Can a person file both EB-2 and EB-5 petitions, and if so, which should be filed first?

An individual can file both EB-2 and EB-5 petitions simultaneously without any issues. All foreign nationals who seek to immigrate to the United States are permitted to file and have multiple pending immigration petitions.

The order of submission for the two visa applications is inconsequential. In terms of the order in which the petitions will be processed, United States Citizenship and Immigration Services (USCIS) will adjudicate the petitions based on the applicant’s country of chargeability.

Country of Chargeability

In U.S. immigration terminology, an individual’s country of chargeability is defined as the country of their origin. Typically, one’s country of chargeability is determined as being the country of birth.

EB-2 Visa: First Petition

The first petition that needs to be filed for the EB-2 visa is Form I-140, Immigrant Petition for Alien. This petition needs to be filed by the prospective applicant’s sponsoring employer, who must also pay the filing fee. Processing and adjudication generally takes 1-2 years. After approval, the applicant must wait for a visa to become available. To qualify for an EB-2 visa, the applicant must hold an advanced degree, have exceptional ability, or have a national interest waiver.

EB-5 Visa: First Petition

The first petition that needs to be filed for the EB-5 visa is Form I-526. The prospective EB-5 investor must prove that they have made a minimum investment into a qualifying new commercial enterprise, amongst other requirements.

If the individual is pursuing both EB-2 and EB-5 visas at the same time, they must disclose the exact same information in both initial petitions. If the applicant were to provide information in one application that deviated significantly from material in the other application, USCIS may suspect fraud during adjudication. Moreover, if both initial petitions are approved by USCIS, the applicant must make a decision on which visa, EB-2 or EB-5, to further proceed with. In either event, they will need to either adjust status or undergo consular processing.

All applicants are highly encouraged to seek counsel from an experienced immigration attorney who can advise on the application processes for EB-2 and EB-5 visas, and the respective benefits based on the applicant’s unique situation.