By Joey Barnett
If you have questions regarding the following information, WR Immigration will be hosting a webinar on the 5 Critical EB-5 Investor Concurrent Filing Adjustment of Status Issues. For more insight on this topic, register for the webinar here!
EB-5 green card investor rules permit certain nonimmigrants who entered with visas to file concurrent Adjustment of Status (AOS) to lawful permanent residence without having to wait until the investor petition is approved. Investors have quickly learned of this monumental change and more than half of all cases filed since the new Reform and Integrity Act (RIA) have filed concurrently. The main advantage is that after a few months, USCIS will issue 5-year combination cards with both unlimited work and travel authorization. An EB-5 investment of $800,000 into a regional center project is an excellent way to open the door to the American Dream for investors and their families.
Concurrent filing explained:
Certain EB-5 investors in the U.S. who entered lawfully on valid non-immigrant visas may now file both the EB-5 petition (Form I-526E) and the Adjustment Application (Form I-485) together, but ONLY, if a visa is available under Chart A (Final Action Date) or chart B (Date for Filing) if USCIS permits Chart B filings for that month. See Visa Bulletin.
Chinese and Indian Applicant Warning
With all other numerically controlled visa categories backlogged (EB-2/3/4 & FB1,2A/B,3,4) for China and India, there is presently a window of only a few months for Chinese and Indian investors to file concurrent AOS applications. This is not because of an abundance of visas, persons filing now are already behind and may already be subject to backlogs but these may be acceptable backlogs and who cares if one has the 5 year renewable right to work, travel or setup businesses anyway via the critical combination card?
As stated more than half of EB-5 investors have already filed via Concurrent Filing, that is over 3,000. Previously investors would need to wait months or years until their EB-5 I-526 petitions were approved before applying for Adjustment and getting combo cards. Now, with the Visa Bulletin current for all EB-5 reserved visa categories, most applicants are filing in the United States for themselves and their eligible family derivative beneficiaries.
Five key aspects of concurrent AOS for EB-5 investors.
1. Biggest Benefit of Concurrent Filing for EB-5 Investors. The biggest benefit of concurrent AOS filing is that investors can apply for an employment authorization document (Form I-765) and advanced parole (Form I-131) while their I-485 is pending. This allows them to work, study, open businesses and travel internationally. Concurrent filing allows investors to remain in the U.S. while the AOS is being processed, even if their underlying non-immigrant status expires or is terminated. Furthermore since EB-5 now has Section 245(k) protection one can concurrently file an AOS up to 180 days AFTER the nonimmigrant status has expired. Note while section 245(k) may excuse up to 180 days of being out of status or engaging in unauthorized employment, the adjustment will be denied if their visa status expired 181 days prior or they worked 181 days prior to obtaining the combo card. Please wait for your combo card.
Concurrent filing is particularly advantageous to those who are already in the U.S. on nonimmigrant visas such as H-1B, F-1, L-1, O-1 or E-2 visa who wish to avoid the delay of consular processing abroad. Visa waived applicants other than Canadians may not do concurrent filing. All visa applicants must enter with the intent and plan to follow their visas. Students must plan to study, visitors must have legitimate intent to visit or travel. The law does allow visitors to change that intent but only a few months, preferably more than 90 days after entry. Visitors may be questioned later while entering on advance parole as to why they changed their mind from tourist to immigrant. For those who entered with valid tourist intent, they should be re-admitted.
WR immigration has already obtained several adjustment approvals without in-person interview. A huge additional benefit is that filing the Form I-485 by a derivative child “locks in” a child’s age in accordance with USCIS’ current Child Status Protection Act policy provided the I-526E is approved. If a 20 year old child is abroad, that child should also be able to be protected by including form I-824 for following to join derivatives.
2. Risks and Challenges. While the concurrent AOS process provides huge advantages over consular processing, it’s important to weigh the risks associated with this strategy. One such risk is if the investor’s I-526E petition is denied, the pending AOS will also be denied. Usually USCIS will provide up to 60 days after the I-526E petition is denied to file an appeal. In the event of an I-526E denial, the investor should seek to recover their investment immediately and then re-invest in a new I-956F approved project. If investors act while the advance parole is valid, they should be able to file a new I-526E petition and adjustment of status AOS, but again, be sure to not work or travel without a valid combo card. In most cases where there is no valid underlying status, this process can be tricky. An I-526E denial in these cases puts the investor at risk of losing lawful status in the U.S. if they are not maintaining their non-immigrant visa status. As such, it’s critical to have experienced counsel prepare the I-526E petition which must be supported by strong evidence of the lawful source of investment funds, and the EB-5 project’s Form I-956F application must be approvable. WR immigration has now successfully prepared and filed hundreds of post-RIA petitions and adjustments and is achieving excellent results for its clients. It is also very critical to consider issues of immigrant intent when entering the U.S. on non-immigrant visas. The November 2024 elections may bring restrictive policy changes to U.S. Citizenship and Immigration Services (USCIS).
3. Visa Bulletin Retrogression and Final Action Dates. EB-5 investors from China and India are again cautioned regarding visa retrogression, meaning that even though were eligible to concurrently file AOS, their I-526E priority date may not be current when the Form I-526E is approved. When a Final Action Date is imposed before an investor’s I-526E priority date, the concurrent AOS cannot be approved by USCIS (though, during this time, EADs and APs can be extended indefinitely while the AOS remains pending). Moreover, applicants who marry non-immigrant cannot add their spouses or even minor children after the visa priority date has retrogressed. It’s advisable to consider the risks associated with using an EAD versus maintaining non-immigrant status with a qualified immigration attorney. In brief, it’s always better to maintain H-1B or F-1 status until the Form I-526 is approved.
4. Use of Advance Parole While Adjustment of Status is Pending, or After Denial, and the Cronin Memo. We are often asked about using an advance parole (AP) travel document, instead of an H-1B or L-1 visa, to re-enter the United States while the AOS is pending, and the associated risks. The Cronin Memo is USCIS’ current controlling policy and provides guidance for those dual intent H-1 or L-1 non-immigrants who have traveled abroad and been paroled into the United States using their AP. While a foreign national who was an H-1 or L-1 non-immigrant and was paroled may apply for an extension of H-1 or L-1 status, if there is a valid and approved petition, technically, until that extension is approved, the foreign national is no longer in H-1 or L-1 status. Additionally, dependents will be unable to be admitted in H-4, or L-2 (work authorized) non-immigrant status. The biggest advantage of re-entering with H-1B status is the retention of lawful non-immigrant status in the event the AOS is denied. Finally, re-entering on the non-immigrant visa will trigger Section 245(k) protection again, but entry with AP will not because it is not considered an “admission”. Section 245(k) permits breaches of status of up to 180 days since the “last entry”.
5. Successful EB-5 Outcomes. EB-5 is a complex multi-faceted decision involving family, immigration, financial, tax, and estate planning and requires an experienced immigration attorney who acts as the “genral manger” or quarterback and understands the nuances of EB-5 law and policy. While the ability to file for concurrent adjustment of status as an EB-5 investor is an exciting opportunity that can offer flexibility and quicker access to green card benefits, it’s not without risks. A well-prepared I-526 petition, careful attention to visa availability, and maintaining valid non-immigrant status are key strategies for minimizing those risks. We would be pleased to have you join the hundreds of satisfied WR Immigration client investors.
If you have questions please reach out for a free consultation. With decades of experience, we here to help you navigate this process. Contact WR partner Joey Barnett at WR Immigration for more information or to schedule a consultation.
