What is the immigration status of an EB-5 investor and any derivative beneficiaries after the I-526 petition is approved?

Being granted approval of Form I-526 does not, on its own, confer any immigration status to the primary EB-5 investor or any derivative beneficiaries. After receiving approval of Form I-526, in order to progress through the EB-5 process and obtain conditional permanent resident status, the EB-5 investor must either adjust status by filing Form I-485 or undergo consular processing. This will depend on whether the EB-5 investor is residing in the United States or living overseas at the time the I-526 petition is approved. Once adjustment of status or consular processing has been successfully completed, the EB-5 investor and any derivative beneficiaries will be granted conditional permanent resident status.

Adjustment of Status

Due to a provision enacted by the 2022 EB-5 Reform and Integrity Act, certain EB-5 investors may be eligible for Concurrent Filing of Forms I-526 and I-485. Specifically, EB-5 investors who are already working and residing in the United States under valid non-resident visas, including the H-1B, E-2 and F-1 visas, may simultaneously file for adjustment of status when filing Form I-526. This will allow the investor to enjoy the benefits of lawful permanent resident status while waiting for their I-526 petition to be adjudicated. However, an EB-5 investor whose country of chargeability is currently subject to visa retrogression would not be eligible for EB-5 Concurrent Filing.

Generally prepared with the guidance of an immigration attorney, Form I-485 has a filing fee of $1,140 and a biometrics service fee of $85.

Consular Processing

Consular processing consists of two parts: filing Form DS-260 and attending an interview at the local U.S. embassy or consulate office. Once their I-526 petition has been approved, the EB-5 investor will be contacted by the National Visa Center and supplied with instructions on the necessary documentation they must provide as well as the scheduling of their interview.

Form DS-260 must be filed separately by the EB-5 investor and each eligible derivative beneficiary. As with Form I-485, an immigration attorney may file the form for the applicant. The interview will determine the EB-5 investor’s admissibility to the United States. The entirety of consular processing generally takes around 6-8 months.