birth, nationality, and current address.
• Details of your NCE investment in an EB-5 project and how it will meet the job creation requirement.
• The detailed business plan of your NCE.
• Documentation proving your investment funds were lawfully sourced.
• Financial records, bank statements, tax returns, and property records.
• Any other required case-specific supporting documentation.

Filing Form I-485

Form I-485 is the application to adjust one’s immigration status to “permanent resident” in the U.S. It enables foreign nationals already living in the U.S. to apply for a Green Card after receiving approval for a qualifying immigrant visa petition.

As explained above, EB-5 investors no longer have to wait for I-526E approval to file for adjustment of status thanks to the concurrent filing option—they can now file both petitions together.

Benefits of Concurrent Filing

Faster EB-5 Green Card Processing

Due to heavy backlogs and the wait times for Form I-526E approval, prior to the RIA, investors often had to wait for years and even decades after filing their EB-5 petition to apply for adjustment of status. This was particularly true for Indian and Chinese nationals subject to visa retrogression.

I-485 processing times can also be quite unpredictable. So, after waiting several years to receive I-526E approval, EB-5 investors also had to wait another year or two to receive their conditional permanent resident status.

The concurrent filing option has significantly reduced wait times for conditional Green Cards by merging I-526E and I-485 processing times. Post-RIA EB-5 applicants now enjoy faster Green Card processing.

Earlier Access to Green Card Benefits

The concurrent filing option additionally allows EB-5 applicants already in the U.S. to apply for advance parole (Form I-131) (AP) and employment authorization documentation (Form I-765) (EAD) while submitting their Forms I-526E and I-485. The travel and work authorization applications are usually adjudicated quickly, and EB-5 investors can typically receive both permits in less than six months.

Upon receiving their work permits, EB-5 investors will enjoy the right to live and work anywhere in the U.S. without employer sponsorship while awaiting their Form I-485 approval. This means they can work, start a business, or pursue further studies without restrictions. Moreover, the AP allows them to travel in and out of the U.S. freely.

Essentially, concurrent filing enables an EB-5 investor to start enjoying the benefits of a Green Card before receiving one.

Avoiding Consular Processing

Before the RIA, single-intent visa holders from high-demand countries faced the challenge of losing their immigration status while waiting for their I-526E approval.

Due to long wait times, their single-intent visas often expired before they received I-526E approval, which meant they could not apply for adjustment of status. Unless they were able to switch to a dual-intent visa, they then had to leave the U.S. and go through consular processing.

With the concurrent filing option, single-intent visa holders can avoid this process. By simultaneously filing forms I-526E, I-485, I-131, and I-765, they can remain in the U.S. on a “pending adjustment” status. With this status, they can enjoy the freedom to live, work, and study anywhere in the U.S.

EB5AN Can Assist You With Concurrent Filing

The RIA’s concurrent filing provision has significantly reduced waiting times, but a successful application still requires careful preparation of each petition and supporting documents.

Because of this, EB-5 investors should seek legal and professional guidance in preparing their I-526E and I-485 petitions for a seamless EB-5 application process—and this is where EB5AN comes in.

EB5AN has helped 2,300+ families successfully relocate to the U.S. in 10+ years of practice. We offer our clients first-rate, low-risk EB-5 regional center projects with a 100% USCIS approval rate to date.

For more information about EB-5 concurrent filing or help starting your EB-5 journey, schedule a free one-on-one consultation with our expert team today.