The Main Differences Between EB-5 Consular Processing and Adjustment of Status

After receiving I-526E approval, EB-5 investors can file for their conditional Green Cards in one of two ways: consular processing or adjustment of status. The Green Card application method an investor should take depends on their location and immigration status at the time of their I-526E approval.

While each method ultimately leads to obtaining an EB-5 Green Card, there are significant differences in their application processes. Each method has unique advantages and disadvantages.

This article evaluates the main differences between consular processing and adjustment of status. But first, let’s look at each method individually.

What Is Consular Processing?

Consular processing involves filing an application for an immigrant visa at a U.S. consulate or embassy abroad. It is the Green Card application method for EB-5 investors overseas. Additionally, an EB-5 investor already in the U.S. but who is ineligible for adjustment of status has to return to their home country and apply for immigrant status via consular processing.

Upon approving your I-526E petition, the United States Citizenship and Immigration Services (USCIS) forwards it to the National Visa Center (NVC) for pre-processing. The NVC will notify you once they receive your petition and open your case file.

Once they’ve waited for an immigrant number to become available, overseas EB-5 investors must file a Form DS-260 at the U.S. embassy or consulate in their home country to enter the U.S. as permanent residents. This form is then processed at the NVC.

Applying for permanent residency through consular processing involves many steps, including the following:

• Submit an I-526E petition.
• Receive Form I-526E approval.
• Receive a notification from the NVC.
• File a Form DS-260.
• Pay all applicable fees.
• Attend the consular interview.
• Receive your visa and travel to the United States.
• Receive your EB-5 conditional Green Card.

Notably, consular processing times vary across U.S. embassies and consulates due to several factors, such as staff strength and caseload volume.

What Is Adjustment of Status?

EB-5 investors already in the U.S. on valid non-immigrant visa routes can file a Form I-485 to adjust status as permanent residents. Once you’ve filed a Form I-485, you can remain in the U.S. on a pending adjudication status even if your nonimmigrant visa expires before you receive a Green card.

Previously, EB-5 investors could only submit an I-485 petition after receiving I-526E approval. This meant they’d have to wait several months to receive their I-526E approval, then file Form I-485 and wait again to receive their conditional Green Cards. This changed with the enactment of the EB-5 Reform and Integrity Act of 2022 (RIA).

The RIA introduced a concurrent filing provision, permitting EB-5 investors to file for adjustment of status along with their EB-5 petition without having to leave the U.S. This concurrent filing provision has significantly reduced wait times, allowing investors to receive their Green Card faster.

The concurrent filing option also allows investors to apply for their employment authorization documentation or EAD (work permit) and advance parole (travel permit) along with their EB-5 petition.

The EAD and advance parole documents allow you and your derivative beneficiaries to live, work, and study in the U.S. while awaiting Green Card approval. You’ll essentially be enjoying the benefits of a Green Card before obtaining one.

EAD and advance parole applications are typically processed within 90 days, allowing EB-5 investors to work in the U.S. and travel abroad while awaiting their I-485 adjudication.

Who Is Eligible for Adjustment of Status?

To qualify for adjustment of status, EB-5 investors must be physically in the U.S. on a legal nonimmigrant visa. They also must not have violated the terms of stay for their status or have overstayed their visas.

Investors in the U.S. on a valid nonimmigrant route such as L-1 and H-1B visas can adjust status as permanent residents in the U.S. However, F-1, E-2, and O-1A visa holders must ensure that their EB-5 application does not violate the “immigrant intent” rule, as these are single-intent visas. Conversely, H-1B and L-1 are dual-intent visas, so their holders do not usually have to worry about immigrant intent.

Key Differences Between Consular Processing and Adjustment of Status

Consular processing and adjustment of status have the same end goal: obtaining U.S. permanent resident status. However, the process, requirements, and provisions of each method vary significantly.

Below are some of the main differences between consular processing and adjustment of status.

Consular Processing	Adjustment of Status
For investors applying for an EB-5 Green Card overseas.	For EB-5 investors currently in the U.S. on a legal nonimmigrant status.
Investors cannot travel to the U.S. until they receive their immigrant visas.	Investors can remain in the U.S. while their Green Card application is being processed.
Cannot be concurrently filed with Form I-526E.	Can be concurrently filed with Form I-526E.
A consular interview is always required.	An interview is rarely required.
Longer wait times because investors have to receive I-526E approval before filing an immigrant visa petition.	Concurrent filing means shorter wait times for an EB-5 Green Card.
Investors cannot work in the U.S. or travel freely during processing.	Investors can get an EAD (work permit) to work in the U.S. and advance parole (travel permit) for international travel pending I-485 approval.

Processed by the Department of State’s NVC.Processed by USCIS.

Advantages of Filing for an EB-5 Green Card via Adjustment of Status

For EB-5 investors already living in the U.S. on valid nonimmigrant visas, filing a Form I-485 to adjust status offers more benefits than returning home and going through consular processing. Adjustment of status is particularly beneficial for investors eligible for concurrent filing.

By concurrently filing Forms I-526E and I-485, EB-5 applicants who invest in rural targeted employment areas (TEAs) may be able to receive their EB-5 Green Cards within 12 months. You can also file for advance parole and EAD simultaneously with your EB-5 petition.

Start Your U.S. Green Card Journey With EB5AN

Filing for a conditional Green Card is one of the most important steps in the EB-5 process. You can apply for your Green Card through consular processing or adjustment of status. However, if you’re already living in the U.S., adjustment of status is the most beneficial method for your permanent residency application.

By choosing the right project and simultaneously filing your I-526E and I-485 petitions, you’ll be on a faster path to obtaining U.S. legal permanent resident status.

For guidance on starting your EB-5 Green Card journey, schedule a free one-on-one session with our EB-5 experts today.