Can an EB-5 investor in the United States on a visa waiver adjust status upon I-526 approval?

A foreign national who enters the United States on a visa waiver is not eligible to adjust status using Form I-485—Application to Register Permanent Residence or Adjust Status. They must go through consular processing in their home country.

Visa Waivers

The Visa Waiver Program (VWP) allows citizens of participating foreign countries to travel to the United States for tourism or business purposes without obtaining a visa. The visa waiver only covers stays in the United States for up to 90 days. If a foreign national wishes to stay in the United States for longer than that, they must obtain a visa.

Immigrant vs. Non-Immigrant Visas

There are two types of visas—Immigrant and nonimmigrant. Immigrant visas demonstrate a foreign national’s intention to make the United States their permanent residence. Non-immigrant visas, on the other hand, are meant for only a specified period of time. Some nonimmigrant visas allow for dual intent, which means that applicants can enter the United States for one purpose—to work or attend university, for example—and then apply to adjust their status by filing Form I-485. This allows the applicant to remain in the United States while they apply for U.S. permanent resident status. Only certain nonimmigrant visas allow dual intent and it is in the applicant’s best interest to work with an immigration attorney to determine which is the best visa for their particular circumstances.

Concurrent Filing

Foreign nationals who participate in the EB-5 visa program and are currently residing in the United States under a different visa—H-1B, for example—are eligible for concurrent filing. As a result of the EB-5 Reform and Integrity Act of 2022, EB-5 investors no longer have to wait for Form I-526—Immigrant Petition by an Alien Investor—to be adjudicated before they can adjust their status. They can now file both Form I-526 and Form I-485 at the same time, saving them valuable time in the historically lengthy process.