Can Form I-140 be filed for an EB-5 investor with a pending I-526 petition?

Foreign nationals may pursue multiple immigrant visas simultaneously. Therefore, an EB-5 investor with a pending I-526 petition can file Form I-140. However, if both petitions are approved, only one can be used as the basis for the I-485 adjustment of status application.

After an EB5 investor files their I-526 petition, they must wait for adjudication. Once approved, the investor is eligible for a conditional green card, but they must wait for an available visa before filing Form I-485. If an investor files and receives approval of Form I-140 at some point during this process, they must decide which form they will use as the basis for the I-485 petition. Although there is no restriction on having multiple pending immigrant visa petitions at the same time, this does not apply to applications for adjustment of status. Any foreign national in this situation should weigh their options carefully to determine which visa they will pursue.

Form I-140, Immigrant Petition for Alien Worker, is filed to United States Citizenship and Immigration Services (USCIS) to petition a foreign national for employment-based permanent residence. Typically, it is filed by a U.S. employer, and is done in the case of workers deemed extraordinary or when qualified workers do not exist in the United States. Form I-140 is integral to obtaining a visa through the EB-1, EB-2, and EB-3 categories. Pursuing a visa through Form I-140 also presents a considerable advantage over doing so with the I-526 petition. After I-526 petition approval, an EB5 investor must then file Form I-485 to receive a two-year conditional green card. During this time period, the applicant must ensure their EB5 investment meets USCIS regulations before filing for a permanent residency green card. In contrast, a worker petitioned by Form I-140 can apply for permanent residency upon approval; they are not required to first obtain a conditional green card.