Can someone file Form I-485 as an EB-5 investor and Form I-485 as an EB-2 immigrant?

It is possible to pursue both the EB-2 and EB-5 immigrant visas concurrently. However, when the time comes to submit Form I-485—Application to Register Permanent Residence or Adjust Status—an applicant can only file under one employment-based category. Therefore, a foreign national may not file Form I-485 as both an EB-5 investor and an EB-2 immigrant.

Selecting the best Employment-Based Visa Category

Employment-based (EB) visas are meant for foreign nationals who are looking to relocate permanently to the United States through some form of employment. When considering which visa category is the most suitable, it is important to understand the differences between the EB-2 and EB-5 visas. The latter requires an applicant to invest in a new commercial enterprise (NCE) that creates a minimum of 10 U.S. jobs. The minimum investment threshold of either $800,000 for EB-5 projects located within targeted employment areas (TEAs) or $1,050,000 for projects located outside of TEAs must be met in order for an applicant to begin the EB-5 visa process.

The EB-2 visa, on the other hand, is based upon an applicant being sponsored to work in the United States by an employer. The applicant must also meet certain criteria, such as holding an advanced degree and having an exceptional ability or skill. Essentially, EB-2 visa applicants are employees of a U.S. company while EB-5 visa applicants are investors in a U.S. company.

Timing is another factor to consider when selecting the most appropriate EB visa category. Depending on an applicant’s circumstances, one visa category path may be quicker than the other. In addition, there is a major difference between the type of U.S. permanent residency an applicant receives if they go with the EB-5 visa versus the EB-2 visa. An EB-5 visa results in U.S. permanent residency that is conditional for a period of two years. After two years, EB-5 visa holders may submit Form I-829—Petition by Investor to Remove Conditions on Permanent Resident Status. EB-2 visa holders, on the other hand, receive U.S. permanent resident status without any conditions.