Should an EB-5 investor with an approved I-526 petition maintain a current nonimmigrant visa?

It would be beneficial for an EB-5 investor with an approved I-526 petition to maintain a current nonimmigrant visa. After being granted approval of Form I-526, the EB-5 investor must either adjust status or undergo consular processing. Generally, adjusting status is less complicated than going through consular processing. Furthermore, if the EB5 investor abandoned their nonimmigrant status, they would be legally obliged to return to their country of origin. At that point, they would have to continue the EB-5 process at their home country’s U.S. embassy or consulate office.

Adjusting Status as a Nonimmigrant Visa Holder

On March 11, 2022, Congress passed into law an omnibus spending package which included an EB-5 reform bill titled the “EB-5 Reform and Integrity Act of 2022”. Amongst the many changes included, concurrent filing is one that would certainly benefit EB-5 investors who already hold nonimmigrant status in the United States. Specifically, EB5 investors with any of the following visas are eligible to simultaneously adjust status to conditional permanent resident while filing Form I-526: E-2, F-1, H-1B, or L-1. Concurrently filing Forms I-526 and I-485 allows EB5 investors with nonimmigrant status to be granted immediate work authorization and avoid having to undergo consular processing. Furthermore, under the new Reform and Integrity Act, EB5 investors can now benefit from not being held accountable for up to 180 days of status violations when filing Form I-485.

Consular Processing

If the EB-5 investor were to abandon their nonimmigrant status, they would no longer be eligible to adjust status and will likely be required to return to their home country and undergo consular processing there. Consular processing involves filing Form DS-260, Immigrant Visa Electronic Application, and attending an interview at the applicant’s home country’s U.S. embassy or consulate office. The EB5 investor will also likely be required to attend a biometrics appointment.

It is naturally simpler to remain in the United States during the entirety of the EB-5 process. Therefore, if an EB-5 investor currently holds a nonimmigrant visa, it is important to take the necessary steps to successfully maintain status.