For potential EB-5 investors, navigating the U.S. immigration system can be complicated. Among the most critical aspects of the EB-5 visa process is understanding how to adjust status, especially when timing and visa availability play a significant role.
This article is based on a 2025 webinar with immigration attorney Marjan Kasra, Esq., founder and managing attorney of Lawmaks. The webinar delves into the nuances of adjusting status and the current surge in EB-5 visa demand.
What Is Adjustment of Status?
Important Timing Considerations
Filing Concurrently With I-526E
The Child Status Protection Act (CSPA)
Rising Demand for EB-5 Visas: What You Need to Know
EB5AN Can Help You With Your Green Card Process
Select Webinar Highlights: Adjusting Status With an
EB-5 Investment and Recent EB-5 Visa Demand Trends With Marjan Kasra, Esq.
Full Webinar: Adjusting Status With an
EB-5 Investment and Recent EB-5 Visa Demand Trends With Marjan Kasra, Esq.
What Is Adjustment of Status?
Before discussing the specific issues surrounding adjustment of status, it’s essential to understand what this term means. Adjustment of status refers to the process of changing your immigration status from a temporary visa to permanent residency (a Green Card) without needing to leave the U.S. In the context of the EB-5 Immigrant Investor Program, this step is crucial for investors who are already in the U.S. on a different visa and wish to adjust their status.
Marjan Kasra, a seasoned immigration attorney with extensive experience handling EB-5 cases, explains that this process can be done concurrently with the filing of an I-526E petition. As the I-526E is being filed, they can also submit the I-485, I-765, and I-131 applications. In many cases, this allows applicants to adjust their status from a non-immigrant visa, like an F-1 or H-1B, to permanent resident status, provided they meet certain criteria.
However, the timing of filing for adjustment of status is often influenced by the applicant’s visa type and whether it is current or not on the Department of State’s latest Visa Bulletin.
Important Timing Considerations
One of the critical points to emphasize is the importance of the 90-day rule. This rule applies to individuals who enter the U.S. on non-immigrant visas, such as B-1/B-2 tourist visas, with no intention to immigrate. If these individuals decide to change their status and pursue permanent residency, they are advised to wait 90 days before applying for adjustment of status.
This 90-day rule is significant for B-1/B-2 visa holders because it helps to avoid legal presumptions that they entered the U.S. with the intent to immigrate. And after the 90-day period, if there’s a valid reason for the change in intent, it is possible to proceed with the I-526E filing and adjustment of status.
However, the rule does not apply to all visa types. For those on long-term work visas like H-1B or L-1, which allow for dual intent (the ability to simultaneously pursue a temporary work visa while planning for permanent residency), the waiting period is much more flexible. With H-1B and L-1 visas, there is no need to wait for the 90-day rule. These visa categories inherently allow for the adjustment of status to Green Card status without this limitation.
On the other hand, non-immigrant visas like the F-1 (student visa) or E-2 (investor visa) do not allow dual intent, so applicants should carefully observe the 90-day rule before filing for adjustment of status.
Filing Concurrently With I-526E
Some investors wonder whether they should also file for adjustment of status (I-485) and related documents (I-765 for work authorization and I-131 for travel authorization) at the same time as filing their Form I-526E. This is called concurrent filing.
There are important benefits of concurrent filing. For many investors, the ability to file the I-485 and other forms concurrently with the I-526E petition can help speed up the process, especially when the Visa Bulletin is current. It also allows applicants to work and travel in the U.S. while their Green Card application is being processed.
However, timing is critical. Investors must be able to remain in the U.S. long enough for the application process to be completed. The I-485 application can take several months to process, and what is typically recommended is that investors remain in the U.S. for at least five months post-filing.
For those unable to remain in the U.S. for the entire adjustment process, there is still an option, though it comes with some risks. If an investor needs to leave the U.S. early, they can file the adjustment of status, but they must wait for their biometrics appointment (fingerprints) before leaving. Leaving before completing biometrics could cause the entire application to be canceled. This is why it’s crucial to understand the timing involved in adjustment of status applications, and your immigration attorney can guide you through these steps.
The Child Status Protection Act (CSPA)
A key benefit of the EB-5 program is the ability to bring family members along on the Green Card application. For many investors, the ability to secure permanent residency for children under the age of 21 is a priority. This is where the Child Status Protection Act (CSPA) comes into play.
The CSPA helps ensure that children under 21 are not aged out of the process. For example, if you file your I-526E petition when your child is 20 years and 6 months old, and the processing takes a year and a half, your child’s age will remain frozen at the time of filing, regardless of how long the process takes.
This provision is especially important for families with children who may be approaching the age of 21. If you file for adjustment of status in the U.S., your child’s age will freeze at the time you file the I-485. For families who are concerned about their children aging out, the ability to adjust status within the U.S. provides an added layer of security.
Rising Demand for EB-5 Visas: What You Need to Know
With the growing demand for EB-5 visas, especially from countries like China and India, it is important to point out that timing has become even more crucial for investors. The U.S. Department of State’s Visa Bulletin has recently shown signs of future retrogression, which means that visa availability is becoming more limited.
For this reason, it is recommended that potential EB-5 investors act sooner rather than later. The sooner you file, the better your chances of avoiding delays caused by retrogression or increased demand.
Investors should also be aware of partial payment opportunities. In certain cases, projects allow investors to pay a portion of the required investment upfront, with the remainder to be paid later. This can be especially helpful for those who have assets tied up in other investments, like real estate.
EB5AN Can Help You With Your Green Card Process
The EB-5 program offers a path to U.S. permanent residency for investors and their families, but the process requires careful navigation of rules around timing, adjustment of status, and visa availability. By understanding the 90-day rule, the concurrent filing process, and the intricacies of the Child Status Protection Act, investors can ensure a smoother experience. With demand for EB-5 visas on the rise, acting early and consulting with an experienced immigration attorney can make all the difference in securing your future in the United States.
EB5AN has helped more than 2,300 families from 70 countries become lawful permanent residents in the United States. Our expert team has more than a decade of experience and offers clients first-rate, low-risk EB-5 regional center projects with a 100% USCIS project approval rate.
To get started on your path to U.S. Green Cards for you and your family, book a free call with our team today.