EB5 Investors in the US Benefit from Concurrent Filing

EB5 Concurrent Filing for immigrant investors in the United States grants significant benefits such as faster Green Card processing, work and travel authorization, and eligibility for out-of-state tuition rates. EB-5 Concurrent Filing was effected after the implementation of the 2022 Reform and Integrity Act (RIA) which promotes transparency and easier processing of EB-5 Visa applications. Filing concurrently enables EB 5 investors and their dependents to remain lawfully in the USA without the need to wait for Form I-526 approval. 

EB 5 Visa investors and their family members must be present in the United States and be on a valid nonimmigrant status to be eligible for concurrent filing. These immigrant investors must also come from countries without visa retrogression to qualify for EB5 adjustment of status concurrent filing. Our article will walk you through the specific advantages and considerations for EB 5 Concurrent Filing, especially if you hold H-1B, L-1, E-2, and F-1 Visas.

What is Concurrent Filing of Adjustment of Status Application for EB5?

Concurrent filing of adjustment of status for EB5 is the process of simultaneously submitting your Form I-526 (Immigrant Petition by Standalone Investor) and Form I-485 (Application to Register Permanent Residence or Adjust Status). EB5 Concurrent Filing of adjustment of status was one of the key changes introduced by the Reform and Integrity Act (RIA) of 2022 which aims to improve program transparency and processing efficiency for immigrant investors. 

Prior to the enactment of the EB-5 Reform and Integrity Act of 2022, foreign investors had to wait for the approval of their Form I-526 or Form I-526E (Immigrant Petition by Regional Center Investor) before filing an adjustment of status (AOS) petition. EB-5 Visa investors in the US would then have to maintain a legal status using a nonimmigrant visa to remain in the United States while awaiting I-526 form approval. 

The opportunity to concurrently file the I-526 and I-485 petitions not only allows EB-5 investors to lawfully stay in the USA while waiting for Green Card approval but also shortens the overall processing time for getting a US EB 5 Visa. Let us look at the significant benefits of filing concurrently for EB5 investors in the USA. 

What are the Benefits of Concurrent Filing for EB5 Investors in the US?

EB-5 Concurrent Filing is particularly helpful for foreign investors and their dependents who are already in the United States and hold nonimmigrant visas such as H-1B, L-1, E-2, and F-1. With concurrent adjustment of status filing, foreign workers gain the freedom to pursue other jobs, businesses, fields, and even entrepreneurship since the USA EB5 Visa does not require employer sponsorship. F1 students are able to stay longer in the U.S. even after graduation as they process their EB-5 applications.

Work and Travel Authorization

You no longer need to wait for your I-526/I-526E petition to be approved before applying for work and travel permits with I 485 concurrent filing. The permits for work and travel authorization need to be requested using separate forms by EB-5 Visa investors filing concurrently. Form I-131 (Application for Travel Document) and Form I-765 (Application for Employment Authorization) can be submitted with your I-485 adjustment of status application for EB5 for faster processing. 

The U.S. Citizenship and Immigration Services (USCIS) processes work and travel permits between 3 and 18 months. You need to wait for the actual Employment Authorization Document (EAD) and Advance Parole document to be issued before you are able to commence legal employment in the US and travel out of the country. Working in the United States without authorization is a violation of your lawful status while leaving the country without a Travel Permit is taken as an abandonment of your adjustment of status (AOS) petition.

Relief from International Tuition Rates

EB 5 Visa investors and their dependents studying in the US are no longer regarded as international students after I485 concurrent filing and are no longer governed by the Student and Exchange Visitor Program (SEVP) or the international student office.  As a result, the EB-5 investor and their qualified family members will no longer be subject to international tuition rates and can be eligible for out-of-state tuition after EB5 concurrent filing of the I-526 and I-485 petitions. Establishing residency in the U.S. state is necessary to be eligible for in-state tuition, and each state has its own requirements for doing so.

Who is Eligible for EB5 Concurrent Filing of Adjustment of Status Application?

EB 5 Immigrant Investor Visa applicants, their spouses, and dependent children who are already present in the United States are eligible for filing concurrently. Immigrant investors applying outside the US are ineligible for EB-5 Concurrent Filing and must wait for I-526 form approval before applying for a Green Card through consular processing. 

Here are the eligibility criteria for EB 5 Concurrent Filing of Adjustment of Status.

  • Lawful status. You and your family need to have lawful nonimmigrant status to apply for AOS concurrently. Foreign nationals who entered the USA under the Visa Waiver Program (VWP) are ineligible for EB5 Concurrent Filing. The Visa Waiver Program (VWP) allows foreign nationals from certain countries such as Australia, Portugal, South Korea, and Chile to enter and stay in the USA for a maximum of 90 days without a visa. 
  • Available immigrant visa number. Applicants from countries such as China and India who are experiencing visa retrogression are ineligible for filing concurrently. Only EB 5 investors with “current” priority dates are able to submit their I-526 and I-485 concurrently.
  • Dual intent. Nonimmigrant visa holders such as H1B and L1 are allowed to apply for a Green Card without violating their status based on the dual intent provision. Other nonimmigrants such as those holding B or F Visas need to wait 90 days after their entry into the USA before I 485 concurrent filing so as not to violate the conditions of their status.

What is the 90-day Rule for USCIS Concurrent Filing?

Generally speaking, for the first 60 days following admission under one of the temporary nonimmigrant visa categories, the U.S. Citizenship and Immigration Services (USCIS) will decline to assess admissibility. USCIS interprets attempts to change immigration status relatively quickly and/or behavior inconsistent with nonimmigrant status within 60 to 90 days as deception or visa fraud and results in a permanent ban on receiving immigration benefits. Therefore, we strongly recommend that EB-5 Visa investors who entered the country on a tourist or student visa have a clear plan to enter, visit, and depart at the moment of arrival to demonstrate nonimmigrant intent.

The U.S. State Department will accept a “changed circumstances” explanation after the 90-day rule if there were particular circumstances that caused the applicant to change their mind after admission and apply for a Green Card. We advise all EB5 investors to apply for AOS concurrent filing only after the 90-day window has passed, and that the “changed circumstances” should be one of expediency or urgency.

Does EB5 Concurrent Filing Secure My Place for a Green Card? 

No, I485 concurrent filing does not secure or “lock in” your place for a Green Card in case EB 5 Visa retrogression occurs for your country. You must wait until your priority date is “current” in order for your EB-5 AOS application to continue processing if it is not approved prior to retrogression. This rule holds true for all immigrant visa petitions regardless of visa category. For investors with current priority dates, now is the best time to avail of concurrent filing benefits especially since USCIS postponed the EB-5 filing fee increase to 2024

Can a Laid-off H1B Worker Concurrently File for EB-5?

Yes, H1B Visa workers who have lost their jobs in the US qualify for EB-5 concurrent filing as long as their nonimmigrant status remains valid. EB5 is the ideal alternative for laid-off H1B workers since there is no need for employer sponsorship to remain in the United States and apply for a Green Card. You can file for your own immigrant petition and AOS application without having to depend on a U.S. employer as an EB-5 investor.

EB5 BRICS Helps Immigrant Investors in the US

We conduct one-on-one meetings with immigrant investors seeking US permanent residency through the EB-5 Visa. CEO and Founder of EB5 BRICS, Vivek Tandon, is a licensed U.S. lawyer and investment banker who works with EB-5 investors and their families in choosing the best investment projects. Schedule a meeting with us to learn more about faster Green Card processing through EB5 concurrent filing in the US.