Adjusting Status and Recent EB-5 Visa Demand: Full Webinar With EB5AN VP Ahmed Khan

The following post is based on a January 2025 webinar featuring Ahmed Khan, a vice president at EB5AN and one of the leading experts on EB-5 immigration law. Ahmed has ample experience as an immigration attorney at various prestigious firms, including Klasko Immigration Law Partners. He has also worked as a regional center executive.

In the webinar, Ahmed explains how EB-5 investors can quickly gain many of the benefits of a U.S. Green Card by adjusting their immigration status.

Ahmed also analyzes the most recent EB-5 processing data, explaining that Chinese and Indian nationals should consider investing soon and adjusting their status before visa backlogs begin.

We invite you to watch the full webinar or read the article below.

Select Webinar Highlights: Adjusting Status with an EB-5 Investment and Recent EB-5 Visa Demand Trends with Ahmed Khan

Full Webinar: Adjusting Status with an EB-5 Investment and Recent EB-5 Visa Demand Trends with Ahmed Khan

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Key Takeaways for EB-5 Investors

1. Once you apply for adjustment of status, your status is changed to “pending.” This allows you to remain in the United States even before receiving work and travel documents.
2. With an employment authorization document (EAD) and advance parole (AP) travel document, you essentially gain the work and travel benefits of a U.S. Green Card.
3. If your country enters an EB-5 visa backlog, you will typically have a month—or less—to file your EB-5 petitions in order to adjust your status.
4. Because processing data indicates an imminent backlog for urban EB-5 projects (and possibly rural), Chinese and Indian nationals should consider investing as soon as possible.

What Is Adjustment of Status, and Who Qualifies?

Adjustment of status is an option for individuals already in the United States on a valid visa who want to transition to a Green Card. This process allows applicants to avoid consular processing, which can involve lengthy delays, particularly in countries with high application volumes like China and India. By adjusting status, applicants bypass the complexities of securing an appointment and navigating the consular system.

Eligibility for adjustment of status depends on being physically present in the U.S. on a valid visa. Examples of eligible visas include the B-1, F-1, H-1B, L-1, and E-2 visas, among others. Even those who have recently fallen out of status may qualify under provisions introduced by the EB-5 Reform and Integrity Act of 2022 (the RIA). It’s important to consult an immigration attorney to determine your eligibility based on individual circumstances.

Upon receipt of a Form I-485 application by the United States Citizenship and Immigration Services (USCIS), the applicant enters “adjustment pending” status. This status allows the individual to remain in the U.S. regardless of other circumstances, such as job loss. For instance, an H-1B holder who files for adjustment and then loses their job can stay in the country even without an EAD. This provides stability for individuals and families, especially those with children in school or those transitioning between jobs or starting their own businesses.

An EAD, issued under the (c)(9) category for adjustment of status applicants, grants broad work authorization. This document allows individuals to work for any employer in the U.S. or even start their own business.

Additionally, adjustment applicants can receive APs, a travel permit that enables them to leave and re-enter the U.S. without requiring a new visa stamp. This is particularly beneficial for individuals from countries where scheduling visa stamping appointments can be challenging.

Processing times for EADs and APs vary, typically ranging from one to eight months after filing. These documents often come as a combo card, though they may be issued separately. Both the EAD and advance parole offer significant advantages, acting as a bridge between filing for adjustment of status and receiving a Green Card.

EADs and AP documents are generally valid for five years. This duration often covers the entire period until the applicant’s Green Card is issued. For applicants from countries with significant visa backlogs, these documents can be renewed as needed. Even in scenarios where the Green Card process takes over a decade, EADs and advance parole can be extended multiple times, ensuring continuous coverage.

Importantly, these benefits extend to family members included in the EB-5 application. Spouses and unmarried children under 21 receive EADs and APs, with the exception of young children who are not legally permitted to work. This comprehensive coverage ensures that the entire family can maintain their status and enjoy the benefits of “adjustment pending” status.

Work and Travel Like a Permanent Resident

The primary difference between an EAD and an AP and a Green Card lies in the permanence of status. While the EAD provides identical work authorization to a Green Card, it requires periodic renewal.

By providing EADs and APs, USCIS ensures that investors can maintain their lives and work in the U.S. while awaiting Green Card approval. This flexibility allows applicants to plan their futures and remain in the United States without constant interruptions from administrative hurdles.

For those traveling, the AP document functions similarly to the travel rights granted by a Green Card. As mentioned above, it eliminates the need for visa re-stamping, a significant benefit for individuals from high-volume countries. This feature, combined with the work authorization provided by the EAD, allows applicants to operate with almost the same freedom as permanent residents.

How to Adjust Your Immigration Status as an EB-5 Investor

The first step in making an EB-5 investment is working with a regional center partner to sign the subscription booklet for the project. This process reserves your spot and prepares for the transfer of investment funds. Once the funds are moved into an escrow account, which is standard for nearly all EB-5 projects, your immigration attorney can proceed with filing four applications. These include the I-526E, the adjustment of status application (I-485), the employment authorization application (I-765), and the travel authorization application (I-131).

The I-526E is the foundational petition to request approval for a Green Card based on the EB-5 investment. It is specific to this program but functions similarly to the I-140 used in other employment-based categories. Concurrently, you can file the I-485 to adjust your status to permanent resident.

The I-485 evaluates your admissibility to the U.S., considering your immigration history, medical examination results, and other factors like arrests or marks on your record. Filing the I-485 alongside the I-526E is a key benefit of concurrent filing.

With the I-485, you can also file the I-765 and I-131. The I-765 grants employment authorization, and the I-131 allows for travel authorization. These applications are processed separately and typically much faster than the I-485. Once submitted, the I-526E is routed to the Immigrant Investor Program Office (IPO), while the I-485 and related forms go to the appropriate USCIS service center based on your state of residence.

The I-485 cannot be approved until the I-526E is adjudicated. However, USCIS will process the I-765 and I-131 almost immediately upon receipt.

Receiving an EAD and an AP is generally straightforward unless there are extreme issues, such as being on an international watch list. For most applicants, these interim benefits are a significant advantage, as they allow them to work and travel even while waiting for their I-526E and I-485 approvals.

After the I-526E is approved, the I-485 process begins in earnest. USCIS will notify the officer handling your I-485 that the underlying I-526E petition has been approved. The I-485 is then adjudicated, and if approved, you will receive your Green Card.

Around 21 months later, you will need to file Form I-829 to remove the conditions on your Green Card. Regional centers often handle much of the work required for this stage, such as proving job creation. In some cases, the jobs may already be created when the I-829 is filed, simplifying the process.

Timing is crucial in the EB-5 process. The concurrent filing of the I-526E, I-485, I-765, and I-131 allows you to secure certain benefits early. While factors such as project type and country of birth may influence timelines, the initial steps—receiving an EAD and AP—remain consistent for most investors.

When preparing to file these applications, selecting a responsive immigration attorney is critical. The process involves substantial back-and-forth communication, especially regarding your source of funds. Many investors assume their source of funds will be straightforward, but USCIS has strict requirements, often making this step more complex than anticipated. A responsive attorney helps ensure the timely collection and submission of the necessary documents.

For most investors, the source of funds process is often the bottleneck in the EB-5 process. Attorneys must carefully document and trace the origin of the investment funds to meet USCIS standards. Working with an attorney who understands this timeline is crucial.

Ideally, the source of funds documentation should align with the project decision and the investment transfer, allowing all filings to occur within a one- to two-week period. For example, if funds are transferred on a Monday, the application should be ready to file by Wednesday.

Some attorneys advise transferring funds before completing the source of funds documentation, but this approach can lead to complications if issues arise. It is better to ensure your source of funds is fully prepared before making the investment.

Investors should communicate any deadlines to their attorneys early in the process. Whether due to personal reasons or external factors, meeting a specific filing deadline requires careful planning and coordination. Attorneys should provide clear timelines and steps to ensure all necessary documents are completed and submitted on time.

The filing process also involves reviewing and organizing various documents to avoid errors. Even minor mistakes can cause delays. A well-organized attorney will ensure that all forms are accurate and complete, minimizing the risk of complications and delays.

Ultimately, the success of the EB-5 filing process depends on a combination of careful planning, responsive legal support, and timely action. By following these steps and working closely with a knowledgeable attorney, investors can navigate the complexities of the EB-5 program and secure their Green Cards efficiently.

An EAD Is Safer than H-1B, F-1, E-2, and Similar Visas

Non-immigrant visas like the B-1, B-2, F-1, and E-2 come with strict conditions, especially concerning the intent to immigrate. Most require applicants to prove they plan to leave the U.S. after their authorized stay. Exceptions include the H-1B and L-1, which permit dual intent—allowing holders to apply for permanent residency without contradicting their original non-immigrant status.

However, transitioning from a non-immigrant status to adjustment of status can be complicated. It’s crucial to consult an immigration attorney to ensure you follow proper timelines and avoid raising concerns about your intent. Acting too soon after entering the U.S. or filing incorrectly could cause USCIS to question your original intent and cause issues down the line.

For B-1 and B-2 visa holders, the restrictions are particularly severe. They cannot engage in any employment while in the U.S. Limited business activities, like occasional emails for a foreign employer, are allowed, but substantive work is prohibited. This makes the EAD especially valuable for these individuals. It eliminates work restrictions entirely, granting full authorization to work anywhere and in any capacity.

F-1 visa holders, depending on their status within the program, also face limits. Optional practical training (OPT) is tied to a specific employer and is limited in duration—three years for STEM graduates and one year for non-STEM majors. Curricular practical training (CPT) is even more restrictive. With an EAD, F-1 holders are no longer confined to specific employers or roles tied to their field of study, gaining flexibility in their employment options, both in who they can work for and how long they can work.

E-2 visa holders, whether as investors or essential employees, can only work for their specific business. This constraint is removed with an EAD, which allows them to work for any employer, own multiple businesses, or change jobs. The transformation is similar to the F-1 scenario but provides even greater freedom for entrepreneurs and employees tied to narrowly defined roles.

Even the relatively flexible H-1B and L-1 visas impose limitations. H-1B workers are restricted to employers approved through the program and must adhere to prevailing wage requirements. These constraints can hinder salary growth over time. L-1 visa holders, meanwhile, face restrictions on their role within the transferring organization. While these visas offer more leeway than others, the EAD removes all employment restrictions, allowing complete freedom to pursue different opportunities.

Beyond employment, the adjustment of status offers an essential safety net. Non-immigrant visas are temporary: H-1Bs have a six-year limit, L-1As are capped at seven years, L-1Bs at five, and F-1 OPT at three for STEM majors. E-2 visas, while renewable, must be extended every two years. Adjustment of status provides continuity, ensuring individuals don’t have to leave the U.S. if their visa expires or they encounter complications.

Importantly, many attorneys recommend maintaining your current visa status until your I-526E petition is approved. This conservative approach preserves your options in case of denial, such as stemming from source of fund issues. Maintaining existing status minimizes risks, ensuring individuals don’t fall out of status or face unnecessary disruptions while pursuing permanent residency.

EB-5 Processing Trends and the Upcoming Backlog for Urban Projects

EB-5 visa demand has surged significantly over the past year. The increase in filings from 2023 to 2024 shows nearly a 90% rise, signaling renewed confidence in the program. Much of this can be attributed to improved stability and clearer guidelines introduced by the RIA. For a time, the program was seen as unreliable, with fluctuating rules and low approval rates. But now, with over 200 approvals since the RIA, more investors are seeing success stories.

In 2024, approvals also increased significantly, with many investors, including pre-RIA applicants, receiving their visas. This shift suggests that USCIS has prioritized clearing the backlog and processing applications efficiently. Such efforts have particularly benefited Chinese nationals, who have historically faced longer wait times. Clearing these backlogs not only speeds up the process for new applicants but also minimizes visa waste.

The introduction of priority processing for rural projects has also contributed to faster approval times. Initially, there were doubts about whether USCIS would implement priority processing effectively. However, data now clearly shows that rural applications are being expedited, with significantly lower processing times compared to high-unemployment projects. This prioritization has encouraged more investors to choose rural projects.

The streamlined I-956F approval process has further improved efficiency. Previously, the exemplar approval process often took years, leading many to rely on individual I-526 approvals instead. Now USCIS processes I-956F approvals in as little as two months. This allows USCIS to focus solely on the source and path of funds for investors, expediting approvals for projects with I-956F clearance. Investors in these projects are more likely to receive timely Green Cards, making I-956F-approved projects increasingly attractive.

A detailed breakdown of receipt statistics by country reveals key trends. China and India remain the dominant players in the EB-5 program, with the rest of the world grouped into a separate category. Urban demand has consistently outpaced rural demand, although rural demand is starting to catch up. This trend is particularly evident in countries like Taiwan and Korea, where investors prefer urban projects due to cultural familiarity and urbanized lifestyles.

The growing backlog for urban investors is a critical issue. Urban areas, particularly high-unemployment regions, are limited to 70 visas per country. This limitation creates competition among Chinese and Indian applicants, as rest-of-world investors often claim a large share of available visas.

With a total visa shortage projected for both rural and urban categories, backlogs are inevitable. The Department of State has already signaled potential backlogs for India and China, indicating that backlogs could worsen in the coming months.

For investors, the question isn’t whether backlogs will occur but when. Because of this, we strongly recommend investing and applying for adjustments of status before retrogression begins. Once the Visa Bulletin changes, those who haven’t filed will lose the ability to adjust status.

Historically, backlogs have followed warnings on the Visa Bulletin by just a few months. In 2019, for instance, India’s backlog materialized within a month of the warning. Based on current trends, investors may have only three months to file before retrogression sets in.

To file within this narrow window, investors must act quickly. The filing process involves several steps, including hiring an attorney, gathering source of funds documentation, conducting regional center due diligence, and selecting a project. Each of these steps requires time and careful consideration. Rushing through them can lead to mistakes or missed deadlines. Additionally, investors who wait too long may struggle to find an attorney willing to take their case, particularly during high-volume periods.

The complexity of the EB-5 process underscores the importance of early preparation. Beyond selecting a project and sourcing funds, investors must understand the tax implications of transferring money internationally and the immigration consequences of filing an adjustment of status. These considerations require detailed planning and consultation with experts.

Waiting until the last minute increases the risk of errors or incomplete applications.

USCIS’s efforts to clear backlogs and expedite approvals have created a favorable environment for new investors. However, the looming threat of retrogression means that acting sooner rather than later is the best policy. Investors should consult with attorneys and begin the process well in advance to ensure their applications are filed before critical deadlines. Those who delay risk being caught in a rush of filings, similar to the surge observed in November 2019 before the program lapsed temporarily.

The timing of filings is particularly critical when the Visa Bulletin changes. For example, if the February 2024 Visa Bulletin signals retrogression for March, investors would only have until the end of February to file.

EB5AN’s Rural and Urban EB-5 Projects

Rural projects are an excellent option for investors coming from overseas or backlogged countries like India and China. These projects offer significant immigration benefits, including priority processing and reduced backlog times. For instance, even with increases in demand, an Indian or Chinese investor might face a backlog of just one year—or even none at all. If obtaining a Green Card quickly is a priority, rural targeted employment area (TEA) projects are often the most suitable choice.

Currently, two of our rural projects stand out.

The first is Rocky River, which follows the success of the Twin Lakes project. Twin Lakes saw hundreds of investors place their trust in its team, and Rocky River mirrors its predecessor but in a new location. It is part of the Cresswind brand under The Kolter Group, an A+ developer with more than a decade of experience in the EB-5 space. Over the years, Kolter has delivered numerous successful projects, and Rocky River marks the 15th active adult community they’ve built in the Southeastern United States.

This project also comes with a USCIS-approved repayment guaranty, providing a high level of financial safety for investors. Combined with the benefit of priority processing, it’s a compelling option for those hoping to obtain a Green Card quickly.

Another EB5AN rural project is Tamarack Resort in Idaho, which is already midway through its development. Many amenities in the resort are complete, operational, and generating cash flow. The focus now is on expanding the residential areas and enhancing facilities. For EB-5 investors, this midway entry point is advantageous because job creation from previous construction is already secured. Investors benefit from completed construction and operational progress, mitigating concerns about future uncertainties.

The financial security of this project is bolstered by collateral that includes a 100% equity pledge and senior mortgages on most of the property. With the project’s I-956F approval and all required jobs already created, it is a solid choice for those prioritizing immigration and financial safety.

For investors already in the United States looking to file an adjustment of status and gain immediate benefits like an EAD and advance parole, urban TEA projects might be a better fit. These investors—often from countries like Canada, Europe, Latin America, Korea, or Taiwan, which are not experiencing significant backlogs—might prefer urban projects, even with the slightly longer immigration timelines.

Urban TEA projects share the conservative underwriting standards seen in rural deals but often come with added financial flexibility. These projects frequently allow for a shorter investment period, meaning investors might get their money back sooner. Urban projects are often already under construction, fully permitted, and fully entitled, which reduces the risks tied to project initiation.

For example, the Boynton Beach equity option is a standout urban TEA project. Like Rocky River, this project is also under Kolter’s management. With a 30-year track record of never failing to complete a project or repay a loan, Kolter’s reliability is well established. Boynton Beach offers investors an equity opportunity with a targeted annual preferred return of 5%, higher than typical EB-5 returns. As a multi-family rental project, it’s also in a relatively safer asset class.

Another urban project, ONE Tampa, offers a debt-style investment option secured with a repayment guaranty from Kolter’s parent company. Active construction is already underway, and the project has demonstrated strong demand, with over 100 units sold before vertical construction even began. The site’s visible progress adds to its appeal, and like Boynton Beach, it already has I-956F approval.

Each of these four projects—Rocky River, Tamarack Resort, Boynton Beach, and ONE Tampa—meets the core requirements for EB-5 investments and prioritizes investor safety. Depending on their personal goals, such as a shorter wait for a Green Card, higher returns, or securing a child’s immigration age, investors can choose the project that aligns best with their priorities. With a diverse portfolio of projects, EB5AN ensures that there is an option for every type of investor within the EB-5 program.

Summary: Ahmed’s Advice for EB-5 Investors

Investors who prioritize receiving their capital back quickly should consider urban projects, while those who are more focused on obtaining a Green Card sooner should look at rural projects. Urban projects tend to offer faster capital repayment but involve longer waits for the Green Card, as they do not benefit from priority processing. In contrast, rural projects provide priority processing, resulting in a quicker Green Card, but the investment period is generally longer.

To decide which path makes sense, investors must weigh their financial situation, family considerations, and immigration goals. They should determine whether obtaining the Green Card quickly or receiving their investment return faster aligns better with their priorities. Applying this framework helps in selecting the right project, whether urban or rural, based on your unique circumstances.

Due to the looming backlogs and high demand for urban projects, we strongly suggest Chinese and Indian investors consider investing in a rural EB-5 project.

As detailed above, before choosing a project, it is essential to hire an immigration attorney and complete the source of funds process. This step can take as little as two weeks but often extends to six, seven, or even eight weeks. The timeline depends on the complexity of the documentation required. Factors like translating foreign documents, retrieving hard-to-access records, or collecting proof of funds from gifts add to the process. For example, if funds are gifted by friends or relatives, investors must work with those individuals to provide detailed documentation such as bank statements and tax returns that prove the legal accumulation of the funds.

The first step should be interviewing several immigration attorneys to find the one best suited for the case. Not all attorneys are equal, and their expertise may vary depending on the investor’s country of origin or specific needs. For instance, an attorney experienced with Chinese investors may not be the best fit for a Canadian investor. Consulting multiple attorneys ensures you will find one who is experienced with cases similar to yours and offers you the right balance of responsiveness, expertise, and independence.

Finding an attorney who is independent of the regional center managing the project is also critical. The attorney should focus solely on the investor’s needs and deliver the application within a reasonable time frame to avoid potential issues like visa backlogs or retrogression. Ideally, the application should be completed before such complications arise, allowing for a smooth adjustment of status.

Investors can seek recommendations for attorneys from regional centers like EB5AN, which works with many immigration attorneys and can provide impartial introductions. These recommendations include attorneys with a proven record of success. However, investors are free to conduct their own research and hire any attorney they prefer. The most important qualities in an attorney include experience, responsiveness, integrity, and the ability to handle the application process efficiently.

Time is a critical factor, especially with the visa backlogs getting closer. We encourage foreign nationals to schedule a free consultation with EB5AN to plan their next steps and take advantage of the unique benefits of adjusting immigration status.