Among the key reforms introduced by the EB-5 Reform and Integrity Act of 2022 (RIA), EB-5 concurrent filing stands out as one of the most beneficial provisions for temporary visa holders already residing in the United States and looking for a quick pathway to permanent residency.
Every year, tens of thousands of immigrants from all over the world come to the United States seeking world-class education, better career opportunities, and a higher quality of life overall. Most of them arrive on a temporary nonimmigrant visa, which allows them to stay in the United States for a limited period.
For instance, international students on F-1 or M-1 visas are permitted to stay only as long as they maintain enrollment in the qualifying academic program or authorized practical training. Likewise, the H-1B visa has a validity of three years and can be extended for a maximum of six years. If an H-1B worker loses employment, they only have 60 days to find another job or leave the country.
Nonimmigrant visa holders must strictly adhere to the purpose and terms of their visa in compliance with U.S. immigration laws. Engaging in unauthorized activities or exceeding the legal stay duration can lead to serious immigration consequences. They also have certain limitations regarding travel outside the United States.
However, foreign nationals can overcome these constraints by applying for U.S. permanent residency, also known as the Green Card, through a process called adjustment of status (AOS). They do not need to leave the country to apply for AOS, and, having applied for it, they become eligible to live, work, and travel without restrictions while their application is being processed.
In this article, we will explain how EB-5 concurrent filing has made the transition of status from temporary to permanent a lot easier for nonimmigrant visa holders. We will also explain why Chinese and Indian investors already in the United States must not delay filing their applications if they are considering an EB-5 investment to obtain U.S. permanent residency.
Who Is EB-5 Concurrent Filing For?
Time Is Running Out for Chinese and Indian Investors
Rural Category Offers Faster Green Cards
Transition to Permanent Residency With EB5AN
Who Is EB-5 Concurrent Filing For?
The EB-5 Immigrant Investor Program is one of the fastest and most reliable ways for a foreign national to obtain lawful permanent resident status in the United States. The program allows foreign investors and their dependent family members (the spouse and unmarried children under 21) to apply for Green Cards in exchange for making a qualifying investment in a U.S. business that creates at least 10 permanent full-time jobs for American workers.
While EB-5 investors applying from outside of the United States must apply for an immigrant visa after the approval of their EB-5 petition and go through consular processing in their country of residence, investors already in the United States on a nonimmigrant visa can apply for AOS without having to leave the country.
Before the RIA was implemented, U.S.-based EB-5 investors too had to wait for the approval of their EB-5 petition (Form I-526E), which could take years to process, before they could apply for AOS. Until then, they had to maintain their legal status on another temporary visa with its associated limitations.
However, with the introduction of EB-5 concurrent filing, investors can now file their EB-5 petition (Form I-526E) and the petition for adjustment of status (Form I-485) simultaneously. After filing for AOS, their visa status shifts to “pending adjustment,” allowing them to stay in the United States legally.
Moreover, they are also eligible to apply for an employment authorization document (EAD) to work and advance parole (AP) to travel internationally, which are generally approved within weeks. Once they have work and travel permits, investors can live, work, or study anywhere in the United States and travel abroad without any restrictive conditions.
Thus, EB-5 concurrent filing is the quickest way for nonimmigrant visa holders to start enjoying permanent residency benefits long before they actually receive their Green Cards. It also significantly speeds up the immigration process since the AOS and EB-5 petitions are processed side-by-side.
Time Is Running Out for Chinese and Indian Investors
The concurrent filing provision has been especially advantageous for Chinese and Indian nationals working or studying in the United States on temporary visas.
Due to high demand and limited visa availability, China and India have huge backlogs in all employment-based immigrant visa categories, including the EB-5 unreserved category. Applying for a Green Card in these categories can involve a long waiting period and stifling uncertainty, considering the unpredictable lottery system for H-1B visas and widespread job losses.
Consequently, when EB-5 concurrent filing was implemented, many Chinese and Indian nationals on nonimmigrant visas seized the opportunity to switch from temporary to permanent status.
However, the only way they could do so was by applying for EB-5 reserved set-aside visas. The reason is the caveat that EB-5 concurrent filing is only available for categories not subject to visa retrogression. Since both China and India have backlogs in the unreserved EB-5 category, applicants can avail of the concurrent filing provision only by applying in one of the reserved categories, which are still “current” in the monthly Visa Bulletin. But this may also change very soon.
Looking at market trends and the recently released data from USCIS, it is evident that the high-unemployment category is already oversubscribed and will soon become retrogressed for China and India. The rural category could also face a backlog, though it may not last for long.
If China and India become backlogged in the reserved categories, potential investors from either country will not be able to use the concurrent filing facility. In that case, they would have to wait for a long time before they can apply for AOS. Worse still, they will be unable to apply for work and travel permits, which means their stay in the United States will continue to have several limitations. If their visa is terminated for any reason, they will have no choice but to leave the country along with their families.
Since 2022, many investors have already secured the benefits of the EB-5 concurrent filing. For example, Kaushal and Ayushi from India, who transitioned from H-1B to EB-5, and Mr. Lin from China, who was unsuccessful in getting an H-1B visa but switched to EB-5 directly from F-1 status, are now living in the United States with no work and travel limitations whatsoever.
For those who are still contemplating an EB-5 investment, they must act now before it is too late.
Rural Category Offers Faster Green Cards
Both high-unemployment and rural categories currently offer the concurrent filing advantage; however, investors aiming to obtain a Green Card as early as possible are advised to go for a rural category investment. There are two reasons for this: First, the rural category has a larger reserved visa share, which means that even if a backlog occurs, it may not be severe. Second, it qualifies for priority processing—an RIA initiative that has enabled many investors to receive their Green Cards in less than a year.
In contrast, the high-unemployment category petitions have a longer processing time, and the category may enter a years-long backlog very soon. Then again, it might be a preferred choice for investors who are willing to wait and would like to invest in urban projects close to where they live. There are some excellent projects in the urban category as well, with their own distinctive advantages.
U.S.-based investors, having a deeper understanding of domestic markets and regulatory frameworks, hold an edge over other investors in assessing EB-5 investments and making informed choices. While EB-5 concurrent filing is still available, they should make the most of this golden opportunity and start the EB-5 process today.
Transition to Permanent Residency With EB5AN
The U.S. Green Card is a coveted piece of document sought after by millions living in the country on a temporary status, sometimes involving a lifetime of wait. The EB-5 program presents a viable solution for many nonimmigrant visa holders, who can shorten their Green Card journey by years through EB-5 concurrent filing. However, it is important that investors seek trusted professional guidance to mitigate risks and avoid potential pitfalls in the immigration process.
As a leading EB-5 firm, EB5AN can guide you through the EB-5 process and assist you in finding the most suitable investment for your individual needs.
If you’d like to know more about the benefits of EB-5 concurrent filing for you and your family, feel free to book a one-on-one call with our expert team today.
