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When should the derivatives of an EB-5 investor file Form I-485?

It is recommended that the principal EB-5 visa applicant and all derivatives file their Form I-485—Application to Register Permanent Residence or Adjust Status—at the same time. If a derivative family member chooses not to file at the same time as the principal applicant, they have up to six months after the principal applicant receives their green card to file. Most visas are only valid for that timeframe. Beyond that, the derivative family member will need to begin the follow-to-join process. This can be accomplished by filing Form I-824—Application for Action on an Approved Application or Petition.

Derivative Beneficiaries

The EB-5 visa process allows the immediate family of an EB-5 investor—their spouse and minor children under the age of 21—to also receive permanent resident status upon adjudication of Form I-526E. Derivative beneficiaries are only able to receive permanent resident status by way of their connection to the primary applicant which, in the case of the EB-5 visa, is the EB-5 investor.

When to File Form I-485

There are two dates that can be considered when determining when to file for adjustment of status. If United States Citizenship and Immigration Services (USCIS) determines that the number of visas available exceeds that of the known applicants for such visas, the agency will state that the “date for filing” may be used. Otherwise, the “final action date” should be used. To find out the most up to date information, EB-5 investors should read the visa bulletin that the U.S. Department of State publishes monthly.

Concurrent Filing

Investors who currently reside in the United States with a nonimmigrant visa—such as H-1B—are eligible to file Form I-526E and Form I-485 concurrently. This is thanks to the industry changes brought on by the EB-5 Reform and Integrity Act of 2022. Since the window to apply for adjustment of status is time-sensitive, it is in the investor’s best interest to contact an EB-5 industry professional—such as an immigration attorney—for guidance.

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