When is an EB-5 investor able to legally work in the United States?

After an investor’s I-526 petition is approved, they may apply for a conditional green card. The application process depends on where the investor is residing at the time of I-526 approval. Those outside the United States go through consular processing, while those inside the country file Form I-485 for adjustment of status. Upon receiving a conditional green card, an investor can live and work anywhere in the United States.

It is possible for an EB5 investor to obtain employment authorization in the United States before receiving a conditional green card. To do so, one must file Form I-765, Application for Employment Authorization. This can either be filed alongside or separate from Form I-485. If filing separately, it must be based on a pending I-485 petition; it cannot be filed before an investor applies for adjustment of status.

If filing Form I-765 as part of the green card application, an investor only needs to include two passport sized photos with their completed form. Investors can still apply for work authorization after submitting Form I-485. This can be done by filing Form I-765 with a copy of the notice that the initial green card application was received by United States Citizenship and Immigration Services (USCIS). In general, it takes about 5 to 7 months for USCIS to process Form I-765. However, this largely depends on the processing center the package is sent to. In comparison, Form I-485 typically takes much longer to process.

To legally work in the United States before applying for an EB5 visa, investors can apply for a visa that is authorization within itself, such as the H-1B or L-1 visa. Holders of such nonimmigrant visas are permitted to live and work in the United States while pursuing the EB5 program. However, investors must be aware that certain nonimmigrant visas are single intent, meaning the holder must demonstrate an intent to leave the United States upon visa expiration. This can cause issues for those wishing to pursue the EB5 program, because program participation indicates an intent to immigrate.