Overview:
You’re in a rare and strong position, with early-ish EB-2 priority date, and while it’s not yet current, it may become available soon. [1] At the same time, you may benefit from the flexibility and protection offered by EB-5, especially through Rural or High-Unemployment Area (HUA) EB-5 projects that currently allow for concurrent adjustment of status (AOS) for you, your spouse, and any unmarried children under 21 years old. This strategy allows you to maximize work flexibility now and provide a back-up option to remain In the U.S. after a potential layoff, while keeping EB-2 as your primary route to a green card.
What This Means for You
- Unrestricted Work Authorization: Get EAD through EB-5 AOS in ~3–8 months.
- Travel Flexibility: Travel internationally and re-enter using valid H visas or with EB-5 AOS AP while EB-2 is pending.
- Dual Green Card Paths: Use whichever becomes available faster (depending on priority dates).
- Status Protection: EB-5 AOS covers you if H-1 extensions not approved.
- Child Age-Out Coverage: EB-5 offers additional protection for child age-outs.
- Backup Security: If EB-2 hits delays, EB-5 remains viable.
Step-by-Step Strategy
- File EB-5 I-526E and First I-485 Now, While Current in Visa Bulletin
- Allows you to file I-485 concurrently and to obtain an Employment Authorization Document (EAD, unrestricted work permit) and Advance Parole (AP, or travel authorization) within a few months.
- You do not need to maintain H-1B or other nonimmigrant status while the I-485 is pending, but doing so provides most flexibility while your EB-2 date remains backlogged.
- Use EAD and AP as back-up option.
- Travel and Re-enter Using H-1B or Advance Parole
- If you maintain underlying nonimmigrant visas status, can apply for new H visa stamps at consulates abroad because H visas are “dual Intent”.
- If you do not maintain underlying nonimmigrant visa status, can use AP to re-enter the U.S. lawfully — and this counts as a valid “admission” for immigration purposes.
- When EB-2 Becomes Current: File a Second I-485
- Once your EB-2 priority date is current, you can file a new I-485 based on that petition, if maintaining nonimmigrant visa status or after entry through EB-5 AP.
- Since EB-2 and EB-5 are different green card categories, it’s permissible to file both.
- You can then proceed toward your green card through the faster EB-2 path.
- If you used your EB-5 EAD, are no longer maintaining nonimmigrant visa status and have not re-entered with advance parole, you may need to obtain EB-2 green card through consular processing, or possible with a transfer of underlying basis.
- Transition to EB-2
- You can file new EAD/AP applications under the EB-2 case.
- Once your green card is approved through EB-2, we can discuss withdrawing the EB-5 I-485 (but you can keep the EB-5 investment/petition alive, if desired, as a long-term option or backup).
Important Considerations
- Leaving the U.S. before issuance of Advance Parole will result in denial of Form I-131 due to be considered abandoned.
- Unless you continue to enter on H or L “dual-intent” visa, you must always reenter the U.S. using Advance Parole while your EB-5 I-485 is pending. Entering with another visa could cause the Form I-485 to be considered abandoned.
- While H-1B status can be extended with an approved Form I-140, it cannot with EB-5.
- Your EAD/AP are tied to the EB-5 AOS until you file a second AOS under EB-2. We’ll manage this transition carefully.
- It is possible to switch to an EB-2 green card after receiving an EB-5 green card, but it requires you to voluntarily abandon EB-5 before pursuing consular processing for an EB-2 immigrant visa.
- Once you have a green card through EB-2, your EB-5 petition remains valid as long as you maintain your investment and job creation requirements.
WR Immigration is a full-service immigration law firm known worldwide for its unmatched excellence in providing top-quality U.S. immigration representation. To schedule a consultation to discuss your case, please contact us here.
LEGAL DISCLAIMER: This flyer is intended for general information purposes only and does not constitute legal advice. You should not act or rely on any information in this flyer without seeking the advice of a competent, licensed immigration attorney.
