By: Joseph Barnett
After a long wait, your Form I-526 petition has been approved. Perhaps you’ve spent the past few years completing your studies, getting your degree, and finding a U.S. employer to sponsor your OPT (and potentially STEM OPT). Or maybe you’ve been stuck working for your H-1B sponsoring employer and looking at the slow movement of EB-2 and EB-3 priority dates. Or coincidentally enough, you had entered the U.S. under ESTA or your B visitor visa for a short-term vacation, and USCIS has finally adjudicated your Form I-526. Since you are in the U.S., you may be eligible to take that next step in the EB-5 process – filing a Form I-485 adjustment of status application to obtain your conditional green card – without returning to your home country to obtain an immigrant visa. Here are five things to know about filing an adjustment of status application under EB-5.
- Visa Availability, “Chart B”, and Cross-Chargeability. You may not file a Form I-485 unless a visa is available in your category, when your priority date (the date USCIS received your Form I-526) is “current”. Visas are allocated by the U.S. Department of State and updated each month under the Visa Bulletin. As of August 2020, an EB-5 visa is available for nationals of every country except mainland-China and Vietnam. Contact a WR attorney to see if you are eligible for other relief if your priority date isn’t current. For example, see if USCIS is accepting applications under the Visa Bulletin’s “Chart B” Dates for Filing. You may also be eligible for “cross-chargeability” if a qualified family member was born in a separate country. For more information on Visa Availability, check out our Q&As.
- Prior Immigration History and the 30/60/90 Day Rule. Don’t be surprised when USCIS looks at your full U.S. immigration history to see if there have been any misrepresentations or inconsistencies between your Form I-485 Application for Adjustment in the U.S., and prior USCIS petitions or DS-160 visa applications. This is critically important for those who recently entered the United States (for example, a B visa for a short-term vacation). Make sure you consult with an experienced attorney before submitting the Form I-485 in order to avoid any claim of misrepresentation. Also note, an ESTA traveler or one who enters through the Visa Waiver Program cannot adjust status; instead, they must return to home country and apply for an immigrant visa at a U.S. Consulate or Embassy.
- Lawful Admission and Maintenance of Status. In general, you are not allowed to file a Form I-485 if you have failed to maintain lawful immigration status since entry into the United States and are not in lawful immigration status on the date of filing. However, there may be relief for those who entered the U.S. without inspection under INA 245(i) based on the existence of an old petition, filed on or before April 30, 2001. Additionally, students who failed to maintain their F visa status would need to get a Form I-539 reinstatement approved prior to being able to file an adjustment.
- Unauthorized Employment. If you violate the terms of your admission (for example, engaging in unauthorized employment, even if just for a day) are ineligible to file a Form I-485. While other employment-based visa categories have exceptions to these rules under INA 245(k), they strictly apply to EB-5 adjustment of status applicants. Unauthorized employment is any service or labor performed for an employer within the United States by an alien who is not authorized by USCIS to accept employment or who exceeds the scope or period of the alien’s employment authorization. Further, the departure and subsequent re-entry of an applicant who was employed without authorization in the United States prior to filing an adjustment application does not erase this bar. Moreover, the filing of an adjustment application itself does not authorize employment; you must submit a Form I-765 and wait for approval of the Employment Authorization Document (on a “Red Combo Card”) prior to beginning employment.
- Conditional Permanent Residents. In general, conditional permanent residents (CPRs) must comply with INA 216 or 216A to remove the conditions on their lawful permanent resident status. However, based on a 1991 decision Matter of Stockwell, USCIS may adjust the status of alien whose CPR status was previously terminated (without an immigration judge affirming USCIS’ decision) if there is a new basis for adjustment, and the foreign national is otherwise eligible, and USCIS has jurisdiction over the adjustment application.
Contact your WR attorney for advice in specific situations.