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If an EB-5 applicant is going to marry a U.S. citizen, is it better to stop the EB-5 process or keep it going?

My adjustment of status is currently pending and I have already received my working permit (EAD card). However, I do not have my green card yet since my application has not reached the final application date. (How long will I have to wait? The process seems very slow.) Now, my boyfriend, a U.S. citizen, and I plan to get married. At this point, which is the better option: withdrawing my current I-485 application and reapply for citizenship through marriage or keep my EB-5 application?

Answers

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    Irina Lust

    Immigration Attorney
    Answered on

    You can use your marriage petition as a backup plan in case you experience difficulties removing conditions in the I-829 process.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    I would recommend you not withdraw a currently pending I-485 based on the approved I-526 petition until your I-130/I-485 marriage-based interview. USCIS will ask you to withdraw the pending I-485 based on the approved I-526 petition if your marriage based I-485 is approvable. Both options lead to a conditional permanent residence in the U.S. and you will have to remove conditions to receive a permanent green card in the future.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    If you have a pending adjustment application (fees already paid, I-526 approved, etc.), it may be best to continue your green card processing under EB-5, unless you foresee problems with the I-829 removal of conditional permanent residence process (i.e. due to the project not being able to show jobs created, etc.). Marriage-based processing can always be a back-up if the EB-5 processing becomes problematic.

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    Charles Foster

    Immigration Attorney
    Answered on

    If an EB-5 applicant enters a bona fide marriage with a U.S. citizen, it certainly creates an alternative basis upon which the EB-5 investor can adjust status and obtain Lawful Permanent Residency, or a so-called green card, also on a conditional basis. Since your EB-5 petition has apparently already been approved and you have already filed your Application for Adjustment of Status, it may be faster to wait until that application is adjudicated. If you were to marry and file a new Application for Adjustment of Status, there is no reason to believe that that particularly Application for Adjustment of Status would be adjudicated and approved any sooner. Thus, if your Application for Adjustment of Status has been pending for any significant amount of time, it would most likely be better to simply allow that application to be adjudicated rather than filing a new Application for Adjustment of Status based upon your marriage to a U.S. citizen.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    I would keep both going until one is about to be adjudicated and then withdraw the other.

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    Shenila A Momin

    Immigration Attorney
    Answered on

    Depending on the strength of your EB-5 petition, you can decide which one to keep. Either way, you will be receiving a conditional residency where you will have to remove conditions after 18 months by proving that you are still married or that you have met the requirements of the EB-5 enterprise. Additionally, depending on where you live, most field offices are taking about a year before getting an interview on your marriage case.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    This depends on your priority date. Presently, USCIS is only processing cases from June 15, 2014, for mainland Chinese born applicants. The priority date will likely only advance at the rate of about one week per month so you need to check your priority date. If you marry a U.S. citizen, USCIS may require you to file a new quota exempt immediate relative case, which is likely to be faster, although both will lead to conditional permanent residence status and both will require you to file to remove the conditions on your green card. I would consider re-applying as the spouse of a U.S. citizen.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    No, when you get married, your new husband will be filing another immigration petitioner (I-130) for his new spouse, which could be concurrently filed with I-485. Although the visa numbers are current for U.S. citizen marriage, the I-130 and I-485 processing takes several months. Because you have not been married for at least two years, the permanent residency you will receive will be a conditional residency for two years to make sure that you will stay married and it is bona fide. As visa number availability changes every month, the new October EB-5 category number will be shown in the mid-September visa bulletin. I expect that to move forward. Thus, I expect that your adjustment will be adjudicated faster than the new filing of the I-130/I-485 process. Also, this way, you will avoid paying additional filing fees and attorney fees to prepare and file new applications.

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    Mitch Wexler

    Immigration Attorney
    Answered on

    Green card approval typically comes about 4-8 months after filing the I-485 (adjustment of status). If you already have your EAD work permit, your AOS must have been filed at least 90 days ago. Therefore, your conditional EB5-based green card should come in about 1-5 months or so. You are very close. You have two choices; you (1) do nothing and wait for this green card to come and then file to remove the conditions (I-829) at the end of the 2-year conditional residency window, or (2) withdraw your pending AOS and file for a marriage-based conditional green card. You must then file to remove conditions (I-751) after 2 years. The EB5 conditional green card process was modeled after the marriage-based conditional green card program. Which of these immigration paths are you more confident in? There are also intangible factors to consider, such the weight given to a marriage-based green card application vis-a-vis the relationship itself. I have had clients in the process of marrying U.S. citizens who preferred to get their green card through employment sponsorship or some other way. You can also obtain your EB5-based conditional green card and then, if there is a problem at the I-829 stage, you can always surrender your conditional green card status and re-immigrate though your marriage to a U.S. citizen. This path is a bit cumbersome but it can be managed. The pros/cons should be discussed with competent counsel.

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