The threat of long visa waiting lines for Indian nationals has prompted many to look more closely at the EB-5 Program for lawful permanent residence through a qualifying EB-5 investment.
In particular, some applicants chargeable to India are seeking to obtain Form I-526 approval before the U.S. Department of State (“DOS”) imposes a Final Action Date (i.e. a Visa Bulletin cutoff date), which DOS has informally projected will occur by the Summer of 2019 but probably will occur sooner, potentially in April or May 2019 due to the likely self-fulfilling forecast. Once established, only those Indian nationals with approved Form I-526s with priority dates before the imposed Final Action Date will be able to move forward to the next stage of the EB-5 process.
Yet, for those lawfully in the U.S. who obtain Form I-526 approval before a Final Action Date is imposed, there is a “red card” solution (also known as a “combo card”) that allows such immigrant investors the right to work and travel when approved about 4-6 months after the filing of a Form I-485.
This has become a popular option in the past couple years, as shown with the increased number of pending EB-5 Form I-485s. This data is consistent with the information that Mr. Charles Oppenheim, Chief, Immigrant Visa Control and Reporting at DOS, shared in April 2018 at the IIUSA EB-5 Advocacy Conference in Washington D.C., which indicates a rising percentage of EB-5 number use by those in the U.S.
When EB-5 visa backlogs first started in 2015, Wolfsdorf Rosenthal LLP was able to file adjustments with USCIS allowing the use of Chart B, Date for Filing, to file Form I-485s. See November 2015 Visa Bulletin showing Chart B Date For filing of May 1, 2015, whereas the Final Action date was November 22, 2013
Unfortunately, Chart B does not seem to be available for employment or investor based cases anymore. Unless otherwise indicated on the U.S. Citizenship and Immigration Services (USCIS) website, individuals seeking to file applications for adjustment of status with must use the “Final Action Dates” charts for determining when they can file such applications.
Our firm was able to secure “red combo cards” for numerous EB-5 clients in 2015 when USCIS did allow persons with approved EB-5 I-526 petitions to file their I-485 adjustments and many of their respective Form I-485s still remain pending with USCIS. Additionally, the combo card can be renewed for as long as the adjustment remains pending.
So, if an Indian national can obtain I-526 approval through expedited processing prior to a “Final Action Date” being imposed, it is possible to obtain a Red Card and be able to work in the U.S. without being tied to an employer. While there is evidence that some immigrant investors have received expedited I-526 approvals due to investments in EB-5 projects that meet USCIS’ criteria, there is no assurance that this will continue. Furthermore, the expedite criteria is extremely restrictive, and economic loss alone is not ordinarily acceptable, so this should be a careful consideration prior to making an investment decision. But, depending on an investor’s risk tolerance, both in the immigration and financial sense, it is an available option for those who seek to qualify for a Red Card.